Filed 10/5/20 P. v. Davis CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B297734
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA103093)
v.
MARK DAVIS et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County. John J. Lonergan, Jr., Judge. Affirmed.
Spolin Law and Aaron Spolin for Defendant and Appellant
Mark Davis.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant Deontra Evans.
Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey, Chief
Assistant Attorney General, Idan Ivri and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Mark Davis and Deontra Evans (Appellants) appeal from
post judgment orders denying their Penal Code section 1170.951
petitions to vacate their murder convictions and to be
resentenced on the remaining counts. Because a jury found true
they each intended to kill the victims, they are ineligible for relief
under section 1170.95, which was enacted to ensure that murder
liability is not imposed on a person who did not act with the
intent to kill. (Stats. 2018, ch. 1015, § 1(f); People v. Martinez
(2019) 31 Cal.App.5th 719, 723 (Martinez).) We affirm the
orders.
BACKGROUND2
Appellants were members of the Raymond Avenue sect of
the Crips (Raymond). On July 25, 2008, Appellants and two
other Raymond members had an altercation with members of the
87 Gangsters, a different sect of the Crips. About midnight,
members of Raymond and the 87 Gangsters congregated on
opposite sides of Laconia Boulevard, in territory claimed by
Raymond, appearing ready to fight and announcing their
respective gang affiliations.
Davis approached G.P., a member of the 87 Gangsters, put
a gun to his neck, and threatened to kill him. Davis also
threatened two other members of the 87 Gangsters with the gun,
repeatedly ordering them out of Raymond territory. Davis then
gave the gun to Alajonon Reed, who fired at the group of 87
1 All further section references are to the Penal Code.
2 The facts of the underlying crimes and proceedings are
taken from our unpublished opinion, People v. Evans (Dec. 16,
2011, B224076) [nonpub. opn.].
2
Gangsters. Reed hit Raymond Requena, who died of multiple
gunshot wounds. Both groups fled after the shots were fired.
While fleeing with Davis and Reed, Evans turned around, shot in
the direction of the 87 Gangsters, and told them to get out of his
neighborhood. Meanwhile, G.P. was in a car with two other
members of the 87 Gangsters, Daniel Johnson and N.L. Davis,
Reed, and Evans shot at the car and hit Johnson, killing him.
Davis, Evans, and Reed3 were jointly tried and convicted of
the murders of Requena and Johnson, along with multiple other
charges. Of relevance to this appeal, the jury found Davis guilty
of first degree murder as to both victims but found Evans guilty
of first degree murder as to Johnson and second degree murder
as to Requena. The jury also found true the special circumstance
allegation attendant to each murder charge that Appellants
intended to kill the victims pursuant to section 190.2, subdivision
(a)(22).4
Evans was sentenced to two consecutive life terms without
the possibility of parole plus an additional term of 50 years to life.
Davis was sentenced to an indeterminate term of two consecutive
3 Reed is not a party to this appeal.
4 Section 190.2 sets forth the special circumstances under
which murderers and accomplices can by punished by death or
life without possibility of parole. One such circumstance is when
a defendant “intentionally killed the victim while the defendant
was an active participant in a criminal street gang, as defined in
subdivision (f) of Section 186.22, and the murder was carried out
to further the activities of the criminal street gang.” (§ 190.2,
subd. (a)(22).)
3
life terms without the possibility of parole plus two terms of 25
years to life and a determinate term of 39 years eight months.
In their initial appeal, Appellants challenged, among other
things, the sufficiency of the evidence to support their murder
convictions and the special circumstance finding they had the
intent to kill under section 190.2, subdivision (a)(22). We found
sufficient evidence to support the jury’s findings and affirmed
their convictions. (People v. Evans, supra, B224076, at [pp. 7–
11].)
In 2019, Appellants each filed a petition pursuant to
section 1170.95, seeking to have his murder conviction vacated
and to be resentenced on the ground he had been convicted of
murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine. Appellants also sought
appointment of counsel. The trial court appointed counsel and
the People responded to both petitions.
Before the time expired for appointed counsel to file their
replies, the trial court denied both petitions. It held section
1170.95 violated the California Constitution, violated the
separation of powers doctrine, and impermissibly amended
Proposition 7 and Proposition 115. Additionally, the trial court
determined Appellants were not entitled to relief as a matter of
law. The court based its decision on our determination in the
initial appeal that sufficient evidence supported a finding
Appellants aided and abetted both murders. The court further
found Appellants were each a major participant in the crime who
acted with reckless indifference to human life.
Appellants timely filed notices of appeal.
4
DISCUSSION
Appellants separately challenge the trial court’s denial of
their petitions. Evans argues the trial court erred when it failed
to allow him an opportunity to file a reply to the People’s
response, relied on materials outside the record of conviction, and
applied the felony murder “reckless indifference” and “major
participant” analysis in a non-felony murder case. Davis argues
insufficient evidence supports the trial court’s findings that he
aided and abetted the murders and was a major participant in
them.
We find no reversible error. The jury found true as to each
murder count the special circumstance allegation under section
190.2, subdivision (a)(22) that Appellants acted with the intent to
kill the victim. Appellants are thus not entitled to relief under
section 1170.95 as a matter of law.
In making this determination, we do not address
Appellants’ challenges to the trial court’s determination that
section 1170.95 violates the California Constitution, violates the
separation of powers doctrine, and impermissibly amends
Proposition 7 and Proposition 115, as the Attorney General
concedes them.
I. Resentencing Under Section 1170.95
The Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437) in 2018 to “amend the felony murder rule
and the natural and probable consequences doctrine, . . . to
ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015,
§ 1(f).) SB 1437 amended section 188 to require that a principal
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“shall act with malice aforethought. Malice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
SB 1437 “did not, however, alter the law regarding the
criminal liability of direct aiders and abettors of murder because
such persons necessarily ‘know and share the murderous intent
of the actual perpetrator.’ [Citations.] One who directly aids and
abets another who commits a murder is thus liable for murder
under the new law just as he or she was liable under the old law.”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review
granted on different grounds Mar. 18, 2020, S260598 (Lewis).)5
As a result, a defendant is ineligible for relief under section
1170.95 if his murder conviction is predicated on a finding he had
malice aforethought or the intent to kill. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 333, review granted on a different
ground Mar. 18, 2020, S260493 (Verdugo);6 see also Martinez,
supra, 31 Cal.App.5th at p. 723.)
5 In Lewis, “[t]he issues to be briefed and argued are limited
to the following: (1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section
1170.95? (2) When does the right to appointed counsel arise
under Penal Code section 1170.95, subdivision (c)?” (People v.
Lewis (Mar. 18, 2020, S260598) __ Cal.5th __ [2020 Cal.Lexis
1946, at p. *1].)
6 The high court granted review in Verdugo but deferred
further action “pending consideration and disposition of a related
issue in [Lewis].” (People v. Verdugo (Mar. 18, 2020, S260493)
___Cal.5th ___ [2020 Cal.Lexis 2057, at p. *1].)
6
SB 1437 also added section 1170.95, which sets forth the
procedure by which a “person convicted of felony murder or
murder under a natural and probable consequences theory may
file a petition with the court that sentenced the petitioner to have
the petitioner’s murder conviction vacated and to be resentenced
on any remaining counts . . . .” (§ 1170.95, subd. (a).) To file the
petition, all three of the following conditions must be met:
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial . . . . [¶]
(3) The petitioner could not be convicted of first or second degree
murder because of changes to [s]ection 188 or 189.” (Id., subd.
(a)(1)–(3).) The petition shall include a declaration stating that
“he or she is eligible for relief under this section” based on the
three requirements of subdivision (a). (§ 1170.95, subd. (b)(1)(A).)
Once a complete petition has been filed, “[t]he court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. . . . If the petitioner
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.” (§ 1170.95, subd.
(c).) Once an order to show cause is issued, a hearing is held to
determine whether to vacate the murder conviction, recall the
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sentence, and resentence the petitioner on any remaining counts.
(Id., subd. (d)(1).)
II. The Trial Court Properly Denied Appellants’
Petitions Because They Were Not Entitled To Relief
as a Matter of Law
The trial court properly denied Appellants’ petitions for
resentencing. The jury found they each intended to kill the
victims pursuant to section 190.2, subdivision (a)(22). Relief
under SB 1437 is limited to those defendants who did not act
with the intent to kill, as well as those who are not the actual
killer and are not a major participant in the underlying felony
who acted with reckless indifference to human life. (Stats. 2018,
ch. 1015, § 1 (f); Martinez, supra, 31 Cal.App.5th at p. 723.)
In our prior opinion, we determined sufficient evidence
supported the jury’s finding that Appellants acted with the intent
to kill. As to Davis, we noted he held a gun to G.P.’s neck,
threatening to kill him and two other members of the 87
Gangsters. Additionally, Davis handed a gun to Reed in the
midst of a gang confrontation. We concluded these facts
supported a finding of intent to kill. The fact that Davis’s threats
ultimately were carried out by his fellow gang members did not
show Davis lacked the intent to kill. As to Evans, we concluded a
reasonable jury could have inferred an intent to kill from his act
of shooting directly at the 87 Gangsters. (People v. Evans, supra,
B224076, at [pp. 9–11].)
A Court of Appeal opinion and a jury’s findings in the
underlying trial may be considered by the trial court in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95 or whether
he is ineligible for relief as a matter of law. (Verdugo, supra,
8
44 Cal.App.5th at p. 333, review granted, see ante fn. 6; People v.
Torres (2020) 46 Cal.App.5th 1168, 1178, review granted June 24,
2020, S262011.) Because Appellants each acted with intent to
kill the victims, they are ineligible for relief as a matter of law.
(Verdugo, at p. 333.)
Davis contends he was convicted of murder based on a
natural and probable consequences theory, which renders his
convictions subject to vacatur under SB 1437. While Davis
acknowledges the jury found he intended to kill the victims, he
would have us ignore this finding. We decline to do so.
Evans challenges the trial court’s decision on procedural
grounds, asserting the trial court erred when it failed to allow
defense counsel to file a reply brief before summarily denying his
petition. We are persuaded by the cases interpreting section
1170.95, subdivision (c) to permit a trial court to summarily deny
a petition without appointment of counsel when the defendant
fails to make a “prima facie showing that he [or she] ‘falls within
the provisions of’ the statute.” (Lewis, supra, 43 Cal.App.5th at
p. 1137, review granted; Verdugo, supra, 44 Cal.App.5th 320, 328,
review granted; see also People v. Cornelius (2020) 44
Cal.App.5th 54, 58, review granted, Mar. 18, 2020, S260410;
People v. Tarkington (2020) 49 Cal.App.5th 892, 896, review
granted Aug. 12, 2020, S263219.)
Evans asserts these cases are wrongly decided. The
ultimate decision lies with the Supreme Court, which has
granted review on these issues, see ante footnotes 5 and 6.
Subject to the Supreme Court’s decision, we agree with Lewis and
the concurring cases. (Cal. Rules of Court, rule 8.1115(e)(1)
[opinions pending review have “no . . . precedential effect, and
may be cited for potentially persuasive value only.”].)
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Nevertheless, even if the trial court should have allowed
counsel to file a reply brief before making its decision, any error
was harmless. A trial court’s error, if any, in failing to appoint
counsel to a defendant or denying a defendant’s petition for
resentencing under section 1170.95 is subject to harmless error
analysis. (People v. Law (2020) 48 Cal.App.5th 811, 826
[applying harmless beyond a reasonable doubt standard under
Chapman v. State of California (1967) 386 U.S. 18, 24].) Given
the jury’s specific finding of intent, counsel would not have been
able to demonstrate in a reply brief that Evans was entitled to
relief under section 1170.95. We likewise find harmless any error
stemming from the trial court’s alleged reliance on materials
outside the record of conviction.
We also reject Evan’s last contention that the trial court
erroneously applied the felony murder “reckless indifference”
and “major participant” analysis in a non-felony murder case.
As discussed above, Appellants were not entitled to relief as a
matter of law due to the jury’s intent finding. That the trial court
may have denied the petitions for resentencing on an alternative,
erroneous ground is not reason for reversal. “ ‘No rule of decision
is better or more firmly established by authority, nor one resting
upon a sounder basis of reason and propriety, than that a ruling
or decision, itself correct in law, will not be disturbed on appeal
merely because given for a wrong reason. If right upon any
theory of the law applicable to the case, it must be sustained
regardless of the considerations which may have moved the trial
court to its conclusion.’ ” (D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 19; see People v. Smithey (1999)
20 Cal.4th 936, 971–972.)
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DISPOSITION
The orders summarily denying Appellants’ petitions for
resentencing under section 1170.95 are affirmed.
BIGELOW, P. J.
We Concur:
GRIMES, J.
WILEY, J.
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