Filed 10/22/20 P. v. Patterson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304750
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA142937)
v.
DONTE QWAN PATTERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________
Donte Qwan Patterson appeals from a postjudgment order
summarily denying his petition for resentencing under Penal
Code section 1170.95.1 No arguable issues have been identified
by Patterson’s appointed appellate counsel following her review
of the record or by Patterson in his supplemental letter brief to
this court. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury in 1998 convicted Patterson of first degree murder
(§ 187, subd. (a); count 1) and conspiracy to commit murder
(§§ 182, subd. (a)(1), 187; count 2). The jury found true as to both
counts the special circumstance the murder was intentional and
was committed by discharging a firearm from a vehicle with the
intent to kill (§ 190.2, subd. (a)(21)). The jury also found true as
to count 1 a principal was armed with a firearm (§ 12022,
subd. (a)(1)). The trial court sentenced Patterson on count 1 to
life imprisonment without the possibility of parole plus one year
for the firearm enhancement. The court imposed a concurrent
term of life imprisonment without the possibility of parole on
count 2. We affirmed Patterson’s conviction on appeal. (People v.
Patterson (Jan. 2, 2000, B119983) [nonpub. opn.] (Patterson I).)
On July 12, 2019 Patterson, representing himself, filed a
form petition/declaration in superior court to vacate his
conviction and to be resentenced in accordance with recent
statutory changes relating to accomplice liability for murder.
Patterson requested, and the superior court appointed, an
attorney to represent Patterson.
1 Statutory references are to this code.
2
The People filed a response to the petition in which they
argued section 1170.95 was unconstitutional and did not apply to
Patterson because the jury found true the murder was committed
with the intent to kill, not based on a theory of felony murder.
On November 7, 2019 the superior court summarily denied the
petition for resentencing, finding Patterson ineligible for relief
under section 1170.95 because “the evidence reflects that he was
not prosecuted under a doctrine involving the felony murder rule
[or] the natural and probable consequences theory.”2 On
February 7, 2020 the court denied Patterson’s motion for
reconsideration. Patterson timely appealed.
DISCUSSION
1. Senate Bill No. 1437 and the Right To Petition To Vacate
Certain Prior Convictions for Murder
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended
the felony murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder through
amendments to sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.”
2 The trial court also found as an independent basis for
denying relief that section 1170.95 is unconstitutional. We do not
reach this alternative ruling.
3
New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that the
individual is liable for murder “only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.”
Senate Bill 1437 also permits, through new section 1170.95,
an individual convicted of felony murder or murder under a
natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. The petition must include a declaration by the
petitioner that he or she is eligible for relief under this section,
the superior court case number and year of the petitioner’s
conviction and a statement whether the petitioner requests the
appointment of counsel. (§ 1170.95, subd. (b)(1); see People v.
Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted
March 18, 2020, S260493 (Verdugo).)3
3 The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
4
If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a two-step process for
the court to determine if an order to show cause should issue:
“‘The 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 . . . and
the petitioner may file and serve a reply . . . . 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.’” (Verdugo, supra,
44 Cal.App.5th at p. 327.)
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327.) At the hearing the prosecution has the
burden of proving beyond a reasonable doubt that the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The
prosecutor and petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.
(See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review
granted Mar. 18, 2020, S260598.)
The Court limited briefing and argument in People v. Lewis to the
following issues: “(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)?”
5
2. The Superior Court Properly Ruled Patterson Did Not
Make the Required Prima Facie Showing of Entitlement
to Relief
In accordance with the procedures described in People v.
Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020,
S264278), we appointed counsel to represent Patterson on appeal.
After reviewing the record, counsel filed a brief raising no issues.
On August 26, 2020 counsel notified Patterson he had 30 days to
submit a brief or letter raising any grounds of appeal,
contentions, or arguments he wanted the court to consider.
Patterson filed an 11-page typed supplemental brief in which he
argued he was eligible for relief because he was convicted under a
theory of felony murder and there was no evidence in the record
showing he “requested, solicited, encouraged, or commanded
anyone to kill” the victim. Patterson attached two jury
instructions as exhibits, CALJIC No. 8.11 defining malice
aforethought and CALJIC 8.31 setting forth the elements of
second degree murder. Patterson also asserted his form petition
stated all the necessary facts to set forth a prima facie showing of
entitlement to relief.
The superior court properly concluded Patterson was
ineligible for relief under section 1170.95 as a matter of law.
Contrary to his claim, Patterson was convicted as a direct aider
and abettor, not under a theory of felony murder or the natural
and probable consequences doctrine. The two instructions
Patterson included with his supplemental brief do not show the
jury was instructed on either felony murder or the natural and
probable consequences doctrine. Nor does his petition contain
any facts other than his checking the boxes on the form stating
he was not the actual killer and was convicted under a theory of
felony murder or the natural and probable consequences doctrine.
6
As we described the evidence at trial in Patterson I, supra,
B119983, this was a driveby shooting by a group of gang
members, including Patterson, to avenge the death of a rival
gang member, as part of which Patterson drove the car from
which the shooter fired five to seven shots, killing Laish Green.
The day before the murder, Dominique, a Mansfield gang
member, and Hicks, a member of the rival Geer Street gang, had
a fist fight at a sports event. The next morning Hicks was shot
from a car in which Dominique was a passenger. Approximately
10 Geer Street gang members, including Patterson, visited Hicks
in the hospital. The gang members left in two cars, one red or
burgundy and the other blue. The shooting of Green took place in
Mansfield gang territory. A witness to the shooting saw a red car
and blue Cutlass involved in the shooting, and he provided the
license plate number of the blue Cutlass to a police officer.
Another witness saw someone in the blue car wave a gun at him.
That evening police officers pulled Patterson over in a blue
Cutlass he owned matching the license plate number provided by
the first witness. Codefendant Carl Flenoy was in the vehicle.
Police officers recovered from a search of Patterson’s apartment a
traffic citation issued to Patterson with the blue Cutlass’s license
plate number and photographs of Patterson and others
displaying Geer Street gang signs. Police officers later traced
spent shell casings from the murder scene to Flenoy.
(Patterson I, supra, B119983.)
Flenoy subsequently admitted to police officers he was a
Geer Street gang member, he had visited Hicks at the hospital,
he was in his car following the shooter’s car, and a specific
individual (whose name was edited out of the recording) was the
driver of the shooter’s car. Patterson admitted to a police officer
7
he knew Hicks had been shot and he had visited Hicks in the
hospital. But Patterson denied any involvement in the shooting.
Patterson also told the officer he was the only driver of his blue
Cutlass the morning of the Green shooting and his brother (also a
Geer Street gang member) was with him in the car. (Patterson I,
supra, B119983.)
We concluded the trial court erred in admitting Flenoy’s
confession, even with Patterson’s name deleted, but the error was
harmless beyond a reasonable doubt, explaining, “Evidence far
stronger than Flenoy’s confession pointed to Patterson’s guilt as
conspirator and aider and abettor of the shooting. Gonzalez’s
testimony showed that the shots were fired from a blue car; the
license plate number taken by [the witness] identified the car as
Patterson’s; and Patterson himself testified he was the car’s only
driver on the fatal morning. The evidence concerning gang
memberships and motive for the killings corroborated the direct
evidence of Patterson’s role. So did the presence of Flenoy in
Patterson’s car later in the day, linking Patterson with Flenoy
and hence with [the] murder weapon.” (Patterson I, supra,
B119983.)
Further, the jury convicted Patterson of conspiracy to
commit murder, which offense requires “proof that the defendant
and another person had the specific intent to agree or conspire to
commit an offense, as well as the specific intent to commit the
elements of that offense, together with proof of the commission of
an overt act.’” (People v. Johnson (2013) 57 Cal.4th 250, 263-264;
accord, People v. Jurado (2006) 38 Cal.4th 72, 120.) In addition,
as discussed, the jury found true the special circumstance the
murder was intentional and was committed by discharging a
firearm from a vehicle (Patterson’s blue Cutlass) with the intent
8
to kill. On these facts, Patterson did not make a prima facie
showing he was entitled to relief because, as the superior court
found, he was a direct aider and abettor who acted with the
intent to kill Green.
Because no cognizable legal issues have been raised by
Patterson’s appellate counsel or by Patterson, the order denying
the section 1170.95 petition must be affirmed. (See People v.
Cole, supra, 52 Cal.App.5th at p. 1040 ; see also People v. Serrano
(2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly
(2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d
436, 441-442.)
DISPOSITION
The postjudgment order denying Patterson’s petition is
affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
9