Filed 10/26/20 P. v. Aremu CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B300328
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A390607)
v.
TONY OLIVER AREMU,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Norm Shapiro, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles C. Lee and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
In 1984, a jury convicted defendant and appellant Tony
Aremu of second degree murder (Pen. Code, § 187, subd. (a)1) and
found true the allegation that he personally used a deadly and
dangerous weapon in the commission of the murder (§ 12022,
subd. (b)). The trial court sentenced defendant to 16 years to life
in state prison.
In 2019, following the enactment of Senate Bill No. 1437
(Senate Bill 1437), defendant filed a petition for resentencing
pursuant to section 1170.95. The trial court denied the petition.
On appeal, defendant contends the trial court violated his
statutory and constitutional rights by summarily denying his
petition without allowing him to file a reply to the People’s
response to his petition and without allowing him or his attorney
to attend the hearing on the petition. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND2
On May 8, 1983, defendant repeatedly stabbed Tamazetta
Harris, a woman with whom he had been romantically involved
1 All further statutory references are to the Penal Code.
2 The People attached as an exhibit to their response to
defendant’s section 1170.95 petition a copy of the opinion by a
prior panel of this court affirming defendant’s conviction. (See
People v. Verdugo (2020) 44 Cal.App.5th 320, 333, review
granted, Mar. 18, 2020, S260493 (Verdugo) [“A court of appeal
opinion, whether or not published, is part of the appellant’s
record of conviction. [Citations.]”].) We base our recitation of the
facts underlying defendant’s conviction on that opinion.
2
since 1978. Harris was taken to the hospital and treated for her
wounds. Two days later, a police detective interviewed Harris at
the hospital. Harris was in critical condition and unable to
communicate verbally. Nevertheless, Harris identified defendant
as her attacker by nodding her head when shown a photograph of
defendant and asked if he stabbed her. Shortly after that
interview, Harris died. The detective also interviewed defendant
who “gave the police a detailed confession.” At trial, one of
Harris’s daughters testified that defendant called her and told
her, “‘I’m sorry to tell you but I killed your mother.’ . . . [T]he
victim’s mother . . . received a similar call from defendant.”
Defendant presented an alibi defense. He also claimed that his
confession was coerced and he signed his confession without
reading or understanding it. The jury convicted defendant of
second degree murder and found true the allegation that he had
personally used a knife in murdering Harris.
On January 18, 2019, defendant filed his section 1170.95
petition in which he declared, among other things, that he had
been convicted of second degree murder under the natural and
probable consequences doctrine or under the second degree felony
murder rule. He requested the appointment of counsel. On
March 22, 2019, the trial court held a hearing where defendant
was represented by a deputy public defender. On June 13, 2019,
the People filed a response to defendant’s petition.
On June 14, 2019, the trial court denied defendant’s
petition on the ground that defendant was ineligible for section
1170.95 relief because he was the actual killer. Neither
defendant nor defense counsel was present.
3
III. DISCUSSION
“Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder theory of liability [or the natural and
probable consequences doctrine] could petition to have his
conviction vacated and be resentenced. Section 1170.95 initially
requires a court to determine whether a petitioner has made a
prima facie showing that he or she falls within the provisions of
the statute as set forth in subdivision (a), including that ‘(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) [t]he petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[, and] [¶] (3)
[t]he petitioner could not be convicted of first or second degree
murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (See § 1170.95, subd. (c); [Verdugo,
supra,] 44 Cal.App.5th [at p.] 327 . . ., review granted
Mar. 18, 2020, [S260493].) If it is clear from the record of
conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. (Verdugo,
[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination
of eligibility requires an assessment of the evidence concerning
the commission of the petitioner's offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. (Id. at p. 332; [People v.] Lewis
[(2020)] 43 Cal.App.5th [1128,] 1140, rev[iew] granted
4
[Mar. 18, 2020, S260598].)” People v. Smith (2020) 49
Cal.App.5th 85, 92, review granted July 22, 2020, S262835, fn.
omitted.)
The jury instructions in defendant’s case did not include
instructions on aiding and abetting, the felony murder rule, or
the natural and probable consequences doctrine,3 and the verdict
3 The trial court did instruct the jury with CALJIC 8.10 on
“Murder—Defined” as follows:
“Defendant is charged in the information with the
commission of the crime of murder, a violation of Section 187 of
the Penal Code.
“The crime of murder is the unlawful killing of a human
being with malice aforethought or the unlawful killing of a
human being which occurs during the commission or attempt to
commit a felony inherently dangerous to human life.
“In order to prove the commission of the crime of murder,
each of the following elements must be proved:
“1. That a human being was killed,
“2. That the killing was unlawful, and
“3. That the killing was done with malice aforethought.”
The trial court did not, however, deliver any instructions
that were specific to felony murder, such as CALJIC Nos. 8.21
(First Degree Felony-Murder) or 8.32 (Second Degree Felony-
Murder).
The trial court also delivered CALJIC 8.31 on “Second
Degree Murder—Killing Resulting From Act Dangerous to Life”
as follows:
“Murder of the second degree is [also] the unlawful killing
of a human being as the direct causal result of an intentional act,
[involving a high degree of probability that it will result in death,
which act is done for a base, antisocial purpose and with wanton
disregard for human life.] [or] [the natural consequences of which
are dangerous to life, which act was deliberately performed by a
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form contained the jury’s finding that defendant personally used
a deadly and dangerous weapon, a knife. Defendant therefore
was ineligible for section 1170.95 sentencing relief as a matter of
law, and the trial court did not err when it summarily denied
defendant’s petition without conducting a further hearing.
(Verdugo, supra, 44 Cal.App.5th at p. 330 [the record of
conviction may establish that defendant “is ineligible for relief as
a matter of law because he or she was convicted on a ground that
remains valid notwithstanding Senate Bill 1437’s amendments to
sections 188 and 189”]; see also People v. Cornelius (2020) 44
Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [“the
jury implicitly found Cornelius was the ‘actual killer,’ and the
changes to sections 188 and 189 are inapplicable”].)4
person who knows that his conduct endangers the life of another
and who acts with conscious disregard for human life.]
“When the killing is the direct result of such an act, it is not
necessary to establish that the defendant intended that his act
would result in the death of a human being.” (Italics added.)
“Although the instructions related to implied malice and
the natural and probable consequences doctrine of aiding and
abetting include similar language regarding a ‘natural
consequence,’ they are distinctly different concepts. Implied
malice is a mental state for the commission of the crime of second
degree murder, either by the principal or as an aider and abettor
. . . to murder. . . . Senate Bill [ ] 1437 changed the circumstances
under which a person could be convicted of murder without a
showing of malice, but it did not exclude from liability persons
convicted of murder for acting with implied malice. [Citation.]”
(People v. Soto (2020) 51 Cal.App.5th 1043, 1056–1057, review
granted Sept. 23, 2020, S263939; fn. omitted.)
4 In holding that defendant was statutorily ineligible for
resentencing, we do not intend to suggest that the procedure
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IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J. BAKER, J.
utilized by the trial court was correct. For instance, while
defendant’s petition was pending, the court conducted an ex parte
hearing with only the prosecutor present. Nothing in section
1170.95 authorizes an appearance by one counsel and not the
other at any stage of the proceedings. Any error, however, was
harmless under any standard of review (Chapman v. California
(1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818,
836) because defendant was ineligible for relief in the first
instance.
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