People v. Jackson CA2/4

Filed 10/27/20 P. v. Jackson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR

THE PEOPLE, B300276
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. MA059722)

v.

ALEX JACKSON,

Defendant and Appellant.

APPEAL from a post-conviction order of the Superior Court of
Los Angeles County, Lisa M. Chung, Judge. Affirmed.
Deborah L. Hawkins, 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, Assistant Attorney
General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys
General, for Plaintiff and Respondent.
 A jury convicted Alex Jackson of second degree murder, for which
he received a prison sentence of 15 years to life. He appeals from a
denial of his petition for resentencing pursuant to Penal Code1 section
1170.95 (petition), for relief under Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (SB 1437), which established a procedure for resentencing of a
defendant convicted of felony murder or murder under the natural and
probable consequences theory if the defendant could no longer be
convicted of murder based on recent amendments to sections 188 and
189. Appellant contends the trial court failed to adhere to the
statutorily mandated procedure when it denied his petition without
appointing him counsel, and without opposition from the prosecutor.
We disagree. After receiving opposition to the petition from the
prosecution, the court granted appellant’s request for appointed
counsel, and counsel filed a reply. Thereafter, the trial court found
there was no basis for relief under section 1170.95 as a matter of law.
We find no error, and affirm.

FACTUAL BACKGROUND2
In early May 2013, while on a morning walk in Littlerock, Pamela
Devitt was attacked and severely injured by at least four of appellant’s

1 Undesignated statutory references are to the Penal Code.

2 Our factual narrative is drawn from our opinion in the prior appeal in
this matter. (People v. Jackson (April 18, 2016, B259906) [nonpub. opn.],
2016 WL 1583600 (Jackson).) We granted appellant’s request and take
judicial notice of the record in Jackson. (Evid. Code, § 452, subd. (d).)

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pit bulls. Devitt died in an ambulance en route to the hospital.
(Jackson, supra, 2016 WL 1583600 at pp. *1–*2.)
Appellant lived on a large lot in Littlerock and cultivated
marijuana and psilocybin for sale. He regularly took in stray dogs
(including five to 10 pit bulls) abandoned in the desert. The dogs
guarded the fenced property, protecting appellant’s drug production and
sales operation. In the 14 months preceding Devitt’s murder, dogs that
escaped from appellant’s yard committed multiple attacks in which at
least nine people and/or their horses were injured. (Jackson, supra,
2016 WL 1583600 at pp. *1–*3.) Appellant watched at least two of
those attacks as they took place, but did little or nothing to contain or
control his dogs. (Id. at pp. *2–*3.) Numerous complaints were lodged
with the sheriff’s and animal control departments, and appellant was
warned repeatedly to contain the dogs. (Id. at pp. *1–*3.) Locals
offered appellant materials to secure his fence, and he claimed to have
twice added material to his picket fence to make it more structurally
sound and prevent the dogs from escaping. (Id. at p. *2.) Most, if not
all, of the attacks occurred after appellant claimed to have reinforced
the fence. (Id. at p. *3.)
After Devitt was killed, the dogs were removed from appellant and
deputies discovered his marijuana and psilocybin operation. (Jackson,
supra, 2016 WL 1583600 at p. *3.)

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 PROCEDURAL BACKGROUND
At trial, appellant was charged with murder (§ 187, subd. (a));
assault with a deadly weapon (he threw a rock at someone the dogs had
attacked) § 245, subd. (a)(1)); cultivating marijuana (Health & Saf.
Code, § 11358); possession of marijuana for sale (Health & Saf. Code,
§ 11359); and possession for sale of a controlled substance (psilocybin)
(Health & Saf. Code, § 11378). A jury found appellant guilty of second
degree murder and guilty on all other counts, except for assault with a
deadly weapon. He was sentenced to 15 years to life for the murder
conviction. (Jackson, supra, 2016 WL 1583600 at p. *3.) We affirmed
the judgment. (Jackson, at p. *7.)
On February 25, 2019, appellant, then self-represented, filed a
form petition for resentencing. He checked boxes stating he met the
requirements of section 1170.95 for relief under SB 1437 and attached
an explanatory paragraph.
On March 25, 2019, the prosecution filed a 19-page opposition, in
which it devoted 18 pages to the argument that section 1170.95 was
unconstitutional. In the remaining page, the prosecution argued
appellant was not eligible for relief under section 1170.95 because,
notwithstanding his claim to the contrary, the record demonstrated he
was the actual killer, not an accomplice, and his conviction of second
degree murder was based on implied malice, as demonstrated by the
jury instructions.
The trial court—the judge who had presided over the trial—
appointed counsel, who filed a lengthy reply brief on appellant’s behalf

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on June 16, 2019. That brief was devoted solely to the argument that
section 1170.95 was constitutional.3
At a July 8, 2019 hearing on the petition, the parties submitted on
the papers, without argument. The court denied the petition on the
ground that appellant was not entitled to relief under section 1170.95
as a matter of law. The court rejected the argument that section
1170.95 (SB 1437) was unconstitutional. Turning to the substance of
the petition, the court noted it had reviewed the terms of section
1170.95, its notes from trial and the instructions given to the jury. The
court found appellant had failed to establish a prima facie case showing
his eligibility for relief because he was not tried under either the felony
murder rule or the natural and probable consequences doctrine.4 The
court noted its findings were made over the objection of defendant’s
counsel, who claimed (for the first time at the hearing) that, at the time
he filed the reply brief, he lacked complete material regarding the

3 In his reply brief in support of the petition, appellant’s appointed
counsel noted the brief was “solely addressed to the issue of the
constitutionality of [section 1170.95],” but he reserved the right to address
“any issues, facts, or law that may bear on, or relate, to [appellant’s]
eligibility” for relief under that statute. As we discuss, infra, the record
establishes as a matter of law that appellant is not entitled to relief.
Therefore, the failure of counsel in the trial court to brief this issue is
immaterial to the outcome of this appeal.

4 Independently, the court also found appellant failed to make a prima
facie showing of eligibility because he had been a “major participant” who
“act[ed] with reckless indifference to human life.” We need not discuss this
alternative basis, because (as we explain) no theory of vicarious liability was
involved in this case.

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issues at trial, and had “reserve[d] the right to respond” on the merits.
This timely appeal followed.

DISCUSSION
In his opening brief on appeal, appellant maintains the trial court
erred in denying his petition for resentencing, because his petition
alleged a prima facie case for resentencing, which the court denied
without granting his request for appointed counsel, and without
receiving opposition from the prosecution. As our summary of the
procedural history demonstrates, the contention is based on a
misstatement of the record. The trial court, in fact, appointed counsel
and received opposition from the prosecution and reply briefing from
appointed counsel.5 In any event, the trial court’s ruling must be
upheld, because, as a matter of law, appellant is not entitled to relief.

I. Statutory Principles and the Standard of Review
“[SB] 1437 [effective Jan. 1, 2019] was enacted 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 of the underlying felony who acted with reckless
indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) [SB]

5 In his reply brief on appeal, appellant concedes that the trial court
granted his request for counsel, but fails to explain his initial
misrepresentation.

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1437 achieves these goals by amending section 188 to require that a
principal act with express or implied malice and by amending section
189 to state that a person can only be liable for felony murder if (1) the
‘person was the actual killer’; (2) the person was an aider or abettor in
the commission of murder in the first degree; or (3) the ‘person was a
major participant in the underling felony and acted with reckless
indifference to human life.’ (§ 189, subd. (e), as amended by Stats.
2018, ch. 1015, §§ 2, 3.)” (People v. Cornelius (2020) 44 Cal.App.5th 54,
57 (Cornelius), review granted March 18, 2020, No. S260410.)
“[S]ection 1170.95 . . . allows a ‘person convicted of felony murder
or murder under a natural and probable consequences theory [to] 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).) . . . [A]ll 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 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 [effective beginning Jan.
2019].’ [Citation.]” (Cornelius, supra, 44 Cal.App.5th at p. 57, citing
§ 1170.95, subd. (b)(1).)
The Legislature intended a three-step evaluation for a section
1170.95 petition. (People v. Verdugo (2020) 44 Cal.App.5th 320, 328,

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332–333 (Verdugo), rev. granted March 18, 2020, S260493; People v.
Torres (2020) 46 Cal.App.5th 1168, 1177, review granted June 24, 2020,
S262011 [“subdivisions (b) and (c) of [section 1170.95] require the trial
court to make three separate determinations”].) At the initial stage,
“[i]f any of the required information is missing and cannot be readily
ascertained by the court, ‘the court may deny the petition without
prejudice to the filing of another petition and advise the petitioner that
the matter cannot be considered without the missing information.’
(§ 1170.95, subd. (b)(2).) [¶] 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, at p. 327; see People v. Nguyen (2020) 53 Cal.App.5th
1154, 1165–1166 (Nguyen) [§ 1170.95, subd. (c), provides for two prima
facie reviews].)
In determining whether the petitioner has made a prima facie
showing that he or she is entitled to relief under section 1170.95,
subdivision (c), “[t]he trial court should not evaluate the credibility of
the petition’s assertions, but it need not credit factual assertions that

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are untrue as a matter of law—for example, a petitioner’s assertion that
a particular conviction is eligible for relief where the crime is not listed
in subdivision (a) of section 1170.95 as eligible for resentencing. . . . [I]f
the record ‘contain[s] facts refuting the allegations made in the petition
. . . the court is justified in making a credibility determination adverse
to the petitioner.’ [Citation.] However, this authority to make
determinations without conducting an evidentiary hearing pursuant . . .
is limited to readily ascertainable facts from the record (such as the
crime of conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion.” (People v. Drayton (2020) 47
Cal.App.5th 965, 980 (Drayton); accord, Nguyen, supra, 53 Cal.App.5th
at pp. 1165–1166.)
“[O]ur analysis of the trial court’s order focuses on the trial court’s
interpretation of section 1170.95(c), and we therefore review its order de
novo.” (Drayton, supra, 47 Cal.App.5th at p. 981; see ZB, N.A. v.
Superior Court (2019) 8 Cal.5th 175, 188–189 [questions of statutory
interpretation are reviewed de novo]; Verdugo, supra, 44 Cal.App.5th at
p. 328, fn. 8 [the appellate court’s principal task in interpreting a
statute is to determine Legislative intent and give effect to the law’s
purpose].) We independently review whether the trial court properly
interpreted and fulfilled its duty under the statute. (See Greene v.
Marin County Flood Control & Water Conservation Dist. (2010) 49
Cal.4th 277, 287 [questions of law are reviewed de novo].)

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The Trial Court Did Not Err in Denying the Petition
Here, the record of appellant’s conviction establishes that none of
the theories of vicarious liability implicated by section 1170.95—the
natural and probable consequences theory of aiding and abetting, and
felony murder where the defendant is neither the actual killer nor a
direct aider and abettor—were involved. As we explained in our opinion
affirming appellant’s conviction of second degree murder, “The second
degree murder instruction given to the jury required the People to prove
beyond a reasonable doubt that: (1) ‘The defendant committed an act or
failed to do a required act that caused the death of another person;’ and
(2) ‘When the defendant acted or failed to do a required act, he had a
state of mind called malice aforethought.’” (Jackson, supra, 2016 WL
1583600 at p. *3.)
Insofar as the instruction referred to a failure to do an act, we
noted that the trial court failed to expressly define the legal duty that
would make a failure to act an actus reus for second degree murder. We
explained that duty as follows: “If an animal creates a foreseeable risk
of injury to others, the owner ‘has a duty to anticipate the harm and to
exercise ordinary care to prevent the harm. [Citation.]’” (Jackson,
supra, 2016 WL 1583600 at p. *4.) Assuming (without deciding) the
failure to define this duty was error, we found the error harmless: “The
evidence established that appellant had notice his dogs were jumping
over his fence, attacking passersby, and that he failed to exercise
ordinary care by failing to remedy the situation. In closing, the
prosecutor argued to the jury that ‘[i]t is the owner’s job to keep us

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safe[,]’ when the owner knows that his dogs are dangerous, and have
attacked people. Thus, in the absence of the assumed error—the failure
to define the relevant duty in the murder instruction—it is not
reasonably probable that a different result would have been reached.
The evidence left no doubt that defendant owed a duty to take
reasonable precautions to control his dangerous dogs, that he failed to
do so, and that his failure caused the victim’s death.” (Jackson, supra,
2016 WL 1583600 at p. *4.)
We further found the evidence sufficient to support the jury’s
finding of implied malice: “Under the malice aforethought instruction,
the jury was required to find that appellant acted with implied malice
if: (1) ‘He intentionally committed an act or failed to do a required act;’
(2) ‘The natural and probable consequences of the act or failure to do a
required act were dangerous to human life;’[6] (3) ‘At the time he acted
or failed to do a required act, he knew his act or failure to do a required
act was dangerous to human life;’ and (4) ‘He deliberately acted with
conscious disregard for human life.’ [¶] In this case, the requirement of
intent to commit an act or intentional failure to do a required act
element was satisfied by the following evidence: appellant’s awareness
of the attempted attacks by his dogs; awareness that his fence was
inadequate to keep the dogs from reaching persons who came close to
the property; related failure to take any other steps from preventing the

6 We note that jury was instructed on natural and probable consequences
only in terms of causation for implied malice. The jury was not instructed on
the natural and probable consequences doctrine as it relates to aider and
abettor liability.
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dogs from jumping over the fence; efforts to hide the dogs; denial of
owning them; and motive for doing so—his illegal marijuana operation
on the property. The natural and probable consequences of his failure
to keep his dogs from jumping the fence were dangerous to human life
was shown by evidence that when the dogs jumped the fence, they
attacked horseback riders, and then on May 9, 2013, the dogs fatally
attacked the victim. Appellant knew his failure to keep the dogs from
jumping his fence was dangerous to human life because he was on
notice the dogs had caused injuries to the horses, and on at least one
occasion, to a rider. Finally, it is reasonable for the jury to have found
that appellant acted with conscious disregard for human life. He was
on notice that the pit bulls had attacked horseback riders, he knew his
failure to keep the dogs from jumping the fence was dangerous to
human life, and still he made a deliberate decision to do nothing.
Because he was engaged in an illegal activity, he had a reason to keep
people away from his property. Furthermore, there is evidence he was
trying to hide the fact that he had pit bulls and at times denied he had
pit bulls, which shows his consciousness of guilt.” (Jackson, supra, 2016
WL 1583600 at p. *5.)
In short, the record establishes, as a matter of law, that the jury
convicted defendant of second degree murder on a theory implied
malice, based on his personal acts or failure to act resulting in the death
of a human being. No theory of vicarious liability implicated by section
1170.95 was involved. Thus, defendant is not entitled to relief as a
matter of law, and the trial court’s ruling is affirmed.

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 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.
We concur:

MANELLA, P. J.

CURREY, J.

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