Filed 11/25/20 P. v. Lee 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B297947
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA034314)
v.
MARQUIS TREVON LEE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed.
Christine M. Aros, 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, Idan Ivri and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant Marquis Trevon Lee (defendant) was convicted
by a jury of first degree murder and sentenced to 26 years to life
in prison. Decades later, he filed a petition for resentencing
under Penal Code section 1170.95,1 a statute that allows a
defendant convicted of felony murder or murder under a natural
and probable consequences theory to seek to vacate his or her
murder conviction. The trial court denied defendant’s petition
and we consider whether, as defendant contends, the court
prejudicially erred by denying the petition before appointing
counsel.
I. BACKGROUND
A trial jury convicted defendant on murder and attempted
murder charges for his role, with two fellow gang members, in a
gang shooting. In April 1996, the trial court sentenced defendant
to 26 years to life in prison (25 years to life for the murder and an
extra year for a firearm enhancement the jury found true).
In February 2019, defendant filed a section 1170.95
petition asserting he was eligible for resentencing because he was
not the actual killer, he did not harbor an intent to kill, and he
was not a major participant in the crimes of conviction and did
not act with reckless indifference to human life. His petition also
asked the court to appoint counsel to represent him.
The trial court denied the petition without appointing
counsel. After summarizing the facts of the case, the trial court
concluded defendant evidenced an intent to kill by surrounding a
parked car and shooting at the victims. The court further
1
Undesignated statutory references that follow are to the
Penal Code.
2
observed the evidence supported a finding of aiding and abetting,
despite the prosecution being unable to identify which shooter
caused death, “based on the facts that there was a quick ambush
of a parked car in which [its] occupants were trapped and
surrounded and executed and injured by rapid firing from semi-
automatic shells.”
II. DISCUSSION
Even if defendant is correct that the trial court’s rationale
for denying the petition does not comport with proper section
1170.95 procedure, there is still no basis for reversal. The trial
jury was not instructed on the principles of felony murder or
natural and probable consequences murder; rather, the jury
received instructions only on direct aiding and abetting, plus the
elements of malice murder. That means, as a matter of law,
defendant is not “[a] person convicted of felony murder or murder
under a natural and probable consequences theory” (§ 1170.95,
subd. (a)) and it is not true he “could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made [by Senate Bill No. 1437]” (§ 1170.95, subd. (a)(3), italics
added).2 (See, e.g., People v. Soto (2020) 51 Cal.App.5th 1043,
2
Defendant argues the absence of jury instructions on felony
murder or natural and probable consequences murder is not
dispositive because the prosecutor made reference to natural and
probable (or foreseeable) consequences during closing argument.
But defendant acknowledges the trial court sustained an
objection to that aspect of the prosecution’s argument (reasoning
it might be confusing or misleading to the jury) and, regardless,
we presume the jury understood and followed the instructions it
was given (People v. Holt (1997) 15 Cal.4th 619, 662)—and there
3
1055, review granted Sept. 23, 2020, S263939 (Soto); People v.
Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted Jul. 22,
2020, S262835 [“if the jury was not instructed on a natural and
probable consequences or felony-murder theory of liability, the
petitioner could not demonstrate eligibility as a matter of law
because relief is restricted to persons convicted under one of those
two theories”].) Thus, whether framed in terms of the principle
that we review a trial court’s ruling not its rationale (People v.
Selivanov (2016) 5 Cal.App.5th 726, 774) or harmless error
doctrine, there is no reversible error on that score.
Defendant additionally argues we should reverse because
he had a constitutional right to appointed counsel under Sixth
Amendment and due process principles. Neither assertion is
correct. (See, e.g., Smith, supra, 49 Cal.App.5th at 92, rev. gr.;
People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted
Mar. 18, 2020, S260410; see also Dillon v. United States (2010)
560 U.S. 817, 828-829 [holding Sixth Amendment inapplicable to
sentence modification proceedings]; People v. Anthony (2019) 32
Cal.App.5th 1102, 1156 [“[T]he retroactive relief . . . afforded by
Senate Bill 1437 is not subject to Sixth Amendment analysis”]; In
re Clark (1993) 5 Cal.4th 750, 780 [constitutional due process
guarantees demand appointment of counsel in postconviction
proceedings “if a petition attacking the validity of a judgment
states a prima facie case leading to issuance of an order to show
cause”], italics added.)
were none explaining how defendant might be liable for murder
on a felony murder or natural and probable consequences theory.
4
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
5