Filed 12/28/20 P. v. Young CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A158216
v. (Contra Costa County
TORIANO ADARYL YOUNG, Super. Ct. No. 5-991206-4)
Defendant and Appellant.
Toriano Adaryl Young appeals from the summary denial of his petition
for resentencing under Penal Code section 1170.95.1 His attorney has filed a
brief raising no issues in accordance with the procedure prescribed in People
v. Wende (1979) 25 Cal.3d 436. Young filed a supplemental pro se brief,
which we have considered. We shall affirm.
I.
An indictment filed by the Contra Costa County District Attorney
charged Young and Jason Payne with, as pertinent here, the murder of
Jonathan Washington (§ 187), conspiracy to commit murder and robbery
(§ 182, subd. (a)(1)), street terrorism (§ 186.22, subd. (a)), and second degree
robbery (§§ 211; 212.5(c)).
1 All subsequent statutory references are to the Penal Code.
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On September 19, 2001, a jury convicted Young of these and other
charges. The murder was found to be of the first degree. The court found
true the following overt act committed in furtherance of the conspiracy to
commit murder: “On April 8, 1999, at Contra Costa County, Jason Payne
shot Jonathan Washington in the face,” but the jury found not true the
allegations appellant used and discharged a firearm during the commission of
the murder.
On the first degree murder conviction, the court sentenced appellant to
25 years to life in prison for murder.
On February 14, 2019, appellant filed a pro se petition for resentencing
under section 1170.95. He alleged he was not the actual killer, did not have
the intent to kill, did not aid and abet the killing, and could not be convicted
of murder under current law. He attached a notarized affidavit from
codefendant Jason Payne. Payne stated Young never discussed any plan to
shoot and kill Jonathan Washington. According to Payne, “This act was done
by me, and the actions I took to use a firearm in the death of Jonathan
Washington was my own choice.”
The court appointed counsel to represent appellant and the prosecutor
filed an opposition. The opposition argued appellant was not entitled to
resentencing because he was not convicted of felony murder or under a
natural and probable consequences doctrine. “He was convicted of murder
based upon his own express malice aforethought, a fact which is
uncontrovertibly proven by the verdicts.” Appointed counsel filed no reply.
Agreeing with the prosecutor, the court denied appellant’s resentencing
petition. After stating that in doing so it considered “the Indictment,
Abstract of Judgment, jury notes, minute orders, and the unpublished
decision on direct appeal,” the court explained the denial as follows: “[Young]
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has not made a showing either that he was convicted of felony murder or that
he ‘could not be convicted of . . . murder because of changes to Section 188 or
189 made effective on January 1, 2019.’ ”2 “Because [Young] was not
convicted of felony murder or murder under the natural and probable
consequences doctrine, and because he still could be convicted of first degree
premeditated murder under the current statutes as amended, SB 1437 does
not provide [him] with any relief.”
Our unpublished opinion affirming Young’s conviction addresses purely
legal issues and does not recite the circumstances of the crimes at issue.
(People v. Young (July 21, 2006, A105773) [nonpub. opn.].) Thus, there is
virtually nothing in the record presented here that sheds any light on the
specific facts concerning how the crimes were carried out and who did what in
committing them. In an apparent effort to fill that gap, the prosecutor’s
opposition to Young’s resentencing petition set forth a detailed account of the
trial evidence. But in denying Young’s resentencing petition, the trial court
stated that “the decision on this petition is based on the trial court docket,
particularly the jury’s verdicts, so the underlying facts are not essential to
this court’s decision.”
Appellant filed a timely notice of appeal.
II.
We are not required to undertake an independent review of the
summary denial of a section 1170.95 resentencing petition under People v.
Wende, supra, 25 Cal.3d 436, but nothing prohibits us from exercising our
discretion to do so. (People v. Flores (2020) 54 Cal.App.5th 266.) We have
chosen to conduct a discretionary Wende review in this case. And having
2See Senate Bill No. 1437 (2017–2018 Reg. Sess.) sections 2–4
(SB 1437); Penal Code sections 188, 189, 1170.95.
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reviewed the entire record of the proceedings on the resentencing petition,
together with the portions of the record of conviction on which the trial court
relied, we discern no issues that warrant further briefing.
Under Anders v. California (1967) 386 U.S. 738, Young’s appointed
counsel on appeal suggests that we specifically consider whether briefing may
be worthwhile on the following six issues:
1. In view of the recent opinion of Division One of this court in People v.
Cooper (2020) 54 Cal.App.5th 106, was it error for the trial court to look
beyond the four corners of the petition and to consider documents in the
court’s file in finding no prima facie case and summarily denying the petition
without a hearing?
2. Did the trial court err in summarily denying the petition without any
consideration of the codefendant’s declaration indicating that he killed
Jonathan Washington, was solely responsible for the shooting and that he
and Young did not conspire to commit that crime?
3. Did the trial court err in finding no prima facie case and denying the
petition without a hearing without considering the import of the jury’s
finding that Young did not personally use a firearm and that the codefendant
was the shooter?
4. Did the trial court err in finding no prima facie case and denying the
petition without a hearing without considering the import of the “natural and
probable consequence” and “in furtherance of ” language found in the
conspiracy instructions?
5. Did defense counsel in the section 1170.95 proceeding render
ineffective assistance in failing to file a reply to the prosecution’s opposition
brief and thus allowing the court to treat the factual representations in the
opposition brief as “unrebutted”?
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6. Did defense counsel render ineffective assistance in failing to contest
those factual allegations or to object to admissibility of the prosecutor’s
hearsay account of the trial evidence at that stage?
We have specifically considered these issues and see no need for
briefing on any of them. The record of conviction shows that a jury convicted
Young of conspiracy to commit first degree murder. As a result, the jury
necessarily found that he harbored the requisite intent to support such a
conviction—in 2001, when he was tried, and today, under current law.
We see nothing in the jury’s verdicts or in the jury instructions to
support Young’s allegation that he was convicted under a natural and
probable consequences theory that vicariously attributed Payne’s intent to
him. The “natural and probable consequence” and “in furtherance language”
brought to our attention by Young’s appellate counsel is contained in
instructions addressing circumstances in which a coconspirator is not liable
for the conduct of a fellow conspirator. That instruction, especially when
read together with the other instructions, could not have been reasonably
read to permit a jury to ignore the instruction requiring that the necessary
murderous intent be found as to each conspirator.
People v. Cooper, supra, 54 Cal.App.5th 106, to which appellate counsel
draws our attention, addresses when the right to appointment of counsel
arises in the process specified by section 1170.95, subdivision (c) for
evaluating whether the petitioner has stated a prima facie showing for
section 1170.95 relief. (Cooper, at pp. 115–118.) The panel in Cooper
disagreed with other Court of Appeal panels that have construed
section 1170.95 to require two separate and distinct steps under
section 1170.95, subdivision (c) for reviewing the sufficiency of a petitioner’s
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alleged prima facie case. (Cooper, at pp. 118–119.) This case does not
present that issue.
We do not read Cooper to hold, expressly or impliedly, that a trial court
may never “look beyond the four corners of the petition” in evaluating the
prima facie sufficiency of a section 1170.95 petition. Whether a trial court
may consider the record of conviction in evaluating the adequacy of a prima
facie case for relief under section 1170.95 is currently pending on review
before the California Supreme Court in People v. Lewis (2020) 43 Cal.App.5th
1128, 1138, review granted March 18, 2020, S260598, but we see no need for
briefing on it here. While section 1170.95 does not permit factfinding in the
first instance at the prima facie evaluation stage (People v. Drayton (2020)
47 Cal.App.5th 965, 982), we are aware of no authority to date that requires
trial courts to accept allegations from section 1170.95 petitioners that are
contrary to incontrovertible facts established by the record of conviction.
Nor do we see any need for briefing on the ineffective assistance of
counsel issues raised by Young. Nothing that could have been said in a reply
brief from his counsel would have made any difference here, and since the
trial court expressly did not rely on the facts set forth in the prosecution’s
account of the trial evidence, no prejudice showing could be made even if
counsel could have, and should have, objected to the prosecution’s
representations about the circumstances surrounding the crime.
DISPOSITION
The trial court’s order denying Young’s section 1170.95 resentencing
petition is affirmed.
STREETER, Acting P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
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