Filed 2/10/21 P. v. Jackson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B297698
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA282268)
v.
JAMES JACKSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William N. Sterling, Judge. Affirmed.
Christopher Love, 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, Charles Lee and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
A jury found James Jackson guilty of murder. Years later,
he petitioned for resentencing under Penal Code1 section 1170.95,
and the trial court summarily denied the petition without
appointing counsel for him. Jackson appeals and contends that
the trial court’s decision was based on an error of fact. We
disagree and affirm the order denying the petition.
BACKGROUND2
In 2005, a car occupied by three men drove by a small
group of people talking outside a house. The front passenger
fired multiple gunshots at the group, killing one man and
injuring two women. A witness saw the car’s two passengers,
Jackson and Michael Antonio Mitchell, get out of the car and run
away. The witness also saw a gun in Jackson’s waistband.
Forensic evidence suggested that at least two guns were fired.
An information charged Jackson and Mitchell with murder
(§ 187, subd. (a)); count 1) and two counts of attempted murder
(§§ 664, 187, subd. (a)); counts 2 & 3).3 As to these counts, the
information alleged principal gun use (§ 12022.53, subds. (b), (c),
(d) & (e)(1)) and gang (§ 186.22, subd. (b)(1)) enhancements.
A jury found Jackson and Mitchell guilty as charged, and, in
1 All further statutory references are to the Penal Code.
2 The background regarding the underlying crimes is from
the opinion affirming the judgment of conviction. (People v.
Jackson (June 27, 2007, B191397) [nonpub. opn.].) At appellant’s
and respondent’s requests, we have taken judicial notice of that
opinion and of the record in the underlying case.
3 The information also alleged a count of possession of a
firearm by a felon with a prior (§ 12021, subd. (a)(1)) as to
Mitchell, and the jury convicted him of that crime.
2
2006, the trial court sentenced Jackson to 75 years to life plus an
additional life term.
Thereafter, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
took effect January 1, 2019. That law amended the felony-
murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. Based on the new
law, a person convicted of murder under a felony murder or
natural and probable consequences theory may petition the
sentencing court for vacation of the conviction and resentencing,
if certain conditions are met. (§ 1170.95.)
In 2019, Jackson filed multiple petitions seeking relief
under Senate Bill No. 1437, one of which was a form petition in
which he checked all boxes showing entitlement to relief. The
trial court did not appoint counsel for Jackson. In its summary
denial order, the trial court stated that its review of the record,
including jury instructions and the Court of Appeal opinion
affirming the judgment of conviction, showed that Jackson was
not convicted under either a theory of felony murder or natural
and probable consequences, as the jury was not instructed on
those theories. Further, relief was not available on the
attempted murder convictions.
DISCUSSION
Jackson contends that the trial court erred in summarily
denying his petition.4 We disagree.
4 The Supreme Court is reviewing whether superior courts
may consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under section 1170.95 and when the right to appointed counsel
arises under subdivision (c) of that section. (People v. Lewis
3
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
doctrine no longer applies to murder. And, a participant in
enumerated crimes is liable under the felony-murder doctrine
only if the participant was the actual killer; or with the intent to
kill, aided and abetted the actual killer in commission of first
degree murder; or was a major participant in the underlying
felony and acted with reckless indifference to human life. (§ 189,
subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also added section 1170.95. Under
that section, individuals who meet three conditions are eligible
for relief: (1) the person must have been charged with murder
under a theory of felony murder or murder under the natural and
probable consequences doctrine, (2) convicted of first or second
degree murder, and (3) could not be convicted of first or second
degree murder because of changes to section 188 or 189 made
effective January 1, 2019. (§ 1170.95, subd. (a); see generally
People v. Drayton (2020) 47 Cal.App.5th 965, 973.)
Section 1170.95 provides for multiple reviews of a petition
by the trial court. (People v. Tarkington (2020) 49 Cal.App.5th
892, 897, review granted Aug. 12, 2020, S263219; People v.
Drayton, supra, 47 Cal.App.5th at p. 974; People v. Cornelius
(2020) 44 Cal.App.5th 54, 57–58, review granted Mar. 18, 2020,
(2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020,
S260598.)
4
S260410; People v. Verdugo (2020) 44 Cal.App.5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; but see People
v. Cooper (2020) 54 Cal.App.5th 106, review granted Nov. 10,
2020, S264684.) Subdivision (b) of section 1170.95 describes an
initial review to determine the facial sufficiency of the petition.
(Verdugo, at p. 328.) Subdivision (c) of section 1170.95 then
describes the next two levels of review. It provides, “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 within 60 days of
service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served.
These deadlines shall be extended for good cause. 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.”
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, based upon its review of readily
ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) A
Court of Appeal opinion is part of the appellant’s record of
conviction (id. at p. 333), as are jury instructions (People v. Soto
(2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020,
5
S263939). If these documents reveal ineligibility for relief, the
trial court can dismiss the petition. (Verdugo, at p. 330.)
If the record of conviction does not establish as a matter of
law the petitioner’s ineligibility for resentencing, evaluation of
the petition proceeds to the second prima facie review, in which
“the court must direct the prosecutor to file a response to the
petition, permit the petitioner (through appointed counsel if
requested) to file a reply and then determine, with the benefit of
the parties’ briefing and analysis, whether the petitioner has
made a prima facie showing he or she is entitled to relief.”
(Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial court must
accept as true the petitioner’s factual allegations and make a
preliminary assessment regarding whether the petitioner would
be entitled to relief if the factual allegations were proved. (Id. at
p. 328.)
Section 1170.95 thus permits a trial court to make an
initial determination whether the petitioner may be entitled to
relief, without first appointing counsel. The structure and
grammar of subdivision (c) of that section “indicate the
Legislature intended to create a chronological sequence: first, a
prima facie showing; thereafter, appointment of counsel for
petitioner; then, briefing by the parties.” (Verdugo, supra, 44
Cal.App.5th at p. 332, italics added; accord, People v. Lewis,
supra, 43 Cal.App.5th at p. 1140.)
Here, the trial court properly made an initial determination
that Jackson was ineligible for relief. As reflected by the
principal gun use allegations in the charging document, the
People’s theory of the case was it was unclear who was the actual
shooter. The jury was instructed on murder (CALJIC No. 8.10),
malice aforethought (CALJIC No. 8.11), deliberate and
6
premeditated murder (CALJIC No. 8.20), and drive-by murder
(CALJIC No. 8.25.1). It was also instructed on direct aider and
abettor liability under CALJIC Nos. 3.00 and 3.01. CALJIC
No. 3.01 instructed that a person aids and abets the commission
of a crime when he, with knowledge of the perpetrator’s unlawful
purpose, with the intent or purpose of committing or encouraging
or facilitating the commission of the crime, by act or advice aids,
promotes, encourages or instigates the commission of the crime.
As Jackson’s jury was not instructed on felony murder or the
natural and probable consequences doctrine, he could not have
been convicted under one of those theories.5 Instead, he was
convicted of murder as a direct aider and abettor. “One who
directly aids and abets another who commits murder is thus
liable for murder under the new law just as he or she was liable
under the old law.” (People v. Lewis, supra, 43 Cal.App.5th at
p. 1135.)
Nevertheless, Jackson maintains that the jury was
instructed on the natural and probable consequences doctrine via
the definitions of implied malice in CALJIC No. 8.11 and of
causation in CALJIC No. 3.40. Per CALJIC No. 8.11, the jury
was instructed that malice is implied when a killing results from
an intentional act, the natural consequences of which are
dangerous to human life, and the act was deliberately performed
with knowledge of the danger to and with conscious disregard for
human life. This instruction has nothing to do with and does not
5 Nor was the jury instructed on special circumstances, i.e.,
that it had to determine whether a defendant was a major
participant who acted with reckless indifference to human life.
Jackson’s discussion of People v. Banks (2015) 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522 is therefore not on point.
7
in any way invoke the natural and probable consequences
doctrine. Rather, implied malice and the natural and probable
consequences doctrine are distinctly different concepts. (People v.
Soto, supra, 51 Cal.App.5th at p. 1056; accord, People v. Martinez
(2007) 154 Cal.App.4th 314, 334.) The jury here also was not
instructed on any target crime to which murder based on the
natural and probable consequences doctrine could have attached.
(See, e.g., Soto, at pp. 1058–1059.) Moreover, implied malice
murder is murder in the second degree. (CALJIC No. 8.31; Soto,
at p. 1056.) Jackson’s jury, by convicting him of first degree
murder, rejected second degree implied-malice murder. To find
him guilty of first degree murder, the jury necessarily found he
had an intent to kill. (See, e.g., CALJIC No . 8.20 [defining
deliberate, premeditated murder]; CALJIC No. 8.25.1 [drive-by
murder requires specific intent to kill].)
Nor was the jury otherwise instructed on the natural and
probable consequences doctrine via CALJIC No. 3.40. That
instruction concerns the but-for test of causation as follows: “To
constitute the crime of murder or attempted murder, there must
be in addition to the death or injury an unlawful act which was a
cause of that death or injury. [¶] The criminal law has its own
particular way of defining cause. A cause of the death or injury is
an act that sets in motion a chain of events that produces as a
direct, natural and probable consequence of the act the death or
injury and without which the death or injury would not occur.”
(CALJIC No. 3.40, italics added.) The instruction thus concerns
causation, not mens rea or intent.
As Jackson’s jury was not instructed on felony murder or
the natural and probable consequences doctrine, the trial court
did not err by summarily denying the petition. Also, to the extent
8
Jackson challenges the denial of the petition as to the attempted
murder counts, section 1170.95 relief is not available for them.
(People v. Munoz, supra, 39 Cal.App.5th at pp. 760–768.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EDMON, P. J.
9
LAVIN, J., Dissenting:
For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, 917, review granted
August 12, 2020, S263219, and the holding and analysis in People
v. Cooper (2020) 54 Cal.App.5th 106, 109, review granted
November 10, 2020, S264684, I would reverse the order and
direct the trial court to conduct further proceedings in accordance
with Penal Code section 1170.95.
LAVIN, J.
People v. Jackson CA2/3
Combined Opinion