Filed 3/25/21 P. v. Walker CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306499
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA010664)
v.
DARRYL WALKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Steven D. Blades, Judge. Affirmed.
Richard D. Miggins, 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 S. Lee and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Darryl Walker (defendant) appeals the trial court’s
summary denial of his petition for resentencing under Penal
Code section 1170.95.1 Because his jury was not instructed on
either of the theories of liability invalidated by section 1170.95,
we affirm the summary denial of his petition for relief.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
In May 1991, defendant picked up Quintin Holmes
(Holmes) at his aunt’s house. Three days later, Holmes’s body
was found. Holmes had died from strangulation, four stab
wounds and 32 instances of blunt force trauma from what looked
to be a hammer. A few weeks earlier, defendant had borrowed a
hammer from his girlfriend’s mother. Holmes’s blood was also
found in the home where defendant rented a room. After the
incident, defendant told someone he “had to kill a guy once.”
B. Prosecution, conviction and appeal
In the operative pleading, the People charged defendant
with murder (§ 187, subd. (a)), and further alleged that he
personally used two dangerous or deadly weapons—namely, a
knife and a hammer (§ 12022, subd. (b)). A jury found defendant
guilty of second degree murder, but found the weapon allegations
not true.
The trial court sentenced defendant to prison for 18 years
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Walker (Dec.
27, 1995, B088809) [nonpub. opn.].)
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to life, comprised of 15 years to life for second degree murder plus
three years for serving three prior prison sentences.
Defendant appealed his conviction and, in an unpublished
opinion, we affirmed his conviction and sentence.
II. Procedural Background
On February 28, 2019, defendant filed a petition seeking
resentencing under section 1170.95. The People opposed the
petition on constitutional grounds and on the merits. After
appointing counsel for defendant and entertaining a further
round of briefing, the trial court on June 17, 2020, denied
defendant’s petition in part on the ground that his jury had not
been instructed on any of the legal theories invalidated by section
1170.95.
Defendant timely appealed this denial.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Because the trial court’s
reason for summarily denying relief that is challenged on appeal
turns on questions of statutory construction and the application
of law to undisputed facts, our review of that reason is de novo.
(People v. Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel, the opportunity for further
briefing and a hearing if, in his petition, he “makes a prima facie
showing that he . . . is entitled to relief” under that section.
(§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th
1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis);
People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted
Mar. 18, 2020, S260493 (Verdugo).) A person is entitled to relief
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under section 1170.95 if, as relevant here, (1) “[a] complaint,
information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of . . . second degree murder following a
trial,” and (3) he “could not be convicted of . . . second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).) A “‘prima facie showing
is one that is sufficient to support the position of the party in
question.’” (Lewis, at p. 1137, quoting Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 851.)
Where a defendant in his petition alleges each element
necessary to make out a prima facie case for relief under section
1170.95, a trial court evaluating whether a defendant has made a
prima facie showing in a section 1170.95 petition is not required
to accept those allegations at face value and may also examine
the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138;
Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v.
Tarkington (2020) 49 Cal.App.5th 892, 899-900, 908-909, review
granted Aug. 12, 2020, S263219 (Tarkington); People v. Drayton
(2020) 47 Cal.App.5th 965, 968 (Drayton); People v. Edwards
(2020) 48 Cal.App.5th 666, 673-674, review granted July 8, 2020,
S262481 (Edwards); People v. Torres (2020) 46 Cal.App.5th 1168,
1178, review granted June 24, 2020, S262011 (Torres).) However,
the contents of the record of conviction defeat a defendant’s prima
facie showing only when the record “show[s] as a matter of law
that the petitioner is not eligible for relief.” (Lewis, at p. 1138,
italics added; Verdugo, at p. 333; Torres, at p. 1177; Drayton, at p.
968; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58,
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review granted Mar. 18, 2020, S260410 (Cornelius) [record must
show defendant is “indisputably ineligible for relief”].)
Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. A defendant is ineligible for relief under section
1170.95 as a matter of law where “the jury was not instructed on
a natural and probable consequences or felony-murder theory of
liability.” (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5,
review granted May 15, 2020, S262835.) The sole theory of
liability presented to the jury in defendant’s case was the theory
that he was the actual killer; the jury was never instructed on the
theories of liability through direct aiding and abetting, through
felony murder or through aiding and abetting a lesser crime the
natural and probable consequences of which was the murder.
Defendant resists this conclusion with three arguments.
First, he argues that the trial court erred in going beyond
the face of his petition and by relying on the factual summary
contained in our prior appellate opinion because the prior
appellate opinion improperly viewed the facts in the light most
favorable to the murder conviction. In the same vein, he adds
that section 1170.95’s status as a “special proceeding” requires
strict adherence to the procedures set forth in that statute. In so
arguing, defendant is effectively asserting that Lewis, Verdugo,
Cornelius, Drayton, Edwards, Torres and Tarkington are
“wrongly decided.” Although our Supreme Court has granted
review in Lewis, Verdugo, Cornelius, Edwards, Torres and
Tarkington, we continue to find them persuasive unless and until
the Supreme Court rules otherwise.
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Second, defendant more narrowly contends that, even if a
trial court may consider some parts of the record of conviction in
evaluating eligibility for relief under section 1170.95, it may not
consider the facts set forth in a prior appellate decision. We need
not confront the totality of this argument because the summary
denial of defendant’s section 1170.95 petition in this case rests
not on the facts regarding the offense that are recited in the prior
appellate decision, but rather on the facts setting forth the jury’s
findings recited in that decision—namely, the fact that the jury
found defendant guilty of second degree murder and, by virtue of
the jury instructions, necessarily did so on the basis of finding
him to be the actual killer. Those latter facts are a proper subject
of judicial notice as an “accurate[]” “reflect[ion]” of what is in “the
trial record” and are properly admitted for “the nonhearsay
purpose of determining the basis of the conviction.” (People v.
Woodell (1998) 17 Cal.4th 448, 456-457, 459-461; Lockley v. Law
Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 885 [“an appellate opinion can be admitted to
prove . . . that the court made orders, factual findings, judgments
and conclusions of law”]; People v. Franklin (2016) 63 Cal.4th
261, 280 [same]; Kilroy v. State of California (2004) 119
Cal.App.4th 140, 147 [“findings of fact” may be judicially noticed];
Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565 [“it may be
proper to take judicial notice that [a trial judge] did in fact make
[a] particular finding” of fact “after hearing a factual dispute”],
italics omitted.)
Lastly, defendant argued to the trial court that the jury
was, in fact, instructed on the natural and probable consequences
theory because the jury instruction defining murder defined
“implied” “malice” as existing when a defendant intentionally
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commits an act, “[t]he natural consequences of the act are
dangerous to human life,” and “[t]he act was deliberately
performed with knowledge of the danger to, and with conscious
disregard for, human life.” (Italics added.) We reject defendant’s
contention that because the court’s definition of implied malice
used the phrase “natural consequences” that the jury was
implicitly instructed on a natural and probable consequences
theory: “The ‘natural consequences’ language in the instruction
for second degree murder does not transform [a defendant’s]
conviction into one for murder under the natural and probable
consequences doctrine within the meaning of section 1170.95.”
(People v. Soto (2020) 51 Cal.App.5th 1043, 1059, review granted
Sept. 23, 2020, S263939.) In the implied malice instruction, the
phrase “natural and probable consequences” is used to hold a
defendant liable for the “natural and probable consequences” of
his own act or failure to act; by contrast, the “natural and
probable consequences” theory is a theory of vicarious liability
that is used to hold a defendant liable for another person’s
criminal conduct as long as the other person’s criminal conduct is
a “natural and probable consequence” of what defendant agreed
to aid and abet—and, critically, irrespective of the defendant’s
own intent regarding that further criminal conduct. As Soto
noted, these are “distinctly different concepts” (id. at pp. 1056-
1057), and, like Soto, we decline to equate them.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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