Filed 5/7/21 P. v. Coley CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A159927
v.
DALE JOSEPH EVERET (Solano County
COLEY, Super. Ct. No. VCR208165)
Defendant and Appellant.
Appellant Dale Joseph Everet Coley was convicted of
second degree murder and attempted murder without
premeditation based on his actions as the driver in a drive-by
shooting. (Pen. Code, § 187, 664/187.)1 The jury also found that
he committed the crimes for the benefit of a criminal street gang
and was a principal in a gang-related crime where a principal
personally and intentionally discharged a firearm causing great
bodily injury or death. (§§ 186.22, subd. (b)(1); 12022.53, subds.
(d), (e)(1).) Several years after his convictions were affirmed on
appeal, he filed a petition for relief under section 1170.95, enacted
Further references are to the Penal Code unless otherwise
1
indicated.
1
as part of Senate Bill 1437, averring that he did not, with intent
to kill, aid, abet or assist the actual killer in the commission of
murder, and that he could not be convicted of murder or
attempted murder under the newly reformed murder statutes
(amended sections 188 or 189). After appointing counsel for
appellant and reviewing briefs submitted by his counsel and the
district attorney, the trial court denied the petition. We affirm.
I. SENATE BILL 1437
Because it is essential to the issues raised in this appeal,
we summarize recent changes to the law of murder and malice
aforethought under Senate Bill 1437.
Malice aforethought is generally an essential element of the
crime of murder. (§ 187.) Malice is express “when there is
manifested a deliberate intention to unlawfully take away the life
of a fellow creature” (§ 188, subd. (a)(1)) and is implied “when no
considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.”
(§188, subd. (a)(2)). Phrased another way, implied malice exists
when the defendant commits “ ‘an act, the natural consequences
of which are dangerous to life’ ” and “ ‘knows that his [or her]
conduct endangers the life of another and . . . acts with a
conscious disregard for life.’ ” (People v. Chun (2009) 45 Cal.4th
1172, 1181.)
“Before Senate Bill 1437, the felony-murder rule and the
natural and probable consequences doctrine were exceptions to
the actual malice requirement. The felony-murder rule made ‘a
killing while committing certain felonies murder without the
2
necessity of further examining the defendant’s mental state.’
[Citation.] First degree felony murder was ‘a killing during the
course of a felony specified in . . . section 189, such as rape,
burglary, or robbery.’ [Citation.] Second degree felony murder
was ‘ “an unlawful killing in the course of the commission of a
felony that is inherently dangerous to human life but is not
included among the felonies enumerated in section 189.” ’
[Citation.] The natural and probable consequences doctrine
made ‘a person who aids and abets a confederate in the
commission of a criminal act . . . liable not only for that crime (the
target crime), but also for any other offense (nontarget crime)
[including murder] committed by the confederate as a “natural
and probable consequence” of the crime originally aided and
abetted.’ [Citation.] Because a nontarget murder ‘ “is
unintended, the mens rea of the aider and abettor with respect to
that offense is irrelevant and culpability is imposed simply
because a reasonable person could have foreseen the commission
of the [murder].” ’ ” (People v. Johns (2020) 50 Cal.App.5th 46,
57–59 (Johns).) Thus, under the doctrines of felony murder and
the natural and probable consequences theory, a defendant could
be convicted of murder without the need of proving malice.
Effective January 1, 2019, Senate Bill 1437 changed the
law of murder in significant ways. Section 188, which defines
express and implied malice, was amended to provide, “Except as
stated in subdivision (e) of Section 189 in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
3
participation in a crime.” (§ 188, subd. (a)(3).) Subdivision (e)
was added to section 189, which defines the scope of first degree
felony murder, and provides, “[a] participant in the perpetration
or attempted perpetration of a felony listed in subdivision (a) in
which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer[;]
[¶] (2) The person was not the actual killer, but, with the intent
to kill, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree[;] [¶] [or] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
section 190.2.” (§ 189, subd. (e).)
The effect of these changes are still being dissected by the
courts of this state, but are generally agreed to (1) abolish the
natural and probable consequences doctrine with respect to
murder, so that an aider and abettor cannot be convicted of
murder under that theory (People v. Gentile (2020) 10 Cal.5th
830, 847 (Gentile) [aider and abettor cannot be convicted of
second degree murder based on natural and probable
consequences doctrine]); and (2) limit the first degree felony-
murder rule so that it is limited to the actual killer, to an aider
and abettor who acts with an intent to kill, or to an aider and
abettor who is a major participant in the underlying felony and
acts with a reckless indifference to life. (Johns, supra, 50
Cal.App.5th at p. 59.) The amendments to section 188 also call
into question the continuing validity of the second degree felony
4
murder rule. (In re White (2019) 34 Cal.App.5th 933, 937, fn. 2.)
However, a defendant may still be liable for murder as a “direct”
aider and abettor because a direct aider and abettor must possess
malice aforethought. (Gentile, supra, 10 Cal.5th at p. 848; see
People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy) [outside of
natural and probable consequences doctrine, aider and abettor
must share murderous intent of perpetrator]; People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1164.)
Senate Bill 1437 also added section 1170.95, which creates
a procedure for offenders previously convicted of felony murder or
murder under the natural and probable consequences doctrine to
obtain the benefits of these changes retrospectively. Such
offenders may petition the sentencing court to vacate the
conviction and be resentenced on any remaining counts if he or
she could not have been convicted of murder because of Senate
Bill 1437’s changes to the definition of the crime. (See Gentile,
supra, 10 Cal.5th at pp. 858–859.)
Section 1170.95, subdivision (a) provides that the petition
must allege: (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 or guilty plea,
and (3) the petitioner could not be convicted of first or second
degree murder because of changes in sections 188 and 189 made
effective January 1, 2019. The petition must also include, in
pertinent part, a declaration stating the petitioner “is eligible for
5
relief under this section” based on all the requirements in
subdivision (a) of section 1170.95, and whether the petitioner
requests the appointment of counsel. (Id., subd. (b)(1)(A) & (C).)
If 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).)2
Section 1170.95, subdivision (c) provides the process by
which the court is to decide the petition: “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[’s] 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.” Therefore, no order to show cause
is issued and no hearing is held (§ 1170.95, subd. (d)(1)) unless
the court first determines a prima facie showing of entitlement to
relief.
Appellant first filed a habeas corpus petition in superior
2
court to assert his entitlement to resentencing, which was
summarily denied on the ground there existed a “plain, speedy
and adequate remedy” under section 1170.95.
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II. BACKGROUND
We turn now to the particulars of this case.
A. Statement of Facts3
Emmanuel Hernandez and Yusef Hussein were walking
along the highway on the evening of January 28, 2009 when
shots rang out from a car and Hernandez suffered a fatal wound
in the back of his neck. Appellant was the driver of the car from
which the shots were fired, and Shane Peters was the shooter.
Two passengers in the car—Richard Eads and Francisco Soto—
agreed to give state’s evidence in return for a charge of accessory
after the fact.
Appellant and Peters were both members of the Norteno
street gang, and Hussein was associated with the rival Sureno
gang. On the day of the shooting, appellant, Peters, Eads and
Soto were driving around in appellant’s car, stopping for the
purpose of painting “anti-Sureno graffiti.” They saw Hussein,
whom they recognized as a rival gang member, and appellant
expressed astonishment he was “walking around on my streets.”
Appellant drove Peters to his car, where he retrieved something,
and returned to Hussein’s location.
Peters got out of the car and walked toward Hussein with a
gun in his hand, but then returned to the car.
3The facts are taken from our prior unpublished opinion in
this matter, of which we take judicial notice. (People v. Peters
(January 4, 2013, A131097) [nonpub. opn.]; Evid. Code, §§ 452,
459.)
7
Appellant made a U-turn, ran a red light, and crossed the road in
order to get close to Hussein. Peters leaned out of the window
and fired several shots.
B. Charges, Instructions and Verdict
Appellant and Peters were jointly charged with first degree
murder with special circumstances and with attempted murder,
along with various firearm and gang enhancements. The jury
was instructed on first degree murder based on theories of
premeditation and deliberation and shooting a firearm from a
motor vehicle, and on second degree murder based on either
express or implied malice. They were also instructed on the
doctrine of transferred intent, but were not instructed on felony
murder (either of first or of second degree) or the natural and
probable consequences doctrine, or on any target offense other
than murder. The jury returned a verdict of second degree
murder and attempted murder as to both defendants.
C. Petition under section 1170.95
On March 18, 2019, filed a petition for resentencing under
section 1170.95, requesting that he be resentenced on both his
murder and attempted murder convictions. On March 27, 2019,
the prosecution filed a response stating that appellant acted with
intent to kill, and also acted with reckless indifference to life as a
major participant to a crime. On April 23, 2019, the court
appointed counsel for appellant, who on October 31, 2019 filed a
reply on behalf of appellant. That brief asserted appellant had
stated a prima facie case for relief, that the record of conviction
lacked sufficient evidence of malice, and that the record did not
8
establish appellant was a major participant who acted with
reckless disregard for life.
The trial court denied the petition by a written order dated
February 4, 2020. The trial court noted the jury had not been
instructed on felony murder or murder under a natural and
probable consequences theory. Although acknowledging that the
instructions on implied malice contained a natural and probable
consequences component, the court noted that the jury had found
express malice, i.e., a specific intent to unlawfully kill, when it
convicted appellant of attempted murder. Because appellant was
an aider and abettor who acted with intent to kill, he would still
be convicted under the statutes for murder as amended by Senate
Bill 1437, and he was not entitled to relief under section 1170.95.
III. DISCUSSION
A. Record of Conviction
Appellant argues the trial court erred in denying his
section 1170.95 petition without issuing an order to show cause
and holding an evidentiary hearing as required by section
1170.95, subdivisions (c) and (d)(1). He submits the court should
not have considered the record of conviction to determine that he
directly aided and abetted the killer in this case and acted with
an intent to kill, and claims that once he filed a petition that was
facially adequate under section 1170.95, subdivision (b)(1), a
prima facie case was established and could not be controverted by
information in the record of conviction.
9
Because resolution of this issue primarily involves statutory
interpretation, we apply a de novo standard of review. (People v.
Drayton (2020) 47 Cal.App.5th 965, 981 (Drayton).)
The issue of whether the record on appeal may be
considered in determining whether a prima facie case has been
made under section 1170.95 is currently pending in the Supreme
Court. (People v. Lewis (2019) 43 Cal.App.5th 1128, 1138 (Lewis),
review granted March 18, 2020, S260598; Drayton, supra, 47
Cal.App.5th at p. 975.)4 Numerous courts of appeal have
considered the issue and concluded that a finding of ineligibility
for relief under section 1170.95 may be based on the record of
conviction. (See, e.g., People v. Verdugo (2020) 44 Cal.App.5th
320, 327–331 (Verdugo), review granted March 18, 2020,
S260493; People v. Tarkington (2020) 49 Cal.App.5th 892, 898,
review granted August 12, 2020, S263219; People v. Lee (2020) 49
Cal.App.5th 254, 262, review granted July 15, 2020, S262459.)
Although the analogy is not perfect, we look to habeas
corpus in determining whether the record on conviction is
properly considered when determining whether to issue an order
to show cause under section 1170.95. (Drayton, supra, 47
Cal.App.5th at pp. 977–978; Verdugo, supra, 44 Cal.App.4th at
4 The Lewis case also involves the issue of whether it is
error to make this determination without first appointing
counsel, and at what stage of the section 1170.95 proceeding
counsel must be appointed. (Lewis, supra, 43 Cal.App.5th 1128.)
Because counsel was appointed in this case, this issue is not
before us.
10
p. 328.) When reviewing a petition seeking habeas corpus relief,
a court evaluates it by asking whether the allegations, if taken as
true, provide grounds for relief, but it is not precluded from
looking to the record on appeal if it directly contradicts the
allegations in the petition. (Drayton, at p. 978–980.)
Additionally, when reviewing a section 1170.95 petition,
“[a]llowing the [superior] court to consider its file and the record
of conviction is . . . sound policy. . . . ‘It would be a gross misuse
of judicial resources to require the issuance of an order to show
cause or even appointment of counsel based solely on the
allegations of a petition, which frequently are erroneous, when
even a cursory review of the court file would show as a matter of
law that the petitioner is not eligible for relief. For example, if
the petition contains sufficient summary allegations that would
entitle the petitioner to relief, but a review of the court file shows
the petitioner was convicted of murder without instruction or
argument based on the felony murder rule or [the natural and
probable consequences doctrine], . . . it would be entirely
appropriate to summarily deny the petition based on petitioner’s
failure to establish even a prima facie basis of eligibility for
resentencing.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1138, quoting
Couzens, Bigelow, & Prickett, Sentencing California Crimes (The
Rutter Group Oct. 2019 update) Ch. 23, § 23:51(H)(1), pp. 23–150
to 23–151.)
We therefore conclude that in determining whether to
grant an order to show cause under section 1170.95, “[t]he trial
court should not evaluate the credibility of the petition’s
11
assertions, but it need not credit factual assertions that 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. Just as in habeas corpus, if 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 to section 1170.95, subd. (d) 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 (such as determining
whether the petitioner showed reckless indifference to human life
in the commission of the crime).” (Drayton, supra, 47
Cal.App.5th at p. 980.)
In this case, a review of the readily ascertainable facts in
the record of conviction shows that appellant is not entitled to
relief under section 1170.95 because he is not “[a] person
convicted of felony murder or murder under a natural and
probable consequences theory” (§ 1170.95 subd. (a)) and could
still “be convicted of first or second degree murder” after the
enactment of Senate Bill 1437 (id. subd. (a)(3)). The jury did not
receive instructions that it could convict appellant based on
felony murder or the natural and probable consequences doctrine
at trial, but was instructed only under a theory of direct aiding
12
and abetting, which remains a valid theory after Senate Bill
1437. (Gentile, supra, 10 Cal.5th at p. 848.)
The jurors were given a version of CALCRIM No. 400 that
advised them a person could be guilty of a crime as either a
perpetrator or an aider and abettor, and the prosecution was
proceeding under a theory that Peters was the perpetrator
(shooter) and appellant was an aider and abettor. CALCRIM No.
401 defined aiding and abetting to require, “1. The perpetrator
committed the crime; [¶] 2. The defendant knew that the
perpetrator intended to commit the crime; [¶] 3. Before or during
the commission of the crime, the defendant intended to aid and
abet the perpetrator in committing the crime; [¶] 4. The
defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime.” The court gave
CALCRIM No. 520, which provided in part, “There are two kinds
of malice aforethought, express malice and implied malice. Proof
of either is sufficient to establish the state of mind required for
murder. [¶] The defendants acted with express malice if they
unlawfully intended to kill. [¶] The defendants acted with
implied malice if: [¶] 1. They intentionally committed an act; [¶]
2. The natural and probable consequences of the act were
dangerous to human life; [¶] 3. At the time they acted, they
knew their act was dangerous to human life; [¶] AND [¶] 4.
They deliberately acted with conscious disregard for human life.”
(Italics added.)
The trial court’s written opinion suggests a concern about
whether an aider and abettor may be convicted of second degree
13
murder based on an implied malice theory after the enactment of
Senate Bill 1437, given that it is based on an act, the “natural
and probable consequences” of which are dangerous to life.
However, implied malice is a distinct concept from the natural
and probable consequences doctrine, and does not purport to
impute malice from the commission of some other criminal act, as
is now prohibited under Senate Bill 1437. (§ 188, subd. (a)(3);
People v. Soto (2020) 51 Cal.App.5th 1043, 1056–1058, review
granted September 23, 2020, S263939) [aider and abettor may be
convicted of directly aiding and abetting an implied malice
murder after Senate Bill 1437].) An aider and abettor may still
be convicted of implied malice murder when the defendant
personally harbors implied malice. (Gentile, supra, 10 Cal.5th at
p. 850.)
In any event, as the trial court noted, appellant was
convicted of attempted murder based on his aiding and abetting
of the same shooting that gave rise the murder conviction, having
been instructed by CALCRIM No. 600 that attempted murder
requires a determination that “the defendants intended to kill
that person.” (See People v. Lee (2003) 31 Cal.4th 613, 624;
McCoy, supra, 25 Cal.4th at p. 1118 [defendant who is guilty of
attempted murder under a direct aiding and abetting theory
must have the specific intent to kill].) An intent to kill is the
equivalent of express malice, at least when there is no question of
justification or excuse, and by finding appellant guilty of
attempted murder, the jury necessarily found that appellant
acted with intent to kill or express malice when he aided and
14
abetted the second degree murder. (See People v. Moon (2005) 37
Cal.4th 1, 29; People v. Smith (2005) 37 Cal.4th 733, 741.)
The superior court's denial without issuing an order to
show cause was appropriate. (People v. Edwards (2020) 48
Cal.App.5th 666, 674, review granted July 8, 2020, S262481
[upholding summary denial of § 1170.95 petition in case where
defendant convicted of second degree murder where record of
conviction showed that jury not instructed on second degree
murder felony-murder rule or doctrine of natural and probable
consequences].) Because appellant was convicted of directly
aiding and abetting a second degree murder, the jury necessarily
found he acted with malice aforethought. This means he could
still be convicted of murder after the passage of Senate Bill 1437,
and that he is not entitled to relief under section 1170.95.
(§ 1170.95, subd. (a)(3).)
B. Attempted Murder
Appellant argues he was entitled to resentencing under
section 1170.95 on his attempted murder conviction. The
Attorney General argues that relief is not available because
Senate Bill 1437 and section 1170.95 apply only to murder, and
not to attempted murder. We apply a de novo standard of review
(People v. Flores (2020) 44 Cal.App.5th 985, 992) and reject
appellant’s claim.
The Supreme Court has granted review on this issue and
shall soon provide guidance. (People v. Lopez (2019) 38
Cal.App.5th 1087, 1103–1105, review granted Nov. 13, 2019,
S258175; see also People v. Munoz (2019) 39 Cal.App.5th 738,
15
749–751, review granted Nov. 26, 2019, S258234; People v.
Medrano (2019) 42 Cal.App.5th 1001, 1015–1016, review granted
March 11, 2020, S259948; People v. Larios (2019) 42 Cal.App.5th
956, 967–968, 970, review granted February 26, 2020, S259983.)
We note that in the meantime, while it appears the courts of
appeal have expressed multiple perspectives on Senate Bill
1437’s effect on the crime of attempted murder, no published case
has ruled that section 1170.95 created an avenue to attack an
attempted murder conviction that, like appellant’s, is final. (See
People v. Love (2020) 55 Cal.App.5th 273, 278–279, review
granted Dec. 16, 2020, S265445 [one group of appellate courts
“has held that Senate Bill 1437 did not eliminate the natural and
probable consequences theory for attempted murder at all”; the
“second group has held that Senate Bill 1437 eliminated the
natural and probable consequences theory for attempted murder
prospectively, but not retroactively”; the “last group has held that
Senate Bill 1437 eliminated the natural and probable
consequences theory for attempted murder prospectively and
retroactively as to nonfinal convictions, but not retroactively as to
final convictions”].)
We also note that in this case, even if we were to assume
that section 1170.95 applies to attempted murder convictions,
appellant would not be entitled to relief for the same reason he is
not entitled to resentencing on his murder conviction. Quite
simply, section 1170.95 potentially applies only to attempted
murders based on the natural and probable consequences
doctrine, and the jurors in this case were not instructed on that
16
doctrine. They were given CALCRIM Nos. 400 and 401, which
instructed them on the theory of direct aiding and abetting, as
well as CALCRIM No. 600, which advised them that an
attempted murder conviction required a finding that “the
defendants intended to kill [the victim].”
As relevant here, Senate Bill 1437 amended section 188 to
provide that outside the felony-murder rule (which is not
applicable to attempted murder; see People v. Hammond (1986)
181 Cal.App.3d 463, 468, fn. 5), a defendant may only be
convicted of murder when malice is proven and “[m]alice shall not
be imputed to a person based solely on his or her participation in
a crime.” (§188, subd. (a)(3).) Assuming this applies to
attempted murder, the record of conviction in this case
establishes that appellant was found to have acted with malice
and that malice was not imputed based on the commission of a
target crime.
C. Presentation of New Evidence at Hearing
Appellant claims he had a statutory right to present new
evidence at a hearing under section 1170.95, subdivision (d)(3),
and that by denying him an evidentiary hearing without issuance
of an order to show cause, the court prevented him from
presenting such evidence. We disagree.
The petition was properly denied without a hearing
because the record on conviction demonstrated that, contrary to
appellant’s allegations, he was ineligible for relief because he was
not convicted under a felony-murder theory or the natural and
probable consequences doctrine. Appellant was convicted after a
17
jury trial and that conviction was affirmed on direct appeal; the
issue whether he acted as a direct aider and abettor thus has
been litigated. (Lewis, supra, 43 Cal.App.5th at pp. 1138–1139.)
Although there might be some circumstances where new evidence
can be introduced to clarify an ambiguous record or determine
facts in light of subsequent changes in the law (People v. Torres
(2020) 46 Cal.App.5th 1168, review granted June 24, 2020,
S262011 [court entitled to review evidence to determine whether
defendant was a “major participant” who acted with a “reckless
indifference to human life” as those terms were now defined after
a change in the law]),a section 1170.95 petition is not a means by
which a defendant can relitigate issues already decided. And,
although appellant alleges he should have been allowed to
present “new evidence” at an evidentiary hearing, he does not
describe what such evidence would be and had made no showing
that the trial court ever denied a request to present such new
evidence.
IV. DISPOSITION
The judgment is affirmed.
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NEEDHAM, Acting P.J.
We concur.
BURNS, J.
RODRIGUEZ, J. *
People v. Coley / A159927
* Judge of the Superior Court of Alameda County, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
19