Filed 6/2/21 P. v. Jefferson CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304681
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA085639)
v.
OMAR MALIK JEFFERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
__________________________
Omar Jefferson appeals from an order denying his petition
to vacate his murder conviction and to be resentenced under
Penal Code section 1170.95.1 His appointed counsel filed a brief
pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 and
People v. Wende (1979) 25 Cal.3d 436, raising no issues.
Jefferson filed a supplemental brief arguing the trial court erred
in finding he had not made a prima facie showing of entitlement
to relief. Because the jury in Jefferson’s underlying trial was not
instructed on felony murder or the natural and probable
consequences doctrine, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 17, 2006, appellant was driving a car with two
passengers who were fellow gang members. Appellant began
chasing a rival gang member, Alvin Boyd, who was riding a
“minibike.” Occupants in appellant’s car fired gunshots at Boyd.
Boyd was able to evade his chasers who then chose another
target. Seven shots were fired from appellant’s car at two men
standing on the street: one of the targets was hit in the leg and
survived; the other died as a result of a gunshot wound to the
chest.
Jefferson and his two accomplices were tried together. The
jury found defendants guilty of one count of willful, deliberate,
and premeditated first degree murder, and two counts of
attempted murder. The jury also found true gang and firearm
use allegations. The trial court sentenced Jefferson to 77 years to
life. We affirmed the judgment in an unpublished opinion.
(People v. Jefferson (Dec. 9, 2009, B208908) [nonpub. opn.].)
1 All further undesignated statutory references are to the
Penal Code.
2
In January 2019, Jefferson, acting in propria persona,
petitioned for resentencing of his murder conviction pursuant to
newly enacted section 1170.95, arguing that he may have been
convicted of murder under the felony murder or natural and
probable consequences doctrines. The trial court appointed
counsel, and both parties filed briefs.
The court held a hearing on whether Jefferson had made a
prima facie showing that he fell within the provisions of section
1170.95. The court concluded that Jefferson failed to make a
prima facie showing based on this reasoning: “Petitioner directly
and explicitly aided and abetted as he was the driver of a vehicle
from which the shots were fired killing the victim. . . . The jury
was also instructed that to convict petitioner they must find that
he ‘intended to kill[.]’ ” The petition was denied, and Jefferson
appealed.
DISCUSSION
When a defendant appeals the denial of postconviction
relief and appellate counsel identifies no cognizable issues, the
Court of Appeal has “no independent duty to review the record for
reasonably arguable issues.” (People v. Cole (2020)
52 Cal.App.5th 1023, 1039.) “However, if the defendant files a
supplemental brief, the Court of Appeal is required to evaluate
any arguments presented in that brief and to issue a written
opinion that disposes of the trial court’s order on the merits . . . .”
(Id. at p. 1040.) Here, Jefferson filed a supplemental brief
arguing he was entitled to section 1170.95 relief because the jury
may have convicted him under the natural and probable
consequences doctrine, pointing to two jury instructions that
referenced the natural and/or probable consequences of his
3
actions in the context of implied malice and a firearm
enhancement.2
Senate Bill No. 1347 enacted section 1170.95, amending
“the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1(f),
p. 6674.) “As a result, the natural and probable consequences
doctrine can no longer be used to support a murder conviction.
[Citations.] The change did not, however, alter the law regarding
the criminal liability of direct aiders and abettors of murder
because such persons necessarily ‘know and share the murderous
intent of the actual perpetrator.’ [Citations.] 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 (2020) 43 Cal.App.5th 1128, 1135,
review granted Mar. 18, 2020, S260598.)
Here, the trial court properly relied on the jury instructions
in assessing the prima facie showing under section 1170.95,
subdivision (c). (People v. Edwards (2020) 48 Cal.App.5th 666,
674 review granted July 8, 2020, S262481.) “The jury
instructions given at a petitioner’s trial may provide ‘readily
ascertainable facts from the record’ that refute the petitioner’s
showing, and reliance on them to make the eligibility or
entitlement determinations may not amount to ‘factfinding
2 Jefferson, in his supplemental brief does not argue the jury
was instructed on felony murder, an alternative basis for section
1170.95 relief. (§ 1170.95, subd. (a).)
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involving the weighing of evidence or the exercise of discretion.’
[Citations.]” (People v. Soto (2020) 51 Cal.App.5th 1043, 1055
review granted Sept. 23, 2020, S263939.)
The record shows the jury was not instructed on the natural
and probable causes doctrine or on any target crime upon which
murder based on a natural and probable consequences theory
could be predicated.3 Instead, Jefferson’s argument rests on the
following jury instructions given at his trial: (1) CALCRIM
No. 1402 which referenced “the direct, natural, and probable
consequence” of a defendant’s act in the context of a firearm
enhancement, and (2) CALCRIM No. 520 which referred to the
“natural consequences” of a defendant’s actions within the context
of implied malice murder. However, these jury instructions’
references to the natural and/or probable consequences of
Jefferson’s actions for purposes of malice and a firearm
enhancement did not transform his murder conviction into one
under the natural and probable consequences doctrine.
First, CALCRIM No. 1402 did not address the elements
required for murder; it explained the People’s burden of proof as
to a firearm enhancement under section 12022.53, subdivision
(e).
Second, as to CALCRIM No. 520’s use of “natural
consequences” in the context of implied malice, there is a
distinction between implied malice and the natural and probable
consequence theory. As explained by the Soto court, “The natural
and probable consequence doctrine . . . is a theory of liability by
which an aider and abettor who intends to aid a less serious
crime can be convicted of a greater crime. This doctrine comes
3 We take judicial notice of the jury instructions given in
Jefferson’s 2008 trial.
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into play when ‘an accomplice assists or encourages a confederate
to commit one crime, and the confederate commits another, more
serious crime (the nontarget offense).’ [Citation.] Applying the
natural and probable consequences doctrine, ‘a defendant may be
held criminally responsible as an accomplice not only for the
crime he or she intended to aid and abet (the target crime), but
also for any other crime that is the “natural and probable
consequence” of the target crime.’ [Citation.] Unlike aiding and
abetting implied malice murder, which requires the aider and
abettor to (at least) share the mental state of the actual
perpetrator of implied malice murder, ‘ “aider and abettor
culpability under the natural and probable consequences doctrine
is not premised upon the intention of the aider and abettor to
commit the nontarget offense [e.g., murder] because the
nontarget offense was not intended at all.” ’ [Citation.]” (Soto,
supra, 51 Cal.App.5th at p. 1058.)
Here, because the jury necessarily found Jefferson culpable
for murder based on his own actions and mental state as a direct
aider and abettor of murder, he “is thus liable for murder under
the new law just as he . . . was liable under the old law” (People v.
Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18,
2020, S260598), and ineligible for relief under section 1170.95.
Jefferson makes two additional arguments: (1) CALCRIM
400 “is no longer a legally valid instruction . . . because the
‘equally guilty’ was deemed to be [] misleading and could confuse
the jury”; and (2) substantial evidence does not support his
conviction because “he was not involved in the crime at all and []
only two people were involved and three people were convicted.”
These arguments are not properly before us. Jefferson has
appealed from the trial court’s order denying his petition for
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resentencing under section 1170.95; any argument regarding
instructional error or the insufficiency of evidence in support of
his underlying conviction may not be raised in a section1170.95
petition, nor is it within the scope of this appeal.
DISPOSITION
The January 14, 2020 order denying Jefferson’s petition for
resentencing is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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