Filed 7/26/21 P. v. Mathis CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B307882
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA310233-01
v.
CHRISTOPHER ROMEZ MATHIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Terry A. Bork, Judge. Affirmed.
Stanley Dale Radtke, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
BACKGROUND
In 2008 a jury convicted defendant and appellant
Christopher Romez Mathis of the first degree murder of Ernest
Crayton. The jury found true allegations that, in the commission
of the crime, Mathis personally and intentionally used and
discharged a firearm causing Crayton’s death and that Mathis
acted to benefit a criminal street gang. The trial court sentenced
Mathis to 50 years to life in the state prison. In 2009, we
affirmed Mathis’s conviction. (People v. Mathis (Nov. 20, 2009,
B209147) [nonpub. opn.] (Mathis I).)
According to our opinion in Mathis’s direct appeal,1 around
6:00 p.m. on October 2, 2006, Akil Robbins was driving a red
Chevrolet Cobalt he’d borrowed from an acquaintance. A witness
on a balcony near Western and Vernon saw a young man—later
identified as Crayton—standing on Western. Crayton “threw
a Rollin 40’s gang sign to someone across the street.” A red car
drove up and stopped next to Crayton. A man got out of the
passenger seat, approached Crayton, and shot him five or six
times. (Mathis I.)
Another witness waiting for a bus on the corner of Western
and Vernon heard gunshots coming from a red Chevrolet Cobalt
with its front passenger door open. Mathis was standing on the
sidewalk next to the car, holding a gun. Mathis fired another
shot and got back in the car, which sped away. Robbins was
driving. (Mathis I.)
1 On our own motion, we take judicial notice of our opinion
in Mathis’s direct appeal from the judgment of conviction. (Evid.
Code, §§ 452, subd. (d), 459.)
2
A patrol car began to chase the red Chevy. The Chevy
finally stopped and two men jumped out: Robbins from the
driver’s seat and Mathis from the passenger seat. They ran
down an alley; canine search teams located them. Police found
a nine-millimeter semiautomatic handgun in the Chevy. A bullet
taken from Crayton’s body matched the gun. Crayton had been
shot five times, twice in the head. (Mathis I.)
After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) took effect, Mathis filed on March 24, 2019 a petition
for resentencing under Penal Code section 1170.95.2 On a
downloadable form, Mathis checked all of the boxes except one
(having to do with plea agreements). The boxes stated (among
other things) that Mathis was convicted of murder “pursuant to
the felony murder rule or the natural and probable consequences
doctrine,” and that he “was not the actual killer.” Mathis
attached two handwritten pages stating the firearm
enhancement in his case was “solely for vicarious liability
therefore it is undisputed the prosecutor theory of Petitioner
being the shooter was uncertain,”3 it was “undisputed jurors
2 References to statutes are to the Penal Code.
3 The information alleged that both defendants personally
and intentionally used and discharged a firearm causing death
to Crayton under section 12022.53, subdivisions (b), (c), and (d).
The information also alleged that a principal personally and
intentionally used and discharged a firearm causing death to
Crayton under section 12022.53, subdivisions (b), (c), (d), and
(e)(1). The jury found all the firearm allegations as to Mathis
true. Accordingly, Mathis’s assertion that he was charged “solely
for vicarious liability” under subdivision (e) is incorrect. The
record on appeal does not include the verdict forms for Robbins.
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were instructed on first degree murder under a natural and
probable consequence doctrine,” and the trial court erred in
the way it edited the jury instruction on expert testimony.
The court appointed counsel for Mathis.
The district attorney filed a response to Mathis’s petition.
Most of the prosecution’s response was devoted to its contention
that Senate Bill 1437 was unconstitutional. The prosecutor also
argued Mathis was not entitled to relief under section 1170.95
because he “was convicted under the legal theory of a willful,
deliberate, and premeditated murder. Neither the accomplice
liability, natural and probable consequences theory of liability,
nor the felony murder rule, were argued in this case.”
Mathis’s counsel filed a reply on his behalf. Counsel stated,
“upon information and belief, the defendant ha[d] alleged . . .
in his petition” that he was eligible for relief, “and thus [met]
the low bar [for] making out a prima facie showing as defined
by the statute.” Accordingly, counsel asserted, the court was
required to issue an order to show cause and hold a hearing.
Mathis appeared before the court on July 27, 2020 with
counsel.4 Mathis’s counsel contended he had made “a prima facie
showing,” and “therefore” “now the burden shifts to the People
to prove by competent evidence beyond a reasonable doubt that
he is not entitled to relief.” The prosecutor responded “defendant
Mathis was found to be the shooter” and was “not in any way
an accomplice.” Accordingly, he argued Mathis was ineligible
for relief.
4 The trial court denied Mathis’s request to waive his
appearance. Robbins apparently filed a petition under section
1170.95 as well, and the court held a hearing on both petitions
at the same time.
4
Mathis’s counsel continued to argue that, because Mathis’s
petition was “facially adequate,” the prosecution had to “put on
competent evidence to prove” Mathis was not entitled to relief.
The prosecutor noted the court had “the appellate decision which
is part of the court record,” and it—as well as the minute orders
and the abstract of judgment—showed Mathis “was found to be
the shooter.”
The court then summarized the facts set forth in Mathis I.
The court stated, “Both defendants were convicted under the
legal theory of willful, deliberate, and [pre]meditated murder.
Mr. Mathis as the shooter; Mr. Robbins as the getaway driver
and aider and abettor.” The court noted “accomplice liability,
[the] natural and probable consequences theory of liability, [and]
the felony murder rule” were not “argued in this case.” The court
concluded Mathis was “not eligible for resentencing since he was
the actual killer pursuant to Penal Code section 189(e)(1).”
Mathis appealed and we appointed counsel to represent
him on appeal. After examining the record, counsel filed
an opening brief raising no issues and asking this court
independently to review the record under People v. Wende (1979)
25 Cal.3d 436 (Wende). Counsel stated he had written to Mathis
to advise him he was filing a Wende brief and Mathis had the
right to file a supplemental brief. We also sent Mathis a letter
on February 19, 2021, telling him the same thing. Mathis twice
requested extensions of time to file a supplemental brief. We
granted both. The second extension expired July 1, 2021 but
we have not received any supplemental brief from Mathis.5
5 On July 9, 2021, we received a letter from Mathis
postmarked July 7, 2021 stating he had mailed his supplemental
brief to the superior court, even though our February 19 letter
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DISCUSSION
Senate Bill 1437 “ ‘amend[ed] 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 . . . .’ ” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417, quoting Stats. 2018,
ch. 1015, § 1(f); § 189, subd. (e)(1).) Here, however, Mathis was
the actual killer. Because Mathis was convicted under a valid
theory of murder that survived the changes to sections 188 and
189, he is ineligible for relief under section 1170.95. (See §§ 189,
subd. (e)(1), 190.2, subds. (b), (c), (d); People v. Tarkington (2020)
49 Cal.App.5th 892, 895-896, 899 [defendant was actual killer,
not prosecuted on a felony murder or natural and probable
consequences theory], review granted Aug. 12, 2020, S263219;
People v. Gallo (2020) 57 Cal.App.5th 594, 599-600 [same];
People v. Edwards (2020) 48 Cal.App.5th 666, 669, 671, 674
[affirming summary denial of resentencing petition where
record of conviction and appellate opinion on direct appeal
showed petitioner was the actual killer, and was not tried or
convicted of felony-murder or under the natural and probable
consequences doctrine], review granted July 8, 2020, S262481;
People v. Perez (2020) 54 Cal.App.5th 896, 900, 907 [defendant
“did not make an offer of proof he could present testimony or
other evidence to show he was not the actual killer”], review
granted Dec. 9, 2020, S265254; People v. Cornelius (2020)
plainly stated this court’s mailing address. On July 16 we
received a second letter from Mathis, stating he had “moved
back to state prison” and asking if we had received his brief.
It is not this court’s obligation to contact the trial court in
a search for a pleading Mathis may have sent to it.
6
44 Cal.App.5th 54 [affirming denial of resentencing petition
where petitioner was the actual killer who discharged a firearm
causing death], review granted Mar. 18, 2020, S260410; cf.
People v. Daniel (2020) 57 Cal.App.5th 666, 673, 678 [error
in failing to appoint counsel was harmless because defendant
was actual killer who was “directly, not vicariously, liable for
[victim’s] murder”], review granted Feb. 24, 2021, S266336.)
We are satisfied that Mathis’s counsel has fully complied
with his responsibilities and that no arguable issues exist.
(People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra,
25 Cal.3d at p. 441.)
DISPOSITION
The postjudgment order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J. THOMAS, J.
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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