Filed 9/1/21 P. v. Price CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B302565
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA415163)
v.
ANDRE PRICE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, David V. Herriford, Judge. Affirmed.
Stephen Temko, 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, Idan Ivri and Amanda V. Lopez, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Andre Price of second degree
murder in 2014. We affirmed that conviction in 2016 in our prior,
unpublished opinion, People v. Price (Aug. 8, 2016, B262143) (unpub.
opn.). In 2019, appellant filed a petition for resentencing under
Penal Code section 1170.95.1 After appointment of counsel, briefing,
and a hearing, the trial court denied the petition, finding that
appellant was ineligible for relief because he was necessarily
convicted as an aider and abettor to the murder. In this appeal from
the denial of his resentencing petition, appellant argues that the
jury might have relied on a felony murder theory and therefore
might not have found that he acted with the requisite malice to
support his conviction. We affirm.
BACKGROUND
I. Factual Background
The underlying facts presented at trial are discussed in detail
in our prior opinion. We summarize them here as relevant to the
instant appeal.
Appellant was a friend of Rodney Longmiyer. Longmiyer’s
cousin, Andrea Fowler, was a friend of the victim, Jeffrey Davis. The
prosecution’s theory at trial was that appellant, Longmiyer, and
Fowler planned to rob Davis, that in the course of that robbery,
appellant assaulted Davis, and that Longmiyer or appellant then
fatally shot him.
The shooting occurred on August 2, 2012 at around 1:30 p.m.
A witness heard two gunshots from the alley behind her apartment
building; a few seconds later, she saw three cars in the alley
containing individuals she believed were African-American males.
She described one of the cars as a four-door, compact car, like a
All further statutory references are to the Penal Code unless
1
otherwise indicated.
2
Honda or Nissan, and another as a black or blue sedan, “like a
Thunderbird.”
Fowler called 911 at 1:32 p.m. from her home phone. She
reported that she and Davis were in the alley when “some guy
started to rob us” and then “somebody shot my friend.” Fowler and
Davis drove to the hospital in a Mazda 6, which was later secured by
police. Davis was pronounced dead at the hospital from a gunshot
wound to the chest. The medical examiner testified that the death
was a homicide and that there was a muzzle imprint at the entry
wound, meaning that the tip of the gun “was in contact with the skin
when it was discharged.” The police recovered Davis’s cell phone
from under the driver’s seat of the Mazda 6.
Davis sustained other injuries shortly before his death: a red
contusion above his right eye, contusions to the inside of both his
upper and lower lips, bruising on the right and left side of the scalp,
two three-inch abrasions across his left upper chest, a dark abrasion
on the back of his right shoulder near the top, two separate bruises
on the top of his right hand, an abrasion on his right palm below the
thumb, and several abrasions on his left leg and knee. Based on his
injuries, the medical examiner opined that Davis was involved in a
physical struggle. The injuries to Davis’s hand indicated that “there
were either punches thrown or attempts to ward off injury by trying
to block a blow or an attack.” DNA swabs taken from Davis’s right
knuckle contained appellant’s DNA. A defense DNA expert testified
about different types of DNA transfer, and acknowledged during
cross-examination that a punch could transfer one person’s DNA to
the other’s knuckles.
Longmiyer’s girlfriend testified that in August of 2012,
Longmiyer was driving their black 2004 Pontiac Grand Prix; the car
was registered under appellant’s name. From her cell phone
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contacts, she identified appellant’s phone number and Fowler’s cell
phone number. The prosecution presented extensive phone record
evidence, which showed multiple calls and text messages among
appellant’s and Longmiyer’s cell phones on the day of the shooting
from around 8:00 a.m. until around the time of the shooting. At 1:18
p.m., Davis’s phone was used to call Longmiyer’s phone (the only call
made between those phones). Video surveillance from a liquor store
near the scene of the shooting showed Davis getting out of a car and
going into the store at 1:17 p.m., and Fowler following him a few
minutes later. The video showed Fowler and Davis leaving the store
parking lot in a car at 1:25 p.m., heading toward the alley.
The phone records also showed the cell towers used for each
call. Between 1:17 and 1:32 p.m., Longmiyer’s calls to and from
Fowler’s and Davis’s phones all used a cell tower less than half a
mile from the shooting. After that time, Longmiyer’s phone moved
away from the site of the shooting.
II. Procedural History
A. Trial and Direct Appeal
In 2013, appellant was charged with the murder of Jeffrey
Davis (§ 187, subd. (a), count 1) and possession of a firearm by a
felon (§ 29800, subd. (a)(1), count 2). The information further
alleged that appellant personally and intentionally discharged a
firearm causing great bodily injury and death (§ 12022.53, subds.
(b)-(d)), and also included gang (§ 186.22, subd. (b)(1)(A))2 and prior
conviction allegations (§ 667, subds. (a)(1), (b)-(j)).
The trial court instructed the jury on first degree felony
murder (CALCRIM Nos. 540A, 540B), in accordance with the
2The court later struck the gang allegations upon motion by
the prosecution.
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prosecution’s primary theory that Davis was shot by appellant or
Longmiyer during the commission of an attempted robbery. The
court also instructed the jury regarding first and second degree
murder with malice aforethought (CALCRIM Nos. 520, 521) and
aiding and abetting (CALCRIM Nos. 400, 401).
On May 8, 2014, the jury found appellant not guilty of first
degree murder on count 1, but guilty of the lesser-included offense of
second degree murder. The jury found not true the firearm
enhancement on count 1, and acquitted appellant on count 2 of
possession of a firearm by a felon. Following a bifurcated court trial,
the court found true the allegations regarding appellant’s prior
felony conviction, and sentenced appellant to 35 years to life.
Appellant appealed his conviction. In our prior opinion, we
found that “[i]n acquitting defendant of first degree murder, the jury
implicitly failed to find that defendant engaged in a robbery or
attempted robbery beyond a reasonable doubt. The jury also found
the gun use enhancement not true thus failing to find beyond a
reasonable doubt that defendant personally used a gun against
Davis.” We concluded that substantial evidence supported
appellant’s conviction for second degree murder under an aiding and
abetting theory. First, we found that the evidence that Davis was
shot in the chest at point blank range was sufficient to establish
malice of the shooter; moreover, given the evidence placing
Longmiyer at or near the scene, we found that “a jury could
reasonably infer that Longmiyer shot Davis and thereby committed
second degree murder.” Second, we concluded there was
“substantial evidence at trial to support the inference that
[appellant] knowingly and intentionally aided and abetted
Longmiyer in the murder.”
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B. Petition for Resentencing
On January 2, 2019, appellant filed a petition for resentencing
under section 1170.95. On the form petition, he checked the boxes
asserting that he was convicted of second degree murder under the
natural and probable consequences doctrine or the felony murder
doctrine, could not now be convicted of murder because of changes to
section 188, and that there had “been a prior determination by a
court or jury that I was not a major participant and/or did not act
with reckless indifference to human life,” so that he was entitled to
be resentenced pursuant to section 1170.95, subdivision (d)(2).
Appellant also checked the box requesting the appointment of
counsel.
The prosecution filed a response. It argued that appellant
was ineligible for resentencing because he was convicted of second
degree murder “as an aider and abettor to the actual shooter,” and
not based on felony murder or the natural and probable
consequences doctrine. It further argued that the jury “was not even
instructed on second degree felony murder or natural and probable
consequences.”
The court appointed counsel for appellant. Appellant filed a
reply addressing the prosecution’s arguments regarding the
constitutionality of section 1170.95. Shortly afterward, appellant
filed a petition with the court seeking to represent himself for the
resentencing proceedings.
At a hearing on November 8, 2019, the court granted his
request. With appellant proceeding in propria persona, the court
held a hearing on the section 1170.95 petition. Appellant argued
that the prosecutor had proceeded at trial under the theory that he
was the shooter, or was guilty under a felony murder theory for
participating in the attempted robbery of the victim, but that the
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jury had rejected the first theory when it found him not guilty of
using the gun.
The court stated it had reviewed the jury instructions given,
including instructions on aiding and abetting, and concluded that
since the jury rejected the allegation regarding personal use of the
firearm, “obviously, the only theory that would have supported your
conviction would have been as an aider and abettor.” Citing our
prior opinion, the court noted that the prosecution advanced a
theory of first degree felony murder, and that the trial court also
instructed the jury “regarding first and second-degree murder with
malice aforethought and aiding and abetting.” The court therefore
told appellant that “the only theory that was sustained at your trial
was aiding and abetting . . . [The prosecution] did argue that below.
The instructions were given. And you were convicted of that. . . .
Had you been convicted of felony murder, we might have been in a
different position, but you weren’t.” The court concluded that the
“only explanation” for appellant’s conviction was “as an aider and
abettor. There’s no other legal basis for that. . . . Because of that
you’re not entitled to relief under this statute.” Accordingly, the
court denied the petition, finding that appellant was ineligible for
relief because he was convicted as an aider and abettor and not
pursuant to the felony murder rule or natural and probable
consequences doctrine.
Appellant timely appealed.
DISCUSSION
I. Governing Law
In 2018, the Legislature enacted Senate Bill No. 1437 (SB
1437), the primary purpose of which is to align a person’s culpability
for murder with his or her own actions and subjective mens rea.
(See Stats. 2018, ch. 1015, § 1, subd. (g).) To effectuate that
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purpose, SB 1437 amended sections 188 and 189. As amended,
section 188, subdivision (a)(3) now provides that “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 participation in a crime.” (§ 188, subd. (a)(3).) Section
189 now provides that a participant in qualifying felonies during
which a death occurs generally will not be liable for murder unless
(1) he or she was “the actual killer,” (2) he or she, “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) he or she “was a major participant in the
underlying felony [who] acted with reckless indifference to human
life.” (§ 189, subds. (e)(1)-(3).) The effect of these changes was to
restrict the application of the felony murder rule and the natural
and probable consequences doctrine as applied to murder. (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 248.) “Felony murder and
aiding and abetting a murder remain crimes, but to be convicted of
murder it isn’t enough to participate in a felony that results in a
death. Now, a person so accused must have killed the victim, aided
the person who did kill the victim with the intent to kill them, or
acted as a major participant in the felony with reckless indifference
to human life.” (People v. Johns (2020) 50 Cal.App.5th 46, 54.)
SB 1437 also added section 1170.95 to the Penal Code.
Section 1170.95 permits a person convicted of murder on a charging
document that allowed the prosecution to argue felony murder or
the natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and resentence on any
remaining counts if the person could not be convicted of murder
under sections 188 and 189 as amended by SB 1437. (§ 1170.95,
subd. (a).)
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A petition for relief under section 1170.95 must include: “(A)
A declaration by the petitioner that he or she is eligible for relief
under this section, based on all the requirements of subdivision (a).
[¶] (B) The superior court case number and year of the petitioner’s
conviction. [¶] (C) Whether the petitioner requests the appointment
of counsel.” (§ 1170.95, subd. (b)(1).) If any of this information is
missing “and cannot be readily ascertained by the court,” the court
may deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, then the
court proceeds to subdivision (c) to assess whether the petitioner has
made “a prima facie showing” for relief. (§ 1170.95, subd. (c); see
also People v. Lewis (July 26, 2021, S260598) __Cal.5th __ [2021 WL
3137434] at *2–3 (Lewis)). In Lewis, our Supreme Court recently
determined that subdivision (c) requires a “single” process to assess
the prima facie showing, including appointing counsel if requested
by petitioner, and briefing by the parties. (Id. at *4; see also §
1170.95, subd. (c).)3
The court may look at the record of conviction, including a
prior appellate opinion, to determine whether a petitioner has made
a prima facie case for relief under section 1170.95. (Lewis, supra, at
*10; see also People v. Edwards (2020) 48 Cal.App.5th 666, 674–675,
abrogated on other grounds by Lewis, supra, at *5-6 [court can
review “readily available record of conviction” including “charging
information and jury instructions”]; People v. Cruz (2017) 15
Cal.App.5th 1105, 1110.) However, “the prima facie inquiry under
3 Lewis, decided after briefing was completed in this appeal,
rejected the “two-step” prima facie process previously embraced by
many courts. (See Lewis, supra, at *4.) This holding is not at issue
here, as the trial court appointed counsel for appellant and allowed
briefing and a hearing prior to finding appellant ineligible for relief.
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subdivision (c) is limited. . . . ‘“[T]he court takes petitioner’s factual
allegations as true and makes a preliminary assessment regarding
whether the petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to show
cause.’” [Citations.] ‘[A] court should not reject the petitioner's
factual allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citation.] ‘However, if the record, including
the court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.”’” (Lewis, supra,
at *10, quoting People v. Drayton (2020) 47 Cal.App.5th 965, 978,
abrogated on other grounds by Lewis, supra, at *5-6.) “In reviewing
any part of the record of conviction at this preliminary juncture, a
trial court should not engage in ‘factfinding involving the weighing
of evidence or the exercise of discretion.’” (Lewis, supra, at *11.)
“If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show cause,
and then must hold a hearing ‘to determine whether to vacate the
murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the
petitioner had not . . . previously been sentenced, provided that the
new sentence, if any, is not greater than the initial sentence.’ (§
1170.95, subd. (d)(1).) ‘The prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence to
meet their respective burdens.’ (§ 1170.95, subd. (d)(3).) At the
hearing stage, ‘the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.’ (§ 1170.95, subd. (d)(3).)” (Lewis, supra, at *3.)
We review de novo the predominantly legal question of
whether a petitioner has made a prima facie showing. (See Drayton,
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supra, 47 Cal.App.5th at p. 981; see also Smiley v. Citibank, N.A.
(1995) 11 Cal.4th 138, 146 [“Independent review is called for when
the underlying determination involves a purely legal question or a
predominantly legal mixed question.”].)4
II. Analysis
Appellant contends that the trial court erred in denying his
petition because some jurors might have found him guilty under the
felony murder rule. We disagree. The court correctly found
appellant ineligible for relief under section 1170.95 as a matter of
law because he was convicted of second degree murder as an aider
and abettor, not under a felony murder theory.
To be eligible for relief, appellant must make a prima facie
showing that he “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)(3).) A direct aider and
abettor can be convicted of murder notwithstanding the
amendments to sections 188 and 189, because such persons
necessarily “know and share the murderous intent of the actual
perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see
4 The parties disagree as to the stage at which the court
denied appellant’s petition. Respondent argues that the court did so
at the prima facie stage under section 1170.95, subdivision (c), while
appellant contends that the court proceeded to the hearing and
engaged in factfinding under subdivision (d). There is no indication
in the record that the court issued an order to show cause or held a
hearing under subdivision (d) at which the parties were able to
present new or additional evidence. The court permitted the parties
to present argument and relied on the record of conviction,
consistent with its duties at the prima facie stage under subdivision
(c). In any event, appellant does not raise a procedural challenge on
appeal and argues that the result would be the same at either stage.
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People v. Gentile (2020) 10 Cal.5th 830, 848 [SB 1437 “does not
eliminate direct aiding and abetting liability for murder because a
direct aider and abettor to murder must possess malice
aforethought.”].) “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. Offley (2020) 48
Cal.App.5th 588, 595-596.) Accordingly, appellant was required to
make a prima facie showing that he was not convicted as a direct
aider and abettor and thereby fell within the provisions of the
statute. (§ 1170.95, subds. (a)(3) & (c).) He failed to do so.
In our prior opinion, we found that the jury necessarily
convicted appellant of second degree murder under an aiding and
abetting theory, and that substantial evidence supported that
finding. The court properly relied on that finding in concluding that
appellant was ineligible for resentencing under section 1170.95.
(See Lewis, supra, at *5-6 [holding that “a trial court can rely on the
record of conviction,” and “[a]ppellate opinions . . . are generally
considered to be part of the record of conviction”].) Because he was
convicted under a direct theory requiring a finding of malice,
appellant was not entitled to relief as a matter of law.
Appellant does not challenge the court’s reliance on our prior
opinion. He also acknowledges that “there was a general
understanding among the parties that the prosecution was using
felony murder only in conjunction with first degree murder.”
However, he argues that the court erred by failing to consider the
possibility that some of the jurors disregarded the jury instructions
given and “may have based their guilty verdict on an illegal theory
(i.e., second degree felony murder).” He cites no authority for this
proposition. To the contrary, we presume the jury followed the
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instructions it was given. (See People v. Prince (2007) 40 Cal.4th
1179, 1295; People v. Holt (1997) 15 Cal.4th 619, 662.)
Here, the jury was instructed it could find appellant guilty of
first degree murder based on either a theory of malice murder—as
the perpetrator or an aider and abettor—or under a felony murder
theory based on an underlying robbery or attempted robbery. If it
found appellant not guilty of first degree murder, the jury was
instructed that it could find appellant guilty of the lesser crime of
second degree malice murder, again as the perpetrator or an aider
and abettor. The prosecution’s theory at trial relied primarily on
first degree felony murder, which the jury rejected. Appellant has
failed to supply any evidence to suggest that the jury did not follow
its instructions in finding that appellant possessed the requisite
malice to support a conviction for second degree murder. His
suggestion that the jury “could have been confused” is mere
speculation; he does not point to any evidence or argument during
the trial to support it. Moreover, the jury instructions regarding
felony murder were expressly linked to liability for first degree
murder. (See CALCRIM No. 540A [instructing on the elements
required to “prove that the defendant is guilty of first degree murder
under [a felony murder] theory”]; ibid. [instructing jury to apply
robbery or attempted robbery instructions “when you decide whether
the People have proved first degree murder under a theory of felony
murder”].)
Appellant also notes that the jurors were instructed that they
did not have to agree on the same theory of liability and suggests
this could have resulted in some jurors relying on felony murder for
a second degree murder conviction. The jury was instructed that
appellant was being prosecuted for first degree murder under “two
theories: (1) malice aforethought, and (2) felony murder,” and that it
13
could not convict appellant “unless all of you agree that the People
have proved that the defendant committed murder under at least
one of these theories. You do not all need to agree on the same
theory.” (CALCRIM No. 548.) But here, the jury rejected both
theories of guilt for first degree murder when it found appellant not
guilty of that charge. The jury was not instructed that it could apply
a felony murder theory to any charge other than first degree murder
and there is no evidence suggesting that any juror impermissibly
relied on felony murder to convict appellant of second degree
murder.
Appellant is not assisted by his reliance on two notes
submitted by the jury during deliberation. On May 7, 2014, the jury
submitted the following question to the trial court: “Would another
felony, such as felony assault, be a basis for felony murder[?] What
is the basis for felony assault?” The trial court responded: “Assault
cannot form the basis of felony murder.” The following day, the jury
submitted a second note, reporting that it was “[h]ung on murder
count 1 first degree,” and asking: “Can we convict [appellant] for
aiding & abetting 2nd degree murder[?]” In response, the trial court
referred the jury to the instructions already given. Appellant
speculates that these questions show that the jury was “having a
difficult time coming to an agreement on the theory of liability,” and
ultimately arrived at a “compromised verdict” that could have
included some jurors relying on felony murder instead of finding
malice. We are not persuaded. If anything, these questions support
the conclusion that the jury ultimately found appellant guilty of
second degree murder as an aider and abettor, particularly after the
trial court informed the jury it could not use assault as an
alternative basis for felony murder and that it could convict
appellant as an aider and abettor for second degree murder.
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Thus, the record of appellant’s conviction established he was
ineligible for relief under section 1170.95 as a matter of law based
on the jury’s findings rejecting first degree felony murder and
convicting appellant of second degree murder as an aider and
abettor. The court accordingly did not err in denying appellant’s
petition.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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