Filed 11/4/21 P. v. Howard CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A162150
v. (Alameda County
MARK ALAN HOWARD, Super. Ct. No.
118354)
Defendant and Appellant.
MEMORANDUM OPINION1
Defendant Mark Alan Howard was convicted of first degree murder
(Pen. Code, § 187)2, second degree murder (§ 187), and assault with a firearm
(§ 245, subd. (a)(2)). The jury also found true that during the crimes,
defendant personally used a firearm (§ 12022.5). It additionally found true
multiple murder special circumstances. (§ 190.2, subd. (a)(3).) Defendant
was sentenced to a prison term of life without possibility of parole, plus nine
This case is appropriately resolved by way of memorandum opinion
1
pursuant to pursuant to California Standards of Judicial Administration,
section 8.1, subdivisions (1) and (3).
All further statutory references are to the Penal Code unless
2
otherwise indicated.
1
years, and his conviction was affirmed on appeal. (People v. Howard (June
24, 1999, A080339) [nonpub. opn.].)3
Defendant here appeals from the denial of his petition for resentencing
under section 1170.95. The Attorney General concedes the trial court erred
in ruling defendant failed to allege a prima facie case of entitlement for
resentencing without first appointing counsel to represent him. Under our
Supreme Court’s recent decision in People v. Lewis (2021) 11 Cal.5th 952,
961-970 (Lewis), this concession is well-made.
The Attorney General urges, however, that the error is harmless
because the record of conviction conclusively demonstrates defendant was not
convicted of murder under either a felony-murder or as an aider and abettor
under natural and probable consequences theory. Defendant did not file a
closing brief disputing this assertion, and on review of the record, we agree
and therefore affirm.
Section 1170.95
People v. Mancilla (2021) 67 Cal.App.5th 854 (Mancilla) ably
summarizes the pertinent procedural aspects of section 1170.95 following our
high court’s decision in Lewis:
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] substantially modified the
law relating to accomplice liability for murder, eliminating the natural
and probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 . . .
(Gentile)) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd.
(e)(3). . . .) With respect to the former change, ‘to amend the natural
and probable consequences doctrine, Senate Bill 1437 added section
188, subdivision (a)(3) (section 188(a)(3)): “Except [for felony-murder
liability] as stated in subdivision (e) of Section 189, in order to be
3 We have, by prior order, taken judicial notice of this court’s opinion
and the clerk’s transcript in that appeal.
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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.” ’ (Gentile, at pp. 842-843.)
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] also authorized, through new
section 1170.95, an individual convicted of felony murder or murder
based on the natural and probable consequences doctrine to 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.
[Citations.]
“If the section 1170.95 petition contains all the required information,
including a declaration by the petitioner that he or she was convicted of
murder and is eligible for relief (§ 1170.95, subd. (b)(1)(A)), section
1170.95, subdivision (c), requires the court to appoint counsel to
represent the petitioner, if requested; to direct the prosecutor to file a
response to the petition and permit the petitioner to file a reply; and to
determine if the petitioner has made a prima facie showing that he or
she is entitled to relief. (See Lewis, supra, 11 Cal.5th at p[p.961-970].)
“In determining whether the petitioner has carried the burden of
making the requisite prima facie showing he or she falls within the
provisions of section 1170.95 and is entitled to relief, the superior court
properly examines the record of conviction, ‘allowing the court to
distinguish petitions with potential merit from those that are clearly
meritless.’ (Lewis, supra, 11 Cal.5th at p[p. 970-972].) However, ‘the
prima facie inquiry under subdivision (c) is limited. Like the analogous
prima facie inquiry in habeas corpus proceedings, “ ‘the 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.’ ” [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.” ’ (Id. at p. 971; see
People v. Daniel (2020) 57 Cal.App.5th 666, 675 . . . , review granted
Feb. 24, 2021, S266336 [any error in denying petition at prima facie
stage without appointing counsel is harmless if the record of conviction
‘conclusively demonstrates’ petitioner is ineligible for relief].)”
(Mancilla, supra, 67 Cal.App.5th at pp. 862-863.)
3
A failure to appoint counsel is state law error only. (Lewis, supra,
11 Cal.5th at p. 973.) It also is not a “structural error” that requires
reversal.4 (Id. at pp. 973-974.) Accordingly, the “Watson”5 harmless error
test applies, and a petitioner “ ‘whose petition is denied before an order to
show cause issues has the burden of showing “it is reasonably probable that if
[he or she] had been afforded assistance of counsel his [or her] petition would
not have been summarily denied without an evidentiary hearing.” ’ ” (Lewis,
at p. 974, quoting People v. Daniel, supra, 57 Cal.App.5th at p. 676, review
granted, S266336; see Mancilla, supra, 67 Cal.App.5th at pp. 863-864.)
Denial Without Appointing Counsel Was Harmless
In denying defendant’s resentencing petition, the trial court stated in
pertinent part:
“The Petition is denied because relief under Penal Code section 1170.95
is unavailable because Petitioner has failed to make a prima facie
showing that he falls within the provisions of Penal Code section
1170.95. (Pen. Code, § 1170.95, subd. (a).) First, Petitioner was not
convicted of murder under a felony murder theory or an aider and
abettor natural and probable consequences theory. A review of the jury
instructions [reflects] an absence of any instructions concerning these
theories of murder. Rather, the only theory of first degree murder on
which the jury was instructed was deliberate and premeditated
murder. Additionally, the record is clear that Petitioner was the actual
killer of both victims. Indeed, Petitioner did not contest that he had
murdered Nelson and Hedgepeth, and the appellate court found that
the evidence ‘amply supports the jury’s finding that he killed
Hedgepeth with premeditation and deliberation. . . .’ Accordingly, even
if convicted under a felony-murder or natural and probable
consequence theory of murder, relief under Penal Code section 1170.95
4 In his opening brief, filed before the Supreme Court issued its
decision in Lewis, defendant argued the trial court’s failure to appoint
counsel was structural error, requiring reversal.
5 People v. Watson (1956) 46 Cal.2d 818, 836.
4
is unavailable because Petitioner was the actual killer. (Pen. Code,
§ 189, subd. (e)(1).)”
The trial court accurately summarized the record of conviction, and
defendant does not contend otherwise.
The jury was not instructed on either the felony-murder rule or aider
and abettor liability under the natural and probable consequences doctrine.6
Rather, it was instructed on murder and that one of the elements of murder
was that “[t]he killing was done with malice aforethought.” It was further
instructed that malice could be either express or implied: “Malice is express
when there is manifested an intention unlawfully to kill a human being,” and
malice is implied when (1) the killing resulted from an intentional act; (2) the
natural consequences of the act are dangerous to human life; and (3) the act
was deliberately performed with knowledge of the danger to, and with
conscious disregard for human life. Thus, the only theory of first degree on
which the jury was instructed was express-malice premeditation and
deliberation first degree murder—“All murder which is perpetrated by any
kind of willful, deliberated and premeditated killing with express malice
aforethought is murder of the first degree.” (Italics omitted.) The jury was
also instructed on implied malice second degree murder, specifically that
murder of the second degree “is the unlawful killing of a human being with
malice aforethought when there is manifested an intention unlawfully to kill
6 Aider and abettor liability under the natural and probable
consequences doctrine was discussed extensively by our high court in People
v. Chiu (2014) 59 Cal.4th 155, 161-167, the court holding that the doctrine
cannot support a first degree murder conviction. And in Gentile, supra,
10 Cal.5th at page 843, the court held “Senate Bill 1437 bars a defendant
from being convicted of second degree murder under a theory that the
defendant aided and abetted a crime, the natural and probable consequence
of which was murder.”
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a human being but the evidence is insufficient to establish premeditation and
deliberation.
The jury additionally found, as to both defendant’s first and second
degree murder convictions that during the commission of the offenses he
personally used a handgun. And as to those enhancements, the jury was
instructed that it had to find that defendant displayed the firearm in a
menacing manner, intended to fire it, or intended to strike or hit a human
being with it.
Accordingly, the record of conviction conclusively demonstrates
defendant was not convicted of a resentencing-eligible theory of murder
under section 1170.95 and the error in failing to appoint counsel was
therefore harmless. (See Mancilla, supra, 67 Cal.App.5th at p. 864 [failure to
appoint counsel was harmless error where defendant was not convicted under
either felony-murder or aider and abettor natural and probable consequence
theory]; People v. Edwards (2020) 48 Cal.App.5th 666, 671, 674, review
granted July 8, 2020, S262481 [counsel not appointed, but absence of jury
instructions on felony murder or aider and abettor liability under natural and
probable consequences doctrine justified summary denial of petition],
abrogated on another ground by Lewis, supra, 11 Cal.5th at pp. 962-962.)
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Sanchez, J.
A162150, People v. Howard
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