Filed 2/1/22 P. v. King 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for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,
v. A162731
IRA CARL KING,
(Alameda County
Defendant and Appellant.
Super. Ct. No. 130156A)
Ira Carl King appeals from the trial court’s denial of his
resentencing petition under Penal Code section 1170.95 1. His
appointed appellate counsel has filed a brief raising no issues but
seeking our review pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende). Our independent review of the record reveals no
arguable issues, and we affirm.
BACKGROUND
A jury convicted King of first degree murder (§§ 187, 189,
subd. (a)) and found true an allegation that during the
commission of the offense, he “personally use[d] a deadly and
dangerous weapon” – an axe handle (§ 12022, subd. (b)).
King filed a section 1170.95 petition alleging that the
information filed against him allowed the prosecution to proceed
1 Undesignated statutory references are to the Penal Code.
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under a felony murder theory or the natural and probable
consequences doctrine; that he was convicted of murder pursuant
to the felony murder rule or natural and probable consequences
doctrine; and that he could not now be convicted of murder based
on the January 1, 2019 amendments to sections 188 and 189.
(See Sen. Bill No. 1437 (2017-2018 Reg. Sess.), Stats. 2018, ch.
1015, §§ 1-3.)
The People opposed the petition, asserting that King was
ineligible for resentencing under the amendments because he
was the actual killer. (See § 189, subd. (e)(1) [permitting murder
liability based on felony murder or a natural and probable
consequences theory for a person who was the actual killer],
added by Stats. 2018, ch. 1015, § 3.) With the parties’ agreement,
the trial court issued an order to show cause and held an
evidentiary hearing the same day. The People relied on the jury’s
verdict form, which indicated the jury found King guilty of first
degree murder and found that he personally used a deadly and
dangerous weapon in the commission of the offense. In addition,
the People submitted the appellate opinion from King’s direct
appeal. (See People v. Ira Carl King (Feb. 8, 2002, A092494)
[nonpub. opn.] (King).)
The prior opinion contained a detailed summary of the
evidence at King’s trial. Among other evidence, the prosecution
introduced evidence that King twice admitted during police
interviews that he hit the victim in the head with a stick because
he believed the victim owed him money. (King, supra, at pp. 5-6.)
In addition, the prosecution introduced medical evidence that the
victim died of blunt trauma to the side of his head. (Id., at p. 7.)
King also testified at trial that he hit the victim with a stick, and
another defense witness testified that King swung a stick like a
baseball bat and hit the victim in the head. (Id., at pp. 8-9.)
None of the evidence summarized in the opinion indicated that
any other party assaulted the victim. (Id., at pp. 1-9.)
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King raised a hearsay objection to the appellate opinion,
but did not introduce any evidence. The trial court denied the
petition, concluding that King was ineligible for resentencing
because he was the actual killer.
DISCUSSION
Appointed counsel advised King of his right to file a
supplemental brief, and King has not filed such a brief. We have
independently reviewed the record for potential error and
identified no arguable issues.
Consistent with the procedural requirements of section
1170.95, the trial court appointed counsel to represent King and,
after receiving briefing, issued an order to show cause and held
an evidentiary hearing to determine his eligibility for relief. (See
People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
Substantial evidence supports the court’s determination that the
prosecution met its burden of proving that King is ineligible for
resentencing because he was the actual killer. (See § 189, subd.
(e)(1); People v. Tarkington (2020) 49 Cal.App.5th 892, 899
[petitioner was “the actual killer” where jury found the defendant
personally used a deadly weapon and “the murder involved a
single perpetrator” and “was not a situation in which multiple
persons carried out the attack”], abrogated on another ground by
Lewis, supra, 11 Cal.5th at pp. 963-965; People v. Woodell (1998)
17 Cal.4th 448, 459-461 [prior appellate opinion may be
considered for nonhearsay purpose of determining whether
defendant’s conviction was based on personal or vicarious
liability].)
DISPOSITION
The trial court’s order denying the petition is affirmed.
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_______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
NEEDHAM, J.
A162731
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