People v. Adams CA2/1

Filed 6/30/22 P. v. Adams CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B313106

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA103213)

v.

DAVID ANTHONY ADAMS, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Rogelio Delgado, Judge. Affirmed.
Cynthia L. Barnes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant David Anthony Adams, Jr.
challenges the trial court’s denial of his petition under Penal
Code1 section 1170.95 for resentencing on his murder conviction.
He contends that the trial court erred by summarily denying his
petition without appointing counsel and without his presence
in court. We affirm on the ground that any error was harmless.
The record of conviction shows as a matter of law that Adams is
ineligible for resentencing.

FACTUAL AND PROCEDURAL SUMMARY
In 2015, a jury convicted Adams of one count of second
degree murder (§§ 187, subd. (a), 189), and found true an
allegation that he committed the offense for the benefit of, at
the direction of, or in association with a criminal street gang.
(§ 186.22, subd. (b)(4).) The jury found not true an allegation
that a principal intentionally discharged a firearm, proximately
causing death. (§ 12022.53, subds. (d) & (e)(1).)
The following account of the facts of the case is
derived from our opinion in Adams’s direct appeal. (People v.
Adams et al. (Aug. 8, 2017, B269551) [nonpub. opn.].) Adams
and his codefendant, Nicholas Hempstead, were both members
of Trey-57, a street gang affiliated with the Crips. The victim,
Deon Davis, was a member of the PDL gang, which was affiliated
with the Bloods and an enemy of Trey-57. Lisa Caesar, an
associate of the Trey-57s, told Adams and his friends that Davis
had forced Caesar’s niece to take crystal meth and work as a
street prostitute. Caesar, Adams, Hempstead, and another
friend, Lonzo Eddings, went to confront Davis and try to recover
the niece’s car. They argued, and Adams punched Davis.

1 Subsequent statutory references are to the Penal Code.

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 The owner of the house where the fight was taking place
objected, and Adams suggested they go to another location.
Davis willingly got into the back seat of Caesar’s car, where he
sat between Davis and Hempstead. They got out of the car near
an alley in territory controlled by Trey-57. Davis challenged the
others to a fight, Adams accepted, and they went into an alley.
“Caesar testified that, when the youths stopped in the
alley, they conversed in tones so low that Caesar could not hear
them. Eddings came out of the alley and told her, ‘ “[Hempstead]
is going to shoot him.” ’ Caesar told Eddings, ‘ “I didn’t come
here for that” ’ and ‘tell him no.’ Eddings returned to the alley,
and, in a few seconds, Caesar heard Hempstead say, ‘ “Fuck that.
I got him right here.” ’ Caesar saw that Hempstead was wearing
gloves and had a black object that was the size of a handgun.
Hempstead shoved Adams aside and walked toward Davis, who
was deeper into the alley. Eddings began to walk out of the alley.
“Eddings testified that he had a ‘weird feeling’ and told
Caesar, ‘[Hempstead] is about to do some weird shit,’ and the two
froze, looking at each other. Caesar said nothing; she did not
direct him to tell the others not to shoot Davis. Adams walked up
to them and said, ‘ “Start running to the car.” ’ Both Caesar and
he began to run to the car. As they ran, Eddings heard multiple
gunshots.
“. . .
“Caesar testified that after Eddings told her that he
thought Hempstead would shoot Davis, she ‘turned around
and left.’ As she crossed the street to her car, she heard several
gunshots that came from the alley. She got into her car and
‘never looked back.’ ‘Within seconds’ Eddings got into the car;
then Adams arrived five seconds after Caesar. Caesar did not

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intend to wait for Adams or Hempstead. After Caesar started the
car, but before she could put the car in gear, Hempstead got into
the car. During the ride, Eddings asked, ‘ “Are we good? We’re
all good, right?” ’
“Eddings testified that he and Caesar reached the car about
the same time and Caesar did not start the car until both Adams
and Hempstead were inside. As they were driving away, Eddings
looked at Hempstead and said, ‘What the fuck did you do?’
Hempstead answered, ‘ “That was for [Cook].” ’ Adams and
Hempstead laughed and made Crips hand signals.”2 (Adams,
supra, B269551.)
Police later recovered shell casings at Adams’s home that
matched the casings recovered at the murder scene.
The jury at Adams’s trial received instructions on first
degree murder (CALCRIM No. 521); first or second degree
murder with malice aforethought (CALCRIM No. 520); and
direct aiding and abetting (CALCRIM No. 401); but not on
felony murder or the natural and probable consequences doctrine.
The trial court imposed an aggregate sentence of 36 years to
life in prison. We affirmed the judgment. (See Adams, supra,
B269551.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.), which eliminated liability for murder
under the natural and probable consequences doctrine, and
limited the application of the felony-murder doctrine. (People v.
Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) The legislation

2Joseph Cook, whom Hempstead mentioned, was Eddings’s
brother and had been killed in a previous shooting. Trey-57
members believed the PDL gang was responsible for this
shooting.

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also enacted section 1170.95, which established a procedure for
vacating murder convictions for defendants who could no longer
be convicted of murder because of the changes in the law and
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
Adams filed a petition for resentencing on March 29, 2021.
The trial court did not appoint counsel to represent Adams and
summarily denied the petition on the ground that “the court file
reflects that [Adams] was not convicted under a felony murder or
a natural and probable consequences theory of culpability. The
jury was not instructed on either theory.”
After the trial court denied Adams’s petition, Senate Bill
No. 775 (2021−2022 Reg. Sess.) (Stats. 2021, ch. 551) became
effective, expanding the scope of the law and amending the
procedure for adjudicating petitions under section 1170.95
in certain respects. We assume without deciding that these
amendments apply to Adams’s case.

DISCUSSION
A. The Trial Court’s Failure to Appoint Counsel
Was Harmless
Adams is correct that the trial court erred by denying
his petition without appointing counsel to represent him.
The procedures for deciding a petition for resentencing under
section 1170.95 were not clear at the time the court made its
ruling, but shortly thereafter, the Supreme Court in People v.
Lewis (2021) 11 Cal.5th 952, 962 (Lewis) held that the court
must appoint counsel to represent the defendant in all cases
where the defendant files a facially sufficient petition.

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 In this case, however, the failure to appoint counsel was
harmless. In Lewis, the Supreme Court held that, to obtain
a reversal, a petitioner must show that he suffered prejudice
by “ ‘demonstrat[ing] there is a reasonable probability that in
the absence of the error he or she would have obtained a more
favorable result.’ ” (Lewis, supra, 11 Cal.5th at p. 974.) For
a defendant like Adams whose petition was denied at the first
stage of review on the ground that he failed to make a prima facie
case that he is entitled to resentencing (see § 1170.95, subd. (c)),
this means “ ‘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, supra, at p. 974.)
Adams cannot meet this standard. Although “the ‘prima
facie bar was intentionally and correctly set very low’ ” (Lewis,
supra, 11 Cal.5th at p. 972), the court may deny a petition for
failure to make a prima facie case if the record of conviction
shows as a matter of law that the defendant is ineligible. (People
v. Flores (2022) 76 Cal.App.5th 974, 987 (Flores).) In making this
determination, the court may consider the record of conviction
and may draw adverse conclusions “ ‘if the record, including the
court’s own documents, “contain[s] facts refuting the allegations
made in the petition.” ’ ” (Lewis, supra, at p. 971.) In particular,
if the jury instructions did not allow for a defendant to be
convicted of murder under a theory made invalid by Senate
Bill No. 1437, any error in denying the defendant’s petition
at the prima facie stage is harmless. (People v. Daniel (2020)
57 Cal.App.5th 666, 677–678 (Daniel).) Such a defendant is
“categorically ineligible for relief.” (Id. at p. 678.)

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 Senate Bill No. 1437 barred almost all murder convictions
where the defendant’s malice is imputed on the basis of his
participation in another crime. (See Stats. 2018, ch. 1015, § 2,
p. 6675.) In so doing, the law “eliminate[d] natural and probable
consequences liability for first and second degree murder”
(Gentile, supra, 10 Cal.5th at p. 849) and limited the application
of the felony murder doctrine. (Flores, supra, 76 Cal.App.5th at
p. 984.) The jury in Adams’s case was not instructed as to either
of these doctrines.
Adams argues that he can nevertheless establish a
prima facie case for resentencing. He relies on People v. Langi
(2022) 73 Cal.App.5th 972 (Langi), where the court held that,
although there was no instruction on the natural and probable
consequences doctrine, the instructions allowed the jury
to convict the defendant of murder on a theory of imputed
malice. Thus, the defendant had made a prima facie case for
resentencing. The court focused on two instructions. “CALJIC
No. 8.31, as given to the jury, stated that a killing is a second
degree murder if ‘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. [¶] When the killing is the direct result of such an
act, it is not necessary to prove that the defendant intended that
the act would result in the death of a human being.’ CALJIC
No. 3.01, as given to the jury, stated that ‘A person aids and
abets the commission . . . of a crime when he or she: [¶] (1) With
knowledge of the unlawful purpose of the perpetrator, and [¶]
(2) With the intent or purpose of committing or encouraging
or facilitating the commission of the crime, . . . [¶] (3) By act or

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advice aids, promotes, encourages or instigates the commission
of the crime.’ ” (Langi, supra, at p. 981.)
The court reasoned that these instructions in combination
“create[d] an ambiguity under which the jury may find the
defendant guilty of aiding and abetting second degree murder
without finding that he personally acted with malice.” (Langi,
supra, 73 Cal.App.5th at p. 982.) The court explained that “[t]he
aiding-and-abetting instruction stated that a person aids and
abets a crime if he or she acts ‘with knowledge of the unlawful
purpose of the perpetrator, and . . . with the intent or purpose
of committing or encouraging or facilitating the commission of
the crime.’ (CALJIC No. 3.01, italics added.) However, as noted
above, the second-degree-murder instruction specified that the
direct perpetrator of that crime need not act with the unlawful
intent of causing death. Thus, while the perpetrator must
have deliberately performed the fatal act ‘with knowledge of
the danger to, and with conscious disregard for, human life’
(CALJIC No. 8.31), his purpose may have been only to strike or
to injure, or conceivably only to embarrass, the victim. Since the
perpetrator’s purpose need not have been to kill the victim, the
aider and abettor’s knowledge of that purpose similarly need not
have been knowledge that the perpetrator aimed to kill. If the
perpetrator need not have had ‘murderous intent,’ certainly the
aider and abettor need not have had such an intent.” (Langi,
supra, at pp. 982–983.)
We need not decide whether Langi was correctly decided
because, even assuming it was, it does not show that Adams
made a prima facie case for two reasons. First, the jury
instructions in Adams’s case differed from those in Langi in
crucial respects. In particular, the court did not instruct the jury,

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pursuant to CALJIC No. 3.01, that it could convict Adams as an
aider and abettor if it found that he acted “[w]ith knowledge of
the unlawful purpose of the perpetrator.” Instead, the court
instructed the jury pursuant to a different pattern instruction,
CALCRIM No. 401, which stated that, to convict the defendant
of murder as an aider and abettor, the prosecution must prove
that “[t]he defendant knew that the perpetrator intended to
commit the crime.” In addition, the court told the jury that,
“[b]efore or during the commission of the crime, the defendant
intended to aid and abet the perpetrator in committing the
crime.” These instructions did not allow the jury to convict
Adams if he merely intended to assist Hempstead in harming
Davis. Instead, the jury must have concluded that Adams knew
Hempstead “intended to commit” murder and that he “intended
to aid and abet” Hempstead “in committing” murder.
Second, the same jury that convicted Adams of second
degree murder convicted Hempstead of first degree murder.
The jury instructions on first degree murder stated that the
prosecution must prove beyond a reasonable doubt that the
defendant “acted willfully, deliberately, and with premeditation.
The defendant acted willfully if he intended to kill.” Because
there was no instruction on the natural and probable
consequences doctrine, the jury, to convict Adams as an aider
and abettor, must have concluded that he intended to assist
Hempstead in intentionally killing Davis. (See People v. McCoy
(2001) 25 Cal.4th 1111, 1118 [“outside of the natural and
probable consequences doctrine, an aider and abettor’s mental
state must be at least that required of the direct perpetrator”].)
Because the record of conviction shows as a matter of law
that Adams is ineligible for resentencing, the error in denying his

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petition without appointing counsel was harmless. (See Daniel,
supra, 57 Cal.App.5th at pp. 677–678.)

B. Adams Was Not Entitled to Be Present at the
Prima Facie Hearing
Adams also contends that he had a constitutional right to
be present when the trial court decided his petition. We disagree.
“A criminal defendant has the right under the state and
federal Constitutions to be personally present and represented
by counsel at all critical stages of the trial.” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 465.) In Lewis, the
Supreme Court held that proceedings under section 1170.95
at the prima facie stage of review are not a critical stage of the
criminal process for purposes of the appointment of counsel.3
(See Lewis, supra, 11 Cal.5th at p. 972.)
A defendant’s right to be personally present in court is
less absolute than his right to counsel (see Illinois v. Allen (1970)
397 U.S. 337, 342–344), and it would be bizarre to conclude that
a defendant did not have a constitutional right to counsel for a
proceeding but nevertheless had a right to be personally present
in court. Furthermore, case law regarding the right to personal
presence indicates that it does not apply here. “For purposes
of the right to be present, a critical stage is ‘one in which
a defendant’s “ ‘absence might frustrate the fairness of the
proceedings’ [citation], or ‘whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to
defend against the charge.’ ” ’ ” (People v. Bryant, Smith and

3 The court in Lewis concluded on this basis that the
defendant had only a statutory, not constitutional, right to
counsel at the prima facie stage. (Lewis, supra, 11 Cal.5th
at p. 973.)

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Wheeler, supra, 60 Cal.4th at p. 465.) But as we have seen, at
the prima facie stage, the trial court determines the defendant’s
eligibility as a matter of law. Indeed, “ ‘factfinding involving the
weighing of evidence or the exercise of discretion’ ” is forbidden at
this stage. (Lewis, supra, 11 Cal.5th at p. 972.) The defendant’s
presence can make no difference in this determination, and his
absence in no way deprives him of the opportunity to obtain
relief.

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 DISPOSITION
The trial court’s order denying the petition for resentencing
is affirmed.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

MORI, J.*

*Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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