Filed 11/3/22 P. v. Jacobs CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B313736
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA066775-
v. 01)
LIONEL TEMERO JACOBS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Affirmed.
Winston Kevin McKesson for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Lionel Jacobs (defendant) appeals the trial court’s
summary denial of his motion for relief under Penal Code1 section
1172.6 (former section 1170.95).2 Because defendant was
necessarily convicted of attempted premeditated murder as either
the actual killer or a direct aider and abettor, he is ineligible for
this relief as a matter of law and the court acted properly in
summarily denying his motion. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts3
A. The underlying crime
In July 2005, defendant was a member of the Insane Crips
street gang. One night that month, defendant and a fellow gang
member walked on the sidewalk past Edward Smith (Smith) and
his friend, who were leaning against a car waiting for Smith’s
girlfriend to park her car. The sidewalk was on a street that both
the Insane Crips and one of its rival gangs claimed as their
territory. When Smith saw defendant act suspiciously and took
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction on appeal. (People v.
Jacobs (Jan. 22, 2008, B194536).)
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off running, either defendant or the fellow gang member opened
fire on him. Smith was shot in the arm. Although Smith and his
girlfriend both positively identified defendant as the shooter prior
to trial, each backed away from that identification at trial; the
girlfriend admitted to being repeatedly threatened in the interim.
B. Charging, conviction and appeal
The People charged defendant with attempted
premeditated murder (§§ 187, subd. (a), 664). The People also
alleged that defendant “personally discharged” a firearm causing
death or great bodily injury (§ 12022.53, subd. (d)) or,
alternatively, that a “principal” did so (id., subds. (d) & (e)(1)).
The People further alleged that the attempted premeditated
murder was “committed for the benefit of, at the direction of, or
in association with a criminal street gang” (§ 186.22, subd.
(b)(1)(C)). In accordance with the law in effect at the time,
defendant’s jury was instructed that he could be found guilty of
attempted premeditated murder under two different theories: (1)
as the actual killer; or (2) as someone who aided and abetted the
actual killer (namely, defendant’s fellow gang member).
Consistent with these instructions, the prosecutor argued in
closing that it was “not important whether or not [defendant was]
the shooter” because he was “equally guilty” of attempted
premeditated murder whether he or his fellow gang member
actually pulled the trigger.
A jury convicted defendant of attempted premeditated
murder and found true the allegations that a principal
discharged a firearm and that the crime was committed to benefit
the gang. The trial court sentenced defendant to prison for 50
years to life—comprised of a base sentence of 25 years to life
(because this is a “third strike” offense under our State’s Three
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Strikes Law), plus 25 years to life for the firearm enhancement.
Defendant appealed, and we affirmed the judgment in an
unpublished opinion.
II. Procedural Background
On January 15, 2019, defendant filed a petition seeking
resentencing under section 1172.6. After appointing counsel to
represent defendant, after receiving multiple oppositions from
the People as well as a reply, and after a hearing, the trial court
summarily denied the petition. Specifically, the court ruled that
defendant was ineligible for relief under section 1172.6 because
the jury’s verdict necessarily rested on a finding that he was the
actual killer or someone who directly aided and abetted the
actual killer, and because neither of those theories was affected
by section 1172.6.
This timely appeal followed.
DISCUSSION
Defendant maintains that the trial court erred in
summarily denying his petition without an evidentiary hearing
because he alleged a prima facie entitlement to relief in his
petition. Because the trial court’s reasons for summarily denying
relief in this case turn on its interpretation of section 1172.6 and
the application of law to undisputed facts, our review is de novo.
(People v. Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person is entitled to relief under section 1172.6 if, as
relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder[ or] murder under the natural and
probable consequences doctrine,” (2) he “was convicted of
murder,” and (3) he “could not presently be convicted of murder . .
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. because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1172.6, subd. (a).) In January 2019, our Legislature
amended section 188 to provide that “in order to be convicted of
murder, a principal in a crime shall act with malice aforethought”
and that “[m]alice shall not be imputed to a person based solely
on his . . . participation in a crime.” (§ 188, subd. (a)(3).) In
January 2022, our Legislature further amended the law to extend
this relief to persons convicted of attempted murder. (Stats.
2021, ch. 551, § 2 [amending former § 1170.95, subd. (a)].)
In assessing whether a defendant seeking relief under
section 1172.6 has made out a prima facie case warranting an
evidentiary hearing, a trial court must take the petition’s factual
allegations as true and ask ““‘whether the petitioner would be
entitled to relief if [those] allegations were proved.’”” (People v.
Lewis (2021) 11 Cal.5th 952, 971.) “‘However, if the record,
including the court’s own documents [from the record of
conviction], “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.”’” (Ibid.)
Defendant has not made the requisite prima facie showing
of entitlement to relief under section 1172.6. That is because the
jury instructions establish that the defendant’s attempted
premeditated murder conviction rests on the theory either that
defendant was the actual shooter or that defendant aided and
abetted the actual shooter in the attempted murder. Either way,
the jury had to find that defendant personally acted with malice.
Because the jury was never instructed on a natural and probable
consequences theory or felony-murder theory, his murder
conviction could not rest on either theory, and he is not entitled
to relief under section 1172.6 as a matter of law. (Accord, People
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v. Mancilla (2021) 67 Cal.App.5th 854, 866-867; People v. Daniel
(2020) 57 Cal.App.5th 666, 677; People v. Jenkins (2021) 70
Cal.App.5th 924, 931-932 (Jenkins); People v. Lopez (2022) 78
Cal.App.5th 1, 11.)
Defendant resists this conclusion with two arguments, both
of which lack merit. First, he argues that he was possibly
convicted under the natural and probable consequences theory of
criminal liability, which was exemplified by the prosecutor’s
closing argument. This argument ignores that his jury was never
instructed on that theory. It also ignores that the prosecutor’s
closing argument was not based on natural and probable
consequences, but rather informed the jury that defendant was
guilty whether he pulled the trigger (a theory unaffected by
section 1172.6) or directly aided and abetted his fellow gang
member in pulling the trigger (another theory unaffected by
section 1172.6). Second, defendant alternatively argues that he
was convicted under “the improper theory of being an aider and
abettor.” Defendant is correct that he might be convicted as a
direct aider and abettor, but that theory of liability is not
“improper” under section 1172.6 because it requires a finding of
personal malice, and hence falls outside of the relief afforded by
section 1172.6. (Jenkins, supra, 70 Cal.App.5th at pp. 931-932
[noting that section 1172.6 “did not change accomplice liability
for murder [or attempted murder] under direct aiding and
abetting principles”].)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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