Filed 1/19/23 P. v. Massey CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B323182
(Super. Ct. No. TA039715)
Plaintiff and Respondent, (Los Angeles County)
v.
EUGENE JAMAR MASSEY,
Defendant and Appellant.
Eugene Jamar Massey appeals an order denying his
petition for resentencing pursuant to former Penal Code section
1170.95 (now renumbered section 1172.6).1 The resentencing
petition concerned his 2001 conviction of willful, deliberate, and
premeditated murder with a finding of personal firearm use
during commission of the murder. (§§ 187, subd. (a), 12022.5,
subd. (a).) The trial court sentenced Massey to a prison term of
35 years to life. Massey appealed and raised evidentiary and
1 All statutory references are to the Penal Code.
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instructional arguments. We rejected the arguments and
affirmed the conviction on appeal. (People v. Massey (Jan. 8,
2002, B148256) [nonpub. opn.].)
Evidence presented at Massey’s jury trial established this:
In 1997, Massey and Darryl Johnson argued during a dice game.
Massey left but returned shortly with a gun. Massey threatened
Johnson who remained inside his residence, refusing to come
outside. The following day, Massey approached Johnson who was
standing outside speaking with friends. Massey pulled a gun
from his waistband and shot Johnson in the chest. Johnson died
shortly thereafter. Eyewitnesses saw the shooting and Massey
running from the scene.
On January 5, 2022, Massey filed a petition for
resentencing pursuant to section 1170.95. The petition alleged
that Massey’s murder prosecution rested upon theories of felony
murder, the natural and probable consequences doctrine, or
implied malice. The trial court appointed counsel for Massey and
received briefing. The court then denied the petition because
Massey was the actual killer who personally used a firearm to
murder the victim. The court determined that Massey’s
prosecution did not rest upon felony murder or any theories of
implied malice; thus, Massey is ineligible for section 1172.6
resentencing relief. Massey now appeals this decision.
We appointed counsel to represent Massey in this appeal.
After examination of the record, counsel filed an opening brief
pursuant to People v. Wende (1979) 25 Cal.3d 436, 441, raising no
issues. In response to counsel’s brief, we advised Massey that he
had 30 days within which to personally submit any contentions or
issues that he wished to raise on appeal. We have not received a
response from him.
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The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Tammy Chung Ryu, Judge
Superior Court County of Los Angeles
______________________________
Larry Pizarro, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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