Filed 2/10/23 P. v. Wise 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B320662
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA116437)
v.
BRANDEN MARKELL WISE,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Juan Carlos Dominguez, Judge.
Affirmed.
David Y. Stanley, 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, Senior
Assistant Attorney General, Daniel Chang and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Branden Markell Wise appeals the summary denial of his
petition for resentencing under Penal Code 1 section 1172.6
(former § 1170.95).2 The superior court determined that
appellant is not entitled to section 1172.6 relief as a matter of law
because he was convicted of murder and attempted murder as a
direct perpetrator, and not under a felony murder theory or the
natural and probable consequences doctrine. Appellant contends
the superior court erred in summarily denying his facially
sufficient petition for resentencing without appointing counsel,
requiring reversal. Although the superior court erred by denying
the petition at the prima facie stage without appointing counsel
or accepting briefing from the parties, we conclude the error was
harmless, and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND3
Appellant and codefendants Jaylin Godbolt and Sean Ray
were active members of the 76 East Coast Crips criminal street
gang. On August 19, 2017, shortly after midnight, they
committed a drive-by shooting of a group of five people on bicycles
who appeared to be members of a rival gang. Although
appellant’s gun jammed, the fusillade of bullets killed one person
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
3 The following facts are drawn from this court’s
unpublished decision in appellant’s direct appeal from his
conviction. (People v. Jaylin Godbolt et al. (Mar. 12, 2021,
B302235) [nonpub. opn.], mod. Apr. 2, 2021 (Godbolt).)
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and nearly resulted in four more deaths. (Godbolt, supra,
B302235.)
Following a jury trial, appellant and his codefendants were
convicted of one count of first degree murder and four counts of
willful, deliberate, and premeditated attempted murder. (§§ 187,
subd. (a); 664/187, subd. (a).) The jury also found true the gang
allegations and numerous firearm enhancements. Appellant was
sentenced to an aggregate term of 210 years to life in state
prison. On direct appeal from the judgment of conviction, this
court reversed one of appellant’s convictions for attempted
murder and reduced his sentence by 40 years. (Godbolt, supra,
B302235.)
Appellant filed his petition for resentencing pursuant to
section 1172.6 on April 25, 2022. Without appointing counsel or
accepting briefing, the superior court summarily denied the
petition on the ground that appellant is not entitled to relief as a
matter of law because the record reflects that his convictions for
murder and attempted murder were not based on a felony-
murder theory or the natural and probable consequences
doctrine.
DISCUSSION
Appellant Is Ineligible for Section 1172.6 Relief
as a Matter of Law
A. Applicable legal principles
The Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) in 2018, effectively abolishing the natural and
probable consequences doctrine in cases of murder and limiting
the application of the felony-murder doctrine. (Stats. 2018,
ch. 1015, § 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).) With one narrow exception (§ 189, subd. (f)), Senate Bill
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No. 1437 effectively eliminated murder convictions premised on
any theory of imputed malice—that is, any theory by which a
person can be convicted of murder for a killing committed by
someone else, such as felony murder or the natural and probable
consequences doctrine—unless the People also prove that the
nonkiller defendant personally acted with the intent to kill or
was a major participant who acted with reckless disregard to
human life. (§§ 188, subd. (a)(3) & 189, subd. (e).)
Specifically, the Legislature amended the felony-murder
rule to provide that “[a] participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a) in
which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶]
(2) The person was not the actual killer, but, with the intent to
kill, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e).) Section 188 was amended to
require that, when the felony-murder rule does not apply, a
principal in the crime of murder “shall act with malice
aforethought” and “[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3); People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).)
Senate Bill No. 1437 also enacted former section 1170.95
(now § 1172.6), which established a procedure for vacating the
murder convictions of defendants who could no longer be
convicted of murder because of the amendments to sections 188
and 189. (Stats. 2018, ch. 1015, § 4; Lewis, supra, 11 Cal.5th at
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pp. 957, 959, 971; Gentile, supra, 10 Cal.5th at p. 843.) Section
1172.6, subdivision (c) requires the court to appoint counsel when
requested upon the filing of a properly pleaded petition for
resentencing. (Lewis, at pp. 963, 966.) The court must then
conduct a prima facie analysis with briefing to determine the
petitioner’s eligibility for relief, and, if the requisite prima facie
showing is made, issue an order to show cause. (§ 1172.6, subd.
(c); Lewis, at p. 971; People v. Nieber (2022) 82 Cal.App.5th 458,
469–470.) Effective January 1, 2022, Senate Bill No. 775
amended section 1172.6 to expand its coverage to individuals
convicted of “attempted murder under the natural and probable
consequences doctrine.” (§ 1172.6, subd. (a); People v. Saibu
(2022) 81 Cal.App.5th 709, 747.)
In conducting its prima facie review, the superior court
may not engage in factfinding involving the weighing of evidence
or credibility determinations and must assume the truth of all
facts stated in the petition. (Lewis, supra, 11 Cal.5th at pp. 971–
972; People v. Flint (2022) 75 Cal.App.5th 607, 612.) But to
determine “whether the petitioner has carried the burden of
making the requisite prima facie showing he or she falls within
the provisions of section [1172.6] 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.’ ” (People v. Mancilla
(2021) 67 Cal.App.5th 854, 863 (Mancilla), quoting Lewis, supra,
11 Cal.5th at p. 971.) Thus, “ ‘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.” ’ ” (Lewis, at p. 971.)
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We review de novo whether the superior court properly
denied appellant’s section 1172.6 petition without issuing an
order to show cause. (People v. Coley (2022) 77 Cal.App.5th 539,
545 (Coley); People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
B. The superior court erred by summarily denying
appellant’s petition without appointing counsel or
accepting briefing; however, the error was harmless
In Lewis, our Supreme Court held that once a petitioner
files a facially sufficient petition under section 1172.6 and
requests appointment of counsel, the superior court must appoint
counsel before conducting any prima facie review. (11 Cal.5th at
p. 963 [“petitioners who file a complying petition requesting
counsel are to receive counsel upon the filing of a compliant
petition”]; accord, § 1172.6, subd. (b)(3).) Because appellant’s
section 1172.6 petition is facially sufficient, the superior court
erred by summarily denying appellant’s petition for resentencing
without appointing him counsel.
However, the erroneous failure to appoint counsel for a
section 1172.6 petitioner is subject to harmless error analysis
under People v. Watson (1956) 46 Cal.2d 818, 836. (Lewis, supra,
11 Cal.5th at pp. 957–958 [failure to appoint counsel under
§ 1172.6, subd. (b)(3) is “state law error only, tested for prejudice
under [Watson]”], 974; People v. Daniel (2020) 57 Cal.App.5th
666, 676, review granted Feb. 24, 2021, S266336, review dism.
Dec. 1, 2021).) Thus, the error requires reversal in this case only
if appellant can show a reasonable probability that his petition
would not have been summarily denied if he had been afforded
the assistance of counsel. (Lewis, at pp. 972–974; Daniel, at
p. 676.) Appellant fails to meet this standard if the record of his
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conviction, which includes the jury instructions, establishes that
he is not entitled to relief as a matter of law. (Daniel, at p. 678.)
Appellant does not address prejudice at all in his opening
brief, contending that the superior court’s error in failing to
appoint counsel, ipso facto, requires reversal and remand. In his
reply brief, he incorrectly asserts that by “providing a fact-based
analysis in support of its position that the [superior] court’s
conceded error was harmless, respondent shows the court erred
prejudicially in failing to appoint counsel and accept briefing.” To
the contrary, respondent properly relies on the jury instructions,
the prosecution’s argument to the jury, and the verdict forms to
demonstrate that appellant is ineligible for section 1172.6 relief
as a matter of law. Appellant, on the other hand, fails to show
even a remote possibility that he might have avoided summary
denial of his petition if he had been afforded the assistance of
counsel. The superior court’s error in failing to appoint counsel
and accept briefing before making its prima facie determination
must therefore be deemed harmless.
C. Appellant fails to make a prima facie showing of
eligibility for relief under section 1172.6,
subdivision (c)
The record of conviction in this case plainly demonstrates
that appellant was not convicted of murder or attempted murder
under any theory invalidated by Senate Bill No. 1437’s
amendments to the law of murder. The jury was not instructed
on felony murder, aiding and abetting based on the natural and
probable consequences doctrine, or any other theory of vicarious
liability under which malice could have been imputed to
appellant.
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Specifically, the trial court instructed the jury on the
elements of murder based on express or implied malice
(CALCRIM No. 520), first degree murder (CALCRIM No. 521),
attempted murder (CALCRIM No. 600), and attempted murder
with deliberation and premeditation (CALCRIM No. 601). No
instructions were given on the natural and probable
consequences doctrine or felony murder as a theory of liability for
these crimes. The jury also received instruction on the general
principles of aiding and abetting (CALCRIM No. 400) as well as a
theory of direct aiding and abetting⎯that is, Aiding and
Abetting: Intended Crimes4 (CALCRIM No. 401). The trial court
did not instruct the jury on aiding and abetting based upon
natural and probable consequences (CALCRIM No. 402) or any
other theory of vicarious liability based on imputed malice.
Moreover, the prosecution expressly argued to the jury that
the facts of this case supported only a theory of express malice
murder, and appellant was guilty of first degree murder and the
4 The court instructed in relevant part: “To prove that a
defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that: [¶] 1. The perpetrator
committed the crime; [¶] 2. The defendant knew that the
perpetrator intended to commit the crime; [¶] 3. Before or
during the commission of the crime, the defendant intended to
aid and abet the perpetrator in committing the crime; [¶] AND
[¶] 4. The defendant’s words or conduct did in fact aid and abet
the perpetrator’s commission of the crime. [¶] Someone aids and
abets a crime if he knows of the perpetrator’s unlawful purpose
and he specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of
that crime.” (CALCRIM No. 401. Aiding and Abetting: Intended
Crimes.)
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willful, deliberate, and premeditated attempted murders as a
direct aider and abettor and coconspirator in committing those
crimes. None of the prosecution’s arguments to the jury
mentioned a natural and probable consequences theory of aiding
and abetting, the felony-murder rule, or any other theory of
vicarious liability for murder or attempted murder based on
imputed malice.
Finally, the verdicts themselves demonstrate that
appellant was convicted as a direct aider and abettor based on
express, not imputed malice. Appellant and his cohorts were all
convicted of first degree murder, meaning the jury necessarily
found that as a direct aider and abettor to this crime, appellant
shared his codefendants’ intent to kill and in fact aided in the
commission of the crime. Similarly, by convicting appellant on
the attempted murder charges, the jury necessarily found that he
shared his codefendants’ criminal purpose, and with the intent of
attempting to kill the victims, appellant in fact aided, facilitated,
promoted, encouraged, or instigated the commission of the
attempted murders. (See People v. Nguyen (2015) 61 Cal.4th
1015, 1054 [“ ‘the person guilty of attempted murder as an aider
and abettor must intend to kill’ ”], quoting People v. Lee (2003) 31
Cal.4th 613, 624.)
Because the record of conviction establishes appellant was
not convicted of murder or attempted murder under any theory of
liability affected by Senate Bill No. 1437’s amendments to the
law of murder, appellant is ineligible for relief under section
1172.6 as a matter of law. (See People v. Estrada (2022) 77
Cal.App.5th 941, 945 [petitioner convicted of first degree murder
as aider and abettor with intent to kill ineligible for section
1172.6 relief]; Coley, supra, 77 Cal.App.5th at pp. 547–548
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[conviction of second degree murder based on express malice
ineligible for section 1172.6 relief]; People v. Cortes (2022) 75
Cal.App.5th 198, 205–206 [“Nothing in the charges, the
instructions, or the balance of the trial permitted the jury to find
[defendant] guilty on a theory other than direct aiding and
abetting or liability as a perpetrator of murder and attempted
murder,” making him ineligible for relief under section 1172.6 as
a matter of law]; Mancilla, supra, 67 Cal.App.5th at pp. 865–867
[petitioner convicted of murder under provocative act doctrine
ineligible for section 1172.6 relief as a matter of law because such
a conviction requires proof of actual malice]; People v. Medrano
(2021) 68 Cal.App.5th 177, 182–183 [petitioner convicted of
aiding and abetting a murder with intent to kill ineligible for
section 1172.6 relief]; People v. Farfan (2021) 71 Cal.App.5th 942,
956 [petitioner ineligible for relief where murder conviction based
on the same elements required for conviction under amended law
of felony murder]; Daniel, supra, 57 Cal.App.5th at p. 677
[absence of jury instructions based on any theory of liability
affected by Senate Bill No. 1437 renders petitioner ineligible for
relief as a matter of law].)
Moreover, appellant cannot show a reasonable probability
of a more favorable outcome had he had the benefit of counsel.
The superior court’s error in failing to appoint counsel and accept
briefing before making its prima facie determination is therefore
harmless.
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DISPOSITION
The order denying appellant’s petition for resentencing
under Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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