Filed 2/27/23 P. v. Devaughn CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B323017
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA388304)
v.
MICHAEL DEVAUGHN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen. Affirmed.
Robert H. Derham, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
Michael Devaughn appeals from an order denying his
petition for resentencing under Penal Code1 section 1172.6
(former section 1170.95).2 His appointed appellate counsel filed a
brief raising no issues and asking this court to review the record
independently to determine whether there are any arguable
issues pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Devaughn is not entitled to a Wende review of the postconviction
order he challenges, as the Supreme Court explained in People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). We nevertheless
conduct a Wende review because this court did not inform
Devaughn that we may deem his appeal abandoned and dismiss
his appeal if he did not file a supplemental brief raising an issue
for our review. (See Delgadillo, at p. 233.) Based on our
independent review of the record, we find no arguable issue and
affirm the trial court’s order denying Devaughn’s petition for
resentencing.
BACKGROUND
I. Charges, Trial, and Direct Appeal
An October 27, 2011 information charged Devaughn with
attempted willful, deliberate, and premeditated murder (§§ 664 &
187, subd. (a)) and possession of a firearm by a felon (former
§ 12021, subd. (a)(1), now § 29800). The information also alleged
that in the commission of the attempted murder (1) Devaughn
1 Undesignated statutory references are to the Penal Code.
2 Devaughn filed his petition under the amended version of
former section 1170.95, which amendment became effective
January 1, 2022. (Stats. 2021, ch. 551, § 2.) Thereafter, the
Legislature renumbered the statute as section 1172.6, with no
change in text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10),
shortly before the hearing on Devaughn’s petition.
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personally inflicted great bodily injury on the victim (§ 12022.7,
subd. (a)), (2) a principal was armed with a firearm (§ 12022,
subd. (a)(1)), and (3) Devaughn personally and intentionally
discharged a firearm causing great bodily injury to the victim
(§ 12022.53, subds. (b)-(d)). The information charged Devaughn’s
codefendant, Deshawn Dwayne Darby, with assault by means of
force likely to produce great bodily injury. (§ 245.)
At trial, the prosecution presented evidence indicating
appellant Devaughn shot the victim during a physical altercation
between codefendant Darby and the victim. The evidence
indicated there was only one shooter. The prosecution’s theory of
the case was that Devaughn committed an attempted willful,
deliberate, and premeditated murder by personally and
intentionally discharging a firearm, causing great bodily injury to
the victim. The trial court instructed the jury on that theory,
specifically informing the jury that to prove Devaughn committed
attempted murder the prosecution needed to prove Devaughn
“harbored express malice aforethought, namely, a specific intent
to kill unlawfully another human being.” (CALJIC No. 8.66.)
The trial court did not instruct the jury on aiding and abetting or
the natural and probable consequences doctrine. As to Darby,
the prosecution argued he committed an assault by means of
force likely to produce great bodily injury for his part in the
scuffle with the victim, and the trial court instructed the jury in
accordance with that theory.
The jury found Devaughn guilty of attempted murder and
possession of a firearm by a felon. The jury found not true the
allegation that Devaughn committed the attempted murder
willfully, deliberately, and with premeditation. The jury found
the other special allegations against Devaughn to be true,
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including that he personally and intentionally discharged a
firearm, causing great bodily injury to the victim. The jury
acquitted Darby of the charge against him, assault by means of
force likely to produce great bodily injury. The trial court
sentenced Devaughn to the upper term of nine years for the
attempted murder, plus a consecutive term of 25 years to life for
the firearm enhancement, and a consecutive middle term of eight
months for possession of a firearm by a felon.
Devaughn appealed from the judgment of his conviction,
contending, among other things, that the trial court erred in
denying his request for jury instructions on perfect or imperfect
defense of another. In an unpublished opinion, we rejected his
contentions, and affirmed the judgment. (People v. Devaughn
(May 30, 2014, B245876) [nonpub. opn.].)
II. Petition for Resentencing
On March 7, 2022, Devaughn, representing himself, filed a
petition for resentencing under former section 1170.95 (now
renumbered section 1172.6), a statute which permits a person
convicted of attempted murder under the natural and probable
consequences doctrine to petition the court to have the attempted
murder conviction vacated and to be resentenced if the person
could not presently be convicted of “attempted murder because of
changes to [s]ection 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a)(3).) As amended by Senate Bill No. 1437
(Stats. 2018, ch. 1015, § 2), section 188 requires that, “in order to
be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).)
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Using a preprinted form, Devaughn checked boxes
corresponding to the statutory requirements for a facially
sufficient petition for resentencing under former section 1170.95,
subdivision (b) (and current section 1172.6, subd. (b)). He also
checked the box requesting appointment of counsel. He attached
to the petition his own declaration, stating he punched the victim
but did not shoot him.
The trial court appointed counsel for Devaughn. The
district attorney filed a response to the petition, arguing
Devaughn cannot make a prima facie showing of entitlement to
relief under the statute because he was not prosecuted under the
natural and probable consequences doctrine; rather, he was
prosecuted under the theory that he “harbored an intent to kill
when he personally used and discharged a firearm to shoot” the
victim. The district attorney attached to the response our opinion
in Devaughn’s direct appeal of his conviction, and the jury
verdicts and instructions.
Devaughn, by his appointed counsel, filed a reply brief,
arguing he made a prima facie showing of entitlement to relief
under the statute because he filed a facially sufficient petition for
resentencing alleging he was prosecuted for attempted murder
under the natural and probable consequences doctrine. The reply
brief did not reference the jury instructions attached to the
district attorney’s response, showing the trial court did not
instruct the jury on the natural and probable consequences
doctrine at Devaughn’s trial.
On July 13, 2022, pursuant to section 1172.6, subdivision
(c), the trial court held a hearing to determine whether Devaughn
made a prima facie case for relief. After giving counsel for the
parties an opportunity to present argument, the trial court
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denied the petition, finding Devaughn is ineligible for relief
under section 1172.6 as a matter of law. At the hearing, the
court explained the rationale for its ruling as follows, in pertinent
part: “In this case, not only were natural and probable
[consequences doctrine] instructions not given. Aiding and
abetting instructions were not given. In this case, the jury found
that the petitioner was the actual shooter in this matter by
returning the actual use and discharge allegations, and found
based on the instructions that the petitioner had to have express
malice. [¶] . . . [¶] To go further, I am not sitting as a fact-finder.
This is solely based on the record of conviction.”
III. Present Appeal
Devaughn filed a timely notice of appeal from the order
denying his petition for resentencing, and this court appointed
counsel for him. As noted at the outset of this opinion, counsel
filed a brief raising no issues and asking this court to review the
record independently to determine whether there are any
arguable issues pursuant to Wende. Counsel served a copy of the
Wende brief on Devaughn. According to counsel’s declaration
attached to the brief, counsel informed Devaughn of his right to
file a supplemental brief.
On December 9, 2022, we sent a letter to Devaughn,
informing him that his counsel had filed a Wende brief raising no
issues and that he could submit a supplemental brief or letter
stating any grounds for the appeal, or contentions or arguments
he wanted this court to consider. The same day, we sent a letter
to Devaughn’s counsel, directing counsel to immediately send to
Devaughn the appellate record and a copy of the Wende brief.
Devaughn did not file a supplemental brief.
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DISCUSSION
In Delgadillo, our Supreme Court held the Wende
procedures, including the court’s independent review of the
appellate record, do not apply to an appeal from the denial of
postconviction relief under section 1172.6. (Delgadillo, supra, 14
Cal.5th at p. 226.) Rather, “[w]hen appointed counsel finds no
arguable issues to be pursued on appeal: (1) counsel should file a
brief informing the court of that determination, including a
concise recitation of the facts bearing on the denial of the
petition; and (2) the court should send, with a copy of counsel’s
brief, notice to the defendant, informing the defendant of the
right to file a supplemental letter or brief and that if no letter or
brief is filed within 30 days, the court may dismiss the matter.”
(Id. at pp. 231-232, emphasis added.)
Here, neither Devaughn’s appointed appellate counsel nor
this court informed Devaughn that the failure to file a
supplemental brief might be deemed an abandonment of his
appeal and result in the dismissal of the appeal. Instead
counsel’s opening brief and this court’s letter to Devaughn both
cited Wende. The same situation presented itself in Delgadillo,
and the Supreme Court concluded that the appellant “reasonably
could have concluded from this [letter] that the Wende procedures
would apply and that the Court of Appeal would conduct an
independent review of the record, even absent a supplemental
brief.” (Delgadillo, supra, 14 Cal.5th at p. 233.) Thus, although
Wende procedures are not required in an appeal from the denial
of postconviction relief under section 1172.6, the Supreme Court
in Delgadillo nevertheless conducted an independent review of
the appellate record (thereafter concluding the appellant was not
entitled to any relief under section 1172.6 based on the record).
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(Delgadillo, at p. 233.) We, too, have conducted an independent
review of the record before us for the same reasons.
As set forth above, under section 1172.6 (and former section
1170.95, as amended), a defendant who was convicted of
attempted murder under the natural and probable consequences
doctrine, and not under a still-valid theory of attempted murder,
may petition the court to have the attempted murder conviction
vacated and to be resentenced on any remaining counts. If the
record of conviction, including the jury instructions, refutes the
allegations in the petition for resentencing (without resort to
impermissible factfinding), the court may conclude the petitioner
has not made a prima facie case for relief under section 1172.6,
subdivision (c) and therefore is not entitled to an evidentiary
hearing under subdivision (d). (People v. Lewis (2021) 11 Cal.5th
952, 971.)
The record before us establishes Devaughn was not
convicted of attempted murder under the natural and probable
consequences doctrine, as the trial court did not instruct the jury
on that theory. The trial court informed the jury that to prove
Devaughn committed attempted murder the prosecution needed
to prove Devaughn “harbored express malice aforethought,
namely, a specific intent to kill unlawfully another human being.”
(CALJIC No. 8.66.) Thus, the record establishes conclusively
that the jury found Devaughn guilty of attempted murder under
a still-valid theory of liability, and Devaughn is ineligible for
relief under section 1172.6 as a matter of law. The trial court did
not err in finding Devaughn cannot make a prima facie case for
relief and denying his petition for resentencing.
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DISPOSITION
The trial court’s July 13, 2022 order denying Devaughn’s
petition for resentencing is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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