Filed 2/28/23 P. v. Knox 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B322184
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA415456)
v.
JACKIE LEE KNOX, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________
MEMORANDUM OPINION1
I
An information charged defendant and appellant Jackie
Lee Knox, Jr. with one count of attempted willful, deliberate, and
premeditated murder (Pen. Code,2 §§ 187, subd. (a), 664), and one
count of criminal threats (§ 422, subd. (a)). The prosecution
alleged that, in 2013, Knox accosted his longtime girlfriend,
accused her of cheating on him, told her, “[y]ou’re gonna make me
kill you,” and “[y]ou’re gonna die today,” and stabbed her at least
16 times, including once in the neck.
In 2017,3 Knox agreed to a plea bargain under which the
prosecution struck the allegation that Knox acted with
premeditation and deliberation in the attempted murder, and
Knox pleaded no contest to the remaining charges and waived
credit for time served. As part of his plea, Knox admitted that he
personally used a deadly or dangerous weapon (§ 12022, subd.
(b)(1)) in the commission of both offenses and personally inflicted
great bodily injury on the victim (§ 12022.7, subd. (e)) in the
attempted murder. Pursuant to the agreement, the court
sentenced Knox to 16 years in prison.
1 We resolve this case by memorandum opinion because it
“is determined by a controlling statute which is not challenged for
unconstitutionality and does not present any substantial question
of interpretation or application.” (Cal. Rules of Court, Standard
8.1(1).)
2Unless otherwise specified, subsequent statutory
references are to the Penal Code.
3The case had been delayed after the trial court found
Knox incompetent to stand trial.
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In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.), which “eliminated natural and probable
consequences liability for murder as it applies to aiding and
abetting, and limited the scope of the felony-murder rule.”
(People v. Lewis (2021) 11 Cal.5th 952, 957.) The legislation also
enacted former section 1170.95 (subsequently renumbered as
section 1172.6), which provides a mechanism for defendants
previously convicted of murder, but who could not be convicted of
murder under the law as amended, to petition for the court to
vacate their convictions and resentence them. In 2021, the
Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.),
which, among other changes, extended the application of then-
section 1170.95 to defendants convicted of attempted murder
under the natural and probable consequences doctrine.
On January 14, 2022, Knox filed a petition for resentencing
under then-section 1170.95. The People opposed the petition on
the ground that Knox “was the direct and only perpetrator of the
crime of attempted murder” and that he could still be convicted of
attempted murder under current law. Knox’s appointed counsel
declined to file a reply brief and submitted on the basis of the
pleadings. The trial court denied the petition, finding that Knox
had failed to make a prima facie case that he was entitled to
relief.
We appointed counsel to represent Knox on appeal. Knox’s
attorney filed a brief raising no issues and requesting that we
exercise our discretion to independently review the record for
error pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. In
Delgadillo, the Supreme Court established procedures for cases
in which counsel determines that an appeal from an order
denying postconviction relief lacks merit. In such cases,
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“(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.) If the defendant does
not file a supplemental brief, we “may dismiss the appeal as
abandoned.” (Id. at p. 232.) If the defendant does file a
supplemental brief or letter, we are “required to evaluate the
specific arguments presented in that brief and to issue a written
opinion. The filing of a supplemental brief or letter does not
compel an independent review of the entire record to identify
unraised issues.” (Ibid.)
We followed the procedure outlined above and, on
January 13, 2023, sent Knox a letter notifying him of the no-
merits brief and informing him that he had 30 days to file a
supplemental brief. Four days later, his appellate attorney sent
us a copy of a document from Knox titled “Petition for Rehearing”
and asked us to treat it as a supplemental brief.
II
In his supplemental brief, Knox makes several contentions,
only one of which relates to the denial of his petition for
resentencing. Knox claims that he could not be found guilty of
attempted murder under current law because “there is no
element[ ] of malice in the plea agreement,” and that under
current law, “[m]alice should not be imputed based on a person[’s]
participation in a crime.” We assume Knox is referring to the
fact that, as part of his plea bargain, the prosecution agreed to
strike the allegation that Knox committed attempted murder
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with premeditation and deliberation.
We disagree with Knox’s assertion regarding the plea
agreement. Express malice has long been an element of
attempted murder, regardless of whether the defendant is alleged
to have acted with premeditation and deliberation. (See People v.
Smith (2005) 37 Cal.4th 733, 740.) Prior to the enactment of
Senate Bills Nos. 1437 and 775, however, the natural and
probable consequences doctrine provided an exception. Under
that doctrine, a defendant “ ‘who knowingly aids and abets
criminal conduct is guilty of not only the intended crime [target
offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable
consequence of the intended crime.’ ” (People v. Medina (2009) 46
Cal.4th 913, 920.) Thus, a defendant could be convicted of
murder even if he did not intend or foresee that a killing would
occur. (People v. Chiu (2014) 59 Cal.4th 155, 165-166.) By
barring the imputation of malice based on the defendant’s
participation in another crime, the new homicide laws eliminated
the natural and probable consequences doctrine in cases of
murder (People v. Gentile (2020) 10 Cal.5th 830, 846) and
attempted murder (People v. Sanchez (2022) 75 Cal.App.5th 191,
196).
In this case, Knox admitted that he personally used a
weapon and caused great bodily injury in the commission of
attempted murder, and there is no indication that Knox aided
and abetted anyone else in the commission of any offense. Thus,
the record demonstrates that Knox was not convicted under the
natural and probable consequences doctrine, but rather on the
basis of his own action in attempting to kill the victim. Knox
cannot show that he “could not presently be convicted of murder
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or attempted murder because of” the recent changes in the law
(§ 1172.6, subd. (a)(3)), and the trial court did not err by denying
his petition.
The remaining claims in Knox’s supplemental brief
challenge aspects of his sentence unrelated to his section 1172.6
petition. These claims fail because a defendant may not use an
appeal of a postjudgment order to contest “matters that could
have been reviewed on timely appeal from the judgment.”
(People v. Howerton (1953) 40 Cal.2d 217, 220; accord, People v.
Totari (2002) 28 Cal.4th 876, 882.) Furthermore, Knox agreed to
the length of his sentence and the waiver of his presentence
custody credits as part of his plea bargain. We have reviewed the
transcript of the plea hearing, and we see nothing improper about
Knox’s waiver of his trial rights nor the duration of his sentence.
DISPOSITION
The trial court’s order denying Knox’s petition for
resentencing is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
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