People v. Devault CA2/3

Filed 6/16/23 P. v. Devault CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE

THE PEOPLE, B320573

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA221615)
v.

LAMONT DEVAULT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed.
Lamont Devault, in pro. per.; Sharon Fleming, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, and Colleen M. Tiedemann,
Deputy Attorney General, for Plaintiff and Respondent.
_________________________
 Lamont Devault appeals from an order denying his petition
for resentencing under Penal Code 1 section 1172.6.2 His
appellate counsel filed a brief asking us to independently review
the appeal under People v. Wende (1979) 25 Cal.3d 436 (Wende).3
Doing so, we affirm the order.

1 All further undesignated statutory references are to the
Penal Code.

2 Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

3 Our Supreme Court recently held that there is no right to
Wende review in section 1172.6 appeals and set forth a
procedural framework to follow when counsel determines no
arguable issues exist. (People v. Delgadillo (2022) 14 Cal.5th 216,
221–222.) Consistent with that framework, after we gave notice
to Devault of his right to file a supplemental brief, Devault filed a
brief raising several issues, requiring that we render an opinion
evaluating them. (Id. at pp. 231–232.)

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 BACKGROUND4
I. The underlying conviction
In 2002, Devault and his codefendant Ruben Jones were
jointly tried for the murder of John Boyakins and the attempted
murders of Fernando M., Larry W., and Gregory R.5
The evidence at trial showed that on June 25, 2000, gunfire
erupted in a parking lot outside a party where several members
of a criminal street gang were present, resulting in Boyakins’s
death and Gregory R., Larry W., and Fernando M. being
wounded. The shooting occurred in alleged retaliation for a
shooting that a gang had carried out two days earlier. Police
found more than twenty .223-caliber bullet casings on the
sidewalk area in front of the parking lot, all fired from the same
gun. Additional casings and rounds recovered from the rear of
the parking lot were from other guns, leading police to believe
seven guns were fired during the incident, including, inferentially
some from the partygoers.
Informant Clarence H. later told police that he was at
Jones’s house with several gang members when Devault proposed
a drive-by shooting at the party in retaliation for the earlier
shooting. Three vehicles left to carry out the attack, with
Devault and Jones—both armed with AK-47’s—getting into a van
which had a middle seat removed to enable a gunman to open the

4 Our recitation of the factual background is derived in part
from People v. Devault (Mar. 11, 2005, B162631) [nonpub. opn.]
rehearing denied and opinion modified April 8, 2005. The facts
are summarized only to describe the basis of Devault’s
convictions. (See, e.g., People v. Woodell (1998) 17 Cal.4th 448,
459–460.)

5 A count pertaining to another victim was dismissed.

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sliding door and shoot from the van while sitting on the floor.
Minutes later, Clarence heard gunshots. When Devault
returned, he bragged about having shot some people and was
mad that Jones did not fire any shots. Jones said the van’s
sliding door had jammed and he couldn’t get it open. Stanley M.
told detectives that he was also at Jones’s house that evening,
and that Devault was very upset and was trying to get others to
join in retaliating for the prior shooting.
Devault testified that he was in Michigan the evening of
the shooting. Jones disavowed gang membership, that he
allowed gang members to congregate at his house (including the
evening of the subject incident), and that he owned guns.
A jury found Devault guilty of the first degree murder of
Boyakins (§ 187, subd. (a); count 1) with true findings on
principal gun use allegations and personal gun use allegations,
including that Devault personally and intentionally discharged a
firearm which proximately caused great bodily injury and death
to Boyakins (§§ 12022.53, subds. (b), (c), (d), (e)(1), former
12022.5, subd. (a)). The jury also found Devault guilty of the
willful, deliberate and premeditated attempted murders of
Fernando M., Larry W., and Gregory R. (§§ 664, 187, subd. (a);
counts 2, 4 & 5) with true findings on principal gun use
allegations and personal gun use allegations (§§ 12022.53,
subds. (b), (c), former 12022.5, subd. (a)). The jury found Devault
guilty of possession of a firearm by a felon. (Former § 12021,
subd. (a)(1); count 6.) The jury found true gang allegations as to
all counts. (§ 186.22, subd. (b)(1).) The jury found Jones guilty of
second degree murder and three counts of attempted murder,
with true findings on principal firearm use and gang allegations
as to all counts.

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 The trial court sentenced Devault to life plus 80 years-to-
life.
On direct appeal, a different panel of this Division modified
the sentence in ways irrelevant here and affirmed the judgment
as modified. (People v. Devault, supra, B162631.) Devault did
not challenge the sufficiency of the trial evidence on appeal.
II. The petition for resentencing
In April 2019, Devault filed a form entitled “petition for
writ of habeas corpus” requesting that the trial court strike the
section 12022.53, subdivision (d), enhancement pursuant to
section 1385 and Senate Bill No. 620 (2017–2018 Reg. Sess.). In
June 2019, the trial court denied Devault’s petition because
Senate Bill No. 620 was inapplicable. Devault did not appeal
that order.6
In July 2021, Devault filed a “petition for writ of habeas
corpus” that reasserted the issue in his 2019 petition and
requested reduction of his first degree murder conviction to
second degree murder under Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) because he was convicted under a
now invalid natural and probable consequences theory. The

6 The record also contains March and July 2019 orders
denying two other “habeas corpus” petitions, but those petitions
are not in the record. One petition apparently sought to
challenge fines imposed at Devault’s 2002 sentencing, while the
other sought resentencing under section 1172.6. In denying the
latter petition, the trial court concluded Devault was the actual
killer and had not been convicted under a now-invalid theory. In
so concluding, the court erroneously stated that there were no
jury instructions for aiding and abetting based on the natural
and probable consequences doctrine. Devault did not appeal
these orders.

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petition attached excerpts from the prosecution’s arguments at
trial and the opinion affirming as modified the judgment of
conviction. The trial court appointed counsel to represent
Devault.7
The prosecution opposed Devault’s petition, arguing, among
other things, that Devault was ineligible for resentencing because
he was the actual killer who acted with express malice
aforethought. With the opposition, the prosecution submitted the
jury instructions from Devault’s trial and requested judicial
notice of the record associated with Devault’s direct appeal.
The parties submitted on the briefs. In April 2022, the trial
court denied the petition, reasoning that Devault “was
apparently the actual shooter.”
This appeal followed. Court-appointed appellate counsel
filed an opening brief that raised no issues and asked this court
to independently review the record under Wende, supra, 25
Cal.3d 436.8 This court notified Devault that his attorney had
failed to find any arguable issues and that he could submit by
brief or letter any arguments he wished this court to consider.
Devault filed a supplemental brief advancing several
reasons why the trial court erred in summarily denying his
petition. According to Devault, there was evidence he was not

7 The minute order reflecting the appointment references
Devault’s December 27, 2021 petition; however, the only 2021
petition in the record was executed in July 2021. We therefore
assume that the court intended to reference the July 2021
petition.

8 We have granted counsel’s request for judicial notice of the
records from Devault’s direct appeal and motion to augment the
record with Devault’s petition and the People’s opposition.

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the actual killer, the Court of Appeal in its opinion affirming his
judgment of conviction found that someone else might have shot
Boyakins, the prosecutor argued he was guilty under the natural
and probable consequences doctrine, and the true finding on the
section 12022.53, subdivision (d), firearm enhancement does not
preclude relief because it does not establish he acted with malice
aforethought.9
We also asked the parties to supplementally brief whether
Devault was convicted of murder under a natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime.
DISCUSSION
I. Overview of Senate Bill 1437
“Effective January 1, 2019, the Legislature passed Senate
Bill 1437 ‘to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.’ [Citation.] In addition to
substantively amending sections 188 and 189 . . . , Senate Bill
1437 added [former] section 1170.95, [now section 1172.6], which
provides a procedure for convicted murderers who could not be

9 Devault also claims error with respect to the trial court’s
incorrect statement in its 2019 decision regarding the absence of
an aiding and abetting natural and probable consequences
instruction. However, Devault did not appeal that order, and the
2022 order which is the subject of this appeal did not contain that
same error, and we therefore decline to address the matter
further.

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convicted under the law as amended to retroactively seek relief.”
(People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
Section 1172.6, subdivision (a), states that a person
convicted of “felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural
and probable consequences doctrine, or manslaughter” may file a
petition for resentencing “when all of the following conditions
apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder, murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, or attempted murder under the natural
and probable consequences doctrine. [¶] (2) The petitioner was
convicted of murder, attempted murder, or manslaughter
following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could have been convicted of murder or attempted
murder. [¶] (3) The petitioner could not presently be convicted
of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.”
If the petitioner files a “facially sufficient” petition (i.e., one
containing the above allegations), the petitioner is entitled to the
appointment of counsel, if requested. (Lewis, supra, 11 Cal.5th at
p. 970.) The court must direct the prosecutor to file a response to
the petition, permit the petitioner to file a reply, and determine if
the petitioner has made a prima facie case showing entitlement
to relief. (Id. at pp. 959–960.)

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 In determining whether the petitioner has carried his
burden of making the requisite prima facie showing, the superior
court properly examines the record of conviction, “allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)
However, “the prima facie inquiry under [section 1172.6],
subdivision (c) is limited. Like the analogous prima facie inquiry
in habeas corpus proceedings, ‘ “the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if [the
petitioner’s] factual allegations were proved. If so, the court must
issue an order to show cause.” ’ . . . ‘However, 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.” ’ ” (Ibid.) A denial at the prima facie stage is only
appropriate if the record of conviction demonstrates that the
petition is ineligible for relief as a matter of law. (Id. at p. 960.)
We independently review a trial court’s determination of
whether a petitioner has made a prima facie showing.10 (People v.
Harden (2022) 81 Cal.App.5th 45, 52.)

10 We assume without deciding that the at-issue
section 1172.6 petition is not barred as a successive petition. (See
People v. Farfan (2021) 71 Cal.App.5th 942, 946 [entertaining
successive § 1172.6 petition where new legal authority
undermined basis of denial of prior petition].)

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II. Devault is ineligible for section 1172.6 relief as a
matter of law
Devault contends that his first degree murder conviction
was premised on the now invalid natural and probable
consequences theory. Based on the instructions and the verdict,
we disagree that the jury relied on that theory in finding Devault
guilty of first degree murder.
With respect to the murder and attempted charges, the
trial court instructed the jury with CALJIC Nos. 8.10 (Murder
Defined), 8.11 (Malice Aforethought Defined), 8.20 (Deliberate
and Premeditated Murder), 8.66 (Attempted Murder), 8.70
(murder is classified into two degrees); and CALJIC No. 8.12
(provocative act murder). The trial court also instructed on
aiding and abetting with CALJIC Nos. 3.00 and 3.01.
Devault’s jury was also instructed on the now invalid
natural and probable consequences doctrine via CALJIC
Nos. 3.02 and 6.10.5. CALJIC No. 3.02 told the jury that a
person who aids and abets the commission of a crime is not only
guilty of those crimes, but any crimes committed by a principal
that is a natural and probable consequence of the crime originally
aided and abetted. To find the “defendant” guilty of murder and
attempted murder under this theory, the following four elements
had to be satisfied: (1) the crime or crimes of assault with a
firearm was committed; (2) the defendant aided and abetted
those crimes; (3) a coprincipal in that crime committed the crimes
of murder and attempted murder; and (4) murder and/or
attempted murder were a natural and probable consequence of
the crime of assault with a firearm. (CALJIC No. 3.02.)
The jury was also instructed with CALJIC No. 6.10.5,
which defined a conspiracy as an agreement between two or more

10
persons with the specific intent to commit the crime of murder or
assault with a firearm. “A member of a conspiracy is not only
guilty of the particular crime that to his knowledge his
confederates agreed to and did commit, but is also liable for the
natural and probable consequences of any crime of a co-
conspirator to further the object of the conspiracy” even if that
crime was not originally intended. Further, the jury had to
determine whether the defendant was a member of a conspiracy
to commit the originally agreed upon crimes, and, if so, “whether
the crime alleged in Counts One, Two, Four and Five was
perpetrated by a co-conspirator in furtherance of that conspiracy
and was a natural and probable consequence of the agreed upon
criminal objective of that conspiracy.”
Notwithstanding that CALJIC Nos. 3.02 and 6.10.5 stated
the now improper natural and probable consequences theory of
murder, other instructions and the jury’s verdict show that the
jury did not convict Devault under that theory. Instead, the jury
convicted him as the actual killer with the requisite malice.
That is, the trial court also instructed the jury on the
firearm allegations with CALJIC No. 17.19.5, which stated: “It is
alleged in Counts One, Two, Four and Five that the defendant
Lamont D[e]vault intentionally and personally discharged a
firearm and proximately caused death to John Boyakins as to
Count One during the commission of the crimes charged. [¶] If
you find the defendant Lamont Devault guilty of one or more of
the crimes thus charged, you must determine whether the
defendant Lamont Devault intentionally and personally
discharged a firearm and proximately caused death to John
Boyakins as to Count One only in the commission of those
felonies. . . . [¶] The term ‘intentionally and personally

11
discharged a firearm,’ as used in this instruction, means that the
defendant himself must have intentionally discharged it.”
The jury was also instructed, “It is alleged in Counts One
and Two and Four and Five that the defendant Lamont Devault
personally used a firearm during the commission of the crimes
charged. [¶] If you find the defendant Lamont Devault guilty of
one or more of the crimes charged . . . you must determine
whether the defendant Lamont Devault personally used a
firearm in the commission of those felonies. . . . [¶] The term
‘personally used a firearm,’ as used in this instruction, means
that the defendant must have intentionally displayed a firearm
in a menacing manner, intentionally fired it, or intentionally
struck or hit a human being with it.”
By finding the personal gun use allegations true as to
Devault, the jury necessarily rejected a natural and probable
consequences theory of murder. An element of that theory was
that a coprincipal or coperpetrator committed the crimes of
murder and attempted murder. But only Devault was charged
with and found guilty of personal gun use allegations. His
coprincipal Jones was charged with and found guilty of only
principal gun use allegations. Therefore, Devault, having been
found to have discharged a weapon causing great bodily injury,
was the only principal in the crime that committed murder,
which was otherwise defined to require malice aforethought.
People v. Offley (2020) 48 Cal.App.5th 588, does not
undermine this conclusion. In that case, there was evidence that
at least three individuals shot at the victim’s car, killing him.
However, only two men, Offley and Keller, were charged with
crimes arising out of that shooting. The trial court instructed the
jury on the natural and probable consequences doctrine in

12
conspiracy cases: “ ‘A member of a conspiracy is not only guilty of
the particular crime that to his knowledge his confederates
agreed to and did commit, but is also liable for the natural and
probable consequences of any crime of a co-conspirator to further
the object of the conspiracy, even though that crime was not
intended as part of the agreed upon objective and even though he
was not present at the time of the commission of the crime.’ ” (Id.
at p. 599.) A jury convicted Offley of, among other crimes,
murder and attempted murder with a true finding on a personal
gun use allegation under section 12022.53, subdivision (d). The
court found that the true finding under section 12022.53,
subdivision (d), did not preclude section 1172.6 relief, because the
existence of that general intent enhancement did not show a
defendant acted with malice aforethought. (Offley, at p. 598;
accord In re Ferrell (2023) 14 Cal.5th 593 [§ 12022.53, subd. (d),
requires only intent to discharge a firearm, not subjective
awareness of risk or disregard for life].)
Here, we agree that the true finding on the
section 12022.53, subdivision (d), enhancement did not supply the
missing element of malice aforethought, and the Attorney
General concedes it could not do so. Instead, unlike in Offley
where there was evidence of at least three shooters, here only two
principals were charged with the crimes and only one, Devault,
was charged with and found to have personally and intentionally
discharged a firearm causing great bodily injury and death to
Boyakins. Under these circumstances, the true finding
established that Devault was the sole shooter among the
principals to the crime. Stated otherwise, the jury was required
to find that one of the principals committed murder, and because
Devault was the only one who was found to have discharged a

13
weapon causing death to Boyakins, the jury necessarily found he
was the actual killer. As such, the jury did not rely on the
natural and probable consequences doctrine and instead must
have relied on the malice theories of murder to convict him.
The jury was otherwise instructed that once it found any
defendant guilty of murder, it was required to find the defendant
acted willfully, deliberately, and with premeditation before
convicting that defendant of first degree murder. Devault’s
conviction of first degree murder,11 combined with the jury’s
personal use of a firearm findings, demonstrate he is ineligible
for resentencing under section 1172.6 as a matter of law.
III. Devault’s remaining contentions
Devault raises several contentions in his supplemental
brief, none of which have merit.
First, Devault excerpts a portion of the opinion addressing
his direct appeal as evidence that he was not the actual shooter.
We said there was evidence that Boyakins’s fatal chest wound
was a through-and-through injury, as opposed to the .223-caliber
bullet fragments dislodged from Boyakins’s hip and fired from
the street from the gun alleged to have been Devault’s. We said
that “there was ample evidence from which the jury could have
reasonably concluded someone other than Devault shot
Boyakins.” But we made this statement in the context of
rejecting codefendant Jones’s argument that the jury should not
have been instructed on the provocative act theory of murder
because there was no reasonable view of the evidence that

11 Devault’s conviction preceded People v. Chiu (2014) 59
Cal.4th 155, 167, which held that a defendant cannot be
convicted of first degree premeditated murder under the natural
and probable consequences doctrine.

14
anyone other than Devault shot Boyakins. Our discussion of the
propriety of an instruction was not a factual finding but a mere
legal conclusion that substantial evidence supported the
provocative act instruction. (See, e.g., People v. Burney (2009) 47
Cal.4th 203, 246 [instructional error reviewed for substantial
evidence].) Our statements thus in no way supersede the actual
factfinder’s unambiguous conclusion that Devault shot Boyakins.
Second, Devault points to statements the prosecutor made
in closing about the natural and probable consequences theory of
first degree murder. Those comments notwithstanding, the jury
did not convict Devault under that theory, as we have said.
Moreover, the prosecutor’s argument, if anything, endorsed the
theory that Devault was the shooter and Jones merely assisted
Devault by providing weapons. The prosecutor stated, in
pertinent part: “if you believe that defendant Jones simply
assisted by providing the guns that were used, or the gun that
was used, with the intent to encourage or facilitate or instigate
the crime knowing the unlawful purpose of . . . defendant De
Vault [sic], [Jones] is likely responsible for the murder.”
Finally, Devault’s claims regarding alleged exculpatory
evidence lack merit. According to Devault, he could not have
been the actual killer because the van’s owner testified that the
van’s sliding door was operational, contrary to other evidence
that the door would not open during the shooting.
Section 1172.6, however, does not supply a means to attack the
trial evidence. (See People v. Strong (2022) 13 Cal.5th 698, 713
[resentencing proceedings under the statute involve “prospective
relief from a murder conviction that was presumptively valid at

15
the time,” not the correction of “errors in past factfinding”].)12
Nonetheless, the van owner’s statement does not contradict
Clarence’s trial testimony regarding the condition of the van’s
door at the time of the shooting, given that the owner was not
alleged to have been in the van during the shooting and therefore
could not speak to the door’s condition at that time.

12 Devault’s further complaints about the “credence” we lent
the informants’ statements in our opinion addressing Devault’s
direct appeal are not cognizable for the same reason.

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 DISPOSITION
The April 2022 order denying Lamont Devault’s July 2021
petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HEIDEL, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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