Filed 11/17/23 P. v. Jackson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B325260
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA049759)
v.
WILLIAM MARK JACKSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
The Emig Law Group and Maya Helena Emig for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Seth P. McCutcheon,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
Defendant William Mark Jackson appeals the trial court’s
summary denial of his petition for resentencing pursuant to
Penal Code1 section 1172.6 (former § 1170.952). Jackson
contends the court erred because the record of conviction does not
conclusively rebut his contention that his attempted murder
conviction was based on the natural and probable consequences
doctrine. We conclude the jury instructions at Jackson’s trial
categorically establish that Jackson’s conviction was not based on
the natural and probable consequences doctrine. Because
Jackson was ineligible for relief as a matter of law, we affirm the
court’s denial of the petition.
BACKGROUND
A. Factual Background
Remaining cognizant of section 1172.6, subdivision (d)(3)’s
restrictions on the use of prior appellate opinions, we follow the
lead of both parties’ briefing and quote our prior opinion to
provide context to our discussion of the record of conviction. “On
October 4, 2001, Danny Trahan was driving his car on 104th
Street in Lennox when two cars and a van drove up and blocked
his path while Jackson and Kareem Shaw (both members of the
105 Underground Crips) confronted Trahan. Shaw, standing
behind Trahan, pointed a gun at his head while Jackson,
standing in front of Trahan, asked, ‘What’s up now’ (which
Trahan understood to mean Jackson had a ‘problem’ with him).
1 All unspecified statutory references are to the Penal Code.
2 The Legislature renumbered the statute as section
1172.6, with no change in text, effective June 30, 2022 (Stats.
2022, ch. 58, § 10). For ease of reference, we use the current
citation at section 1172.6 throughout this opinion.
2
Trahan pushed the gun away from his head, fought with Jackson
and Shaw, then broke free and ran down the street. As Trahan
ran, Jackson shouted ‘Catch him,’ then ‘shoot him,’ and Trahan
heard two or three gunshots.
“As Trahan ran, one of the assailants’ cars (driven by a
woman) pulled in front of him and blocked his path. The driver
popped open the trunk, got out of the car, and started wrestling
with Trahan. Jackson, Shaw, another man, and another woman
ran up and tried to force Trahan into the trunk. The driver said,
‘Shoot him,’ put a gun to Trahan’s head, and pulled the trigger—
but the gun did not fire. Someone else hit Trahan on the head
with another gun, and one of the men hit him in the ribs and
stomach with a crowbar.
“The struggle continued until Jackson said, ‘Let’s go.
That’s enough,’ at which point the assailants stopped their attack
and ran off. By the time Trahan oriented himself, his car was
gone but the assailants’ van (later determined to be stolen) was
still parked where Trahan had first been attacked. At the scene,
Trahan identified Jackson (they grew up together) as one of his
attackers. Two .22-caliber bullets (one live, one expended) were
found at the scene.
“Two days later, Trahan identified Jackson and Shaw from
separate photographic arrays. When the police thereafter
entered Jackson’s 106th Street apartment to execute a search
warrant, Jackson jumped from a second-story window and ran
toward 104th or 105th Street. Seconds later, an officer at the
intersection of 106th Street and Normandie Avenue took Jackson
into custody.” (People v. Jackson (May 20, 2003, B161704)
[nonpub. opn.].)
3
Jackson was charged with attempted premeditated murder
(§§ 187, 664; count 1), assault with a firearm (§ 245, subd. (a)(2);
count 2), and carjacking (§ 215, subd. (a); count 3), along with
allegations that a principal was armed with a firearm in the
commission of the attempted murder, and that the crimes were
committed for the benefit of a street gang. In 2002, a jury
convicted Jackson of the attempted murder and assault with a
firearm counts; it acquitted Jackson of carjacking. The jury
found that the attempted murder was willful, premeditated, and
deliberate; that a principal was armed with a firearm (§ 12022,
subd. (a)(l)); that a principal used a firearm (§ 12022.53, subd. (b);
and that the crime was committed for the benefit of, at the
direction of, and to assist in criminal conduct by a street gang
(§ 186.22, subd. (b)(l)). The jury also found a gang allegation true
as to the assault with a firearm count.
The court sentenced Jackson to 34 years plus life in prison.
We affirmed the judgment on May 20, 2003. (People v. Jackson,
supra, B161704.)
B. Background on Section 1172.6
Section 1172.6 was enacted by the Legislature in 2018 as
part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The
legislation’s overall purpose was “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.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, the bill
added section 189, subdivision (e) “to amend the felony-murder
rule,” and added section 188, subdivision (a)(3) “to amend the
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natural and probable consequences doctrine.” (People v. Gentile
(2020) 10 Cal.5th 830, 842-843.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) later expanded
section 1172.6 to allow persons convicted of attempted murder
under the natural and probable consequences doctrine to apply
for resentencing. (Stats. 2021, ch. 551, § 2.) “[A]ttempted murder
requires a specific intent to kill.” (People v. Mumin (2023) 15
Cal.5th 176, 190.) Formerly, such malice could be implied in an
attempted murder prosecution “ ‘ “when a person willfully does
an act, the natural and probable consequences of which are
dangerous to human life, and the person knowingly acts with
conscious disregard for the danger to life that the act poses.” ’
[Citation.] [¶] . . . The natural and probable consequences
doctrine provides that ‘ “[a] person 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.” ’ [Citation.]” (People v.
Offley (2020) 48 Cal.App.5th 588, 595.) Now, however, because of
Senate Bill No. 775, implying malice via the natural and probable
consequences doctrine can no longer support an attempted
murder conviction.
C. Jackson’s Section 1172.6 Petitions
In 2019, Jackson petitioned for resentencing under section
1172.6. On September 13, 2019, the trial court issued a written
order denying the resentencing petition without appointing
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counsel.3 The court found the version of section 1172.6 then in
effect did not extend to attempted murder convictions, and even if
it did, Jackson was ineligible for relief because he directly
perpetrated the attempt to kill Trahan, and either shot Trahan or
aided and abetted a codefendant who did. Jackson did not appeal
the summary denial of his petition.
On May 26, 2022, after the Legislature amended section
1172.6 to extend resentencing eligibility to those convicted of
attempted murder, Jackson (through retained counsel) petitioned
again for resentencing under section 1172.6. On June 1, 2022,
the trial court denied the petition, stating, “This same issue was
raised and denied by the court” previously, and “If this is a
request for reconsideration it is untimely and denied.”4 Through
his counsel, Jackson then filed a motion for reconsideration,
pointing out that his May 26, 2022 petition was based on
subsequent amendments to section 1172.6 expanding it to include
attempted murder and was not a request for reconsideration.
The trial court summarily denied the motion for reconsideration.
3 On our own motion, we augment the record to include the
September 13, 2019 order, Jackson’s subsequent section 1172.6
petition filed May 26, 2022, and the court’s June 1, 2022 order
regarding the May 26, 2022 petition, all of which the parties
address in their briefing. (Cal. Rules of Court, rules 8.155(a)(1),
8.340(c).)
4 The June 1, 2022 minute order erroneously states that
Jackson was not represented by counsel; as noted above, he
retained private counsel who filed the May 26, 2022 resentencing
request.
6
DISCUSSION
“ ‘We independently review a trial court’s determination on
whether a petitioner has made a prima facie showing.’
[Citation.]” People v. Lee (2023) 95 Cal.App.5th 1164, 1174.)
Because we conduct an independent review, “we decline to
address the trial court’s reasons for denying the petition, as we
may affirm a ruling that is correct in law on any ground.
[Citation.]” (People v. Cortes (2022) 75 Cal.App.5th 198, 204, fn.
omitted.)
We start with the record of conviction. “The record of
conviction will necessarily inform the trial court’s prima facie
inquiry under section [1172.6], allowing the court to distinguish
petitions with potential merit from those that are clearly
meritless.” (People v. Lewis (2021) 11 Cal.5th 952, 971.) “ ‘[I]f
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” ’ ” in determining whether the petitioner has made a
prima facie showing. (Ibid.) “For example, if the record shows
that the jury was not instructed on . . . the natural and probable
consequences . . . doctrine[ ], then the petitioner is ineligible for
relief as a matter of law. [Citation.]” (People v. Harden (2022) 81
Cal.App.5th 45, 52.)
Jackson argues he satisfied his prima facie burden because
the prosecutor referenced the natural and probable consequences
doctrine in her closing argument. Specifically, the prosecutor
stated the following when discussing aiding and abetting: “One
who aids and abets is not only guilty to the particular crime
which that person aided and abetted, but is also guilty of any
crimes committed by a principal which are the natural and
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probable consequences of the crimes originally aided and
abetted.”
The Attorney General acknowledges the prosecutor made
this stray reference during her closing, but argues Jackson failed
to make a prima facie showing because the record of conviction
shows the court did not give any natural and probable
consequences jury instructions. Instead, the instructions given
required the jury to find Jackson acted with the specific intent to
kill—either as the actual shooter or as an aider and abettor—in
order to convict Jackson of attempted murder. Therefore, the
Attorney General argues, as a matter of law the jury could not
have convicted Jackson based on the natural and probable
consequences doctrine because it was never instructed on that
theory.
Our colleagues in Division Five recently considered a
similar argument. (People v. Cortes, supra, 75 Cal.App.5th 198.)
In Cortes, the court instructed the jury “that it could find [the
defendant] guilty of murder [and attempted murder] as a direct
perpetrator or as a direct aider and abettor,” and did not instruct
on “the natural and probable consequences doctrine.” (Id. at
p. 200.) During closing argument, the prosecution made the
following comment: “ ‘An aider and abettor is considered to be a
principal. One who aids and abets is not only guilty of that
particular crime in which that person aided and abetted but is
also guilty of any crimes committed by a principal which are the
natural and probable consequences of the crimes originally aided
and abetted. That is principals. Talks [sic] about this aiding and
abetting.’ ” (Id. at pp. 200-201.) The defendant in Cortes
contended that he made a prima facie case of entitlement for
resentencing because “although the jury was not instructed on
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the natural and probable consequences theory of murder, it may
have convicted him under that theory because the prosecutor
mentioned the natural and probable consequences doctrine in
closing argument.” (Id. at p. 203.)
The Cortes court rejected this argument. It noted that “we
presume a jury understands and follows the court’s instructions,
and ‘ “treat[s] the court’s instructions as a statement of the law
by a judge, and the prosecutor’s comments as words spoken by an
advocate . . . .” [Citation.]’ [Citation.]” (People v. Cortes, supra,
75 Cal.App.5th at p. 205.) In Cortes, the court “instructed the
jurors that they could find [the defendant] guilty of murder and
attempted murder under only two theories: that he was a direct
perpetrator or that he was a direct aider and abettor of the
crimes. The prosecutor made a single comment on a legal theory
in closing that was not presented in the case. Nothing in the
charges, the instructions, or the balance of the trial permitted the
jury to find [the defendant] guilty on a theory other than direct
aiding and abetting or liability as a perpetrator of murder and
attempted murder. There is no indication in the record to
suggest that the jury did not, in fact, follow the court’s
instructions.” (Id. at pp. 205-206.) Because the record of
conviction demonstrated that the defendant in Cortes was not
convicted based on the natural and probable consequences
doctrine, he failed to make a prima facie showing of entitlement
to relief under section 1172.6. (Id. at p. 206.)5
5 Cortes also relied on the fact that the prosecution in that
case “did not argue at any point during trial, including closing
argument, that a crime other than murder or attempted murder
was committed, and no other crime was charged or at issue
9
We likewise presume the jury in Jackson’s trial understood
and followed the court’s instructions. Those instructions required
the jury to find Jackson acted with the specific intent to kill in
order to convict him of attempted murder, whether as the actual
shooter or as an aider and abettor. The prosecutor made an
isolated comment in closing about a legal theory that was not
presented; the court instructed the jury that it was to “accept and
follow the law as [the court] state[d] it,” and that “[i]f anything
concerning the law said by the attorneys in their arguments . . .
conflicts with my instructions on the law, you must follow my
instructions.” Nothing in the record of conviction indicates the
jury did not follow the court’s instructions when convicting
Jackson.
Because the record of conviction demonstrates that the
jury’s verdict was not based on the natural and probable
consequences doctrine, Jackson failed to meet his burden of
making a prima facie showing of entitlement to relief under
section 1172.6. There was thus no error in denying Jackson’s
resentencing petition at the prima facie stage. (People v. Cortes,
supra, 75 Cal.App.5th at pp. 204-206; People v. Daniel (2020) 57
Cal.App.5th 666, 677-678 [jury instructions showed § 1172.6
petitioner ineligible for relief as a matter of law because jury was
not instructed on any now-invalid malice theory].)
throughout the trial.” (People v. Cortes, supra, 75 Cal.App.5th at
p. 205.) Although Jackson was additionally charged with
carjacking (for which he was acquitted) and assault with a
firearm (for which he was convicted), we find the lack of any jury
instruction dispositive.
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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
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