Filed 12/14/23 P. v. Marsh CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
THE PEOPLE, B325371
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA061125)
v.
VERNON LEE MARSH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Alan K. Schneider, Judge. Affirmed.
Emry J. Allen, under the 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, Scott A. Taryle and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
Vernon Lee Marsh appeals the trial court’s order denying
his petition for vacatur of his convictions of second degree murder
(Pen. Code1, § 187, subd. (a); count 1) and attempted murder
(§§ 187, subd. (a) & 664; count 2). The trial court denied Marsh’s
petition because he failed to make a prima facie showing that he
was eligible for relief. We affirm the trial court’s order.
FACTS AND PROCEDURAL HISTORY
On October 22, 2006, Gabriel Delira Caro and Giovanni
Mariona were in Caro’s car stopped at a red light.2 Marsh exited
a store nearby. He rapidly fired a handgun at Caro and Mariona,
and then fled. Both men were wounded. Caro suffered an injury
to his vertebrae, and ultimately died from the injury two years
later.
Marsh was charged with murder (§ 187, subd. (a); count 1),
attempted murder (§§ 187, subd. (a) & 664; count 2), and shooting
at an occupied vehicle (§ 246; count 3). It was alleged in all three
counts that Marsh personally used a firearm. (§ 12022.53, subds.
(b)–(d).)
As relevant here, the jury was instructed regarding murder
with malice aforethought (CALCRIM No. 520) and attempted
murder (CALCRIM No. 600). The jury was not instructed on
accomplice liability, the natural and probable consequences
doctrine, felony murder, or any other theory of liability for
murder based on participation in a different crime.
1 All further statutory references are to the Penal Code.
2 The facts are derived from Marsh’s opening brief and are
not in dispute.
2
The jury found Marsh guilty of second degree murder
(count 1), attempted murder (count 2), and shooting at an
occupied vehicle (count 3). It further found true the allegations
that Marsh personally and intentionally discharged a firearm
causing great bodily injury or death in all three counts.
(§ 12022.53, subd. (d).) Marsh was sentenced to 40 years to life in
prison. A different panel of this court affirmed the judgment.3
(People v. Marsh (Sept. 26, 2011, B225981) [nonpub. opn.].)
In 2022, Marsh petitioned for vacatur of his murder and
attempted murder convictions and resentencing under section
1172.6, which the People opposed. Appointed counsel filed a
reply on Marsh’s behalf. Following a hearing held pursuant to
section 1172.6, subdivision (c), the trial court denied the petition
because the record of conviction showed that the jury was not
instructed on the natural and probable consequences doctrine or
the felony murder rule. The trial court found that Marsh was not
convicted under any theory of imputed liability, but rather as a
principal and direct perpetrator of the crimes.
DISCUSSION
Section 1172.6
“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
3 We grant the People’s request, filed on August 9, 2023,
that we take judicial notice of the jury instructions given in
Marsh’s criminal trial and this court’s unpublished opinion on
direct appeal.
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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).) In addition to substantively amending sections 188
and 189 of the Penal Code, Senate Bill 1437 added section
1170.95 [now § 1172.6)], which provides a procedure for convicted
murderers who could not be convicted under the law as amended
to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th
952, 959.)
Effective January 1, 2022, Senate Bill No. 775 amended
former section 1170.95. (Stats. 2021, ch. 551, § 1). As a result of
these amendments, section 1172.6 provides that “person[s]
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 to have that conviction vacated under certain
circumstances. (§ 1172.6, subd. (a).) If the petitioner makes a
prima facie showing that the petitioner is entitled to relief, the
trial court must issue an order to show cause. If an order to show
cause issues, the court then “hold[s] a hearing to determine
whether to vacate the murder, attempted murder, or
manslaughter conviction and to recall the sentence and
resentence the petitioner on any remaining counts” (id., subd.
(d)(1)), unless the parties “waive a resentencing hearing and
stipulate that the petitioner is eligible to have his or her . . .
conviction vacated and to be resentenced (id., subd. (d)(2)).” “At
the hearing . . . the burden of proof . . . [is] on the prosecution to
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prove, beyond a reasonable doubt, that the petitioner is guilty of
murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (d)(3).)
Analysis
On appeal, Marsh contends that the trial court’s order must
be reversed because the record of conviction does not preclude the
possibility that he could provide evidence that “he was not the
actual perpetrator” and that even if he was the shooter, the
victim may have died from another cause, like medical
negligence. Marsh misstates the reach of section 1172.6; it does
not afford a retrial on every element of a murder or attempted
murder conviction. Rather, to make a prima facie showing of
eligibility for relief, Marsh must among other things, allege facts
that, if true, would demonstrate that he could not “presently be
convicted of murder or attempted murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a)(3), italics added.) Neither issue that Marsh purports to
raise in his petition was impacted by the amendments to sections
188 and 189.4 We therefore reject the contention.5 (See, e.g.,
4 We note that Marsh could, and did, argue the issues of
identity and causation in his direct appeal to this court in 2011.
5 Marsh speculates that if this case had been prosecuted as
a gang-related shooting, “the prospect exists” that he may not
have been acting alone and the other participant may have been
the shooter. He argues that the only viable theory of liability
would have been the obsolete natural and probable consequences
theory. Again, Marsh misunderstands his prima facie burden.
5
People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6
“does not permit a petitioner to establish eligibility on the basis of
alleged trial error”].)
The trial court did not err. The jury was not instructed
under the natural and probable consequences doctrine or under a
felony murder theory of liability; it therefore necessarily found
that Marsh was the perpetrator of the murder and the attempted
murder. He is ineligible for relief as a matter of law. (People v.
Harden (2022) 81 Cal.App.5th 45, 52 [“if the record shows that
the jury was not instructed on either the natural and probable
consequences or felony-murder doctrines, then the petitioner is
ineligible for relief as a matter of law”].)
Alternatively, Marsh asserts that section 1172.6 violates
due process, equal protection, and state and federal proscriptions
against cruel and unusual punishment by treating similarly
situated individuals differently or by “arriv[ing] at different
results for such individuals” based on factors that are arbitrary,
capricious, irrational or unpredictable. Marsh argues that
“[s]imilarly situated petitioners are afforded an evidentiary
hearing at which the prosecutor is required to prove their
ineligibility under section 1172.6.” Marsh does not specify the
group to which he claims to belong. Nor does he specify the group
to which he claims to be similarly situated beyond identifying
that group as “petitioners . . . afforded an evidentiary hearing.”
He must show, based on changes to section 188 and 189, that the
basis upon which he was convicted is no longer valid. It does not
matter whether he can imagine a situation in which the
prosecution could have presented a different, now-invalid theory
that was never presented to the jury.
6
Even if we construe Marsh’s contention as arguing that
petitioners who file a facially sufficient petition and are granted
an evidentiary hearing are similarly situated to petitioners who
file a facially sufficient petition and are denied an evidentiary
hearing, his argument fails. These two groups are not similarly
situated (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565
[“only those persons who are similarly situated are protected
from invidiously disparate treatment”]), and the denial of a
hearing for petitioners who file a facially sufficient petition but do
not make a prima facie showing of eligibility is not arbitrary,
capricious, irrational, or unpredictable. A petitioner is entitled to
an evidentiary hearing only if the petitioner (1) has alleged facts
that, if presumed true, support a prima facie showing of
eligibility, and (2) cannot be deemed ineligible for relief as a
matter of law based on undisputed facts contained in the record
of conviction. (§ 1172.6, subd. (c); see People v. Lewis, supra, 11
Cal.5th at pp. 971–972.) Whether petitioners who have met these
requirements are entitled to resentencing is a question of fact
that can only be resolved by an evidentiary hearing. (People v.
Lewis, at p. 971.) In contrast, petitioners like Marsh have not
made a prima facie showing of eligibility and are ineligible for
relief as a matter of law. It is unnecessary for the trial court to
evaluate disputed facts to reach this conclusion, so no evidentiary
hearing is warranted. (Ibid.)
Marsh further contends that he was deprived of procedural
due process protections because the prosecution was not required
to prove that he was not entitled to relief beyond a reasonable
doubt. This contention also lacks merit. Marsh was convicted of
murder and attempted murder by a jury, beyond a reasonable
doubt, under a valid theory of liability. He is not entitled to re-
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litigation of his valid convictions. “[T]he retroactive relief . . .
afforded by Senate Bill 1437 is not subject to Sixth Amendment
analysis. Rather, the Legislature’s changes constituted an act of
lenity that does not implicate defendants’ Sixth Amendment
rights.” (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.)
Finally, the denial of a section 1172.6 petition does not
constitute punishment. Marsh’s sentence of 40 years to life in
prison was based on his valid convictions for murder, attempted
murder, and shooting at an occupied vehicle, with attendant
firearm use enhancements.
DISPOSITION
We affirm the trial court’s order denying Marsh’s petition
for resentencing under section 1172.6.
NOT TO BE PUBLISHED.
MOOR, J.
WE CONCUR:
BAKER, Acting P. J.
KIM, J.
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