Filed 12/29/23 P. v. Porter CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081436
Plaintiff and Respondent,
v. (Super. Ct. No. SCN226668)
DOMINICK JEROME PORTER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Sim von Kalinowski, Judge. Affirmed.
Matthew A. Siroka, under appointment by the Court of Appeal, for
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Robin Urbanski, Donald Ostertag, and Brendon Marshall, Deputy Attorneys
General, for Respondent.
I. INTRODUCTION
Dominick Jerome Porter appeals from the trial court’s denial of his
petition for resentencing pursuant to Penal Code section 1172.6 (former
section 1170.95).1 Relying on People v. Maldonado (2023) 87 Cal.App.5th
1257 (Maldonado), Porter argues that the instructions given at his trial
allowed the jury to convict him of aiding and abetting first degree lying-in-
wait murder by imputing malice to him based solely on his participation in a
crime. Regardless of any instructional error that might have occurred, we
affirm the judgment because Porter has not shown 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” by Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437). (§ 1172.6, subd. (a)(3), italics
added.)
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Porter and a co-defendant were charged with first degree
murder (§§ 187, subd. (a), 189, subd. (a)). The prosecution alleged Porter
personally used a firearm causing death (§ 12022.53, subd. (d)) and the
special circumstance that he committed the murder while lying in wait
(§ 190.2, subd. (a)(15)).
At his trial in 2009, the court used modified versions on CALCRIM
Nos. 520 and 521 to instruct the jury on two theories of first degree murder:
(1) willful, deliberate and premeditated; and (2) lying in wait. The court also
instructed the jury on aiding and abetting using a modified version of
CALCRIM No. 401. The jury could not reach a verdict on the personal use of
a firearm or the lying-in-wait special circumstance, resulting in their
dismissal. The jury nonetheless convicted Porter of first degree murder, and
the court sentenced him to an indeterminate term of 25 years to life in prison.
1 All undesignated section references are to the Penal Code.
Section 1170.95 was renumbered to section 1172.6, without substantive
change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) For clarity, we
will refer to the section by its current numbering.
2
Porter appealed the conviction, and his counsel filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende) asking that we review the
entire record for error. After providing Porter an opportunity to file a brief on
his own behalf, we found no error and affirmed the conviction. (People v.
Porter (June 3, 2011, D055279) [nonpub. opn.].)
In October 2019, Porter filed a petition for resentencing pursuant to
section 1172.6, alleging his conviction was based on the felony murder rule or
the natural and probable consequences doctrine. The court denied the
petition in November 2020, finding no prima facie case for relief because
Porter was not tried on either of those theories. We agreed and affirmed that
ruling. (People v. Porter (March 29, 2021, D078242) [nonpub. opn.].)
Porter filed a second section 1172.6 petition in February 2022, which
added the allegation that he was convicted under a theory of imputed malice.
The court denied the second petition in November 2022, again finding no
prima facie case for relief. The court acknowledged Porter’s new allegation
was consistent with Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate
Bill 775), which became effective after Porter’s first petition was denied and
broadened the relief available under section 1172.6 to include convictions
involving imputed malice. But despite the new allegation, Porter did not
explain how malice was imputed to him, leading the court to conclude the
second petition was barred by collateral estoppel.
Porter then filed the current appeal of the denial of his second
section 1172.6 petition. Shortly thereafter, the First District issued its
opinion in Maldonado, in which the defendant was charged with first degree
murder under the same theories as Porter, and the jury was instructed with
CALCRIM Nos. 401, 520, and 521. (Maldonado, supra, 87 Cal.App.5th at
pp. 1260, 1264.) The court in Maldonado found that the jury instructions did
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not clearly explain the required mental state for aiding and abetting lying-in-
wait first degree murder, thus permitting a conviction based on imputed
malice and establishing a prima facie case for resentencing under
section 1172.6. (Maldonado, at pp. 1264–1269.) In their initial briefing,
Porter sought reversal based on Maldonado, while Respondent disputed that
opinion’s analysis of instructional error.
After the parties’ briefs had been submitted, we issued our decision in
People v. Burns (2023) 95 Cal.App.5th 862 (Burns). In that opinion, we found
that a different claim of instructional error was insufficient for resentencing
relief because it had nothing to do with the legislative changes in Senate
Bill 1437, and therefore did not meet the requirement in subdivision (a)(3) of
section 1172.6 that the defendant “ ‘could not presently be convicted of
murder or attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.’ ” (Burns, at p. 867, italics omitted.) The parties
did not address the application of subdivision (a)(3) in their initial briefing, so
we requested supplemental briefing on the effect of our decision in Burns.
We then issued our opinions in People v. Flores (2023) 96 Cal.App.5th
1164 (Flores), and People v. Berry-Vierwinden (Dec. 6, 2023, D081861) __
Cal.App.4th __ [2023 Cal.App. Lexis 943] (Berry-Vierwinden). In both of
those cases, we found that a claim of instructional error based on preexisting
law that was not changed by Senate Bill 1437 was insufficient to state a
prima facie case for resentencing under section 1172.6. (Flores, supra,
96 Cal.App.5th at p. 1172; Berry-Vierwinden, supra, [2023 Cal. Lexis 943 at
pp. *18–*21].) Thereafter, the parties submitted supplemental briefing
addressing our recent decisions.
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III. DISCUSSION
Porter argues the same instructional error identified in Maldonado
occurred in his case, which allowed the jury to convict him of aiding and
abetting lying-in-wait murder without finding that he personally harbored
malice. He claims the malice requirement for this crime was imposed by
Senate Bill 1437, so subdivision (a)(3) of section 1172.6 has been satisfied.
We disagree and follow our recent decisions in Burns, Flores, and Berry-
Vierwinden.2
A. Section 1172.6
Effective January 1, 2019, the Legislature enacted 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
This was accomplished by amending section 188, which defines malice, and
section 189, which defines the degrees of murder. (Stats. 2018, ch. 1015,
§§ 2, 3.) As relevant here, Senate Bill 1437 added subdivision (a)(3) to
section 188, which states, “Malice shall not be imputed to a person based
2 As Respondent concedes, the recent decisions in Maldonado, Burns,
Flores, and Berry-Vierwinden warrant reexamination of Porter’s second
section 1172.6 petition and render the application of collateral estoppel
inappropriate. (People v. Strong (2022) 13 Cal.5th 698, 715–716; People v.
Farfan (2021) 71 Cal.App.5th 942, 950.) Thus, although the trial court’s
application of collateral estoppel was correct at the time, we decline to uphold
the denial of Porter’s second petition on that ground and will address the
merits of that petition. Additionally, Respondent’s request for judicial notice
of the closing arguments from Porter’s trial is denied because those
arguments are irrelevant to our determination.
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solely on his or her participation in a crime.” (§ 188, subd. (a)(3), added by
Stats. 2018, ch. 1015, § 2.)
Senate Bill 1437 also created section 1172.6, which authorizes those
convicted of felony murder or murder based on the natural and probable
consequences doctrine to file a petition for resentencing. (Stats. 2018,
ch. 1015, § 4.) Effective January 1, 2022, Senate Bill 775 amended
section 1172.6 to expand eligibility for resentencing to include, among other
things, murder convictions in which malice is imputed based solely on a
person’s participation in a crime. (Stats. 2021, ch. 551, § 2.)
A petition under section 1172.6 must satisfy three conditions, and our
analysis focuses on the third condition found in subdivision (a)(3) which is
that “[t]he petitioner 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).) After receiving a petition with the required
information and appointing counsel for the petitioner if requested, the parties
may submit briefing and the court holds a hearing to determine if the
petitioner has made a prima facie case for relief. (§ 1172.6, subds. (b)(3), (c).)
At this stage, the court may deny the petition if the record of conviction
discloses that the petitioner is ineligible for relief as a matter of law. (People
v. Lewis (2021) 11 Cal.5th 952, 970–971.) If the petitioner makes a prima
facie showing, the court must issue an order to show cause and hold an
evidentiary hearing to determine if the petitioner should be resentenced.
(§ 1172.6, subds. (c) & (d)(1).)
B. Our Recent Decisions
In Burns, the defendant filed a section 1172.6 petition claiming the jury
was permitted to convict him of aiding and abetting murder on a theory of
imputed malice based on the “ ‘equally guilty’ ” language in the former
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version of CALCRIM No. 400 that has since been discarded. (Burns, supra,
95 Cal.App.5th at p. 866.) All the caselaw Burns relied on to show the
instructional error was decided well before the verdict in his trial, and the
subsequent enactment of Senate Bill 1437 did nothing to change that law.
(Id. at p. 867.) We therefore found that Burns was ineligible for relief
because he failed to satisfy subdivision (a)(3) of section 1172.6. (Ibid.)
We reached the same result in Flores. In that case, the section 1172.6
petitioner partially relied on Maldonado and claimed an instructional error
permitted the jury to impute malice under a theory of aiding and abetting
provocative act murder. (Flores, supra, 96 Cal.App.5th at p. 1172.) Because
the law in effect at the time of Flores’ trial already required that an aider and
abettor of a provocative act murder must personally harbor malice, we found
that Flores did not fulfil subdivision (a)(3) of section 1172.6 and was therefore
ineligible for resentencing. (Id. at p. 1173.)
We then applied Burns and Flores in Berry-Vierwinden. Like Porter’s
case, Berry-Vierwinden involved a defendant charged with aiding and
abetting lying-in-wait first degree murder who sought resentencing under
section 1172.6 based on the instructional error identified in Maldonado.
(Berry-Vierwinden, supra, [2023 Cal. Lexis 943 at p. *1.) We found that the
Maldonado instructional error is based on well-settled California law dating
back to 2001 that a direct aider and abettor could not be convicted of lying-in-
wait murder on an imputed malice theory, and Senate Bill 1437 did not
change the law on that issue. (Berry-Vierwinden, at pp. *18–*21.) As such,
Berry-Vierwinden did not satisfy subdivision (a)(3) of section 1172.6. (Ibid.)
In all three cases, we found that by relying on the law in effect at the
time of their trials, the petitioners could have raised their claimed
instructional errors on direct appeal, and section 1172.6 does not create a
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right to a second appeal. (Burns, supra, 95 Cal.App.5th at pp. 867–868;
Flores, supra, 96 Cal.App.5th at p. 1173; Berry-Vierwinden, supra, [2023 Cal.
Lexis 943 at p. *20.) We also distinguished Maldonado because it skipped
the critical step of determining whether the claimed instructional error was
based on changes made by Senate Bill 1437 as required under
subdivision (a)(3) of section 1172.6. (Burns, supra, 95 Cal.App.5th at p. 868,
fn. 7; Flores, supra, 96 Cal.App.5th 1174; Berry-Vierwinden, supra, [2023 Cal.
Lexis 943 at p. *21.)
C. Porter’s Eligibility for Relief under Section 1172.6
Our recent decisions confirm that to establish a prima facie case for
relief, Porter must show “he could not presently be convicted of murder
‘because of’ the ‘changes’ made by Senate Bill No. 1437.” (Berry-Vierwinden,
supra, [2023 Cal. Lexis 943 at p. *18.) As we explained in Berry-Vierwinden,
the instructional error identified in Maldonado, upon which Porter relies, has
nothing to do with these changes. (Berry-Vierwinden, at pp. *18–*21.)
Instead, that error is based on preexisting law that was not changed by
Senate Bill 1437. (Ibid.) As a result, Porter has failed to show he could not
presently be convicted of murder because of the changes made by Senate
Bill 1437, and he is ineligible for resentencing pursuant to subdivision (a)(3)
of section 1172.6.
Porter’s arguments to the contrary are not convincing. First, Porter
argues that before the enactment of Senate Bill 1437, malice was not
required for aiding and abetting lying-in-wait murder. Porter cites People v.
Laws (1993) 12 Cal.App.4th 786, in support of this claim, but that case
merely stated that murder by means of lying in wait could be committed
without intent to kill, and it recognized that implied malice was still
required. (People v. Laws, supra, 12 Cal.App.4th at pp. 793–794.) Porter also
8
relies on People v. Curiel, 15 Cal.5th 433 (Curiel), in which the California
Supreme Court stated that one of the effects of Senate Bill 1437 “was to
eliminate liability for murder as an aider and abettor under the natural and
probable consequences doctrine.” (Curiel, supra, 15 Cal.5th at p. 22].)
Porter’s reliance on Curiel is misplaced, as his claim of instructional error is
not based on the natural and probable consequences doctrine and his jury
was not instructed on that theory. Instead, Porter’s claim is based on direct
aiding and abetting. As shown by the Supreme Court’s analysis in Curiel,
the mental state required for that theory, as established in its earlier decision
in People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), remains the law after the
enactment of Senate Bill 1437. (Curiel, supra, 15 Cal.5th at pp. 63–68;
see also, Berry-Vierwinden, supra, [2023 Cal. Lexis 943 at pp. *19-*20
[“After the Supreme Court’s 2001 decision in McCoy, it was unmistakable
that a direct aider and abettor’s ‘mental state is her own; she is liable for her
mens rea, not the other person’s.’ ”].) Porter has therefore failed to refute our
conclusion in Berry-Vierwinden that Senate Bill 1437 did not change the law
underlying his claim of instructional error.
Second, Porter claims he could not have raised his claim of
instructional error on appeal because this court reviewed the record of his
conviction pursuant to Wende and found no arguable issues. He thus
contends his jury was properly instructed at the time of his trial, and the
subsequent change in the law renders the jury instructions suspect. The
opinion in Maldonado did not change the law regarding imputation of malice.
Rather, it recognized a potential instructional ambiguity based on the law
that existed at the time of Porter’s trial. As such, even though Porter did not
have the benefit of a reported decision on the issue, he or his counsel could
have raised it in his direct appeal, but they failed to do so. The fact that the
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issue could have been raised prevents Porter from resurrecting it through a
section 1172.6 petition. (Berry-Vierwinden, supra, [2023 Cal. Lexis 943 at
p. *20])
Finally, Porter attempts to distinguish Berry-Vierwinden because in his
case, the jury did not reach a verdict on the lying-in-wait special
circumstance. This distinction does not impact the outcome, as it has no
bearing on Porter’s ability to link his claim of instructional error with the
changes made by Senate Bill 1437.
In summary, we adhere to our recent decisions enforcing
subdivision (a)(3) of section 1172.6. Porter did not satisfy that requirement
because his claim of instructional error is not based on changes made by
Senate Bill 1437. We therefore affirm the order denying his second petition
for resentencing.
IV. DISPOSITION
The order is affirmed.
CASTILLO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
BUCHANAN, J.
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People v. Porter CA4/1
Combined Opinion