Filed 8/11/21 P. v. Lee 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B311397
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A759717)
v.
CORNELIUS VON LEE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald Coen, Judge. Affirmed.
Cornelius Von Lee, in pro. per.; and Richard B. Lennon and
Larry Pizarro, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Cornelius Von Lee appeals from an order denying his
petition for resentencing under Penal Code1 section 1170.95. His
appellate counsel filed a brief asking this court to proceed under
People v. Wende (1979) 25 Cal.3d 436.
This matter arises out of events occurring in 1984, when
Lee set fire to a house where his ex-girlfriend’s friend lived.2 A
baby in the house died from thermal injuries. While in custody,
Lee told his cellmates that he had wanted to kill a woman who
owed him money, so he set her house on fire and a baby was
killed. In 1986, Lee pleaded guilty to attempting to burn a
structure (§ 455) and to using a destructive device (former
§ 12303.3). That same year, a jury convicted him of first degree
murder (§ 187) and arson (§ 451, subd. (a)). The trial court
sentenced him to 25 years to life for the murder and either stayed
or ran concurrent terms on the remaining counts.
Years later, our Legislature enacted Senate Bill No. 1437,
which took effect on January 1, 2019 and added section 1170.95.
That new law limited accomplice liability under the felony-
murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder, all to the end of
ensuring that defendants’ sentences are commensurate with their
criminal culpability. (See generally People v. Gentile (2020) 10
Cal.5th 830, 842–843.)
In April 2020, Lee filed a petition for resentencing under
section 1170.95. The trial court appointed counsel for Lee and
ordered the People to respond to the petition. In its written
1
All further undesignated statutory references are to the
Penal Code.
2
The underlying facts are from People v. Lee (Apr. 27, 1988,
B024167) [nonpub. opn.].
2
response, the People argued that the record of conviction
established that Lee was the actual killer. Further, as the jury
instructions attached as an exhibit showed, the jury was not
instructed on accomplice liability or the natural and probable
consequences doctrine, although it was instructed on the felony
murder doctrine.3
Lee’s counsel did not submit a reply.
In ruling on the petition, the trial court said it had
considered the court file, including the Court of Appeal opinion
and instructions showing that Lee’s jury was instructed on malice
murder, premeditation and deliberation, and felony murder
(arson). However, the jury was not instructed on the natural and
probable consequences doctrine or any theory of aiding and
abetting, given that Lee was the person involved in committing
the crime. The trial court concluded, “As such, the only theory of
guilt, under either malice murder or felony murder, was that
petitioner was the actual killer.” The trial court also noted that
Lee had admitted he was the actual killer to his cellmates.
Because Lee was the actual killer, the trial court found he was
not entitled to section 1170.95 relief.
3
The jury was instructed with CALJIC No. 8.21: “The
unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs as a result of the
commission of or attempt to commit the crime of arson, and
where there was in the mind of the perpetrator the specific intent
to commit such crime, is murder of the first degree. [¶] The
specific intent to commit arson and the commission or attempt to
commit such crime must be proved beyond a reasonable doubt.”
3
Lee appealed.4 As we have said, his appellate counsel filed
a Wende brief, and Lee filed a supplemental letter brief.
Thereafter, our California Supreme Court issued People v.
Lewis (July 26, 2021, S260598) __ Cal.5th __ [2021 WL 3137434].)
The court held that where a petitioner files a facially sufficient
petition under section 1170.95, counsel must be appointed.
(Lewis, at p. __ [2021 WL 3137434, at p. *10.) Only after counsel
is appointed and the parties have been allowed the opportunity
for briefing may the trial court consider the record of conviction
to determine whether petitioner made a prima facie showing he
is entitled to relief under section 1170.95, subdivision (c).5
(Lewis, at p. __ [2021 WL 3137434, at pp. *10–*11.)
4
People v. Serrano (2012) 211 Cal.App.4th 496, concluded
that review under People v. Wende, supra, 25 Cal.3d 436, does not
apply to appeals from orders denying postconviction relief.
(Accord, People v. Cole (2020) 52 Cal.App.5th 1023, review
granted Oct. 14, 2020, S264278.) Cole, at pages 1039 to 1040,
held that an appeal from a postconviction order may be dismissed
if counsel has found no arguable issues and if the defendant has
not filed a supplemental brief. Where the defendant has filed a
supplemental brief, the Court of Appeal must evaluate any
arguments raised in the brief and issue a written opinion
disposing of the trial court’s order on the merits. Lee has filed a
supplemental brief. Accordingly, without deciding whether Cole
is correct in part or whole, we review his contentions.
Our Supreme Court is currently considering what
procedures appointed counsel and the Courts of Appeal should
follow when counsel determines that an appeal from an order
denying postconviction relief lacks arguable merit. (People v.
Delgadillo (Nov. 18, 2020, B304441 [nonpub. opn.]), review
granted Feb. 17, 2021, S266305.)
5
Lewis further held that any error in failing to appoint
counsel is subject to harmless error review under the standard in
4
This is precisely what occurred here: Lee filed a facially
sufficient petition, the trial court appointed counsel for him, the
People filed a response to the petition, and the trial court then
considered the record of conviction to conclude that Lee was
ineligible for relief. As the trial court found, the record of
conviction established that Lee was the only person who
committed the crimes and was the actual killer and, as such,
ineligible for relief.
However, in his supplemental letter brief, Lee also asks us
to consider evidence admitted against him at his trial, including
the testimony of various witnesses and that he had an alibi. We
may not on appeal reweigh evidence or reevaluate the credibility
of witnesses. (People v. Brown (2014) 59 Cal.4th 86, 106.) He
also refers to the alteration of trial transcripts and the
destruction of evidence after his trial, but these issues are also
not properly before us and otherwise raise no issue as to the
denial of his section 1170.95 petition.
We have examined the record and found no arguable
issues. We are further satisfied that Lee’s attorney has fully
complied with the responsibilities of counsel.
People v. Watson (1956) 46 Cal.2d 818, 836 to 837. (People v.
Lewis, supra, __ Cal.5th at p. __ [2021 WL 3137434, at p. *12.)
5
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
6