1

Filed 4/4/24 P. v. Evans CA4/ 2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL ROBERT EVANS,

Defendant and Appellant. E079875

(Super.Ct.No. SWF1100070)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Alex Kreit, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Alan

Amann and James M. Toohey , Deputy Attorney Generals, for Plaintiff and Respon dent.2

D efendant and appellant Daniel Robert Evans appeals from the trial court’s order

denying his petition for resentencing under Penal Code 1 section 1170.95

. 2 For the

reasons set forth post , we affirm the court’s order.

FACTUAL AND PROCEDURAL HISTOR Y

A. PROCEDURAL HISTORY

On February 1, 2012, a jury convicted defendant of attempted first degree murder

( §§ 664, 187 subd. (a); count 1), and active participation in a criminal street gang

( § 186.22, subd

. (a) ; count 2)

. The jury also found true the allegation that defendant

personally and intentionally discharged a firearm causing great bodily injury under

sections 12022.53, subdivision ( d )

, and 1192.7, subdivision (c)(8)

. The jury found not

true the allegation that defendant committed the offenses for the benefit of a street gang

under section 186.22, subdivision (b)

.

The trial court sentenced defendant to an aggregate term of 32 years to life, as

follows : seven years to life for attempted murder (count 1), plus a consecutive 25 years

to life fo r the personal and intentional discharge of a firearm

. The court also ordered the

midterm of two years for the active participation in a criminal street gang count (count 2),

but stayed the sentence

.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Effective June 30, 2022, section 1170.95 was amended and renumbered as

section 1172.6. (Stats

. 2022, ch

. 58, § 10.) We refer to section 1172.6 in this opinion,

even though 1170.95 was the operative designation at the time of the underlying

proceedings

.3

After defendant appealed, this court reversed the ga ng participation conviction

(count 2 )

. In all other respects, we affirmed the judgment

. ( People v. Evans (Ju n 21

,

201 3 , E0 56152 ) [nonpub

. opn.] ( Evans

- 1 ).)

April 18, 2022 , defendant filed a petition for resentencing under section 1172.6.

On September 9 , 2022, the trial court denied defendant’s petition

.

September 27 , 2022, defendant filed a timely notice of appeal.

B. FACTUAL HISTORY 3

“ On January 9, 2011, Aaron Williams went to a Carl’s Jr

. restaurant in San Jacinto

with his uncle Rob ert Moreno, who has Down syndrome, and his parents

. While

Williams’ parents waited in the car, Williams and Moreno went inside the restaurant to

order food

. Subsequently, defendant entered the restaurant with his girlfriend, sister, and

young nephew.

“While Moreno was ordering his food, defendant and the two women began

giggling

. One of the women began yelling, trying to rush Moreno to order faster

.

Williams became upset and told them to wait their turn as Moreno suffered from Down

syndrome

. One of the women yelled at defendant ‘to do something.’ Williams and

defendant thereafter got into a confrontation, with defendant saying, ‘It seems like you

have a death wish

. Step outside, and I will grant it to you.’ The two women kept telling

defe ndant to do something

. Defendant then left the restaurant

. Shortly thereafter

Williams left too to ask his parents whether they wanted to order food.

3 The facts are taken from the unpublished opinion in Evans

- 1

, supra

, E056152

.4

“As Williams was exiting the restaurant, one of the women started yelling and

cursing at Williams, and telling defendant to do something

. Defendant, who was

standing next to a car parked next to Williams’ car, pointed a gun at Williams and fired

once, shooting Williams[] in the side of his cheek

. Williams fell to the ground, and

defendant fled the scene. [¶] . . . [¶] There was no evidence that defendant acted with

others in committing the crime in this case.”

DISCUSSION

A

. T HE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE

FOR RELIEF UNDER SECTION 117 2

. 6

On appeal, defendant contends that the trial court “ erred by denying [defendant]’s

petition for resentencing without providing a meaningful statement of reasons and

without first reviewing any documents from his record of conviction, in violation of

[defendant] ’s statutory and constitution al rights .” For the reasons set forth post

, we

disagree with defendant and affirm the court’s order

.

1. LEGAL BACKGROUND

Senate Bill No

. 1437 (2017

- 2018 Reg

. Sess.) (Stats

. 2018, ch

. 1015) became

effective January 1, 2019

. “ Senate Bill 1437 modified California’s felony murder rule

and natural and probable consequences doctrine to ensure murder liability is not imposed

on someone unless they were the actual killer, acted with the intent to kill, or acted as a

major participant in the underlyin g felony and with reckless indifference to human life.”

( People v. Cervantes (2020) 46 Cal.App.5th 213, 220.)5

S enate Bill No. 1437 also created a process through which convicted persons can

seek resentencing if they could no longer be convicted under t he reformed homicide law

.

(§ 1172.6, subd. (a).) Section 1172.6, subdivision (a), provides in part, “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 per son 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 with the court that sentenced

the petitioner to have the petitioner’s murder, attempted m urder, or manslaughter

conviction vacated and to be resentenced on any remaining counts.” (Italics added.)

Section 1172.6, subdivision (c), provides, “Within 60 days after service of a

petition

. . . the prosecutor shall file and serve a response

. The p etitioner may file and

serve a reply within 30 days after the prosecutor’s response is served

. These deadlines

shall be extended for good cause

. After the parties have had an opportunity to submit

briefings, the court shall hold a hearing to determine whether the petitioner has made a

prima facie case for relief

. If the petitioner makes a prima facie showing that the

petitioner is entitled to relief, the court shall issue an order to show cause

. If the court

declines to make an order to show cause, it shall provide a statement fully setting forth its

reasons for doing so.” If the petitioner makes a prima facie showing he is eligible for

relief under section 1172.6, the court shall hold an evidentiary hearing

. (§ 1172.6, subds.

(c) & (d)(1). ) At this hearing, either party may present new evidence and the prosecution

bears the burden of proving the petitioner could still be convicted beyond a reasonable

doubt

. (§ 1172.6, subd. (d)(3).)6

In People v. Lewis (2021) 11 Cal.5th 952 ( Lewis )

, the California Supreme Court

found that former section 1170.95 entitled a defendant to have appointment of counsel

after filing a proper petition and was entitled to have the opportunity for counsel to file

briefing in response to any opposition filed by t he People before the trial court makes its

prima facie determination

. ( Lewis

, at pp. 961

- 972.) As noted ante

, this has been codified

in section 1172.6, subdivision (c)

.

Thereafter, the California L egislature passed Senate Bill No

. 775, effective

January 1, 2022

. Senate Bill No

. 775 amended former section 1170.95 to expand its

scope to those convicted of “attempted murder under the natural and probable

consequences doctrine.” (§ 1172.6, subd. (a).) The bill also codified the holdings o f

Lewis regarding a petitioner’s right to counsel and the standard for determining the

existence of a prima facie case.

If a section 1172.6 petition contains all the required information, including “[a]

declaration by the petitioner that the petitioner is eligible for relief,” the trial court must

appoint counsel if requested ( § 1172.6, subds. (b)(1)(A) & (b)(3)); the prosecutor must

“file and serve a response” to the petition, to which the petitioner may reply ( id.

, subd.

(c); and “[a]fter the parties have had an opportunity to submit briefings, the court shall

hold a hearing to determine whether the petitioner has made a prima facie case for relief. ”

( Ibid. )7

However, a trial court ’ s failure to comply with these statutory requirements is

harmless if the record of conviction establishes that a defendant is ineligible for section

1172.6 relief as a matter of law

. (See Lewis

, supra

, 11 Cal.5th at p. 973 [trial court’s

statutory omissions at the first step process under section 1172.6 are not state or federal

constitutional violations]; see also People v. Hurtado (2023) 89 Cal.App.5th 887, 893

( Hurtado ).) “ ‘Typically, when an “error is purely one of state law, the Watson harmless

error test applies.” ’ ” ( Hurtado

, at p. 892, quoting Lewis

, at p. 973.)

2. THE TRIAL COURT’S ERROR WAS HARMLESS

Defendant contends that the trial court erred in denying his petition for

resentencing at the prima facie stage because it failed to review any record of conviction :

“There is no indication the court independently considered any other documents from the

record of conviction in denying the petition.”

W e agree with defendant that the trial court failed to comply with the statutory

requirements under section 1172.6

. Notwithstanding the trial court’s failure, we find the

error harmless

. E ven if the court complied with the statutory requirements, there is no

reasonable possibility that the court would ha ve issued an order to show cause because

defendant was ineligible for relief as a matter of law

. ( Lewis

, supra

, 11 Cal.5th at p. 892;

see also Hurtado

, supra

, 89 Cal.App.5th at p. 893.)

In this case, after defendant filed his pro

. per

. petition for resentencing, the trial

court appointed counsel and scheduled a date for a status conference. The record on this

appeal does not show that t he People filed a response to the petition

.8

At the hearing on the petition on September 9

, 2022, the prosecutor and defense

counsel appeared

. The prosecutor stated as follows :

“ Your Honor, it’s our motion to have the Court deny the petition filed 4/18/22

.

The defendant shot the victim in the fa ce after the defendant and his group mocked the

victim’s disabled uncle at a fast food restaurant

. The jury conviction was for attempted

murder with .53(d) and gang allegation both found true. 4 The opinions and instructions

are in imaging

. Sent to coun sel on 9/6/22

. There’s nothing regarding aiding and

abetting, natural and probable consequences, or felony murder.”

Defense counsel did not object

. Instead, counsel stated : “Your Honor, in this

matter, I did talk to [defendant] via CDCR confidential attorney call, and he’s objecting

to the Court denying the petition at this time.”

The trial court then asked defense counsel, “do you take issue with any of the

representations made by [the prosecutor]?” Defense counsel responded, “No, Your

Honor.”

Thereafter, t he trial court summarily denied defendant’s petition.

In addition to statements made by the prosecutor and defense counsel at the

hearing on defendant’s petition, t he record shows that defendant alone attempted to

murder the victim by directly shooting the victim

. No one else was involved in the

4 For clarification, the jury found the criminal street gang enhancement, attached

to the attempted murder count, not true

. Instead, the jury fou nd defendant guilty of being

an active participant in a criminal street gang (count 2), which this court reversed in the

underlying appeal

. However, defendant’s involvement or non

- involvement with a gang

is irrelevant to the analysis under section 1172.6.9

attempted murder

. Moreover, the supplemental clerk’s transcript in this case contains the

jury instructions, and the jury was not instructed with felony murder, aiding and abetting,

or the natural and probable consequences instructions

.

“ ‘ “[I]f the record

. . . ‘contain[s] facts refuting the allegations made in the

petition,’ then ‘the court is justified in making a credibility determination adverse to the

petitioner.’ ” ’ [Citation.] ‘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.’ ” ( Hurtado

, supra

, 89

Cal.App.5th at p. 892, quoting Lewis

, supra

, 11 Cal.5th at p. 971.) Hence, “[a]s the

attempted murderer, [defendant] is ‘ineligible for relief’ as ‘a matter of law,’ and ‘there is

no reasonable probability [defendant] would have obtained a more favorable result if ’ ”

the trial court had conducted an evidentiary hearing; “ consequently, the trial cour t’s

errors were ‘harmless.’ ” ( Hurtado

, supra

, 89 Cal.App.5th at p. 893, quoting People v.

Mancilla (2021) 67 Cal.App.5th 8 54, 86 4 .).)

Here, because defendant acted alone and personally shot the victim, and the jury

was not given the pertinent jury instr uctions on felony murder

, aiding and abetting, or

under a natural and probable consequences theory

, defendant is ineligible for relief under

section 1172.6 as a matter of law

. ( People v. Whitson (2022) 79 Cal.App.5th 22, 34

- 36.)

Therefore, even if the trial court had reviewed th e underlying record, there is no

reasonable probability that an order to show cause would have been issued because the

record of conviction conclusively demonstrates tha t defendant is ineligible for relief.10 DISPOSITION

The order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

FIELDS

J.

MENETREZ

J.