Filed 10/2/20 P. v. Duncan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMAAL LAMONT DUNCAN,

Defendant and Appellant.

B301367

Los Angeles County

Super. Ct. No. TA060230

APPEAL from an order of the Superior Court of 

Los Angeles County, H. Clay Jacke II, Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, 

for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________
2

In 2002 a jury convicted defendant and appellant Jamaal 

Lamont Duncan of the second degree murder of Gregory 

Davenport. The jury found true an allegation that Duncan 

personally and intentionally discharged a firearm causing 

Davenport’s death within the meaning of Penal Code section 

12022.53, subdivision (d).1 We affirmed Duncan’s conviction 

in 2004. (People v. Duncan (Apr. 15, 2004, B160379) [nonpub. 

opn.] (Duncan I).)

2

After Senate Bill No. 1437 (SB 1437) took effect, Duncan

filed on June 18, 2019 a petition for resentencing under section 

1170.95. On a downloadable form, Duncan checked boxes 1, 2a, 

3, 4, and 6. Box 2a states, “At trial, I was convicted of 1st or 2nd

degree murder pursuant to the felony murder rule or the natural 

and probable consequences doctrine.”

On August 9, 2019, the trial court summarily denied

Duncan’s petition. The court stated, 

“The petition is summarily denied because 

the petitioner is not entitled to relief as a 

matter of law, for the following reasons: [¶] 

The petitioner was convicted of murder but 

the court file reflects that the petitioner was 

the actual killer and was not convicted under 

a theory of felony-murder of any degree, or a 

theory of natural and probable consequences. 

[¶] The appellate opinion affirming the 

petitioner’s conviction and sentence reflects 

that the petitioner was the actual killer and 

1 References to statutes are to the Penal Code.

2 On our own motion, we take judicial notice of our opinion 

in Duncan’s direct appeal from the judgment of conviction. 

(Evid. Code, §§ 452, subd. (d), 459.)
3

was convicted of murder on a theory of being 

the direct perpetrator and not on a theory of

felony murder of any degree, or a theory of

natural and probable consequences.”

Duncan appealed and we appointed counsel to represent 

him. After examining the record, counsel filed an opening brief 

raising no issues and asking this court independently to review 

the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). 

On May 29, 2020, we sent a notice to Duncan that his counsel

had been unable to find any arguable issues and had filed a 

Wende brief. We instructed counsel to send the record on appeal 

to Duncan, together with a copy of the opening brief. Our notice 

advised Duncan that he could file a supplemental brief or letter 

within 30 days. We have received no supplemental brief or letter 

from Duncan.

SB 1437 “ ‘amend[ed] 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 was not the actual killer . . . .’ ” (People v. GutierrezSalazar (2019) 38 Cal.App.5th 411, 417, quoting Stats. 2018, 

ch. 1015, § 1, subd. (f); Pen. Code, § 189, subd. (e)(1).) Here, 

however, Duncan was the actual killer.

As we discussed in our opinion affirming Duncan’s 

conviction, one early morning in December 2000 a witness heard 

a commotion. She went outside and looked over the fence into 

her neighbor’s yard. She saw one man lying on the stoop of the 

neighbor’s house and another man standing over him pointing 

a gun. The standing man said, “I told you, man, this is for love. 

This is for love.” He then shot the man on the ground. The 

witness called 911. (Duncan I.)

Police found four expended shell casings and two live 

rounds at the scene. All of the casings and rounds were 
4

.40 caliber and could have been fired from the same weapon. 

Five days later police found Duncan hiding under a dumpster lid 

in an alley with a .40-caliber semiautomatic Glock pistol next 

to him. In a written statement, Duncan said he’d had that gun 

“for a couple of weeks.” Ballistics testing showed the expended 

shell casings found at the scene of the shooting came from 

Duncan’s gun. A cell phone found at the scene belonged to 

Duncan’s mother. (Duncan I.) 

As Davenport’s actual killer, Duncan is not eligible for 

resentencing under section 1170.95. (See §§ 189, subd. (e)(1), 

190.2, subds. (b), (c), (d); People v. Cornelius (2020) 44

Cal.App.5th 54, review granted Mar. 18, 2020, S260410

[affirming summary denial of resentencing petition where 

petitioner was the actual killer who discharged a firearm causing 

death]; People v. Tarkington (2020) 49 Cal.App.5th 892, 899, 

review granted Aug. 12, 2020, S263219.) Nothing in the record 

supports Duncan’s allegation that he was convicted under the 

felony murder rule or the natural and probable consequences 

doctrine. (See People v. Edwards (2020) 48 Cal.App.5th 666, 669, 

674, review granted July 8, 2020, S262481 [affirming summary 

denial of resentencing petition where petitioner was the actual 

killer and was not tried or convicted based on felony-murder 

theory or aiding and abetting under the natural and probable 

consequences doctrine].)

We are satisfied that Duncan’s counsel has fully complied 

with her responsibilities and that no arguable issues exist. 

(People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra, 

25 Cal.3d at pp. 441-442.)
5

DISPOSITION

We affirm the trial court’s denial of Jamaal Lamont 

Duncan’s petition for resentencing under Penal Code section 

1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

DHANIDINA, J.