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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

,

Defendant and Appellant

. B 301 3 67

Los Angeles County Super. Ct. No. T A 060230

APPEAL from a n order o f 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 20 02 a jury convicted defendant and appellant Jamaal
Lamont Duncan of the second degree murder of Gregory Davenport . The jury found true an allegatio n that Duncan personally and intentionally discharged a firearm causing Davenport’ s death with in the meaning of Penal Code section 12022.53, subdivision (d). 1 We affirmed Duncan ’s conviction
in 20 04

. ( People v. Duncan ( Apr. 15, 20 04 , B160379 ) [nonpub.

op n.] ( 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 box es 1, 2a, 3, 4, and 6. Box 2a stat es , “At trial, I was convicte d of 1 st or 2 nd 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 pe titioner 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 perpetrato r 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
h im

. A fter examining the record, counsel filed an opening brief raising no issues and asking thi s court independently to review
the record under People v. Wende (1979) 25 Cal.3d 436 ( Wende ).
On May 29 , 20 20
, we sent a notice to Duncan that his c ounsel 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. Gutierrez

Salazar (2019) 38 Cal.App.5 th 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 commotio n. 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 were4

.40 caliber and could have been fired from the same weapon.
Fi ve 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
she ll 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. ( S ee § § 189, su bd. (e)(1),

190.2 , subds. (b), (c), (d); People v. Cornelius (2020) 44 Cal.App.5 th 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.5 th 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 Peo

ple v. Edwards (2020) 48 Cal.App.5 th 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 ab etting 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.4 th 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.