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 This opinion has not been certified for publication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. Filed 12/20/21 P. v. Swaving CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

HANS JACQUEHENRI SWAVING,

Defendant and Appellant. G060316

(Super. Ct. No. C

- 55809)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County,

Gary S. Paer. Affirmed.

Victoria H. Stafford, under appointment by the Court of Appeal, for

Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 We appointed counsel to represent Hans Jacquehenri Swaving on appeal.

Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her

client but advised the court she found no issues to argue on his behalf.

Counsel filed a brief following the procedures outlined in People v. Wende

(1979) 25 Cal.3d 436 ( Wende ). The court in Wende explained a Wende brief is one that

sets forth a summary of proceedings and facts but raises no specific issues. Under these

circumstances, the court must conduct an independent review of the entire record. When

the appellant himself raises specific issues in a Wende proceeding, we must expressly

address them in our opinion and explain why they fail. ( People v. Kelly (2006)

40 Cal.4th 106, 110, 120, 124.)

Pursuant to Anders v. California (1967) 386 U.S. 738 ( Anders ), counsel did

not provide the court with information as to any issues that might arguably support an

appeal. Counsel only asked this court to conduct an independent review of the record

pursuant to Wende, supra, 25 Cal.3d 436.

We gave Swaving 30 days to file written argument on his own behalf, and

he did. We will discuss his contentions anon.

We have independently reviewed the record in accordance with our

obligations under Anders and Kelly

. We found no arguable issues on appeal. We affirm

the pos tjudgment order.

FACTS

In 1987, a jury convicted Swaving of first degree murder with special

circumstance findings he committed the murder during the commission of a burglary and

a robbery and used a firearm. ( People v. Swaving (June 30, 1989, G005901) [no npub.

opn.] ( Swaving ).) The jury also convicted him of two counts of attempted murder,

second degree burglary, and robbery with firearm use. The trial court sentenced Swaving

to a term of life without parole and concurrent sentences on the remaining counts.3 As relevant here, the trial court instructed the jury as follows: “A special

circumstance must be proved beyond a reasonable doubt. [¶] If you have a reasonable

doubt as to whether a special circumsta nce is true, it is your duty to find that it is not true.

[¶] If . . . Swaving, was an [aider and abettor] but not the actual killer, it must be proved

beyond a reasonable doubt that he intended to aid in the killing of a human being before

you are permitted to find the alleged special circumstance of that first degree murder to

be true as to

. . . Swaving.”

We affirmed Swaving’s conviction. ( Swaving, supra, G005901.)

Admitting the issue was close, the majority found substantial evidence supported the

jury’s conclusion Swaving intended to kill. The majority indicated the decision turned on

the evidence of Swaving’s conduct immediately after the killing and his later violent

actions toward the police. Justice Edward J. Wallin filed a concur ring and dissenting

opinion in which he strongly disagreed with the majority’s conclusion there was

substantial evidence of intent to kill to support the special circumstance findings. He

indicated the majority’s assertion that Swaving’s post

- shooting beha vior established his

intent that the victim die belied logic.

In 2019, Swaving in propria persona filed a petition for resentencing

pursuant to Penal Code section 1170.95. The trial court appointed counsel to represent

Swaving. The prosecution filed responses to the petition.

At a hearing, Swaving’s counsel submitted the matter based on the trial

court’s tentative ruling. Following the hearing, the court denied the petition. The court

found Swaving ineligible for relief on the ground the jury found he had the intent to kill,

which at the time was a required element of the special circumstance findings. Swaving

timely appealed.4 In his supplemental brief, Swaving insists he did not have an intent to kill.

He indicates he was using methamphetamines at the time of the crime and has since been

diagnosed with bipolar disorder. He asks for “a second chance” citing how his behavior

improved during his incarceration.

DISCUSSION

Penal Code section 1170.95, subdivision (a), allows “[a] perso n convicted

of felony murder or murder under a natural and probable consequences theory [to] file a

petition” to seek to have that “murder conviction vacated and to be resentenced on any

remaining counts” if certain conditions are met. The statute did not change or alter the

law regarding the criminal liability of direct aiders and abettors of murder because such

persons necessarily “know and share the murderous intent of the actual perpetrator.”

( People v. McCoy (2001) 25 Cal.4th 1111, 1118; see People v. Chiu (2014) 59 Cal.4th

155, 167 [direct aider and abettor “acts with the mens rea required for first degree

murder”] superseded by statute in part as stated in People v. Gentile (2020) 10 Cal.5th

830, 849.) One w ho directly aids and abets another who commits murder is thus liable

for murder under the new law just as he or she was liable under the old law.

We accept as true Swaving’s contentions about his methamphetamine use

and bipolar diagnosis, but these facts d o not make Swaving eligible for relief under Penal

Code section 1170.95. We agree with the trial court’s finding Swaving was ineligible for

relief because the jury found he had the intent to kill. ( People v. Lewis (2021) 11 Cal.5th

952, 971 [after appoint ment of counsel court may consider record of conviction in

determining whether petitioner made prima facie showing].)5 DISPOSITION

The postjudgment order is affirmed.

O’LEARY, P. J.

WE CONCUR:

GOETHALS, J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.