1 Filed 9/24/24 P. v. S a ddozai CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v.

SHIKEB SADDOZAI, Defendant and Appellant. A16 8408

(San Mateo County Super. Ct. No. 16

- NF001414A)

Shikeb Saddozai appeals from the trial court’s d ismissal of
his resentencing petition under Penal Code section 1172.6 , which
he a sserts requires vacatur of his conviction for attempted
murder

. 1 His appellate counsel filed a brief identifying no issues as grounds for relief, complying with the procedure established in People v. Delgadillo (202 2 ) 14 Cal.5th 216, 222 , 231

- 232 ( Delgadillo )

. Saddozai then filed a supplemental brief raising a variety of issues . Because his contentions lack merit, we affirm the trial court’s judgment.

B ACKGROUND

A.

To be convicted of murder, a jury must ordinarily find that the defendant acted with the requisite mental state, known as

1 Undesignated statutory references are to the Penal Code.2

“ ‘malice aforethought.’ ” ( People v. Chun (2009) 45 Cal.4th 1172, 1181 ( Chun ) , quoting § 187, subd

. (a).) Prior to 2019

, however,
under a n exception known as the natural and probable consequences doctrine , a “ ‘ “person who knowingly aids and abets [the] criminal conduct [of another person] is guilty of not only the intended crime . . . but also of any other crime the [other person] actually commits . . . that is a natural and probable consequence of the inten ded crime.” ’ ” ( People v. Chiu (2014) 59 Cal.4th 155, 161 ; see also People v. Curiel (2023) 15 Cal.5th 433, 449 ( Curiel ) .) In addition, the felony murder rule provided an exception that made “ a killing while committing certain felonies murder without the necessity of further examining the defendant’s mental state.” ( Chun, at p. 1182

. )

In 2019, Senate Bill No. 1437 ((2017

- 2018 Reg. Sess.), Stats. 2018, ch. 1015) raised the level of culpability required for murder liability to be imposed under these theories. ( See Stats. 2018, ch. 1015, § 1.) It amended the definition of malice
in section 188 to provide that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) The bill also
amended s ection 189 , which defines the degrees of murder, to limit murder liability based on felony murder or a natural and probable consequences theory to a person who: (1) was the actual killer; (2) though not the actual killer, acted “with the intent to kill” and “aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer” in the commission of first degree murder; or (3) was “a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” ( § 189, subd. (e); Stats. 2018, ch. 1015, § 3.)

Section 1172.6 provides a procedural mechanism by which defendants who believe they could not be convicted of murder or attempted murder under the amended versions of section s 1883

and 189 may petition the trial court for relief. As relevant here,
it provides that a “person convicted of . . . attempted murder under the natural and probable consequences doctrine” may file a petition to vacate that conviction and be resentenced on any remaining counts. (§ 1172.6, subd. (a).) The individual may file a petition if three conditions are met: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of

. . . attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of

. . . attempted murd er . . . following a trial

. . . at which the petitioner could have been
convicted of

. . . attempted murder. [¶] (3) The petitioner could not presently be convicted of

. . . attempted murder because of changes to Section 188 or 189 made effective January 1, 2019. ” (§ 1172.6, subd. (a) .) T he petition must include a declaration that the petitioner is eligible for relief based on the requirements set forth in subdivision (a), the superior court case number and year of the conviction, and a statement indicating whether the petitioner requests the appointment of couns el. (§ 117 2.6 , subd. (b)(1).)

If the petitioner has complied with these requirements, the court appoints counsel (if requested), receives briefing from the parties, and determines whether the petitioner has made a prima
facie case for relief (§ 117 2.6, subd s

. (b)( 3), (c); see Curiel

, supra , 15 Cal.5th at p. 450

. ) If so, the court must issue an order to show cause and hold an evidentiary hearing at which the burden is on the prosecution to prove that the petitioner is ineligible for relief. ( § 1172.6, subds. (c), (d); Curiel , at p. 450

. ) If the petition and the record of conviction establish conclusively that the petitioner is

not eligible for relief, however, the trial court may dismiss the petition for failure to make out a prima facie case. ( Curiel , at p p

. 460 , 463 .)4 B.

The conviction at issue in this appeal relate s to an incident
in which Saddozai stalked, burglarized, and attempted to murder
his ex

- girlfriend, Jane Doe. ( See People v. Saddozai (Mar. 16, 2021, A154894 ) [nonpub. opn.]

. ) Angry that Doe had ended their relationship, h e broke into her apartment and waited for her to come home, at which point he chased her with a knife, yelling

“ ‘I’m gonna get you.’ ” ( Ibid

. ) Saddozai pursued Doe out of her apartment, to the building’s leasing office, where she took refuge. ( Ibid

. ) When Saddozai was unable to force the door open, he ran to the apartment complex’s pool, where another resident saw him holding a knife and heard him repeatedly say, “ ‘I want to kill the bitch.’ ” ( I

bid

. )

In June 2017, a jury convicted Saddozai of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)); first degree burglary (§ 460, subd. (a)); stalking (§ 646.9, subd. (a)); misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)); misdemeanor possession of burglar ’ s tools (§ 466); and misdemeanor battery of a person the defendant formerly dated (§ 243, subd. (e)(1)). ( People v. Saddozai

, supra , A154894 .) T he jury
also found true an allegation that Saddozai personally use d a deadly weapon

— a knife

— during the commission of the crime of attempted willful, deliberate, and preme ditated murder (§ 12022, subd. (b)(1))

.
C.

Saddozai filed a section 117 2.6 petition alleg ing that the information filed against him had allowed the prosecution to proceed under a natural and probable consequences theory

, that
he was convicted of attempted murder before 2019

, and could not now be convicted of attempted murder because of the 2019
amendments to sections 188 and 189. Saddozai also requested appointment of counsel.5 Saddozai was initially represented by appointed defense
counsel Jai Gohel , who filed a brief in reply to the People’s opposition to the petition

. B ased on a breakdown in
communication between Saddozai and his attorney , the court subsequently granted a motion for substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118 ( Marsden )

. The court then ordered that a new attorney be appointed to represent Saddozai in the section 1172.6 petition.

After attorney Brian C. McComas was appointed to represent him , Saddozai made another Marsden motion , which
the court denied

. Saddozai then sought to represent himself
under Faretta v. California (1975) 422 U.S. 806 , but the court
denied his motion. During the same hearing, he unsuccessfully moved to disqualify the judge , Lisa Novak

, based on bias under
Code of Civil Procedure section 170.6. Saddozai later made
another Marsden motion, which the court again denied.

At the hearing on his section 1172.6 petition, Saddozai was represented by McComas

. Saddozai personally moved

, again

unsucce s sfully, to disqualify the judge

, Elizabeth K. Lee

, under
Code of Civil Procedure section 170.6

. In denying his section 1172.6 petition, t he court concluded
that Saddozai had not established a prima facie case for relief.
The court reasoned that the jury was instructed on neither felony murder nor the natural and probable consequences doctrine , and the only theory of attempted murder presented to the jury
remains valid under current law

. The court further reasoned
that the verdict forms established that Saddozai was the actual perpetrator of the attempted murder , that the jury found him guilty of “at tempted, willful, deliberate[,] and premeditated deadly murder ,” and the jury also found he used a deadly or dangerous weapon (a knife) in committing th at crime

. As a result, the court determined, “the record establishes that he acted6

with the intent to kill and premeditation and deliberation when he attempted to murder Jane Doe with a knife .”

D ISCUSSION

Where, as here, the petitioner has filed a supplemental brief in compliance with the procedures established in Delgadillo

, we issue an opinion address ing the arguments presented in that
brief. ( Delgadillo

, supra , 14 Cal.5th at p. 232 .) We independent ly r eview the trial court’s determination that
Saddozai did not make a prima facie showing of eligibility for relief under section 1172.6. ( See People v. Morales (2024) 102 Cal.App.5th 1120, 1131 .) We likewise review de novo the other legal questions presented in Saddozai’s supplemental brief

. ( See

, e.g. , People v. Rells (2000) 22 Cal.4th 860, 870 .) Applying these
standards

, we affirm the trial court’s d ismissal of Saddozai’s section 1172.6 petition.

A.

Eligibility for Relief Under Section 1172.6

Saddozai contends that because the allegations in his petition sufficed to establish a prima facie case for relief under section 1172.6, the trial court erred in dismissing his petition. He

argue s that

, in dismissing his petition, the trial court improperly engaged in fac t finding. We disagree.

I n assessing whether a petitioner has made out a prima
facie case under section 1172.6 , the trial court may consider
whether the allegations in the petition are refuted by the record of conviction. ( Curiel

, supra , 15 Cal.5th at p. 460 .) The record of
conviction includes the court’s own documents, such as the clerk’s transcript, trial court minutes, jury instructions, verdict forms

, and prior appellate opinions . ( See , e.g. , People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1232 ; People v. Maldonado (2023) 87 Cal.App.5th 1257, 1269 ; People v. Allen (2023) 97 Cal.App.5th 389, 395, fn. 4 .) Jury findings are “generally preclusive” in7

section 1172.6 petitions

. ( Curiel , at pp. 453

- 454

. ) The trial court may dismiss the petition without an evidentiary hearing if the petition, together with the record of conviction, conclusively establishes that the defendant is not eligible for relief. ( Id. , at p.
450 .)

The trial court here correctly determined that Saddozai’s attempted murder conviction was not based on the natural and probable consequences doctrine. The verdict form indicate s the jury found him guilty of “ Attempted Willful, Deliberate, And
Premeditated Murder” in violation of sections 664 and 187,
subd ivision (a)

, as alleged in count one of the information. Count
one of the operative information alleged that Saddozai “did unlawfully and with malice aforethought” attempt to murder Doe, thereby committing “Attempted Willful, Deliberate, and
Premeditated Murder.” And, the verdict form indicate s that the jury found true the allegation that Saddozai “personally use d a deadly or dangerous weapon . . . [a] [k]nif e . . . during the
commission of the crime of A ttempted W illful, D eliberate [,] and
P remeditated M urder .” (§ 12022, subd. (b)(1))

. Further, neither the jury instructions nor the prosecution’s closing argument relied on the natural and probable consequences doctrine for attempted murder. Because the trial court relied on the jury instructions, but they were not included in the record on appeal, we take judicial notice of the portion of the clerk’s transcript and reporter’s transcript containing the jury
instructions in the record of Saddoz ai’s direct appeal (A154894).
T he court instructed the jury that “[t]o prove that the defendant
i s guilty of attempted murder, the People must prove that : [¶]

. . . [t] he defendant took at least one direct but ineffective step toward killing another person” and “[t] he defendant intended to kill that person. ” ( CALCRIM No. 600 .) Likewise

, the People argued Saddozai had the intent to kill Doe and took at least one step toward doing so based on his arming himself with a knife,8

his statement to a bystander that he was going to kill her, and his pursuit of Doe and other actions. The jury thus necessarily
found that Saddozai intended to kill Doe and personally used a knife to attempt to kill her ; Saddozai was convicted of attempted
murder based on his own actions and mental state , rather than
his participation in another person’s criminal act

.
Saddozai asserts there were “plausible factual scenarios” in which he “did not have the specific intent to kill or malice,” but
the jury’s verdict necessarily excludes any such scenarios.

Saddozai additionally contends that, in denying his petition, the trial court relied on evidence not heard by the jury.
But this mischaracteriz es the trial court’s determination

, which relied only on the record of conviction

. In sum, because Sad d ozai could not have been convicted based on a natural and probable consequences theory, the trial court properly dismissed his petition. ( See People v. Coley (2022) 77 Cal.App.5th 539, 548 .)

B.

Claims of Judicial Bias

Saddozai raises both statutory and constitutional claims concerning bias by Judges Novak and Lee, who presided over proceedings related to his section 1172.6 petition. Neither set of
claims has merit.

F irst, Saddozai challenges the denial of his motions under
Code of Civil Procedure section 170.6 to disqualify the judges for
bias

. Saddozai has forfeited his statutory argument, however, by failing to file a timely petition for writ of mandate

— the sole method for obtaining review of denial of a disqualification motion

. ( See Code Civ. Proc., § 170.3 , subd. (d); People v. Nieves (2021) 11 Cal.5th 404, 498

, fn. 13 ( Nieves ) .)9 Second, Saddozai argues that the denial of his motions violated his due process right to a fair and impartial judge. To succeed on his due process claim, he must show a constitutionally intolerable probability that the judge was actually biased

— a standard met only in extreme circumstances. ( People v. Freeman (2010) 47 Cal.4th 993, 996, 1001, 1005 .) The question is whether
the record reflects a n intolerable possibility that the judge had an
interest in the outcome of Saddozai’s proceeding , such as a pecuniary interest, personal interest based on a relationship to a party, or a discriminatory prejudice. ( See Nieves

, su pra, 11 Cal.5th at p. 499 .) Based on the record here

, Sad d ozai has not come close to meeting this standard.

Saddozai concedes that he had no prior relationship with either judge. He complains that Judge Lee muted his microphone and cut him off while he was speaking

. B ut the record reflects that Saddozai was represented by counsel at the time, and Judge Lee muted Saddozai’s microphone because “he [was] not willing to listen to the Court and hear what the Court ha[d] to say

, ” he was “talking over

. . . his counsel

, ” and “ the court reporter [was] asking for one at a time. ”

Finally, the fact that the prosecution successfully challenged another judge does no t suggest that the judge s who rejected Saddozai’s challenges w ere biased against him. Even assuming the rulings were erroneous, mistaken rulings alone do not establish judicial bias . ( See People v. Farley (2009) 46 Cal.4th 1053, 1110 .)10 C.

Challenges Relating to Saddozai’s Trial and Arrest

Saddozai raise s numerous claims of error relating to his original trial and arrest by police

. 2 But r elief under section
1172.6 is limited to cases in which the defendant “could

not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” ( § 1172.6, subd. (a)(3)

, italics added .) Assertions of trial error or challenges to the sufficiency of the evidence at trial are not cognizable in this appeal . ( See People v. Farfan (2021) 71 Cal.App.5th 942, 947 ( Farfan )

. )

2 Saddozai contends that his conviction was the result of false, coerced, and biased testimony; juror misconduct; and discrimination and misconduct by the police, prosecution, trial judge , and court

- appointed defense investigator . He argues that evidence was improperly excluded; other evidence was improperly admitted; potentially exculpatory evidence was not collected, preserved, or disclosed; and the evidence at trial was insufficient to support the jury’s verdict. He asserts that his trial and direct appeal counsel w ere ineffective. He seeks to challenge the trial court’s decision to allow the victim to proceed under a pseudonym , as well as the court’s denial of his motion for a new trial based on evidence not presented to the jury. He argues his trial was unlawful because he was not indicted by a grand jury. H e also contends that the police used unlawful and excessive force against him during his arrest and illegally seized his cell phone. And he claims a variety of trial errors in the context of his arguments that his section 1172.6 counsel provided ineffective assistance in failing to pursue them as a basis for resentencing relief.11 D.

Ineffective Assistance of Counsel Claims as to Saddozai’s

Section 1172.6 Petition

Saddozai contends that he received constitutionally
ineffective assistance from the attorneys representing him in his section 1172.6 petition in the trial court and in this appeal. We disagree.

Our Supreme Court has held that a defendant in an appeal from the denial of a section 1172.6 petition does not have a constitutional right to counsel. ( Delgadillo

, supra , 14 Cal.5th at pp. 222, 226

- 227 ; People v. Lewis (2021) 11 Cal.5th 952, 973 .)
Because Saddozai has a statutory right to the appointment of counsel ( see § 1172.6, subd. (b)(3)), however, we assume without deciding that he also has a statutory right to competent counsel. ( Cf. In re Clark (1993) 5 Cal.4th 750, 780

. )

To establish ineffectiveness of counsel, Saddozai must show that his attorney’s performance was deficient and that the attorney’s deficient performance prejudiced his defense, depriving him of a fair trial. ( See Strickland v. Washington (1984) 466 U.S. 668, 687 .)

Here

, Saddozai’s attorneys’ omission of arguments unrelated to the 2019 amendments to sections 188 and 189 did not constitute deficient performance because such arguments are not cognizable in a section 1172.6 petition. ( See § 1172.6, subd. (a)(3); People v. Hernandez (2024) 103 Cal.App.5th 1111 , 1122

- 1123 ; Farfan

, supra , 71 Cal.App.5th at p. 947 .) Similarly lacking
in merit is Saddozai’s argument that his appellate counsel’s preparation of the appellate record was inadequate because he
declined to condu ct an independent fact investigation aimed at “impeach[ing]” the case presented by the prosecution at trial

. Further, contrary to Saddozai’s contention, his counsel’s determination that there are no arguable issues and filing of a12

no

- issues brief did not create a conflict of interest. ( See Delgadillo

, supra , 14 Cal.5th at p. 222 ; People v. Wende (1979) 25 Cal.3d 436, 442 & fn. 3 , disapproved of on other grounds by In re
Sade C. (1996) 13 Cal.4th 952

. ) Similarly , we reject Saddozai’s argument that the trial court erred in failing to take action in response to his appointed counsel’s purported conflict of interest.

Finally, e ven assuming his attorneys were deficient in some

way , Saddozai’s ineffective assistance claim would fail because he is unable to establish prejudice. As we have explained, he is ineligible for relief under section 1172.6, and the outcome would have been no different absent the alleged mistakes by his attorneys

. For th e same reason, Saddozai’s appellate counsel was
not ineffective for declining to brief ineffective assistance of counsel claims concerning the attorneys who litigated his section 1172.6 petition in trial court.

D ISPOSITION
The trial court’s order denying the petition is affirmed.

BURNS, J. WE CONCUR:

JACKSON

, P.J. SIMONS , J.

P. v. Saddozai (A16 8408 )