Filed 12/21/23 P. v. Leslie 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DESHAWN DESHA LESLIE

,
Defendant and Appellant. B 32 7246

(Los Angeles County Super. Ct. No. TA091536 )

APPEAL from a n order of the Superior Court of Los Angeles County, Eleanor Hunter , Judge

. Affirmed

. Deshawn Desha Leslie , in pro

. per.; Kathy R. Moreno

, under appointment by the Court of Appeal, for Defendant
and Appellant

. No appearance for Plaintiff and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳2 Deshawn Leslie petitioned for resentencing under Penal
Code section 1172.6

, 1 which limited accomplice liability for
murder. The trial court denied the petition

, and Leslie appealed.
His appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216

. Leslie filed a supplemental brief , arguing
that the trial court improperly denied his petition

. We conclude
that the trial court did not err in denying the petition and affirm
the order

. INTRODUCTION

I. The underlying crime, verdict, and sentence 2
In 2006, Leslie’s cousin was shot and wounded. Leslie and his cousin were Tree Top Piru gang members , and they believed that a rival gang was responsible for the shooting. Dominique Davis, who also was a Tree Top Piru gang member, armed himself with a gun and asked Leslie to drive him around to see if anybody was out. Leslie drove them into rival gang territory and stopped the car alongside another car in which the victim Ivan Nieves was sitting. Davis shot Nieves multiple times, killing
him.

1 All further undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was r enumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

2 We derive the background from the opinion affirming Leslie ’s judgment of conviction on direct appeal. ( People v. Leslie ( Ma r. 1 8, 2009, B206632 ) [nonpub

. opn.].) W e take judicial notice of that opinion. (Evid. Code, § § 451, subd. (a), 452, subd s

. (a), (d) .)3 Based on these events, Leslie was charged with one count
of murder. A jury found him guilty of first degree murder (§ 187, subd. (a) ) and found true principal gun use (§ 12022 .53, subd s

. ( b), (c), (d) ) and gang (§ 186.22, subd. (b)(1)) allegations

. In 2008, t he trial court sentenc ed Leslie to 50 years to life plus life.

II. Section 1172.6 petition s for resentencing

In 2019, Leslie filed his first petition for resentencing

. After the trial court appointed counsel for Leslie, received briefing

, and held a hearing, t he trial court concluded tha t Leslie
was not entitled to relief because he was not convicted under the felony murder rule or the natural and probable consequences
doctrine . The trial court also found that although Leslie was not the actual killer

, he aided and abetted the murder. 3 Leslie appealed the order , which was affirmed on appeal

. In 2022, Leslie filed the second, at

- issue petition for resentencing

. The trial court denied this petition on the ground
that Leslie was not entitled to file successive petitions. This appeal fol lowed. Leslie’s appellate counsel filed an opening brief that raised no issues and asked this court to independent ly review the record under People v. Delgadillo

, supra , 14 Cal.5th 216

. We directed appellant’s counsel to send the record and a copy of the opening brief to Leslie , and we advised that within 30 days of the date of the notice, Leslie could submit a supplemental brief or letter stating any grounds for an

3 The record does not contain the reporter’s transcript of the hearing on the first petition. Therefore, the summary of the trial court’s reasons for denying it is from Leslie’s opening brief filed in the prior appeal , which is part of this appellate record

.4

appeal, or contention s, or arguments he wished this court to
consider. Leslie submitted a supplemental brief in which he

argues that the trial court erred by denying his petition as a successive one and that he was convicted based on a theory under which malice was imputed to him

. DISCUSSION

I. Overview of Senate Bill No. 1437

T o the end of ensuring a person ’ s sentence is commensurate with the person ’ s individual criminal culpability, Senate Bill
No. 1437 (2017

– 2018 Reg. Sess.) limited accomplice liability
under the felony

- murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person ’ s participation in a crime. ( See generally People v. Reyes (2023) 14 Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842

– 843.) Senate Bill
No. 1437 added section 189, subdivision (e) (limiting application
of the felony

- murder rule) and section 188, subdivision (a)(3) (stating that “ to be convicted of murder, a principal in a crime shall act with malice aforethought” and malice “ shall not be imputed to a person based solely on his or her participation in a crime”).
Senate Bill No. 1437 also created a procedure, codified at section 1172.6, for a person convicted of murder under the former law to be resentenced if the person could no longer be convicted of
murder under the amended law . ( People v. Lewis

, supra , 11 Cal .5th at p. 959; People v. Gentile

, supra , 10 Cal.5th at p. 847.) At the prima facie stage, the trial court takes as true the5

petitioner’s factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. ( Lewis , at p. 971.) In determining whether the petitioner has made a prima facie case for relief, the trial court may look at the record of conviction, including jury instructions, verdicts and closing argument, to determine readily ascertainable facts s uch as the crime of conviction. ( People v. Duchine (2021) 60 Cal.App.5th 798, 815; see, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 56.) At the prima facie stage, the trial court does not engage in fact finding that involves weighing evidence or

exe rcis ing discretion. ( Lewis , at p. 972.) If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing. (§ 1172.6, subds. (b)(3), (c), & (d)(1).) Otherwise, the trial court may dismiss meritless petitions that do not establish a prima facie case for relief. ( Lewis , at p. 97 1 .)

II. Leslie is ineligible for resentencing
In his supplemental brief, Leslie contends his petition was improperly denied as a successive petition. E ven assuming he is correct, the trial court nonetheless properly denied the petition
on the merits because his jury was not instructed on felony
murder or the natural and probable consequences doctrine, and the jury did not convict him based on a theory under which malice was imputed to him , as we now explain

. Murder is the unlawful killing of a human with malice aforethought. (§ 187, subd. (a).) Malice is express “when there is manifested a deliberate intention to unlawfully take away the life
of a fellow creature.” (§ 188, subd. (a)(1).) Malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and6

malignant heart.” (§ 188, subd. (a)(2).) First degree murder occurs when the murder is willful, premeditated, and deliberate. (§ 189, subd. (a).)
A defendant is liable as a direct aider and abettor of express malice murder if the defendan t aided or encouraged the murder with knowledge of the perpetrator’s unlawful purpose and with the intent or purpose of committing, encouraging, or facilitating the murder’s commission. ( In re Lopez (2023) 14 Cal.5th 562, 579; People v. McCoy (2001) 25 Ca l.4th 1111, 112 1 [direct aiding and abetting is based on participants’ combined actus reus and aider and abettor’s own mens rea].) When an aider or abettor, acting with a personal mens rea of premeditation and deliberation, knowingly and intentionally

ass ists another to kill someone, the aider and abettor is guilty of first degree premeditated murder. ( In re Lopez , at p. 579.)
Some courts have found that the standard instructions on aiding and abetting and second degree implied malice murder improperly a llow a jury to find a defendant guilty of aiding and abetting second degree implied malice murder by imputing another’s malice to the defendant. (See, e.g., People v. Langi (2022) 73 Cal.App.5th 972; People v. Powell (2021) 63 Cal.App.5th 689.) Those cas es are distinguishable. Here, neither the
instructions n or verdicts show that Leslie’s jury impute d malice to him based solely on his participation in the crime. Rather, Leslie’s jury found him guilty of first degree murder. In doing so, it necessarily found he had express, not implied, malice. That is, CALCRIM No. 520 instructed Leslie’s jury that to find him guilty of murder, “the People must prove that [¶] 1. The
defendant committed an act that caused the death of another person [¶] AND [¶] 2. when the defendant acted, he had a state7

of mind called malice aforethought.” The instruction then stated
that there are two kinds of malice: express or implied, either of
which is sufficient to establish the state of mind for murder. The defendant had express malice “if he unlawfully intended to kill ” and implied malice if he “intentionally committed an ac t, ” the “natural conseque nces of the act were dangerous to human life

, ” at “the time he acted, he knew his act was dangerous to human
life

, ” and he “deliberately acted with conscious disregard for
human life.” (Italics added.) The trial court also instructed the jury with CALCR IM
No. 401, that for Leslie to be guilty as an aider and abettor, he had to have known that the perpetrator intended to commit the “crime” and intended to aid and abet the perpetrator in committing the crime. The instruction further stated, “Someone
aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.” The only crime charged here was murder. Th erefore, under CALCRIM No. 401, the jury found that Leslie knew his accomplice intended to commit the crime of murder and intended to help his accomplice commit murder. Further, the jury found
Leslie guilty of first degree murder

, so the jury necessarily
conclud ed he harbored express malice

, which CALCRIM No. 520
stated require s intent to kill

. ( See People v. Coley (2022) 77 Cal.App.5th 539, 547 [attempted murder conviction necessarily required intent to kill finding ] ; c f. People v. Maldonado (2023) 87
Ca l.App.5th 1257 , 1259, 1262

– 1263 [ instructions permitted conviction based on imputed malice when defendant was8

convicted of first degree lying

- in

- wait murder, which does not require intent to kill] .) Because Leslie was convicted of first degree murder based on his personal mens rea of express malice, the trial court properly found him ineligible for resentencing.

DISPOSITION

The order denying Deshawn Leslie ’s Penal Code section 1172.6 petition is affirmed

. NOT TO BE PUBLISHED IN THE OFFICIAL R EPORTS

EDMON

, P. J.

We concur:

EGERTON , J.

ADAMS , J.