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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

B327246

(Los Angeles County

Super. Ct. No. TA091536)

APPEAL from an 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 sentence2

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 renumbered 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

(Mar. 18, 2009, B206632) [nonpub. opn.].) We take judicial notice 

of that opinion. (Evid. Code, §§ 451, subd. (a), 452, subds. (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, subds. 

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

In 2008, the trial court sentenced Leslie to 50 years to life 

plus life.

II. Section 1172.6 petitions 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, the trial court concluded that 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 followed. Leslie’s appellate counsel filed an 

opening brief that raised no issues and asked this court to 

independently 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 contentions, 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

To 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 the 
5

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 such 

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 

exercising 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. 971.)

II. Leslie is ineligible for resentencing 

In his supplemental brief, Leslie contends his petition was 

improperly denied as a successive petition. Even 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 and 
6

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 defendant 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 Cal.4th 1111, 1121

[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 

assists 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 allow 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 cases are distinguishable. Here, neither the 

instructions nor verdicts show that Leslie’s jury imputed 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 state 
7

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 act,” the 

“natural consequences 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 CALCRIM 

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. Therefore, 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 

concluded he harbored express malice, which CALCRIM No. 520 

stated requires intent to kill. (See People v. Coley (2022) 77 

Cal.App.5th 539, 547 [attempted murder conviction necessarily 

required intent to kill finding]; cf. People v. Maldonado (2023) 87 

Cal.App.5th 1257, 1259, 1262–1263 [instructions permitted 

conviction based on imputed malice when defendant was 
8

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 REPORTS

EDMON, P.J.

We concur:

EGERTON, J.

ADAMS, J.