Filed 11/ 8/ 23 P. v. James CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. DAVIA DAMANIQUE JAMES, Defendant and Appellant. G061993 (Super. Ct. No. RIF1105740)

O P I N I O N

Appeal from a post

judgment order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Respondent’s request for judi cial notice. Granted in part.

Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Alan L. Amann and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.2 Davia Damanique James appeal s from the denial of her petition for resentencing under former Penal Code section 11 70.95 (no w section 11 72.6 )

. 1 She
contends the court violated her statutory and constitutional rights when it denied her petition without reviewing the record of conviction and by not provid ing a meaningful
statement of reasons for its denial. The Attorney General concedes the court did not follow the procedure set out in section 1172.6 when it denied James’s petition at the prima facie hearing , but the Attorney General asserts the error was ha rmless because James is ineligible for resentencing under the statute as a matter of law. We agree James is ineligible for resentencing relief under section 1172.6 as a matter of law, and therefore,
she was not prejudiced by the court’s errors . We affirm the order denying James’s petition.

BACKGROUND

In 2012, a jury convicted James of the second degree murder of her son (§ 187, subd. (a)) and inflicting great bodily injury upon him (§ 273a, subd. (a)). The court sentenced James to prison for an indete rminate term of 15 years to life

.

In 2022, James filed a petition for resentencing under former section
117 0.95. The court appointed counsel to represent James , and a status conference was scheduled to be held about a month later

. The prosecution did no t file a response to James’s petition. At the status conference, the prosecution made an oral motion to dismiss the petition , asserting James was statutorily ineligible for resentencing relief
because she was not convicted of murder under either felony mu rder or a natural and probable consequences theory. James was not present at the hearing, but her appointed
counsel was. James’s counsel represented to the court he had “confirmed” James was not

1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise stated.3

convicted of murder under theories of natural and probable consequences, felony murder, or aiding and abetting. The trial court denied James’s petition and stated , “ [t]he defendant is statutorily ineligible. ” James timely appealed the denial.

DISCUSSION
I.
S ECTION 1172.6 Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) (Stats. 2018, ch. 1015 (Senate Bill 1437)) “transformed the law of accomplice liability for murder.” ( People v. Langi (2022) 73 Cal.App.5th 972, 978.) It amended the felony

- murder rule and eliminated

“‘ the natural and probable consequenc es doctrine , as it relates to murder , to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’” ( People v. Lewis (2021) 11 Cal.5th 952, 959 ( Lewis ); People v. Strong (2022) 13 Cal.5th 698, 707, fn. 1 ( Strong ) .) A few years later, these changes were expanded to include defendants convicted of attempted murder under
the natural and probable consequences doctrine and defendants convicted of murder under any “other theory under which malice [was] imputed to [them] based solely on [their] participation in a crime[.]” (Former § 1170.95, subd. (a), as amended by Stats. 2021, ch. 551, § 2 ; People v. Langi, supra , 73 Cal.App.5th at p. 978.)

“ Senate Bill 1437 also created a special procedural mechanism for those
convicted under the former law to seek retroactive relief under the law as amended. ” ( Strong, supra , 13 Cal.5th at p. 708.) This procedure is now set out in section 1172.6

. Under section 1172.6, subdivision (a), “[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime ” may file a petition with the court to have his or her murder conviction vacated

. T he petitioner is4

entitled to relief and to be resentenced on any remaining counts when three conditions are
satisfied . Th e first condition is the prosecution proceed ed under a now prohibited theory
of murder or attempted murder . (§ 1172.6, subd. (a)(1).) Second, “[t]he petitioner was
convicted of murder , attempted murder, or manslaughter following a trial

. . . . ” ( Id ., subd. (a)(2).) Third, “[t] he petitioner could not presently be convicted of
murder

. . . because of changes to Section 188 or 189 made effective January 1, 2019. ” ( Id. , subd. (a)(3).)

To obtain the relief provided by section 1172.6, a petitioner mu st file a petition with the original sentencing court and serve the petition on the prosecuting agency, among others. (§ 1172.6, subd. (b)(1).) The petition must contain: (1) a declaration by the petitioner that he or she is eligible for relief under se ction 1172.6; (2) “[t]he superior court case number and year of the petitioner’s conviction”; and (3) a statement as to whether the petitioner requests the appointment of counsel. ( Id. , subd. (b)(1)(A)

– (C).) Upon receiving a facially sufficient petition, the court must appoint
counsel if requested by the petitioner. ( Id. , subd. (b)(3).)

Within 60 days after service of a petition, the prosecutor must file a
response. The petitioner may then file a reply within 30 days. (§ 1172.6, subd. (c).)

“ After th e parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. ” ( Ibid. ) At th is hearing, the court may review the record of conviction to determine
whether the petitioner has made a prima facie case for relief. ( Lewis, supra , 11 Cal.5th at p. 971 [ interpreting the prima facie requirement as originally codified in former § 1170.95] .) In conducting the prima facie inquiry, “‘ “ the court takes petitioner ’ s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.” ’ [Citations.] ‘ [A] court should not reject the petitioner ’ s factual allegations on credibility grounds without first conducting an5

evidentiary hearing. ’ [Citations.] ‘ However, if the record, including the court ’ s own documents, “ contain[s] facts refuting the allegations made in the petition, ” then “ the court is justified in making a credibility determination adverse to the petitioner.” ’” ( Ibid .)

“ If the petitioner makes a prima facie showing that the petitio ner is entitled to relief, the court shall issue an order to show cause. ” (§ 1172.6, subd. (c).) However, if the record conclusively establishes the petitioner is ineligible for relief, the court may dismiss the petition without issuing an order to show cause . ( Strong, supra , 13 Cal.5th at p. 708.) I f the court does not issue an order to show cause, “ it shall provide a statement fully setting forth its reasons

. . . . ” ( § 1172.6, subd. (c) .)

When a court does issue an order to show cause, an evident iary hearing is
held , at which the prosecution must prove beyond a reasonable doubt the petitioner is guilty of murder under the amended law , unless the parties stipulate the petitioner is eligible for relief. (§ 1172.6, subds. (c), (d) ; Strong, supra , 13 Cal.5th at pp. 708

– 709 .) If the prosecution fails to sustain its burden, the court must vacate the petitioner’s murder conviction and resentence the petitioner on the remaining charges. ( § 1172.6,
subd. (d)(3).)

II.

J AMES I S I NELIGIBLE FOR R ESENTENC ING AS A M ATTER OF L AW The court denied James’s resentencing petition at the prima facie hearing

. “‘“A denial at that stage is appropriate only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of law.’ [ Citations.] This is a purely legal conclusion, which we review de novo.”’” ( People v. Lopez (2022) 78 Cal.App.5th 1, 14.)
James argues the court violated her statutory and constitutional rights by denying her petition at the prima facie hearing without considering the record of conviction and by not providing a substantive statement of reasons for denying her6

petition. She asserts the matter must be remanded to the superior court with directions to issue an order to show cause or to conduct a proper pri ma facie hearing.

The Attorney General does not argue the court followed the procedure in
section 1172.6 and Lewis, supra , 11 Cal.5th at page 971 when denying James’s petition.
T he Attorney General acknowledges the court summarily denied the petition w ithout reviewing James’s record of conviction , and the Attorney General does not address whether the court provided a sufficiently detailed statement of its reason for denying the petition. But the Attorney General argues any procedural errors by the cour t were harmless because the record of conviction establishes James is ineligible for relief as a
matter of law as she was convicted of murder under a still valid theory.

The Attorney General’s argument stutters at the start because James’s
record of conv iction was not considered by the court below and is not part of the appellate record . The Attorney General seeks to overcome this by asking this court to take judicial notice of the record in James’s direct appeal ( appellate case No. G049901 ) under Evidence Code sections 452, subdivision (d) and 459, subdivision (a).

James opposes the motion for judicial notice. S he argues the Attorney General’s motion is deficient because it does not comply with California Rules of Court,
rule 8.252 , which sets out the requirements for a motion requesting a reviewing court take judicial notice of matters under Evidence Code section 459

. The Attorney General’s motion does not state: (1) whether the matter to be noticed was presented to the trial
court; and (2) “[w]hether the matter to be noticed relates to proceedings occurring after the order or judgment that is the subject of the appeal.” (Cal. Rules of Court, rule 8.252(a)(2)(B) , (D). ) Nor did the Attorney General attach to its motion a copy of the

matt er to be noticed or explain why it was impracticable to do so. ( Id. , rule 8.252(a)(3).) James further asserts the Attorney General did not provide her a copy of the matter to be
noticed.7 James also asserts the prior appellate record “is irrelevant to th e issue on appeal, it was not presented to the superior court and was not relied on by the trial court in finding [her] ineligible for relief under section 1170.95 as a matter of law

. . . . ” She
contends , “[b]y accepting the prior appellate record to det ermine harmlessness, this Court would effectively be undertaking the task assigned explicitly to the superior court rather than reviewing the superior court’s actions for error. ”

We agree with James the Attorney General’s motion for judicial notice does not comply with the requirements of California Rules of Court, rule 8.252 (a)(2)

– (3).
But we nevertheless grant the Attorney General’s motion in part.

Generally, w here error has been shown, as here, the reviewing court must
determine whether th e error was harmless or whether the appellant was prejudiced by the

error and reversal is required . ( People v. Gonzalez (2018) 5 Cal.5th 186, 195

– 196 [discussing the standards used to evaluate different types of error]. ) Here, the issue is
whether James w as prejudiced by the court ’s procedur al missteps at the prima facie hearing. In this context, we must determine whether “ ‘ there is a reasonable probability
that in the absence of the error [ James]

. . . would have obtained a more favorable
result , ’ ” meani ng the court would have issued an order to show cause and held an evidentiary hearing on her petition. ( Lewis, supra , 11 Cal.5th at p. 974 ; People v. Watson (1956) 46 Cal.2d 818, 836 .) We ma ke this determination by r eviewing portions of the
record of con viction.

In Lewis , the Supreme Court explained the record of conviction informs the prima facie inquiry as it permits “the court to distinguish petitions with potential merit from those that are clearly meritless.” ( Lewis, supra , at 11 Cal.5th p. 971.) The instructions given the jury at James’s trial and the verdicts returned by the jury are part of the record of conviction. (See People v. Harden (2022) 81 Cal.App.5th 45, 50 [jury instructions and verdicts are portions of the record of conviction]; Peop le v. Soto (2020) 51 Cal.App.5th 1043, 1055 [jury instructions are part of the record of conviction],8

d isapproved on another ground by Lewis, supra , 11 Cal.5th at p p. 961

– 962 .) Thus, we take judicial notice of the instructions given the jury at James’s trial and the jury’s
verdicts as these items are relevant to our determination of whether there is a reasonable probability James would have obtained a more favorable result if the court had not erred. ( Lewis, supra , 11 Cal.5th at p. 974.)

James was charged with malice murder, not felony murder. The jury instructions given in James’s trial establish as a matter of law James was not convicted of murder under a now impermissible theory. The jury was not instructed on the natural and probable consequences doctrine, felony murder, or any other theory of murder where malice is imputed based solely on the person’s participation in a crime . The jury was not
instructed on aiding and abetting or any vicarious liability theory. The jury was
instruc ted on a single theory of murder

— second degree implied malice murder, which
remai n s a valid theory of murder. ( People v. Rivera (2021) 62 Cal.App.5th 217, 232 , review granted June 9, 2021, S268405 , review dismissed Jan. 19, 2022 .) Under the
instructions given, the jury necessarily found James guilty of murder based on her own
actions and mental state , when it found her guilty of second degree murder

. Thus, the record of conviction demonstrates James is ineligible for relief under section 1172.6 as a

matt er of law, and therefore, any procedural errors by the court in denying her petition without an evidentiary hearing were harmless. ( Lewis, supra , 11 Cal.5th at p. 974.) 2

2 Nothing in this opinion should be read as relieving the prosecution and the court of their obligations to comply with the requirements of section 1172.6, subdivision (c). Pursuant to section 1172.6, subdivision (c), the prosecution must file a written response to a facially sufficient petition. If the prosecution believes t he record of conviction establishes the petitioner is ineligible for relief, the prosecution should provide the court with th ose portions of the record of conviction that support its argument. At the prima facie hearing, t he court may then state, on the r ecord, which portions of the record of conviction it has reviewed in reaching its decision as to whether to issue an order to show
cause.9 DISPOSITION The postjudgment order denying James’s section 1172.6 petition is
affirmed.

MOTOIKE, J.

WE CONCUR:

MOORE, ACTING P. J.

GOETHALS, J.