Filed 1/27/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

D ESHAWN LESLIE,

Defendant and Appellant. B301848

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

APPEAL from an order of the Superior Court of
Los Angeles County, H. Clay Jacke II , Judge. Affirmed

. Susan K. Shaler , under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey , Assistant Attorney General, Idan Ivri and Roberta L. Davis

, Deputy Attorneys General, for Plaintiff and Respo ndent.

________________________2 In 2008, a jury convicted defendant and appellant Deshawn Leslie of the first degree murder of Ivan Nieves. Leslie’s accomplice was the actual killer. After passage of Senate Bill
No. 1437 (2017

– 2018 Reg. Sess.) (Senate Bill 1437), Leslie petitioned for resentencing pursuant to Penal Code section

1170.95. 1 After appointing counsel for Leslie and considering briefing by the parties, the court denied the petition b ecause Leslie’s jury was not inst ructed on felony murder or the natural and probable consequences doctrine, and he was convicted as a
direct aider and abettor. Leslie appeals, contending that the jury might have relied on the natural and probable consequences theory despite the absence o f instruction on it, and the tria l court erred by relying on this court’s op inion in his direct appeal. We disagree, and affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND 2

1. The murder
Leslie was a member of the Tree Top Piru criminal street

gang. Leslie’s cousin, known as “Day

- Day,” and William Davis were also members of the gang. The Segundos, a Hispanic gang, and the Tree Top Piru gang were rivals. S egundo gang members
were known to wear blue basebal l caps.

1 All further undesignated statutory references are to the Penal Code.

2 At Leslie’s request, we have taken judicial notice of this court’s records in his direct appeal, case No. B206632. (Evid. Code, §§ 452, subd. (d), 459.) We derive the factual and procedural background primarily from our prior opinion, which is part of th e record of conviction.3 On April 22, 2006, Day

- Day was shot and wounded. Members of the Tree Top Piru gang believed the Segundo gang was responsible. That evening, Davis asked Leslie to drive him
around so he could “ ‘ look and see if anybody [was] out. ’ ” Leslie agreed. Davis was armed wi th a gun. Leslie drove down Li me Avenue in Compton, an area claimed as the Segundo gang’s territory. A second vehicle, drive n by another Tree Top Piru gang member, followed behind Leslie’s car. Nieves, who was Latino, was seat ed in his Mustang on Lime Avenue, wearing a blue Dodgers baseball cap. He was not a member of any gang. Leslie parked his car in front of Nieve s ’s Mustang. He kne w Davis intended to “ ‘ bang on [Nieves] and ask him where he was from, ’ ” i.e., challenge N ieves by asking for his gang affiliation. Davis exited the car, walked over to Nieves,
and

— belie v ing Nieves was a Segun d o gang member

— fired numerous rounds at him. Eight shots hit Nieves, killing him.

2. Leslie’s conviction and direct appeal
At Leslie’s trial, the prosecution advanced two theories: that Leslie could be found guilty of fi r st degree murder as an aider and abettor, or under a conspiracy theory. The jury convicted him of first degree murder

. It also found true principal

armed and criminal street gang enhancements. (§§ 12022.53, subd. (d), 186.22, subd. (b) (1).) The trial court sentenced Leslie to 50 years to life in prison, plus a consecutive life term

. This court affirmed Leslie’s judgment in 2009. ( People v. Leslie ( Mar. 18, 2009 , B206632) [nonpub. opn.] .)

3. The section 1170.95 petition On January 29, 2019, Leslie filed a section 1170.95 resentencing petition. Using a preprinted form, he checked boxes stating that a charging document had been filed a gainst him4

allowing the prosecution to proceed under a felony

- murder theory or the natural and probable consequences doctrine; he was convicted of first or second degree murder under one of those theories; he could not now be convicted of murder in light of changes to the law wrought by Senate Bill 1437; he was not the actual killer, nor did he aid and abet the actual killer with the intent to kill; he was not a major participant in the felony and did not act with reckless indifference to human life; and the victim was not a peace officer. He also requested the appo intment of
counsel. The trial court appoint ed counsel for Leslie. The People opposed the petition on the grounds that Leslie was convicted as a direct aider and abettor, not pursuant to the natural and probable consequences doctrine or the felony

- murder rule. 3
Leslie argued , thro ugh his appointed counsel, that based on his version of events, he did not intend to kill

, and he did not know Davis planned to shoot Nieves. After a hearing conducted pursuant to section 1170.95,
sub division (d)(3), t he trial cour t denied the motion . It found that
Leslie was not convicted under the felony

- murder rule or the natural and probable consequences doctrine, and acted as an
aider and abettor with the intent to kill. T herefore

, his
conviction remained valid under current law.

3 The People also argued that Senate Bill 1437 was unconstitutional. The trial court did not deny the petition on this basis, and Senate Bill 1437’s constitutionality is not at issue here.5 Leslie filed a timely notice of appeal.

DISCUSSION Leslie contends the trial court erred by relying on this
court’s opinion in hi s direct appeal, and

— despite the fact the jury

w a s not instructed on the natural and probable consequences
doctrine

— it could nevertheless have found him guilty o f murder
based on this theory. We disagree.

1. Senate Bill 1437 Senate Bill 1437, which took effect on January 1, 2019, limited accomplice liability under the felony

- murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ens ure that a person’s sentence is commensurate with his or her individual criminal culpability. ( People v. Cruz (2020) 46 Cal.App.5th 740, 752; People v. Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar

. 18, 2020, S260493; People v. Munoz (2019) 3 9 Cal.App.5th 738, 749

– 750, 763, review granted Nov. 26, 2019, S258234.) Prior to passage of Senate Bill 1437, under the natural and probable consequences doctrine a defendant was “liable for
murder if he or she aided and abetted the commission of a
crimin al act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” ( People v. Lamoureux (2019) 42 Cal.App.5th 241, 248; People v. Munoz

, supra , 39 Cal.App.5th at p. 749, rev.gr.)
Senate Bill 1437 amended section 188 to state that malice may
not be imputed to a person based solely on his or her participation in a crime. (§ 188, subd. (a)(3).) Thus, pursuant to
Senate Bill 1437, where the felony

- murder rule is not at issue, a6

person must act with malice to be convicted of murder. ( People v.
Munoz

, at p. 749.)

2. Section 1170.95’s petitioning procedure
Senate Bill 1437 also added section 1170.95, which created

a procedure whereby persons convicted of murder under a felony

murder or natural and probable consequences theory may petition in the sentencing court for vacation of their convictions and resentencing. A defendant is eligible for relief under section

1170. 95 if he meets three conditions: (1) he must have been charged with murder under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) must have been convicted of first or second degree murder, and (3) could no longe r be convicted of first or second degree murder due to changes to sections 188 and 189 wrought by Senate Bill 1437. (§ 1170.95, subd. (a).)
Evaluation of a section 1170.95 petition requires a multi

step process: an initial review to determine the petit ion’s facial sufficiency; a prebriefing, “first prima facie review” to preliminarily determine whether the petitioner is statutorily eligible for relief as a matter of law; and a second, postbriefing prima facie review to determine whether the petitioner h as made a prima facie case that he or she is entitled to relief. ( People v. Tarkington (2020) 49 Cal.App.5t h 892, 897, review granted Aug. 12, 2020, S263219; People v. Verdugo

, supra , 44 Cal.App.5th at pp. 327

– 330, rev.gr.; People v. Nguyen (2020) 53 Cal. App.5th 1154, 1165

– 1166.) If the petitioner makes such a showing, the

court must issue an order to show cause (OSC) and conduct a hearing to determine whether to vacate the murder conviction7

and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d); People v. Nguyen

, at pp. 1165

– 1166. ) 4 At that hearing, the burden of proof is on the prosecut ion to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. Both the People and the petitioner may rely on the record of conviction, including an appellate opinion in the case, and, where appropriate, may also present addi tional evidence to demonstrate the petitioner is, or is not, entitled to resentencing. (§ 1170.95, subd. (d)(3); see People v. Tarkington

, supra , 49 Cal.App.5th at pp. 899, fn. 5, 909, rev.gr.; People v. Verdugo

, supra , 44 Cal.App.5th at p. 333, rev.gr.) “If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3); People v. Nguyen

, supra , 53 Cal.App.5th at p. 1166.)

3. Because Leslie was not convicted under the felony

murder rule or the natural and probable consequences doctrine

, he is ineligible for relief Leslie is not eligible for relief under section 1170.95
because the jury instructions conclusively show he was convicted based on a theory

— direct aiding and abetting

— that survives
Senate Bill 1437’s amendm ents to sections 188 and 189. “[P] otential relief under section 1170.95 extends only to those convicted of murder by operation of the natural and probable

4 It does not appear that the trial co urt issued an OSC in the instant matter, but the record shows the parties and the court considered the hearing to be pursuant to section 1170.95,

su bdivision (d)(3).8

consequence doctrine or of felony murder. [Citation.] ” ( People v. Soto ( 2020) 51 Cal.App.5th 1043, 1056 ( Soto )

, review granted Sept. 23, 2020, S263939 ; § 1170.95, subd. (a) (3) ; People v. Lee (2 020) 49 Cal.App.5th 254, 263

– 265, review granted July 15, 2020, S262459 .) Leslie’s jury was not instructed on either the
natural and probable consequences doctrine or the fel ony

- murder
rule ; therefore, he could not have been convicted based on e ither
of these theories. ( Soto

, at p. 1055 [trial court may re ly on jury
instructions when determining whether petition e r has made a prima facie sh owing of entitlement to relief ]; People v. Edwards (2020) 48 Cal.App.5th 666, 674

, review granted July 8, 2020,
S262481 [where jury instr u ctions showed petitioner was not
convicted under felony

- murder or natural and probable

consequences theories, he could not meet the statutory

pr erequis ites for filing a § 1170.95 petition ] ; People v. Lewis (2020) 43 Cal.App.5th 1128, 1138

, review granted Mar. 18, 2020,
S260598 [where court file show s petitioner was convicted of
murder without instruction or argument on the felony

- murder
rule or the natural and probable consequences doctrine

, summary denial would be appropriate ] .) Instead, Leslie was convicted of willful, deliberate, and premeditated murder as a direct aider and abettor . To render that verdict, the jury necessarily determined he acted with the
intent to kill. As this court explained in its 2009 opinion: “ The instruction on murder stated that the perpetrator was guilty of first degree murder if he acted willfully, deliberately, and with premeditation. It further stated that ‘[t]he defendant acted willfully if he intended to kill.’ CALCRIM No. 401 advised that,

to be guilty as an aider and abettor, Leslie had to have known
that the perpetrator intended to commit the crime, i.e., murder,9

and ‘intended to aid and abet the perpetrator in committing the
crime.’ If a defendant knows the perpetrator intends to c ommit murder, and intends to aid the perpetrator in committing the murder, the aider and abettor necessarily intends to kill. ” ( People v. Leslie

, supra , B206632 .) Because the jury necessarily found Leslie acted with express malice, he could still be conv icted under current law.
Senate Bill 1437 “ did not

. . . 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.’ [Citations.] One who 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.” ( People
v. Lewis

, supra , 43 Cal.App.5th at p. 1135, rev .gr. ; People v. Verdugo

, supra , 44 Cal.App.5th at pp. 335

– 336

, rev.gr. [petitioner ineligible where conviction for premeditated murder required specific intent to kill]; People v. Nguyen

, supra , 53 Cal.App.5th at

p. 1164 [direct aiding and abetting theory is stil l viable after passage of Sen. Bill 1437] ; Soto

, supra , 5 1 Cal. App.5th at

pp. 1056

– 1057, rev.gr.) Leslie does not dispute that the prosecution relied on a direct aiding and abetting theory at trial, and that the jur y was instructed that malice was required to find him guilty. At the hearing on the petition, Leslie’s counsel conceded that the jury
concluded he was a direct a ider and abettor. Nonetheless, Leslie advances several arguments in support of his contention that he is entitled to resentencing. None ha s merit.
Leslie hypothesizes that the jury could have convicted him based on the natural and probable consequences doctrine, despite the fact it was never instructed on it. He points out that10

CALCRIM No. 520 uses the phrase “natural consequences” in its
definition of im plied malice

. 5 From this, he argues that the jury
could h ave concluded he “harbored the requisite intent for

mur d e r by committing an act, the ‘ natural consequences’ of which were dangerous to human life.” A similar argument was rejected in Soto

, supra , 51 Cal.App.5th 1043 , review granted

. There, the “natural

consequence s ” language was contained in both the implied malice instruction and in a second degree murder instruction. ( Id. at

p. 1056.) After discussing the “distinctly different concepts ” underlying aiding and abetting and the natural and probable consequences doctrine ( i bid. ), the court observed that Soto’s jur y had not been instructed on any target offense upon which the natural and probable consequences theory could have been based

. “T he ‘natural conse quences’ language in the instruction for second degree murder does not transform [defendant’s] conviction
into one for murder under the natural and probable conse quences doctrine within the meaning of section 1170.95.” ( Id. at

pp. 1058

– 1059 ; see People v. Edwards

, supra , 48 Cal.App.5th at

p. 674 , rev. gr. [fact instruction and argument included phrase

5 As provided to Leslie’s jury, CALCRIM No. 520 stated in relevant part: “There are two k inds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. [¶] The defendant acted wi th implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life.”11

“natural and probable consequences” did not demonstrate petitioner was charged or convicted under that doctrine ]. )
The same is true here. Leslie’s jury was not instructed on a target crime or on the natural and probable consequences theory
of liability

. The notion that the jury could have vaulted from the single phr ase “natural consequences ” in the implied malice
instruction

, to full consideration of a natural an d probable consequences theory upon which it was never instructed

, is
fanciful. Moreover, the jury here did not rely on an implied malice theory: it found Leslie guilty of first degree murder,
which

— based on the instructions given

— required a finding he committed the murder willfully, intentionally, and with premeditation

. In a further attempt to show his jury could have adopted a natural and probable consequences theory, Leslie reasons that at trial, the parties discussed whether a natural and probable

consequences instruction should be given; thus, there must have
been substantial evidence to support such an instruction ; and therefore, the jury might have convicted based on that theory.
But t he conclusion does n o t follow from the premise. 6 The salient point is that the jury was not instructed on the doctrine, regardless of the content of the parties’ discussion s

. Equally unpersuasive is Leslie’s assertion that the “jury was not bound by
the prosecutor’s theory.” The jury was bound by the instructions, which we presume it followed. (See , e.g., People v. Silveria and

6 In fact, during the parties’ discussion the prosecutor averred that there was insufficient evidence of a target crime to support a natural and probable consequences in struction. At the hearin g on the petition, Leslie’s counsel e choed that sentiment.12

Travis (2020) 10 Cal.5th 195, 245 [court presumes jury “understood and followed” instructions].) The instructions given
did n ot allow reliance on the natural and probable consequences
doctrine. 7
Leslie also contends that the trial court resolved the wrong question. In his view, the issue before the court was whether the jury could have convicted him on a theo ry that is no lo nger valid

. In other words, he appears to assert that, if there was evidence from which the jury could have found him guilty on a natural and probable consequences theory in addition to a direct aiding and abetting theory, his petition should have been gr anted. But

7 Leslie’s citations to People v. Barton (1995) 12 Cal.4th 186, People v. Webster (1991) 54 Cal.3d 411, and People v. Guerra (1985) 40 Cal.3d 37 7, are unavailing. The cited portion of Barton dis cussed the standard for instruction on a lesser included offense, a conceptually distinct issue from that here. ( People v. Barton

, at p. 203.) In Webster

, the defendant took both a key and a vehicle from the victim, and the jury instructions did not

spec ify which item was the object of the robbery. To determine whether the evidence was sufficient, the court considered whether each item was taken by means of force and fear and from the victim’s person or immediate presence. In this regard, the court reas oned that it could “not uphold the robbery findings unless we conclude there was substantial evidence to support all the robbery theories before the jury.” ( People v. Webster

, at

pp. 439

– 443 & fn. 16.) The cited portion of Webster has no relevance to the questions at issue here. And in Guerra

, the court instructed on both felony murder and premeditated murder; our Supreme Court reasoned that there was “no principled way” for it to determine which theory the jury adopted. ( People v. Guerra

, at pp. 387

– 388.) In other words, unlike the situation here, the jury was actually instructed on both theories.13

b ased on the plain language of section 1170.95, the touchstone is whether the petitioner could not be convicted under current law. The People’s task, therefore, is to show the converse, that the petitioner could be convicted of murder despite Senate Bill 1437’s
amendments to sections 188 and 189. Where a jury has already found petitioner guilty on a theory requiring malice, this fact necessarily proves he could be convicted of murder despite Senate
Bill 1437’s amendments. E ven assuming arguend o that there was sufficient evidence to prove guilt on a natural an d probable consequences theory, this circumstance would not detract from
the ineligibility showing.
Leslie next argues that the court erred by relying on this court’s 2009 opinion

. 8 This contention fails for at least three reasons. First, section 1170 .95 expressly states that at a subdivision (d)(3) hearing, the parties may rel y on “the record of conviction.” (§ 1170.95, subd. (d)(3).) An appellate opinion is part
of the record of conviction. (See, e.g., People v. Lewis

, supra , 43 Cal. App.5th at p. 1136, fn. 7, rev. gr.; People v. Verdugo

, supra , 44 Cal.App.5th at p. 333, rev. gr.; People v. Tarkington

, supra , 4 Cal .App.5th at p. 899, fn. 5, rev. gr.) Second, Leslie did not object to the trial court’s reliance on the 2009 opinion; therefore, he has forfeited this contention. (Evid. Code, § 353, subd. (a).) Third, even if the trial court erred, any misstep wa s harmless. “[R] egardless of the trial court’s reliance on the facts in this court’s prior opinion to explain how the malice element of murder

8 Our Supreme Court is currently considering whether superior courts may consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under section 1170.95. ( People v. Lewis

, S260598 .)14

may have been satisfied at [defendant’s] trial, the jury
instructions thems elves demonstrate as a matter of law that [defendant] could not make a prima facie showing that he is entitled to relief.” ( Soto

, supra , 51 Cal.App.5th at p. 1055

,

rev. gr .) In sum, because the jury instructions given conclusively
demonstrate as a matter of law that Leslie was not convicted of
murder under a natural and probable consequences or felony

murder theory, the trial court correctly denied his section 1170.95 petition. ( Soto

, supra , 51 Cal.App.5th at p. 1059 , rev. gr .) Because the trial court did not err, Leslie’s contention that his due process rights were violated necessarily fails.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

EGERTON , J.

DHANIDINA

, J.