Filed 5/16/24 P. v. Ali 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

OMARI ALI,

Defendant and Appellant.

B332975

(Los Angeles County

Super. Ct. No. KA084063)

APPEAL from an order of the Superior Court of 

Los Angeles County, Jacqueline Lewis, Judge. Affirmed.

Omari Ali, in pro. per.; Robert Derham, under appointment 

by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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2

Omari Ali appeals from an order after judgment denying 

his petition for resentencing under Penal Code section 1172.6.1 

His appellate counsel filed a brief under People v. Delgadillo 

(2022) 14 Cal.5th 216 (Delgadillo), and Ali filed a supplemental 

brief asking us to reverse the order denying his resentencing 

petition. We find no basis for reversal and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Proceedings

We take our statement of the evidence from the Court of 

Appeal opinion affirming the judgment of conviction. (People v. 

Ali (Oct. 21, 2011, B223727) [nonpub. opn.] (Ali).)2

“On July 27, 2008, Larry Hammet (the decedent) worked at 

a Pomona barbershop but also sold marijuana there. On that 

date, [Breeana] Finley drove Keyon Hill and Ali in a car to the 

barbershop so Hill could buy marijuana. [Fn. omitted.] Finley 

remained in the car while Ali and Hill entered the barbershop. 

After Ali and Hill entered, they struggled with Hammet over a 

bag containing a marijuana brick. Ali, using a firearm, shot 

Hammet multiple times . . . . Ali and Hill took the marijuana 

brick and entered the car, and Finley drove them away.”

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.)

We therefore refer to the statute as section 1172.6 for the 

remainder of this opinion.

2 We refer to the factual background from Ali only “for 

background purposes and to provide context for the parties’ 

arguments.” (People v. Flores (2022) 76 Cal.App.5th 974, 978, 

fn. 2.)
3

In February 2010, the People filed a second amended 

information charging Ali, Hill, and Finley with Hammet’s murder

under section 187, subdivision (a). As to Ali, the information 

alleged that he personally used and intentionally discharged a 

handgun, proximately causing great bodily injury and death 

(§ 12022.53, subds. (b), (c) & (d)), and that the murder occurred 

during the commission of robbery and burglary (§ 190.2,

subd. (a)(17)(A), (G)).

The jury acquitted Ali of murder and convicted him of the 

lesser included offense of voluntary manslaughter (§ 192, 

subd. (a)). The jury also found true that Ali personally used a 

firearm in the commission of the crime (§ 12022.5, subd. (a)). The 

court sentenced him to 11 years for manslaughter and a 

consecutive term of 10 years for the firearm use.

Resentencing Proceedings

In May 2022, Ali filed a petition alleging he was eligible for 

resentencing under section 1172.6. The People conceded that Ali 

met his prima facie burden for relief because the trial court had 

instructed the jury on the natural and probable consequences

doctrine during trial, but opposed Ali’s claim that he was eligible 

for resentencing. The trial court issued an order to show cause 

and set the matter for an evidentiary hearing under 

section 1172.6, subdivision (c).

In August 2023, the court held an evidentiary hearing. The 

People submitted into evidence the preliminary hearing 

transcript, the court’s minute order reflecting the jury’s verdict, 

and the People’s brief in response to Ali’s direct appeal. Defense 

counsel called Ali to testify about the underlying facts. Ali 

testified that he visited Hammet at his barbershop to buy 

marijuana. According to Ali, after he refused to make the 
4

purchase because the marijuana was “low grade,” Hammet 

became angry and pulled a gun on Ali. Ali wrested the gun from 

Hammet and tried to leave, but Hammet “snatched” him back 

into the room. Ali testified that at that point, he shot Hammet 

“out of fear.”

The trial court found that the People proved beyond a 

reasonable doubt that Ali was guilty of at least manslaughter. 

The court noted that it was undisputed Ali was the actual 

shooter. It further found Ali’s account of self-defense lacked 

credibility, as witnesses testified Ali had pulled the gun from his 

waistband and the victim was not known to carry a gun. 

Accordingly, the court denied the petition.

Ali timely appealed. Court-appointed appellate counsel

filed an opening brief that raised no issues and asked this court

to independently review the record under Delgadillo, supra, 14

Cal.5th 216. We directed appellant’s counsel to send Ali the

record and a copy of the opening brief, and we advised that

within 30 days of the date of the notice, Ali could submit a

supplemental brief or letter stating any grounds for an appeal,

contentions, or arguments he wished this court to consider. Ali 

timely submitted a supplemental brief.

DISCUSSION

I. Senate Bills Nos. 1437 and 775 and Section 1172.6

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) and Senate Bill No. 775 (2021–2022 Reg. Sess.) (Stats.

2021, ch. 551) amended section 188 to eliminate theories of 

imputed malice as a basis for finding a defendant guilty of 

murder, attempted murder, and manslaughter. (§ 188, 

subd. (a)(3).) “[T]he Legislature’s aim in the manslaughter 

context was to make relief available to defendants who were 
5

convicted by plea or trial at a time when the prosecution could 

have pursued a murder charge, but the only way of doing so 

would have been a now invalid theory of imputed malice.” 

(People v. Lezama (2024) 101 Cal.App.5th 583, 590; see Sen. Com. 

on Appropriations, Rep. on Sen. Bill No. 775 as amended Feb. 19, 

2021, p. 3.)

Senate Bills Nos. 1437 and 775 created a procedure, now 

codified at section 1172.6, which allows a person convicted of a 

qualifying offense under the former law to seek resentencing if he 

or she can no longer be convicted of those offenses under 

amended section 188. (People v. Lewis (2021) 11 Cal.5th 952,

959; People v. Gentile (2020) 10 Cal.5th 830, 847.) Defendants

commence the procedure by filing a petition declaring they were 

prosecuted under a theory of imputed malice for murder, 

attempted murder, or manslaughter, and could not presently be 

convicted of murder or attempted murder because of changes to 

section 188. (§ 1172.6, subd. (a)(1)–(3).) If the court determines 

the petitioner made a prima facie case for relief, the court must 

issue an order to show cause and hold an evidentiary hearing 

within 60 days. (§ 1172.6, subd. (c).)

II. Ali Has Not Asserted Any Basis for Reversal

The sole argument Ali raises in his supplemental brief is 

that the trial court conducted the evidentiary hearing without 

copies of the trial transcripts—which he claims were lost—in 

violation of section 1181, subdivision (9).3

3 Ali contends he has an affidavit from a “clerk” stating that 

she lost or destroyed the transcripts, which he claims “could have 

been a lot of help” at the evidentiary hearing. Ali has not 

provided the affidavit on appeal.
6

Section 1181, subdivision (9) allows the trial court to set 

aside or vacate a judgment and order a new trial “because of the 

loss or destruction” of trial transcripts. “This statute does not 

mandate a new trial in every case where reporters’ notes are 

unavailable; rather, it merely authorizes the reviewing court to 

order a new trial if justice requires.” (People v. Moore (1988) 201 

Cal.App.3d 51, 56.) “The loss, destruction, or absence of a portion 

of reporter’s notes does not per se require a new trial. [Citation.] 

The burden is on the appellant to show that the omissions are 

‘substantial’ and ‘consequential’ [citations] and that the omissions 

prevent meaningful appellate review. [Citation.]” (People v. Bills

(1995) 38 Cal.App.4th 953, 959.)

Ali has not explained how the omission of the trial 

transcripts was substantial or consequential to his evidentiary 

hearing, or how they prevent meaningful appellate review. The 

trial court denied his resentencing petition because Ali was the 

actual shooter—a fact that Ali himself testified to at the 

evidentiary hearing. The resentencing provisions in 

section 1172.6 were enacted “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.” (Stats. 2018, ch. 1015, § 1, subd. (f), italics added.) Ali does 

not contend that evidence or testimony in the trial transcripts 

would raise a dispute about whether he was the actual killer, 

such that the omission of the transcripts was material to the 
7

outcome of his resentencing proceeding. We therefore find no 

basis to reverse the trial court order.

4

DISPOSITION

The order denying the petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

LAVIN, J.

4 Ali additionally requests that we appoint different counsel 

because his court-appointed counsel is “not helping [him].” We 

find no grounds to appoint different counsel in this matter.