Filed 10/26/20 P. v. Aremu CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

TONY OLIVER AREMU,

Defendant and Appellant.

 B300328

 (Los Angeles County

 Super. Ct. No. A390607)

APPEAL from an order of the Superior Court of Los 

Angeles County, Norm Shapiro, Judge. Affirmed.

Nancy L. Tetreault, 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, Senior 

Assistant Attorney General, Charles C. Lee and Stacy S. 

Schwartz, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

I. INTRODUCTION

In 1984, a jury convicted defendant and appellant Tony 

Aremu of second degree murder (Pen. Code, § 187, subd. (a)1) and 

found true the allegation that he personally used a deadly and 

dangerous weapon in the commission of the murder (§ 12022, 

subd. (b)). The trial court sentenced defendant to 16 years to life 

in state prison.

In 2019, following the enactment of Senate Bill No. 1437

(Senate Bill 1437), defendant filed a petition for resentencing 

pursuant to section 1170.95. The trial court denied the petition. 

On appeal, defendant contends the trial court violated his 

statutory and constitutional rights by summarily denying his 

petition without allowing him to file a reply to the People’s 

response to his petition and without allowing him or his attorney 

to attend the hearing on the petition. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND2

On May 8, 1983, defendant repeatedly stabbed Tamazetta 

Harris, a woman with whom he had been romantically involved 

1 All further statutory references are to the Penal Code.

2 The People attached as an exhibit to their response to 

defendant’s section 1170.95 petition a copy of the opinion by a 

prior panel of this court affirming defendant’s conviction. (See 

People v. Verdugo (2020) 44 Cal.App.5th 320, 333, review 

granted, Mar. 18, 2020, S260493 (Verdugo) [“A court of appeal 

opinion, whether or not published, is part of the appellant’s 

record of conviction. [Citations.]”].) We base our recitation of the 

facts underlying defendant’s conviction on that opinion.
3

since 1978. Harris was taken to the hospital and treated for her 

wounds. Two days later, a police detective interviewed Harris at 

the hospital. Harris was in critical condition and unable to 

communicate verbally. Nevertheless, Harris identified defendant 

as her attacker by nodding her head when shown a photograph of 

defendant and asked if he stabbed her. Shortly after that 

interview, Harris died. The detective also interviewed defendant

who “gave the police a detailed confession.” At trial, one of 

Harris’s daughters testified that defendant called her and told 

her, “‘I’m sorry to tell you but I killed your mother.’ . . . [T]he 

victim’s mother . . . received a similar call from defendant.” 

Defendant presented an alibi defense. He also claimed that his

confession was coerced and he signed his confession without 

reading or understanding it. The jury convicted defendant of 

second degree murder and found true the allegation that he had 

personally used a knife in murdering Harris.

On January 18, 2019, defendant filed his section 1170.95 

petition in which he declared, among other things, that he had 

been convicted of second degree murder under the natural and 

probable consequences doctrine or under the second degree felony 

murder rule. He requested the appointment of counsel. On 

March 22, 2019, the trial court held a hearing where defendant 

was represented by a deputy public defender. On June 13, 2019, 

the People filed a response to defendant’s petition.

On June 14, 2019, the trial court denied defendant’s 

petition on the ground that defendant was ineligible for section 

1170.95 relief because he was the actual killer. Neither 

defendant nor defense counsel was present.
4

III. DISCUSSION

“Through section 1170.95, Senate Bill 1437 created a 

petitioning process by which a defendant convicted of murder 

under a felony murder theory of liability [or the natural and 

probable consequences doctrine] could petition to have his 

conviction vacated and be resentenced. Section 1170.95 initially 

requires a court to determine whether a petitioner has made a 

prima facie showing that he or she falls within the provisions of 

the statute as set forth in subdivision (a), including that ‘(1) [a] 

complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory 

of felony murder or murder under the natural and probable 

consequences doctrine[,] [¶] (2) [t]he petitioner was convicted of 

first degree or second degree murder following a trial or accepted 

a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder[, and] [¶] (3) 

[t]he petitioner could not be convicted of first or second degree 

murder because of changes to [s]ection[s] 188 or 189 made 

effective January 1, 2019.’ (See § 1170.95, subd. (c); [Verdugo, 

supra,] 44 Cal.App.5th [at p.] 327 . . ., review granted 

Mar. 18, 2020, [S260493].) If it is clear from the record of 

conviction that the petitioner cannot establish eligibility as a 

matter of law, the trial court may deny the petition. (Verdugo, 

[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination 

of eligibility requires an assessment of the evidence concerning 

the commission of the petitioner's offense, the trial court must 

appoint counsel and permit the filing of the submissions 

contemplated by section 1170.95. (Id. at p. 332; [People v.] Lewis

[(2020)] 43 Cal.App.5th [1128,] 1140, rev[iew] granted
5

[Mar. 18, 2020, S260598].)” People v. Smith (2020) 49 

Cal.App.5th 85, 92, review granted July 22, 2020, S262835, fn. 

omitted.)

The jury instructions in defendant’s case did not include 

instructions on aiding and abetting, the felony murder rule, or 

the natural and probable consequences doctrine,

3 and the verdict 

3 The trial court did instruct the jury with CALJIC 8.10 on 

“Murder—Defined” as follows:

“Defendant is charged in the information with the 

commission of the crime of murder, a violation of Section 187 of 

the Penal Code.

“The crime of murder is the unlawful killing of a human 

being with malice aforethought or the unlawful killing of a 

human being which occurs during the commission or attempt to 

commit a felony inherently dangerous to human life.

“In order to prove the commission of the crime of murder, 

each of the following elements must be proved:

“1. That a human being was killed,

“2. That the killing was unlawful, and

“3. That the killing was done with malice aforethought.”

The trial court did not, however, deliver any instructions 

that were specific to felony murder, such as CALJIC Nos. 8.21 

(First Degree Felony-Murder) or 8.32 (Second Degree FelonyMurder).

The trial court also delivered CALJIC 8.31 on “Second 

Degree Murder—Killing Resulting From Act Dangerous to Life” 

as follows:

“Murder of the second degree is [also] the unlawful killing 

of a human being as the direct causal result of an intentional act,

[involving a high degree of probability that it will result in death, 

which act is done for a base, antisocial purpose and with wanton 

disregard for human life.] [or] [the natural consequences of which 

are dangerous to life, which act was deliberately performed by a 
6

form contained the jury’s finding that defendant personally used 

a deadly and dangerous weapon, a knife. Defendant therefore 

was ineligible for section 1170.95 sentencing relief as a matter of 

law, and the trial court did not err when it summarily denied 

defendant’s petition without conducting a further hearing. 

(Verdugo, supra, 44 Cal.App.5th at p. 330 [the record of 

conviction may establish that defendant “is ineligible for relief as 

a matter of law because he or she was convicted on a ground that 

remains valid notwithstanding Senate Bill 1437’s amendments to 

sections 188 and 189”]; see also People v. Cornelius (2020) 44 

Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [“the 

jury implicitly found Cornelius was the ‘actual killer,’ and the 

changes to sections 188 and 189 are inapplicable”].)4

person who knows that his conduct endangers the life of another 

and who acts with conscious disregard for human life.]

“When the killing is the direct result of such an act, it is not

necessary to establish that the defendant intended that his act 

would result in the death of a human being.” (Italics added.)

“Although the instructions related to implied malice and 

the natural and probable consequences doctrine of aiding and 

abetting include similar language regarding a ‘natural 

consequence,’ they are distinctly different concepts. Implied 

malice is a mental state for the commission of the crime of second 

degree murder, either by the principal or as an aider and abettor 

. . . to murder. . . . Senate Bill [ ] 1437 changed the circumstances 

under which a person could be convicted of murder without a 

showing of malice, but it did not exclude from liability persons 

convicted of murder for acting with implied malice. [Citation.]” 

(People v. Soto (2020) 51 Cal.App.5th 1043, 1056–1057, review 

granted Sept. 23, 2020, S263939; fn. omitted.)

4 In holding that defendant was statutorily ineligible for 

resentencing, we do not intend to suggest that the procedure 
7

IV. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUBIN, P. J. BAKER, J.

utilized by the trial court was correct. For instance, while 

defendant’s petition was pending, the court conducted an ex parte 

hearing with only the prosecutor present. Nothing in section 

1170.95 authorizes an appearance by one counsel and not the 

other at any stage of the proceedings. Any error, however, was 

harmless under any standard of review (Chapman v. California 

(1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 

836) because defendant was ineligible for relief in the first 

instance.