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Filed 12/3/21 P. v. Blair CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS QUINN BLAIR, JR.,

Defendant and Appellant.

 A161903

 (Solano County

Super. Ct. No. FCR201802)

Marcus Quinn Blair, Jr. appeals from the trial court’s 

denial of his petition for resentencing under Penal Code section 

1170.95.1 Section 1170.95 provides for resentencing of 

individuals convicted of murder under a felony murder or natural 

and probable consequences theory if they could no longer be 

convicted of murder under January 1, 2019 amendments to the 

Penal Code. Blair contends that the court was required to accept 

his allegations as true, and the court relied on improper factfinding in denying his petition. We conclude that the court 

correctly determined Blair was ineligible for resentencing, and we 

therefore affirm.

1 All undesignated statutory references are to the Penal 

Code.
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BACKGROUND

A.

To be convicted of murder, a jury must ordinarily find that 

the defendant acted with the requisite mental state, known as 

“ ‘malice aforethought.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 

1181 (Chun), quoting section 187, subdivision (a).) Until 

recently, the felony murder rule provided an exception that made 

“a killing while committing certain felonies murder without the 

necessity of further examining the defendant’s mental state.” 

(Chun, supra, 45 Cal.4th at p. 1182.) Under a separate rule 

known as the natural and probable consequences doctrine, a 

“ ‘ “person who knowingly aids and abets [the] criminal conduct 

[of another person] is guilty of not only the intended crime . . . but 

also of any other crime the [other person] actually commits . . . 

that is a natural and probable consequence of the intended 

crime.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155, 161.)

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

ch. 1015), which became effective January 1, 2019, raised the 

level of culpability required for murder liability to be imposed 

under these theories. (See Stats. 2018, ch. 1015, § 1.) Senate Bill 

No. 1437 amended the definition of malice in section 188 to

provide that, “[m]alice shall not be imputed to a person based 

solely on his or her participation in a crime.” (§ 188, subd. (a)(3); 

Stats. 2018, ch. 1015, § 2.) The bill also amended section 189, 

which defines the degrees of murder, to limit murder liability 

based on felony murder or a natural and probable consequences 

theory to a person who: (1) was the actual killer; (2) though not 

the actual killer, acted “with the intent to kill” and “aided, 

abetted, counseled, commanded, induced, solicited, requested, or 

assisted the actual killer” in the commission of first degree 

murder; or (3) was “a major participant in the underlying felony 

and acted with reckless indifference to human life, as described 

in subdivision (d) of Section 190.2.” (§ 189, subd. (e); Stats. 2018,

ch. 1015, § 3.) 
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Finally, Senate Bill No. 1437 added section 1170.95, which 

provides that “[a] person convicted of felony murder or murder 

under a natural and probable consequences theory may file a 

petition with the court that sentenced the petitioner to have the 

petitioner’s murder conviction vacated and to be resentenced on 

any remaining counts.” (§ 1170.95, subd. (a); Stats. 2018, ch. 

1015, § 4.) The individual may file a petition if three conditions 

are met:“(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) The 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. [¶] 

(3) The petitioner could not be convicted of first or second degree 

murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1170.95, subd. (a); see People v. Lewis (2021) 

11 Cal.5th 952, 959-960 (Lewis).) Under section 1170.95, 

subdivision (b), the petition must include a declaration that the 

petitioner is eligible for relief based on the requirements set forth 

in subdivision (a), the superior court case number and year of the 

conviction, and a statement indicating whether the petitioner 

requests the appointment of counsel. (§ 1170.95, subd. (b)(1).) 

If the petitioner has complied with these requirements, the 

court appoints counsel (if requested), receives briefing from the 

parties, and determines whether the petitioner has made a 

“prima facie showing” for relief (§ 1170.95, subd. (c); Lewis, supra, 

11 Cal.5th at pp. 960, 966). If so, the court must issue an order to 

show cause and hold an evidentiary hearing at which the burden 

is on the prosecution to prove that the petitioner is ineligible for 

relief. (Lewis, supra, 11 Cal.5th at p. 960.)

B.

A jury convicted Blair of second degree murder (§§ 187, 

subd. (a), 189, subd. (b)) and, as relevant here, found true an 
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allegation that he personally and intentionally discharged a 

firearm, causing the victim’s death (§ 12022.53, subd. (d)). (See 

People v. Blair (Dec. 23, 2004, A104765) [nonpub. opn.] (Blair).)

Blair’s section 1170.95 petition alleged that the information 

filed against him allowed the prosecution to proceed under a 

felony murder theory; that he was convicted of murder pursuant 

to the felony murder rule; and that he could not now be convicted 

of murder based on the January 1, 2019 amendments to sections 

188 and 189. In addition, he alleged that he was not a major 

participant in the felony or he did not act with reckless 

indifference to human life during the course of the crime or 

felony.

The court appointed counsel, who filed a reply brief 

providing the following factual summary: 

On August 26, 2002, Leroy McCain was 

shot at and killed nearby his apartment 

building. Appellant testified that he went 

to McCain’s apartment that day and got 

into a fight with him. As he was leaving, 

he felt a bottle, someone hit him with, on 

his head. Appellant feared for his life, he 

fled to his car, retrieved a rifle, and walked 

back toward McCain. Appellant thought 

McCain was going to attack him, so he 

started firing as McCain ran away and 

until McCain was out of sight. Then, 

Appellant left.

Blair’s brief also incorporated more detailed statements of facts 

from his opening brief and the respondent’s brief in his direct 

appeal. According to those summaries, McCain died from a 

single gunshot.

At the hearing on Blair’s petition, his counsel 

acknowledged that Blair “was the actual shooter.” The trial court 

concluded that Blair had failed to make out a prima facie case of 

eligibility for relief because “[t]he evidence at trial appears to 
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establish that defendant was the sole participant in the 

underlying event and that he discharged a firearm, causing 

death.”

DISCUSSION

Blair contends that the trial court erred in determining 

that he had failed to establish a prima facie case. On our 

independent review (People v. Jenkins (2021) 70 Cal.App.5th 924, 

933), we disagree.

Blair argues that he met his prima facie burden based on 

the allegations in his petition, that the court was required to 

accept his allegations as true, and that the court improperly 

engaged in factfinding in denying his petition. He is correct that, 

at that stage, the trial court may not “engage in ‘factfinding 

involving the weighing of evidence or the exercise of discretion. ’ ” 

(Lewis, supra, 11 Cal.5th at p. 972.) However, as our Supreme 

Court recently held in Lewis, the court may consider the record of 

conviction, including an appellate decision in a direct appeal from 

the conviction, at the prima facie stage. (Id. at pp. 970-972.) 

Thus, “ ‘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.” ’ ” (Id. at p. 971; see also People v. 

Davenport (2021) __ Cal.App.5th __, __ (2021 Cal.App.LEXIS 945 

at [*5]-[*6]) [trial court may consider “ ‘readily ascertainable 

facts’ ” from the record of conviction].)

Here, the trial court correctly concluded that Blair failed to 

establish a prima facie case of eligibility for resentencing. Based 

on the undisputed facts, under current law, he would still be 

liable for murder because he was the actual killer. (§ 189, subd.

(e)(1).) There is no dispute that in convicting him of seconddegree murder, the jury found that Blair had caused the victim’s 

death by personally and intentionally discharging a firearm. (See 

Blair, supra, A104765).) According to the facts he presented in 

his trial court briefing, Blair fired at the victim with a rifle and 
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the victim died of a single gunshot. Blair conceded he “was the 

actual shooter.” He has not suggested that any other perpetrator 

was involved in the killing or otherwise disputed that he was the 

actual killer. (See People v. Tarkington (2020) 49 Cal.App.5th 

892, 899 [petitioner was “the actual killer” where jury found the 

defendant personally used a deadly weapon and “the murder 

involved a single perpetrator” and “was not a situation in which 

multiple persons carried out the attack”], abrogated on another 

ground by Lewis, supra, 11 Cal.5th at pp. 963-965). Thus, Blair’s 

own version of the facts established that he was the actual killer, 

and we reject his contention that the court engaged in improper 

fact-finding.2 

Blair further argues that “[t]here were no facts in the trial 

court record that, as a matter of law, refuted [his] assertion that 

he had been convicted of . . . murder on a theory of felony 

murder” (italics omitted). Blair also contends that the fact that 

the jury found that he personally and intentionally discharged a 

firearm does not establish that he acted with actual malice. (See 

People v. Offley (2020) 48 Cal.App.5th 588, 598.) Neither of these 

points negates the conclusion that Blair could be found liable for 

murder under current law because he was the actual killer. (See 

§ 189, subd. (e)(1).)

DISPOSITION

The trial court’s order denying the petition is affirmed.

2 Blair now contends that it was improper for the trial court 

to rely on the statements of facts attached as exhibits to his trial 

court reply brief because the statements were hearsay. However, 

he waived this objection by attaching and incorporating those 

statements into his briefing in support of his petition. (Cf. 

Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 725-726 

[appellant forfeited hearsay objection by failing to raise it in trial 

court].)
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_______________________

BURNS, J. 

We concur:

____________________________

SIMONS, ACTING P.J.

____________________________

NEEDHAM, J.

A161903