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Filed 11/8/21 P. v. Marvin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

JONATHAN CARROL MARVIN,

Defendant and Appellant.

 A160636

 (Contra Costa County

Super. Ct. No. 05-080619-0)

Jonathan Carrol Marvin 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. After the trial court appointed counsel to represent 

Marvin in his petition, counsel informed Marvin and the court 

that, based on his review of the case, he would not file a brief in 

support of Marvin’s petition. Marvin contends that the court 

erred in declining to appoint substitute counsel and by engaging 

in fact finding before denying his petition. We conclude that 

1 All undesignated statutory references are to the Penal 

Code.
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Marvin was not prejudiced by any such errors, and we therefore 

affirm the court’s denial.

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.” (Id. 

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 
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reckless indifference to human life, as described in subdivision (d) 

of Section 190.2.” (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3.) 

Finally, the bill 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 whether the petitioner requests the appointment 

of counsel. (§ 1170.95, subd. (b)(1).) 

If the petitioner has complied with these requirements, the 

trial court receives briefing from the parties and then proceeds to 

determine 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, then 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.)
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B.

A jury convicted Marvin of first degree murder (§ 187) and 

found true an allegation that he personally used a firearm 

causing great bodily injury or death to the victim (§ 12022.53, 

subd. (d)).

Marvin’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.

C.

In considering Marvin’s petition, the trial court judge, who 

also presided over Marvin’s jury trial, took judicial notice of the 

court file in Marvin’s original case and this division’s 2011 

opinion in his direct appeal. (See People v. Marvin (June 27, 

2011, A125262) [nonpub. opn.].) Although the trial court’s file 

was not forwarded to this court in the instant appeal, we take 

judicial notice of the appellate record in case number A125262. 

(See Evid. Code, §§ 452, subd. (d), 459.)

For context, we provide a brief factual background. The 

victim died of multiple gunshot wounds. A forensic pathologist 

testified that the victim suffered six gunshot wounds, including 

four fatal wounds to his head, chest, and abdomen; four to six 

bullets hit his body. The bullets were .38 or .357-caliber bullets 

of a commonly available brand, and the murder weapon was not 

found.

Police examination of the victim’s phone records led them 

to Marvin, who helped sell marijuana produced by the victim. In 

multiple police interviews, Marvin denied shooting the victim. 

Although Marvin gave differing statements to the police, he 

eventually admitted he was there when the victim was shot. He 
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told the police that he had set up a drug deal with the victim that 

had gone bad, but he later admitted that he knew the victim was 

not going to get paid for his drugs. Marvin told police that, 

during the drug deal, individuals named Shannon and Dre pulled 

out guns, and Dre shot the victim three or four times with a 

revolver.

At trial, the prosecution argued that Marvin personally and 

deliberately shot and killed the victim. The prosecution argued 

in the alternative that Marvin was guilty of murder under a 

felony murder theory because he had set the victim up to be 

robbed. The defense argued that Marvin was not the shooter and 

the felony murder rule was inapplicable because the prosecution 

had not proven that Marvin knew the victim would be robbed.

DISCUSSION

A.

Our Supreme Court’s decision in Lewis contains three key 

holdings relevant to this appeal. First, Lewis holds that a 

petitioner who has filed a facially sufficient petition under section 

1170.95 is entitled to appointment of counsel before the trial 

court receives briefing and determines whether the petitioner has 

established a prima facie case of eligibility for resentencing. 

(Lewis, supra, 11 Cal.5th at pp. 966, 970.) Second, Lewis holds 

that in assessing whether the petitioner has made out a prima 

facie case, the court may consider the record of conviction. (Id. at 

pp. 970-972.) Third, Lewis concludes that where a petitioner is 

denied the assistance of counsel for a section 1170.95 petition, 

that deprivation is a state law violation that is reviewed for 

harmless error under the test in People v. Watson (1956) 46 

Cal.2d 818, 836. (Lewis, supra, at pp. 972-974.) Under that test, 

the petitioner “ ‘has the burden of showing “it is reasonably

probable that if [he or she] had been afforded assistance of

counsel his [or her] petition would not have been summarily

denied without an evidentiary hearing.” ’ ” (Id. at p. 974.)
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B.

Marvin contends that the trial court erred in denying his 

petition without first appointing substitute counsel. Marvin also 

asserts that the court erred by engaging in factfinding when 

summarily denying his petition. We assume, without deciding, 

that the trial court erred. Marvin has failed to meet his burden 

of establishing that it is reasonably probable that his petition 

would not have been denied in the absence of any such errors. 

(See Lewis, supra, 11 Cal.5th at p. 974.) As a result, we affirm 

the court’s denial of his petition.

In support of his argument that the asserted errors were 

prejudicial, Marvin correctly points out that he was prosecuted 

under a felony murder theory. The jury was instructed on felony 

murder, the prosecution relied on the theory as a backup 

argument, and the verdict form finding Marvin guilty of first 

degree murder did not rule out a felony murder theory.

However, the People assert that Marvin may still be held 

liable for murder under a felony murder theory after Senate Bill 

No. 1437 because he “was the actual killer,” pursuant to section

189, subdivision (e)(1). They contend that, because the jury 

found, under section 12022.53, subdivision (d), that Marvin 

personally and intentionally discharged a firearm causing great 

bodily injury or death, the jury necessarily found that Marvin 

was the actual killer.

We agree with the People that, in the circumstances of this 

case, the jury’s finding under section 12022.53, subdivision (d), 

amounted to a finding that Marvin was the actual killer. In 

arguing otherwise, Marvin relies on People v. Offley (2020) 48 

Cal.App.5th 588 (Offley), which reasoned that “[b]ecause an

enhancement under section 12022.53, subdivision (d) does not

require that the defendant acted either with the intent to kill or

with conscious disregard to life, it does not establish that the

defendant acted with malice aforethought.” (Id. at p. 598.) 
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Consistent with Offley, the People correctly acknowledge 

that a true finding on a section 12022.53, subdivision (d) 

enhancement “by itself, does not necessarily indicate that the 

defendant was the actual killer acting with the intent to kill.” 

Further, a finding that the defendant personally discharged a 

firearm and caused great bodily injury would not necessarily 

establish that the defendant was the actual killer in a case in 

which multiple shooters fired at the victim. (Cf. Offley, supra, 48 

Cal.App.5th at pp. 592, 597 [defendant convicted based on his 

participation in a shooting by multiple gang members].)

Here, however, Marvin does not assert that he was one of 

multiple shooters. Instead, he argues that “[w]hile the prosecutor 

urged the jury . . . to reject his statements that he was not the 

shooter, the defense relied on that theory.” But the jury rejected 

the defense’s position that Marvin was not the shooter when it 

found true the allegation that he personally discharged a firearm 

causing great bodily injury or death. Had the jury found that 

some other perpetrator shot the victim, the jury would have 

rejected the section 12022.53 allegation. In the circumstances 

here, the jury’s finding that Marvin personally discharged a 

firearm and caused great bodily injury or death to the victim 

necessarily amounted to a finding that Marvin was the shooter 

and therefore the actual killer. (See People v. Tarkington (2020) 

49 Cal.App.5th 892, 899 (Tarkington) [concluding that 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”], review granted Aug. 12, 2020, S263219, 

abrogated on another ground by Lewis, supra, 11 Cal.5th at pp. 

963-965.)

DISPOSITION

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

BURNS, J. 

We concur:

____________________________

JACKSON, P.J.

____________________________

NEEDHAM, J.

A160636