Filed 11/15/23 P. v. Joshua 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

LAQUIS T JO SHUA

,

Defendant and Appellant

. B 3 2 3960

Los Angeles County Super. Ct. No. T A 147 191

- 02

APPEAL from an order of the Superior Court of
Los Angeles County, Lynn D. Olson , Judge

. Affirmed

.

Eric R. Larson , under appointment by the Court of Appeal,
for Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters, Chie f Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Iv ri and Nikhil Cooper , Deputy Attorneys General, for Plaintiff and Respondent.

____________

_____________2 In March 2019 , defendant and appellant Laquist Joshua

en tered into a plea agreement with the People

. Joshua pleaded

no contest to one count of attempted murder and admitted he had personally inflicted great bodily injury on the victim withi n the meaning of Penal Code section 12022 .7

. 1 Joshua also admitted an allegation under section 12022.53, subdivision ( b ) that

a principal had personally used a firearm in the commission
of the offense

. In February 2022 Joshua filed a petition for

resente ncing under section 117 2.6. 2 The trial court denied
Joshua’s petition

. We affirm because , by admitting he personally inflicted great bodily injury on the victim, Joshua admitted
he was the perpetrator of the attempted murder and not merely

an accomplice. Accordingly, he is ineligible for resentencing

as a matter of law

. BACKGROUND

1. The charges, plea agreement, and sentence In 2018 the People charged Joshua with several offenses. In a second amended felony complaint filed February 11, 2019, the People charged Joshua with the willful, deliberate, premeditated attempted murder of two victims , Belizhane
Miranda (count 5) and Demore Newsome (count 6) , with shooting at an occupied motor vehicle (count 7) , and with being a felon
in possession of a firearm (co unt 8), on February 3, 2017

. As to

count s 5 through 7 , t he People alleged Joshua personally used and personally and intentionally discharged a firearm , and a principal did the same

. As to counts 5 and 7, the People alleged

1 References to statutes are to the Penal Code.

2 Effective June 30, 2022, former section 1170.95 was renumbered section 1 172.6 , with no change in text. (Stats. 2022, ch. 58, § 10.)3

Joshua personally and intention ally discharged a firearm causing great bodily injury to Miranda , and a principal did so as well

. As to counts 5 and 7, t he People further alleged Joshua personally inflicted great bodily injury on Miranda. The People alleged the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang

. Finally, the People alleged Joshua had a strike prior

. 3 On March 29, 2019, Joshua entered into a plea agreement with the prosecution. Facing a possible maximum of 29 ye ars plus 55 years to life, Joshua agreed to plead to count 5 ( victim Miranda) and to admit allegations that he personally inflicted great bodily injury on the victim and that a principal personally
used a firearm in the commission of the offense

, in exchan ge for a determinate sentence of 22 years

. The prosecution agreed

to strike the allegation that the attempted murder was willful, deliberate, and premeditated and to move to dismiss the remaining counts and allegations

. In response to the prosecutor’s que stions, Joshua confirmed he understood his rights and the consequences of his plea , and
he was pleading freely and voluntarily. Joshua then pleaded

no contest to attempted murder. He also admitted the allegation that, in the commission of the offense, a principal used a firearm. Joshua’s counsel stipulated to a factual basis for the plea

3 In the same second amended complaint, the People charged Joshua’s co

- defendant Elvone Robinson with two counts of willful, deliberate, premeditated attempted murder ( of Miranda and Newsome) , s hooting at a motor vehicle, and misdemeanor vandalism. The People alleged firearm and gang enhancements as to Robinson as well. The People did not allege that Robinson personally used or discharged a firearm or that he personally inflicted great bodily i njury on either victim.4

“based upon the police reports, probation report and any other discovery.” Joshua asked to postpone his sentencing. The parties returned on April 18 , 2019 for sentencin g. The court noted Joshua had not yet admitted the great bodily injury allegation. After conferring with his counsel, Joshua confirmed counsel
had answered his question and he was ready to proceed. The prosecutor , referring to Joshua’s plea to count 5, asked him

, “[ D]o you additionally admit that in the course of that
commission that you violated Penal Code section 12022.7(a), causing great bodily injury to B. Miranda? Do you admit or deny that additional allegation?” Joshua replied, “I admit.” Again, Joshua’s counsel joined. In accordance with the parties’ agreement, the court
sentenced Joshua to 2 2 years in the state prison , calculated

as the high term of nine years for the attempted murder plus
three years for the personal infliction of great bodily injury and

1 0 years for the firearm enhancement. The court dismissed
the remaining counts and allegations on the People’s motion. 4
2. Joshua ’s petition for resentencing
On February 17 , 2022, Joshua , representing himself, filed

a form petition for resente ncing under section 117 2.6. Joshua checked boxes on the form stating (1) the complaint filed in
his case “allowed the prosecution to proceed under a theory of

. . .

4 Robinson also entered into a plea agreement with the People. Robinson pleaded no contest to count 1 (attempted murder of Miranda) and admitted allegations under section 12022.53, subdivisions (b) and (e)(1) that “a principal per sonally used a firearm

, ” in exchange for a determinate sentence of 15 years (the low term of five years for the attempted murder plus ten years for the firearm enhancement).5

attempted murder under the natural and probable consequences doctrine,” (2) he was convict ed of attempted murder “ following

a trial or [he] accepted a plea offer in lieu of a trial at which [he] could have been convicted of

. . . attempted murder,” and (3) he “ could not presently be convicted of

. . . attempted murder because of changes made to Penal Code §§ 188 and 189 , effective January 1, 2019 [ sic ] .” Joshua also checked a fourth box that stated, “Having presented a facially sufficient petition, I request that this Court appoint counsel to represent me.” The court appointed counsel for Joshu a

. The court ordered the People to file a response to the petition by April 18 and Joshua to file a reply by May 18 . The court set a date for “further proceedings re: prima facie hearing on 6/1/22 .” On April 11, 2022 , the prosecution filed a response to
Joshua ’s petition. In its statement of facts, t he prosecution said
Joshua and Robinson had driven to the intersection of Main and
109 th Street in Los Angeles on February 3, 2017 . Joshua drove
and parked. Robinson got out and starting spray painting gra ffiti
on a wall. Miranda and Newsome were in a car leaving the parking lot near where Joshua was parked. The victims saw Joshua looking at them. As Newsome drove away, Joshua got

out of his car with a semi

- automatic firearm and fired about
four times at Newsome’s car

. One of the bullets hit Miranda
in the head and Newsome crashed the car. Robinson got into
the driver’s seat , Joshua got into the back passenger seat, and Robinson drove them away. Miranda survived. The prosecution asserted Joshua was not entitled to relief
under section 1172.6 because he was “a direct perpetrator ” of the
crime and he “ could not have been convicted of attempted murder6

based upon the natural and probable consequences doctrine.” 5
Joshua did not file a reply to the People’s response. On June 1 , 2022, the court called the case for hearing. While the reporter’s transcript is unclear, it appears both the prosecutor and defense counsel appeared “via speakerphone.” 6
The court stated it had received and considered the People’s

re sponse. The court continued, “Mr. DeBlanc, it appears that
Mr. Laquist [ sic ] is not eligible for the relief requested, pursuant

to Penal Code section 117[2.6].” Counsel replied, “Yes. I did receive a couple of documents yesterday, basically the charging document, the information, and the plea transcript; and based

on all of that, I would submit to the court. So submitted.”
The prosecutor said he had nothing to add

. The court stated , “ The court is finding that Mr. Laquist [ sic ] is ineligible for any req uested relief, pursuant to Penal Code

5 The prosecution stated Joshua had “admitted to discharging a firearm at the vic tim

, ” and his “admission to personally using a firearm during the offense ” was “an admission to being a direct perpetrator and harboring express malice in this case.” The prosecution was mistaken about the firearm enhancement. Joshua did not admit having personally used

a firearm; he admitted that a principal had done so.

6 The reporter’s transcript states , “Appearances: Defendant Joshua Laquist [ sic ], present with counsel Albert DeBlanc, Esq. ; Alex Hogue, Deputy District Attorney, appearing via speaker phone.” However, the minute order states, “Defendant is not present in court, but represented by A. DeBlanc Jr. bar panel attorney.

. . . Deputy District Attorney, Alex Hogue, appears telephonically

. ” The minute order for an earlier setting date, March 23, 2022, states, “Defendant is not present in court, but represented by A. DeBlanc Jr. bar panel attorney [.] Defendant appearing by counsel pursuant to Penal Code section 977 et seq.
, by A. DeBlanc Jr. bar panel attorney.”7

section 117[2.6] . The petition is denied.” The court then added, “[J]ust to make the record

— a more thorough record, pursuant

to the plea transcript, the defendant admitted the charge

as well as the 12022.53 allegatio n and the 12022.7 allegation.
And the defendant’s plea does provide proof that he is the
direct perpetrator, and thi s is pursuant to his admission that
he personally discharged the firearm.”
DISCUSSION

1. Section 117

2.6
Senate Bill No. 1437 (Senate Bill 1 437) took effect on January 1, 2019. (See Stats . 2018, ch. 1015, § 4.) The bill amended existing law on accomplice liability for murder “ ‘ to ensure that murder liability is not imposed on a person who is
not the actual killer

. . . .’ ” ( People v. Guti errez

- Salazar (2019) 38 Cal.App.5 th 411, 417, quoting Stats . 2018, ch. 1015, § 1, subd. (f); § 189, subd. (e)(1).) To accomplish this goal, Senate Bill 1437 limited accomplice liability under the felony

- murder rule and eliminated the natural and probable consequences doctrine as it

re lates to murder, to ensure a person’s sentence is commensurate with his individual criminal culpability. ( People v. Gentile (2020) 10 Cal.5 th 830, 842

– 843 ( Gentile ); People v. Lewis (2021)
11 Cal.5 th 952, 957, 971 ( Lewis ).)
S enate Bill 1437 also authorized, through new section
117 2.6, an individual convicted of felony murder or murder based on the natural and probable consequences doctrine to petition
the sentencing court to vacate the conviction and be resentenced

on any rema ining counts if he could not have been convicted of murder because of Senate Bill 1437’s changes to the definition
of the crime. (See Lewis

, supra , 11 Cal.5 th at pp. 959

– 960; Gentile

, supra , 10 Cal.5 th at p. 843.)
If the petition contains all the required information, including a declaration by the petitioner that he was convicted8

of murder and is eligible for relief (§ 1172.6, subd. (b)(1)(A) ), section 1172.6, subdivision ( c ) require s the court to direct
the prosecutor to file a response to the petition a nd permit
the petitioner to file a reply

, 7 and to determine if the petitioner has made a prima facie showing that he is entitled to relief. (See Lewis

, supra , 11 Cal.5 th at pp. 959

– 960 .) In determining whether the petitioner has carried the
burden of maki ng the requisite prima facie showing he falls within the provisions of section 1172.6 and is entitled to relief, the superior court properly examines the record of conviction, “allowing the court to distinguish petitions with potential merit
from those tha t are clearly meritless.” ( Lewis

, supra , 11 Cal.5 th at p. 971.) However, “the prima facie inquiry under [section

1172.6
, ] subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “ the court takes petitioner’s fa ctual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled

to relief if his or her factual allegations were proved. If so,
the cour t must issue an order to show cause.” ’ . . . ‘However,
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. ” ’ ” ( Ibid

. ; see People v. Daniel (2020) 57 Cal.App.5 th 66 6, 675.)
Senate Bill No. 775 (2021

– 2022 Reg. Sess.) (Senate Bill 775), effective as of January 1, 2022, amended section 117 2.6
in various respects. The bill clarified that “persons who were convicted of attempted murder . . . under . . . the natural [ and ]

7 Section 1172.6, subd. (b)(3) also requires the court to appoint counsel to represent the petitioner, if requested. Here, the trial court did appoint counsel for Joshua

.9

probable consequences doctrine are permitted the same relief

as those persons convicted of murder under the same theor [y].” (Stats. 2021, ch. 551, § 1, subd. (a).) Senate Bill 775 also clarified that the burden of proof at a section 1172.6 evidentiary h earing
is beyond a reasonable doubt and a trial court’s finding that there is substantial evidence to support a conviction is insufficient to
meet this burden. (§ 1172.6, subd. (d)(3).) We independently review a trial court’s de termination of whether a pe titioner has made a prima facie showing. ( People v.
Harden (2022) 81 Cal.App.5 th 45
, 5 2 ( Harden )

. )
2. The trial court was not required to issue an order

to show cause or conduct an evidentiary hearing
because

— as the direct perpetrator of the attempted

mur der

— Joshua is ineligible for resentencing

as a matter of law As noted, Senate Bill 775 extended re sentencing eligibility to individuals convicted of attempted murder under the natural and probable consequences doctrine. (Stats. 2021 , ch. 551, § 1, subd. ( a).) In his reply brief on appeal, Joshua asserts he was required to establish only “that he could have been prosecuted under a natural and probable consequences theory of liability.”
But neither in the trial court, nor here on appeal, has Joshua
offered any factual premise or theory u nder which he “could have been prosecuted under a natural and probable consequences theory of liability.” Indeed, throughout these proceedings,
Joshua has offered no facts about the crime, his role (if any),

or Robinson’s r ole. Nor was there any discussion of this issue in the trial court. The court gave two reasons for finding Joshua ineligible for

re lief under section 1172.6: he “admi[tted] that he personally discharged the firearm,” and he admitted he personally inflict ed great bodily injury on the victim. The Attorney General agrees10

with Joshua that the first of these two reasons was incorrect:
Joshua admitted that a principal personally used a firearm,

not that he personally used a firearm in the attempted murder
of Miranda. (See People v. Offley (2020) 48 Cal.App.5 th 588, 592
, 597 ( Offley ) [true finding that a principal to the crime

— not the
defendant himself

— discharged a firearm does not disqualify defendant from relief under section 1172.6].)
But the second reason the court gave was valid: Joshua admitted he personally inflicted great bodily injury on Miranda. A true finding on an allegation under section 12022.7 that a defendant personally inflicted great bodily injury on the victim means that defendant is inelig ible for relief under section 1172.6. (See Harden , supra, 81 Cal.App.5 th at pp. 48 , 54

– 55.) “The natural meaning of ‘personally inflicted’ is that the defendant [himself] inflicted the injury .” ( Id . at p. 55. See People v. Cole (1982) 31 Cal.3d 568, 57 8

– 579 [under section 12022.7, “personally inflict” means those who “directly perform” the act causing physical injury].)
Joshua cites Off

le y, supra , 48 Cal.App.5 th 588 and argues its reasoning applies equally to his admission that he personally inflicted g reat bodily injury on the victim . Joshua is mistaken. Offley involved an attack by five defendants on two victims.
At least three of the defendants fired shots into the victims’ car. One victim was killed and the other was seriously wounded. 8 ( Offley

, supra , 48 Cal.App.5th at p. 592.) The trial court instructed the jury on “the natural and probable consequences doctrine in cases of conspiracy.” ( Id. at p. 593.) Although the

8 As Offley was decided before Senate Bill 775 extended relief to defendants convicted of attempted murder, Offle y petitioned for relief only on his murder conviction. ( Offley

, supra , 48 Cal.App.5 th at p. 592.)11

prosecution alleged Offley had personally and intentionally fired a handgun c ausing the victim’s death , the prosecutor “agreed” during the trial “that a bullet from Offley’s gun could not have killed” the victim. ( Id . at pp. 592, 594.)
The trial court denied Offley’s petition for resentencing without appointing counsel and the app ellate court reversed

. The court stated that

— given the prosecutor’s closing argument relying on a natural and probable consequences theory

— it could not “exclude the possibility that the jury believed Offley acted without intending to kill [the victim] or consciously disregarding
that risk

, ” and thus without malice aforethought. ( Offley

, supra , 48 Cal.App.5 th at pp. 594, 597 , 599.)
Joshua’s contention that the “malice aforethought” issue
discussed in Offley applies to his section 12022.7 admission here
mis ses the first, critical inquiry in any analysis of a section
1172.6 petition: was the petitioner merely an accomplice, or
does the record of conviction demonstrate he was the direct perpetrator of the shooting? The whole point of section 1172.6
is to pro vide relief for individuals who were accomplices to murders and attempted murders. A defendant who was not

an accomplice but instead w a s the direct and actual perpetrator of the attempted murder is not eligible for resentencing. (See,

e.g., Harden, supra

, 81 Cal.App.5 th at pp. 53

– 5 4, 56; P eople v. Myles (2021) 69 Cal.App.5 th 688, 692

– 694 [affirming denial of resentencing because defendant , as actual killer, was directly

— not vicariously

— liable]; People v. Edwards (2020) 48 Cal.App.5 th 666, 669, 671, 674 [a ffirming summary denial of resentencing petition where record of conviction showed petitioner was actual killer] .) By admitting he personally inflicted great bodily injury12

on Miranda, Joshua admitted he was the actual shooter

. 9 He therefore is ineligible for relief under section 1172.6 as a matter
of law.
DISPOSITION Based on our independent review, we agree with the trial
court that Laquist Joshua failed to make a prima facie showing
for relief. We therefore affirm the trial court’s order denying his

pe tition for resentencing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON , J.

We concur:

EDMON, P.J. ADAMS , J

.

9 While Joshua’s check

- the

- boxes petition was facially sufficient, “it is devoid of factual allegations” concerning the shooting of Miranda

. (See People v. Pickett (2023) 93 Cal.App.5 th 982, 989
, review granted Oct. 11, 2023, S281643 .) Neither in the trial court

— where his counsel submitted based on the record of conviction

— nor here on appeal has Joshua denied he was the shooter . N or does he assert that ano ther person fired the shot that struck Miranda in the head . “He merely states the legal conclusion that he could not now be convicted of [attempted ] murder because of changes made to the law of [attempted] murder under Senate Bill No. 1437. ” (See ibid

. )