Filed 9/21/23 P. v. White CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES EVERTT WHITE,

Defendant and Appellant.

F085648

(Super. Ct. No. MF45727)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Merced County. Carol K. Ash, 

Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

* Before Hill, P. J., Smith, J. and DeSantos, J.
2.

INTRODUCTION

In 2011, appellant and defendant James Evertt White (defendant) was convicted 

after a jury trial of first degree premeditated murder with a firearm enhancement, and 

sentenced to 75 years to life. The judgment was affirmed on appeal.

In 2023, the trial court denied defendant’s Penal Code1section 1172.6 petition for 

resentencing, and found he failed to make a prima facie case because the jury instructions 

showed he was convicted as the actual killer.

On appeal, appellate counsel filed a brief which summarized the facts and 

procedural history with citations to the record, raised no issues, and asked this court to 

independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 

216 and People v. Wende (1979) 25 Cal.3d 436. Defendant submitted a supplemental 

brief raising several issues. We address his contentions and affirm the trial court’s denial 

of his petition.

FACTS2

“On the afternoon of March 8, 2007, [defendant] ... confronted Stephen Jackson 

on a residential street in Merced. Defendant was angry that Jackson was living with 

1 All further statutory citations are to the Penal Code.

2 The factual summary is from this court’s nonpublished opinion in defendant’s direct 

appeal in People v. White (Apr. 16, 2013, F063160) [non.pub. opn.] (White), which is in the 

clerk’s transcript in this appeal. We further note that in opposition to defendant’s initial petition, 

the People filed a compact disc with the entirety of the record from defendant’s jury trial, and 

defendant submitted the murder instructions in support of his petition.

In reviewing a section 1172.6 petition, the court may rely on “the procedural history of 

the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People v. Clements

(2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The 

role of the appellate opinion is limited, however, and the court may not rely on factual 

summaries contained in prior appellate decisions or engage in fact finding at the prima facie 

stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972.) We have quoted the 

factual statement from defendant’s direct appeal to place his current arguments in context, and 

will not rely on that factual statement to resolve his appeal from the trial court’s order that found 

his petition did not state a prima facie case for relief.
3.

defendant’s former girlfriend, Lashe Castle, and that Castle had obtained a restraining 

order against defendant. Defendant produced a black billy club or ‘asp,’ and hit Jackson 

with it. Jackson and defendant briefly fought on the street, stopping traffic and attracting 

neighbors. When Jackson allowed defendant to get up, defendant produced a small gun 

and fired two shots which hit Jackson in the chest, arm, and neck. Defendant 

immediately left the scene. The chest wound was fatal and Jackson died within minutes.

Jackson’s 11-year-old son was present during the fight and the fatal shooting.” (White,

supra, F063160.)

PROCEDURAL BACKGROUND

On July 30, 2007, an information was filed in the Superior Court of Merced 

County charging defendant with count 1, first degree premeditated murder (§ 187), with 

the special allegation that he personally and intentionally discharged a firearm that 

proximately caused death or great bodily injury (§ 12022.53, subd. (d)); count 2, 

possession of a firearm by a felon (former § 12021, subd (a)(1)); and count 3, unlawful 

possession of a prohibited weapon, a billy club (§ 12020, subd. (a)), with one prior strike 

conviction (§ 1170.12).3

On May 3, 2011, defendant’s jury trial began.

Jury Instructions

As to count 1, murder, the jury was instructed with CALCRIM No. 520, murder 

with malice aforethought.

“The defendant is charged in Count 1 with murder in violation of 

Penal Code section 187.

“To prove that the defendant is guilty of this crime, the People must 

prove that:

“1. The defendant committed an act that caused the death of 

another person;

3 Appellant was also charged with misdemeanor count 4, brandishing a weapon, and it was 

dismissed prior to trial.
4.

“2. When the defendant acted, he had a state of mind called 

malice aforethought; [¶] AND

“3. He killed without lawful excuse or justification.

“There are two kinds of malice aforethought, express malice and 

implied malice. Proof of either is sufficient to establish the state of 

mind required for murder.

“The defendant acted with express malice if he unlawfully intended 

to kill.

“The defendant acted with implied malice if:

“1. He intentionally committed an act;

“2. The natural and probable consequences of the act were 

dangerous to human life;

“3. At the time he acted, he knew his act was dangerous to 

human life; [¶] AND

“4. He deliberately acted with conscious disregard for human 

life.” (Italics added.)

CALCRIM No. 521 stated that if the jury convicted defendant of murder, it had to 

decide whether the offense was first or second degree murder.

“The defendant is guilty of first degree murder if the People have proved 

that he acted willfully, deliberately, and with premeditation. The defendant 

acted willfully if he intended to kill. The defendant acted deliberately if he 

carefully weighed the considerations for and against his choice and, 

knowing the consequences, decided to kill. The defendant acted with 

premeditation if he decided to kill before completing the act that caused 

death. [¶] ... [¶] All other murders are of the second degree.” (Italics 

added.)

The jury was also instructed with CALCRIM No. 505 on justifiable homicide, 

self-defense or defense of another; CALCRIM Nos. 3471, 3472, and 3474 on 

self-defense; CALRIM No. 510 on excusable homicide; and the lesser offenses of 

voluntary and involuntary manslaughter.4

4 “At the beginning of trial, defense counsel said in opening statement that the evidence 

would show the homicide occurred as a result of self-defense or heat of passion. During trial, 

however, defendant testified that he never fired the gun, and it accidentally discharged when a 
5.

The jury was not instructed on the felony-murder rule, the natural and probable 

consequences doctrine, principals, accomplices, and aiders and abettors, conspiracy, or 

any other theory of imputed malice.

Convictions and Sentence

On May 31, 2011, the jury convicted defendant of count 1, first degree 

premediated murder, and found true the personal discharge enhancement; count 2, felon 

in possession of a firearm; and count 3, possession of a billy club. The trial court found 

the prior strike conviction true.

On August 16, 2011, the trial court imposed an aggregate term of 75 years to life, 

based on 25 years to life for count 1, doubled to 50 years to life as the second strike term, 

plus 25 years to life for the personal discharge enhancement. The court stayed the term 

for count 2 and imposed a concurrent term for count 3.

Direct Appeal

On April 16, 2013, this court filed the nonpublished opinion that affirmed the 

judgment, and rejected defendant’s claims of evidentiary error and prosecutorial 

misconduct. (White, supra, F063160.)

PETITION FOR RESENTENCING

Habeas Petition

On July 29, 2022, defendant, acting in propria persona, filed a petition for writ of 

habeas corpus with the trial court, and requested resentencing on the personal discharge 

enhancement pursuant to Senate Bill No. 620 (2017–2018 Reg. Sess.), and argued that 

amended section 12022.53 gave the trial court discretion to dismiss the firearm 

enhancement.

bystander intervened and struggled to take control of the weapon. The prosecution produced that 

bystander as a rebuttal witness, and he testified that he never touched the gun, and that defendant 

fired the shots directly at Jackson.” (White, supra, F063160.)
6.

Defendant’s habeas petition also requested resentencing pursuant to Senate Bill 

No. 1437 (2017–2018 Reg. Sess.) and Senate Bill No. 775 (2021–2022 Reg. Sess.) 

because the jury instructions showed he was convicted of first degree murder based on 

the natural and probable consequences doctrine, and his conviction should be reduced to 

manslaughter. Defendant requested appointment of counsel. Defendant’s petition was

supported by documentary exhibits, including the murder instructions given at his trial 

(CALCRIM Nos. 520 & 521).

On September 22, 2022, the People filed opposition and argued defendant was not 

entitled to resentencing and failed to make a prima facie case because the jury 

instructions showed he was not convicted under any theories of imputed malice. In 

support of the opposition, the People submitted a compact disc that contained the record 

from defendant’s direct appeal.

On September 26, 2022, the trial court denied defendant’s habeas petition because 

section 1172.6 provided an adequate remedy at law. In the interests of judicial 

efficiency, the court ordered defendant’s petition for resentencing to be separated from 

the habeas petition, and filed with the court. The court appointed counsel to represent 

defendant, and ordered further briefing.

Petition for Resentencing

On September 26, 2022, as a result of the court’s order, defendant’s petition for 

resentencing was refiled as a separate motion.

The People’s Opposition

On November 17, 2022, the People filed opposition to defendant’s petition, and 

argued defendant failed to make a prima facie case because the jury instructions and 

verdict established defendant was convicted as the actual killer who acted with malice.

The Trial Court’s Hearing

On January 20, 2023, the trial court conducted a hearing on defendant’s petition. 

Defendant was present with his attorney.
7.

Defense counsel argued defendant strongly felt his petition should be granted 

because the record of conviction showed “he did not have the requisite intent,” and an 

evidentiary hearing should be held. The prosecutor replied the jury instructions showed 

defendant was convicted as the actual killer who acted with intent and malice, and he was 

ineligible for resentencing.

The trial court held defendant failed to make a prima facie showing and denied the 

petition.

On January 26, 2023, defendant filed a timely notice of appeal.

DISCUSSION

As explained above, appellate counsel filed a brief with this court pursuant to 

Wende and Delgadillo. The brief also included counsel’s declaration that defendant was 

advised he could file his own brief with this court. In response to this court’s order,

defendant filed a supplemental brief. We review defendant’s contentions.

“The record of conviction will necessarily inform the trial court’s prima facie 

inquiry under section [1172.6], allowing the court to distinguish petitions with potential 

merit from those that are clearly meritless.” (People v. Lewis (2021) 11 Cal.5th 952, 

971.) The record of conviction includes the jury instructions. (People v. Williams (2022) 

86 Cal.App.5th 1244, 1251–1252; People v. Harden (2022) 81 Cal.App.5th 45, 50, 54–

55; People v. Offley (2020) 48 Cal.App.5th 588, 599.)

In his supplemental brief, defendant requests this court to independently review 

the record. He also claims that he was improperly convicted based on implied malice, as 

defined in CALCRIM No. 520, and the instructions did not “specify or exclude any 

particular theory of murder and thus does not establish ineligibility for resentencing as a 

matter of law.”

Defendant’s argument is based on CALCRIM No. 520’s definition of implied 

malice as an intentional act, the natural and probable consequences of which were 

dangerous to human life. Senate Bill No. 1437 (2017–2018 Reg. Sess.) eliminated 
8.

natural and probable consequences liability based on imputed malice, but implied malice 

remains a valid theory for murder. (People v. Cortes (2022) 75 Cal.App.5th 198, 201–

202; People v. Schell (2022) 84 Cal.App.5th 437, 442–443; People v. Clements, supra, 75 

Cal.App.5th at pp. 298–299.)

In this case, however, defendant was convicted of first degree premeditated 

murder. CALCRIM No. 520 stated “defendant acted with express malice if he 

unlawfully intended to kill.” CALCRIM No. 521 further stated that the defendant acted 

willfully “if he intended to kill. The defendant acted deliberately if he carefully weighed 

the considerations for and against his choice and, knowing the consequences, decided to 

kill. The defendant acted with premeditation if he decided to kill before completing the 

act that caused death.”

Defendant was convicted of first degree premeditated murder based on express 

malice and his specific intent to kill, and not based on any theory of implied or imputed 

malice. “The primary difference between express malice and implied malice is that the 

former requires an intent to kill but the latter does not.” (People v. Soto (2018) 4 Cal.5th 

968, 976.) “[F]irst degree murder requires express malice, and the concept of express 

malice includes that of willfulness. A willful murder is an intentional murder, and malice 

is express when there is an intent to unlawfully kill a human being.” (People v. Moon

(2005) 37 Cal.4th 1, 29.)

The jury instructions and verdict establish defendant was ineligible for 

resentencing as a matter of law.

DISPOSITION

The court’s order of January 20, 2023, denying defendant’s section 1172.6 petition 

for resentencing, is affirmed.