Filed 8/16/24 P. v. Locke CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN K. LOCKE,

Defendant and Appellant.

 D083244

 (Super. Ct. No. SCD160776)

APPEAL from an order of the Superior Court of San Diego County, 

David M. Gill, Judge. Affirmed.

Laura Vavakin, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa 

A. Mandel, Seth M. Friedman and Joseph C. Anagnos, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

MEMORANDUM OPINION

Marvin K. Locke appeals from the trial court’s order denying his Penal 

Code section 1172.61 petition for vacatur and resentencing on his 2002 

second degree murder conviction. We conclude the court properly denied his 

petition at the prima facie stage and affirm.

BACKGROUND2

In May 1999, 22-year-old Fred Jones threw up a Crips gang sign in the 

presence of a group of Bloods. As a result, Jones was fatally shot twice in the 

back with a .38 caliber handgun. Locke, a self-identified member of the 

Lincoln Park Bloods, admitted in a videotaped police interview that he shot 

Jones. 

In December 2002, a jury convicted Locke of second-degree murder 

(§ 187, subd. (a); count 1) and assault with a firearm (§ 245, subd. (a)(2); 

count 2).3 The jury also found true that Locke “intentionally and personally 

discharged a firearm . . . and proximately caused great bodily injury and 

death” in the commission of count 1 (§ 12022.53, subd. (d)).4 Locke was 

sentenced to a total prison term of 41 years to life. 

1 Further undesignated statutory references are to the Penal Code.

2 For context only, we provide a brief summary of the factual background 

from our unpublished opinion affirming Locke’s convictions. (People v. Locke

(Apr. 20, 2004, D042063) [nonpub. opn.] (Locke).) We do not rely on the prior 

opinion to determine if Locke made a prima facie showing.

3 Codefendant Jonathan Wayne McKinley, who was tried separately, was 

also charged with counts 1 and 2 and alleged to have been “armed with a 

firearm” in the commission of count 1 (§ 12022, subd. (a)(1)).

4 As to count 1, the jury also found true the allegations that Locke 

personally used a firearm (§§ 12022.53, subd. (b); 12022.5, subd. (a)(1)); 

intentionally and personally discharged a firearm (§ 12022.53, subd. (c)); and 
3

In his 2004 direct appeal, we affirmed the judgment of convictions, 

rejecting Locke’s contentions that his statements to the police were taken in 

violation of his Sixth Amendment right to counsel.

In July 2021, Locke filed a pro se form petition to vacate his murder 

conviction and be resentenced pursuant to former section 1170.95 (now 

section 1172.6).5 In opposition, the People provided the trial court with “the 

readily available record of conviction,” including the indictment, verdicts, two 

minute orders, the abstract of judgment, a slightly different version of Locke’s

petition,6 and this court’s prior opinion in Locke, supra, D042063. The 

People argued the verdicts, specifically the jury’s true finding that Locke 

committed the murder for the benefit of a criminal street gang (§ 186.22, 

subd. (b)(1)).

5 The form petition checked none of the boxes, including the statutory 

criteria for resentencing eligibility, and at the prima facie hearing, the People 

argued Locke’s petition was facially deficient. Locke’s appointed counsel

stated she believed a second petition “had, at some point, made its way to the 

[c]ourt” and requested the trial court treat the petition as “complete.” No 

second petition was found after a diligent search of the Superior Court file.

We nonetheless exercise our discretion to reach the merits of Locke’s appeal 

despite the facial defects of his petition because the Attorney General does 

not contend the incomplete petition forecloses Locke’s appeal. This moots 

Locke’s alternative argument his counsel provided ineffective assistance of 

counsel for not directing him to file a new, complete petition prior to the 

court’s ruling.

6 In this unfiled petition received by the People, Locke checked box 2b 

that he pled guilty to first or second degree murder in lieu of going to trial 

because he believed he could have been convicted of first or second degree 

murder at trial pursuant to the felony murder rule or the natural and 

probable consequences doctrine, and box 6 that he was convicted of second 

degree murder under the natural and probable consequences doctrine or 

under the second degree felony murder doctrine.
4

intentionally and personally used a firearm proximately causing death, 

conclusively established he was found to be the actual killer, making him 

ineligible for relief as a matter of law. 

The trial court agreed with the People that the jury verdicts and the 

indictment “alone” established Locke was the actual killer. Notably, the 

court was not provided the jury instructions given at Locke’s trial. The court

summarily denied the petition having found Locke failed to make prima facie

showing of eligibility. 

DISCUSSION

Locke contends the trial court erred. He asserts the record of 

conviction before the court, namely the jury’s true finding on the section 

12022.53, subdivision (d) allegation, did not conclusively establish he was the 

actual killer. But even if the actual killer, he asserts absent the jury 

instructions it cannot be conclusively ruled out that he was convicted under a

second degree felony-murder theory or the natural and probable 

consequences doctrine. Our review is de novo. (People v. Harden (2022) 81 

Cal.App.5th 45, 52 (Harden).)

Along with its respondent’s brief, the Attorney General filed a request

that we take judicial notice of the jury instructions and the reporter’s 

transcript of the reading of those instructions and closing arguments at 

Locke’s trial. These records are contained in this court’s appellate record

from Locke’s direct appeal in Case No. D042063. Locke opposes the request, 

asserting we should not consider the instructions for the first time on appeal. 

We grant the Attorney General’s request for judicial notice in its entirety.

Appellate courts may take judicial notice of the records of their own 

cases under Evidence Code sections 452, subdivision (d), and 459. (See e.g.,

People v. Bilbrey (2018) 25 Cal.App.5th 764, 769, fn. 7 [taking judicial notice 
5

of the appellate record in a related petition for writ of mandate in appeal 

from grant of petition for habeas corpus and motion to dismiss information on 

speedy trial grounds]; People v. McCarthy (2016) 244 Cal.App.4th 1096, 1100, 

fn. 2 [granting the People’s and defendant’s requests to take judicial notice of 

its records in prior appeal]; In re Wright (2005) 128 Cal.App.4th 663, 669 [at 

request of both parties, taking judicial notice of record from defendant’s prior 

appeal in habeas corpus proceedings].)

The jury instructions and the reporter’s transcripts from Locke’s trial 

are part of this court’s appellate record from his prior appeal. They also 

constitute part of the record of conviction that may properly be considered in 

determining whether a petitioner has made a prima facie case for section 

1172.6 relief. (See People v. Jenkins (2021) 70 Cal.App.5th 924, 935; People v. 

Soto (2020) 51 Cal.App.5th 1043, 1055 [“the trial court here could rely on the 

jury instructions, which are part of the record of conviction, in assessing the 

prima facie showings”].) And because our review is de novo, it is appropriate 

that we consider the comprehensive record of conviction before us, even if it 

was not available to the trial court. (See Jenkins, at p. 935 [appellate court 

considered charging document, verdict forms, closing arguments, and jury 

instructions, “[w]hile the trial court had only the [prior appellate] opinion 

before it,” to reverse a summary denial of a § 1172.6 petition].)

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) altered 

the substantive law of murder by significantly narrowing the felony murder 

rule. It added section 189, subdivision (e), to provide that a defendant is 

liable for felony murder only if the People prove he (1) was the actual killer; 

(2) was not the actual killer but, with the intent to kill, acted as a direct aider 

and abettor; or (3) was a major participant in the underlying felony and acted 

with reckless indifference to human life. (§ 189, subd. (e); see People v. Curiel
6

(2023) 15 Cal.5th 433, 448 (Curiel).) Senate Bill 1437 also added subdivision 

(a)(3) to section 188, imposing a new requirement that, except in cases of 

felony murder, “a principal in a crime shall act with malice aforethought” to 

be convicted of murder. (§ 188, subd. (a)(3); Curiel, at p. 449.) “Malice shall 

not be imputed to a person based solely on his or her participation in a 

crime.” (§ 188, subd. (a)(3); see Curiel, at p. 449.) This effectively eliminated 

liability for murder as an aider and abettor under the natural and probable 

consequences doctrine. (Curiel, at p. 449.)

A defendant convicted of murder under prior law can seek retroactive 

application of amended sections 188 and 189 by filing a petition pursuant to 

section 1172.6. Section 1172.6, subdivision (a), provides: “A person convicted 

of felony murder or murder under the natural and probable consequences 

doctrine or other theory under which malice is imputed to a person based 

solely on that person’s participation in a crime, . . . may file a petition with 

the [sentencing] court . . . to have the petitioner’s murder . . . conviction 

vacated and to be resentenced on any remaining counts[.]” The petition must 

contain a declaration that all requirements for eligibility are met.7 

Upon receiving a petition that contains all the required information, 

the trial court must appoint counsel to represent the petitioner if one is 

7 The requirements are (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 or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime . . . .”; (2) “The 

petitioner was convicted of murder . . . following a trial or accepted a plea 

offer in lieu of a trial at which the petitioner could have been convicted of 

murder . . . .”; and (3) “The petitioner could not presently be convicted of 

murder . . . because of changes to Section 188 or 189 made effective January 

1, 2019.” (§ 1172.6, subd. (a)(1)−(3).) 
7

requested. (§ 1172.6, subd. (b)(3); People v. Lewis (2021) 11 Cal.5th 952, 963

(Lewis).) If, after the parties have had an opportunity to submit briefings, 

the court determines the petitioner has made a prima facie case for relief 

(§ 1172.6, subd. (c)), it must issue an order to show cause and conduct an 

evidentiary hearing (§ 1172.6, subds. (c) & (d)(1)). 

Although this prima facie inquiry is “limited” and the trial court takes 

the petitioner’s factual allegations as true and refrains from factfinding 

involving the weighing of evidence or the exercise of discretion, “the trial 

court may look at the record of conviction” to “distinguish petitions with 

potential merit from those that are clearly meritless.” (Lewis, supra, 11 

Cal.5th at pp. 971, 972.) “ ‘If the petition and record in the case establish 

conclusively that the [petitioner] is ineligible for relief, the trial court may 

dismiss the petition’ ” at the prima facie stage. (Curiel, supra, 15 Cal.5th at 

p. 450, italics added.) For example, if a review of the court file shows the 

petitioner was convicted of murder without instruction or argument based on 

the felony murder rule or the natural and probable consequences doctrine or 

any theory of imputed malice, it would be entirely appropriate to summarily 

deny the petition based on the petitioner’s failure to establish a prima facie 

basis of eligibility for resentencing. That is the case here.

Locke’s jury was not instructed on the felony murder rule, the natural 

and probable consequences doctrine, or any other theory of imputed malice. 

The trial court instructed the jury that murder is the unlawful killing of a

human being with malice aforethought (CALJIC 8.10) and that malice 

aforethought may be either express (a manifest intent to kill) or implied (a 

conscious disregard for human life) (CALJIC 8.11). It instructed the jury that 

first degree murder required deliberation and premeditation, a theory 
8

rejected by the jury. It instructed the jury on two theories of second degree 

murder: express malice murder and implied malice murder. 

In closing arguments, the prosecutor argued Locke “deci[ded] to shoot 

and kill,” then fatally “shot him [twice] in the back” on a street corner. 

Consistent with the jury instructions, the prosecutor argued that if the jury 

found insufficient evidence of deliberation and premeditation to support a 

first degree murder conviction, it should convict Locke of second degree 

murder based on his own intent to kill or his own conscious disregard for 

human life. 

Consequently, the jury’s verdict convicting Locke of second degree 

murder was based only on a theory Locke acted with malice aforethought, 

whether express or implied. (§ 188, subd. (a)(3); see People v. Schell (2022) 84 

Cal.App.5th 437, 442 [second degree implied malice murder remains valid 

notwithstanding Senate Bill 1437].) He is thus ineligible for resentencing as 

a matter of law because section 1172.6 “applies only where the murder 

conviction is based on felony murder, or the natural and probable 

consequences doctrine, or any other theory under which malice is imputed 

based on a person’s participation in a crime.” (Harden, supra, 81 Cal.App.5th 

at p. 53.) On this basis alone, we affirm the trial court’s denial of the 

petition.8 (Id. at p. 60, fn. 13 [“ ‘ “ ‘If the ruling was correct on any ground, 

we affirm.’ ” ’ ”].) 

8 In light of our determination, we do not need to reach the trial court’s 

additional finding that Locke, as the actual killer, was convicted under a still 

valid theory of murder.
9

DISPOSITION

The trial court’s December 5, 2023 order denying Locke’s petition for 

resentencing pursuant to section 1172.6 is affirmed.

DO, Acting P. J.

WE CONCUR:

BUCHANAN, J.

RUBIN, J.