P. v. Jackson

Filed 7/24/20 P. v. Jackson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTHUR DUANE JACKSON,
Defendant and Appellant.
B296340
(Los Angeles County
Super. Ct. No. NA020015)
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Laura L. Laesecke, Judge. Affirmed.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Jason Tran
and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff
and Respondent.
______________________________

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Arthur Duane Jackson appeals from a postjudgment order
summarily denying his petition for resentencing under Penal
Code section 1170.95,1 contending the superior court erred in
ruling section 1170.95 did not apply to attempted murder and
denying his petition without first appointing counsel and
conducting a hearing at which the parties could present evidence.
We previously rejected Jackson’s first argument in People v.
Lopez (2019) 38 Cal.App.5th 1087, review granted November 13,
2019, S258175 (Lopez),2 and his second argument in People v.
Verdugo (2020) 44 Cal.App.5th 320, review granted March 18,
2020, S260493 (Verdugo).3 Because Jackson has advanced no
1 Statutory references are to this code.
2 The Supreme Court in Lopez, supra, S258175 limited
review to the following issues: “(1) Does Senate Bill No. 1437
(Stats. 2018, ch. 1015) apply to attempted murder liability under
the natural and probable consequences doctrine? (2) In order to
convict an aider and abettor of attempted willful, deliberate and
premeditated murder under the natural and probable
consequences doctrine, must a premeditated attempt to murder
have been a natural and probable consequence of the target
offense? In other words, should People v. Favor (2012) 54 Cal.4th
868 be reconsidered in light of Alleyne v. United States (2013) 570
U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?”
3 The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
The Court limited briefing and argument in People v. Lewis to the
following issues: in which the issues to be briefed and argued are
limited to “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section

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persuasive reason for us to reconsider our decision in either case,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jackson was convicted following a jury trial in December
1994 of attempted premeditated murder and carjacking with a
true finding that he had used a gun when committing the
carjacking. The court sentenced Jackson to an indeterminate life
term in state prison.
In January 2019 Jackson petitioned for resentencing
pursuant to section 1170.95 and requested the court appoint
counsel for him during the resentencing process. In his petition
Jackson declared under penalty of perjury, “At trial, I was
convicted of 1st or 2nd degree attempted murder pursuant to the
felony [murder] rule or the natural and probable consequences
doctrine.” The court summarily denied the petition on
February 6, 2019, ruling, “[S]ection 1170.95 applies to murder,
not attempted murder. Therefore, Petitioner does not qualify for
resentencing.” In its minute order the court noted Jackson was
not present in court and was not represented by counsel.
Jackson filed a timely notice of appeal.
DISCUSSION
1. Senate Bill No. 1437 and the Right To Petition To Vacate
Certain Prior Convictions for Murder
Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (SB 1437), effective January 1, 2019, amended the
felony murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder through
1170.95? (2) When does the right to appointed counsel arise
under Penal Code section 1170.95, subdivision (c)?”

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amendments to sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.”4
New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that the
individual is liable for murder “only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The person
was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first
degree. [¶] (3) The person 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.”
SB 1437 also permits, through new section 1170.95, an
individual convicted of felony murder or murder under a natural
and probable consequences theory to petition the sentencing
court to vacate the conviction and be resentenced on any
4 Prior to enactment of SB 1437, section 188, subdivision (a),
provided, “Such malice may be express or implied. [¶] (1) It is
express when there is manifested a deliberate intention to
unlawfully take away the life of a fellow creature. [¶] (2) It is
implied when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and
malignant heart.”

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remaining counts if he or she could not have been convicted of
murder because of SB 1437’s changes to the definition of the
crime. Section 1170.95, subdivision (c), requires the sentencing
court to review the petition; determine if it makes a prima facie
showing the petitioner falls within the provisions of section
1170.95; and, if the petitioner has requested counsel, to appoint
counsel to represent the petitioner. After counsel has been
appointed, the prosecutor is to file and serve a response to the
petition; and the petitioner may file a reply. If at this point the
court finds the petitioner has made a prima facie showing he or
she is entitled to relief, the court must issue an order to show
cause (§ 1170.95, subd. (c)) and conduct a hearing to determine
whether to vacate the murder conviction and resentence the
petitioner on any remaining counts (§ 1170.95, subd. (d)(1)).5
2. The Superior Court Properly Concluded Jackson Is
Ineligible as a Matter of Law for Any Relief Under
Section 1170.95
a. Jackson’s statutory arguments
In Lopez, supra, 38 Cal.App.5th at page 1104 we held
SB 1437 does not modify the law of attempted murder, explaining
there was nothing ambiguous in the language of the legislation,
which, in addition to omitting any reference to attempted
murder, specifically identifies its purpose as the need “to amend
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
5 Once an evidentiary hearing has been ordered, the People
may present new and additional evidence to demonstrate the
petitioner is not entitled to resentencing. The petitioner also may
present new or additional evidence in support of the resentencing
request. (§ 1170.95, subd. (d)(3).)

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killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
We added that the Legislature’s obvious intent to exclude crimes
other than murder “is underscored by the language of new
section 1170.95, the provision it added to the Penal Code to
permit individuals convicted before Senate Bill 1437’s effective
date to seek the benefits of the new law from the sentencing
court. Section 1170.95, subdivision (a), authorizes only those
individuals ‘convicted of felony murder or murder under a
natural and probable consequences theory’ to petition for relief;
and the petition must be directed to ‘the petitioner’s murder
conviction.’ Similarly, section 1170.95, subdivision (d)(1),
authorizes the court to hold a hearing to determine whether to
vacate ‘the murder conviction.’” (Lopez, at pp. 1104-1105.)
We recognize our colleagues in the Fifth District, in People
v. Larios (2019) 42 Cal.App.5th 956, review granted February 26,
2020, S259983, and People v. Medrano (2019) 42 Cal.App.5th
1001, review granted March 11, 2020, S259948, came to a
contrary conclusion, holding SB 1437 applied not only to murder
but also to attempted murder under the natural and probable
consequences theory of liability. (Larios, at pp. 966-967;
Medrano, at p. 1015.) The Medrano court reasoned, “When the
Legislature amended section 188 to state ‘[m]alice shall not be
imputed to a person based solely on his or her participation in a
crime’ [citation], it made no exceptions for attempted murder,
which indisputably requires express malice. [Citation.] By
failing to exclude attempted murder from the ambit
of section 188, the Legislature must have intended for its

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provisions to apply to all crimes requiring express malice.”
(Medrano, at pp. 1014-1015.)6
We certainly understand how the courts in Larios and
Medrano arrived at their conclusion. Generally, to be guilty of an
attempt to commit a crime, the defendant must have specifically
intended to commit all the elements of that offense; and an
accomplice must have shared the actual perpetrator’s intent. But
that is an accurate statement of the law only as to direct aider-
and-abettor liability, not aider-and-abettor liability for a
nontarget offense under the natural and probable consequences
doctrine. (People v. McCoy (2001) 25 Cal.4th 1111, 1118 [“when
the charged offense and the intended offense—murder or
attempted murder—are the same, . . . the aider and abettor must
know and share the murderous intent of the actual perpetrator”];
see People v. Chiu (2014) 59 Cal.4th 155, 158 [“There are two
distinct forms of culpability for aiders and abettors. ‘First, an
aider and abettor with the necessary mental state is guilty of the
intended crime. Second, under the natural and probable
consequences doctrine, an aider and abettor is guilty not only of
the intended crime, but also “for any other offense that was a
‘natural and probable consequence’ of the crime aided and
abetted”’”].)
6 Although holding SB 1437 prospectively eliminated the
crime of attempted murder based on the natural and probable
consequences doctrine, the court in People v. Larios, supra,
42 Cal.App.5th 956 and People v. Medrano, supra, 42 Cal.App.5th
1001, relying on the actual language used by the Legislature,
held the relief provided by section 1170.95 was limited to
convictions for murder. (See Larios, at p. 970; Medrano, at
pp. 1017-1018.)

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As the Supreme Court explained in People v. Chiu, supra,
59 Cal.4th 155, murder charged under the natural and probable
consequences doctrine is based on a theory of vicarious liability,
not actual or imputed malice: “Aider and abettor culpability
under the natural and probable consequences doctrine is
vicarious in nature. [Citations.] ‘By its very nature, aider and
abettor culpability under the natural and probable consequences
doctrine is not premised upon the intention of the aider and
abettor to commit the nontarget offense because the nontarget
offense was not intended at all. It imposes vicarious liability for
any offense committed by the direct perpetrator that is a natural
and probable consequence of the target offense. [Citation.]
Because the nontarget offense is unintended, the mens rea of the
aider and abettor with respect to that offense is irrelevant and
culpability is imposed simply because a reasonable person could
have foreseen the commission of the nontarget crime.’” (Chiu, at
p. 164.)
SB 1437’s amendments to section 188, as Larios and
Medrano recognized, significantly modified the law of murder:
Evidence of express malice is now necessary to convict any
defendant of murder except under the felony-murder rule as
stated in section 189, effectively eliminating the natural and
probable consequences doctrine as a basis for murder liability.
But the Legislature made no comparable change with respect to
attempted murder. Express malice still need not be proved to
convict a defendant of attempted murder charged as the natural
and probable consequence of a target crime. In short, SB 1437’s
legislative prohibition of vicarious liability for murder does not,
either expressly or impliedly, require elimination of vicarious
liability for attempted murder. (See Lopez, supra, 38 Cal.App.5th

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at p. 1106; People v. Munoz (2019) 39 Cal.App.5th 738, review
granted Nov. 26, 2019, S258234.)7
b. Jackson’s constitutional argument
As part of our analysis in Lopez, we expressly considered,
and then rejected, the argument made by Jackson that the
Legislature’s decision to limit the reform of aider and abettor
liability under the natural and probable consequences doctrine to
instances where the nontarget offense is murder violates equal
protection. We first held individuals convicted of murder and
those convicted of attempted murder (or other nontarget offenses)
under the natural and probable consequences doctrine are not
similarly situated. (Lopez, supra, 38 Cal.App.5th at pp. 1107-
1108.) Even if they were, we continued, the limitation of SB 1437
to individuals convicted of murder under the natural and
probable consequences doctrine is subject to rational basis review
(Lopez, at p. 1110), and constitutionally adequate, plausible
reasons exist for the Legislature’s decision (id. at p. 1111).
Nothing in Jackson’s briefing indicates the constitutional
analysis in Lopez should be revisited.
7 The court in Larios and Medrano responded to this aspect
of our analysis in Lopez, supra, 38 Cal.App.5th at page 1106 by
noting Black’s Law Dictionary’s definition of “impute” states the
word “‘“is sometimes used to attribute vicariously,—to ascribe as
derived from another.”’” (People v. Larios, supra, 42 Cal.App.5th
at p. 967, fn. 2; People v. Medrano, supra, 42 Cal.App.5th at p.
1014, fn. 5.) Fair enough. But as the Supreme Court
unequivocally states in People v. Chiu, supra, 59 Cal.4th at page
164, it is liability that is imposed vicariously under the natural
and probable consequences doctrine—“imputed,” if you will—not
the actual perpetrator’s mens rea.

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3. Jackson Was Not Entitled To Appointment of Counsel or
an Evidentiary Hearing
In Verdugo, supra, 44 Cal.App.5th 320 this court held, after
receiving a facially sufficient petition but before appointing
counsel for the petitioner, the superior court may examine the
readily available portions of the record of conviction, including
any appellate opinion affirming the conviction, to determine
whether the petitioner has made a prima facie showing that he or
she could not be convicted of first or second degree murder
following the changes made to sections 188 and 189 and thus falls
within the provisions of section 1170.95. (Verdugo, at pp. 329-
330, 332.) If the petitioner’s ineligibility for resentencing is
established as a matter of law by the petition itself and the record
of conviction, the petition may be summarily denied. If not, the
court must direct the prosecutor to file a response to the petition;
permit the petitioner (through appointed counsel, if requested) to
file a reply; and then determine, with the benefit of the parties’
briefing and analysis, whether the petitioner has made a
prima facie showing he or she is entitled to relief requiring
issuance of an order to show cause and an evidentiary hearing.
(Id. at p. 330.)
Here, as discussed, Jackson’s petition described his
commitment offense as attempted murder. Accordingly, his
ineligibility for resentencing under section 1170.95 was
established as a matter of law. The court did not err in
summarily denying the petition.

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DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.

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