P. v. Duke

Filed 9/28/20; THE SUPREME COURT OF CALIFORNIA HAS GRANTED REVIEW
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN DAVEILO DUKE,
Defendant and Appellant.
B300430
(Los Angeles County
Super. Ct. No. MA057733)
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa M. Chung, Judge. Affirmed.
Spolin Law, Aaron Spolin and Caitlin Dukes for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Idan Ivri and Nancy Lii Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

-- 1 of 15 --

2
Defendant and appellant Jonathan Daveilo Duke
challenges the trial court’s denial of his petition under Penal
Code1 section 1170.95 for resentencing on his murder conviction.
A jury convicted Duke of murder in 2013 for his involvement in
an incident in which a cohort stabbed the victim, Victor Enriquez,
to death. The trial court denied the petition after finding beyond
a reasonable doubt that Duke could still be convicted of murder
and was thus ineligible for resentencing under section 1170.95.
Duke contends that the trial court erred by treating the case
as if it involved felony murder, when it instead involves the
application of the natural and probable consequences doctrine.
We agree that the case does not involve felony murder, but
we nevertheless affirm because the court correctly concluded
that Duke could still be convicted of murder under the law as
amended.
FACTS AND PROCEEDINGS BELOW
In a prior opinion in Duke’s direct appeal (People v. Duke
(Jan. 17, 2017, B264579) [nonpub. opn.] (Duke I)), we described
the facts of the case as follows:
“Evidence indicated that virtually all those involved in
the case—the victim, the perpetrators, and the most important
witnesses—were members of, or associated with, various street
gangs. According to a [Los Angeles County] [S]heriff ’s deputy
who testified as an expert witness, members of many different
gangs reside in close proximity to one another in Palmdale.
Gang members typically arrive in Palmdale when their families
relocate from other areas of Los Angeles County. Because most
1 Subsequent statutory references are to the Penal Code.

-- 2 of 15 --

3
gang members are transplants from other areas, gangs in
Palmdale generally have less clearly defined territories than
elsewhere.
“Enriquez, the victim in this case, and Duke were both
members of the Rollin’ 60’s, a gang associated with the Crips.
Crowder, Duke’s codefendant who played the lead role in the
stabbing, was a member of the Fruit Town Piru gang, which is
associated with the Blood Nation. Terrence Dorsey, Enriquez’s
friend who testified against Duke, was affiliated with the Kitchen
Crips gang but he testified that he had not been active in the
gang for many years. Three other key witnesses, Anthony
Palmer, Deon Tatum, and Kenneth Thomas, were all members
of Dime Block, a small gang that started in the area near where
the murder took place. In other areas of Los Angeles County,
members of these different gangs might be enemies, but because
of the lack of well-defined gang territories in Palmdale, members
of the gangs in the Palmdale area often associate with and ally
with one another.
“Palmer testified that, although they were both members
of the same gang, Duke and Enriquez had disliked one another
since at least June 2012, when they got into a fistfight after
Enriquez told people that Duke was not a true member of the
Rollin’ 60’s because he had not been jumped into the gang.
“According to Palmer, in the months prior to the [stabbing],
rumors spread among gang members in the area that Enriquez
was a snitch, and that when police had discovered a gun
that might have belonged to him, he blamed his own brother,
another member of the Rollin’ 60’s. Palmer heard that Enriquez
might have provided the police with information that led to
Palmer’s conviction for felony theft. Detective Richard O’Neal,

-- 3 of 15 --

4
a sheriff ’s deputy assigned to the gang detail, confirmed these
rumors, testifying that Enriquez had been a police informant for
a couple of months, and that his information led to the arrest of
a drug dealer named Kevin Hart on the same day that Enriquez
was later murdered.
“The prosecution presented four accounts from witnesses
who either testified or told police that they witnessed the
stabbing or the events immediately before and afterward. Two of
these witnesses, Palmer and Dorsey, testified at trial. The other
two, Tatum and Thomas, testified that they did not know or could
not remember anything about the murder, but the court admitted
their prior statements made to the police in which they described
what happened immediately before and after the stabbing.
“Palmer testified that, on the night of the stabbing,
Duke, Crowder, and several other gang members congregated
outside Duke’s home, which was located across the street from
the apartment complex where Enriquez was located. Upon
seeing Enriquez inside the gate of the apartment complex, the
group talked about retaliating against him for his snitching.
Crowder and Duke said they ‘got to do something to’ Enriquez.
Duke encouraged Palmer to shoot Enriquez in retaliation for
Enriquez’s role in securing Palmer’s conviction for felony theft.
According to Palmer, Duke offered to obtain a gun for Palmer
to use, but Palmer said they should wait until later, when fewer
people were around.
“Palmer left the group but returned approximately
30 minutes later. When he returned, he saw Duke and Crowder
walking across the street toward the security gate of the
apartment complex where Enriquez and Dorsey were located.
He saw Crowder punch Enriquez, and Duke joined in, hitting

-- 4 of 15 --

5
Enriquez once or twice. Enriquez tried to run away, but Crowder
pursued Enriquez and fell on top of him. At this point, Palmer
saw that Crowder had a knife in his hand. Duke did not
help Crowder chase down Enriquez, but stayed at the gate.
Afterward, Duke and Crowder walked back across the street,
and Palmer and the others ran away.
“Tatum, another member of the Dime Block gang and an
associate of Palmer, testified that he did not see the stabbing and
said he could remember nothing in relation to it. The prosecution
played a recording of Tatum’s police interview made shortly after
Enriquez was killed in which Tatum described events shortly
before and after the stabbing consistent in most respects with
Palmer’s testimony and adding details of events that occurred
when Palmer was not present. Tatum told police that while the
group was congregated outside Duke’s house, he saw Duke and
Crowder get ‘big ass knives’ and start jumping around and
displaying them. According to Tatum, Crowder’s knife looked
like ‘brass knuckles,’ while Duke’s was a large kitchen knife.
Tatum saw the two holding the knives as they walked across the
street toward the gate to the apartment complex where Enriquez
was located. Tatum then left the scene, explaining that he did
not believe anything would happen and that he did not want to
witness a stabbing. Tatum identified Duke and Crowder from a
photo array as the people he saw holding the knives.
“Dorsey was a member of the same gang as Duke and
Enriquez, the Rollin’ 60’s, a gang affiliated with the Crips.
Dorsey testified that he and Enriquez spent the evening in an
outdoor area of the apartment complex smoking marijuana. He
saw Duke and Crowder approaching the security gate together.
Enriquez asked Duke and Crowder if they wanted to enter, and

-- 5 of 15 --

6
held the door open for them. According to Dorsey, Crowder
pulled Enriquez toward him and stabbed him. Dorsey then ran
away.
“Kenneth Thomas, a member of a local unaffiliated gang,
and one of the group that gathered near Enriquez’s building,
testified that he had never seen Duke before, and that the police
were trying to get him to lie about witnessing the stabbing.
Detective Brandt House, a deputy [sheriff], testified that he
interviewed Thomas a few days after the stabbing, and that
on that occasion, Thomas told him that he saw the stabbing.
According to Detective House, Thomas told him that he saw
Enriquez on the ground with two men standing over him. One of
the men was bent over and appeared to be striking Enriquez with
a knife. Thomas said that the other attacker was ‘posted up,’
standing at the ready to assist the primary attacker. Thomas
told Detective House that he believed the second attacker also
had a knife, and that he had struck Enriquez. Thomas also
remembered Dorsey being present with Enriquez, but said that
Dorsey was not one of the attackers. The primary attacker then
got into a car. Thomas refused to identify the attackers from a
photographic line-up.
“A prosecution medical expert who performed an autopsy
on Enriquez testified that Enriquez had been stabbed 15 times,
and that more than half of the stab wounds could have been fatal.
“Deputies arrested Crowder two days later, on October 19.
They discovered Crowder had a cut and a scrape on his right
knee, which was consistent with an injury he might have suffered
when, according to Palmer’s testimony, Crowder tripped and fell
over Enriquez during the attack. Deputies searched Crowder’s
home and found a shoe with dried blood on it. Lab tests revealed

-- 6 of 15 --

7
the blood contained DNA from Enriquez, as well as from an
unknown person, but not from Crowder or Duke. Acting on
information from an anonymous caller, deputies discovered two
knives in an abandoned mattress near the stabbing location. One
of the knives had finger holes and appeared to have blood on it.
Lab tests showed that the blood contained Enriquez’s DNA and
DNA from an unknown party. The other knife was a serrated
kitchen knife that did not appear to have blood on it. According
to the prosecution’s medical expert, the knife with finger holes
could have caused all of Enriquez’s wounds, and the kitchen knife
would not have caused wounds like those Enriquez suffered.”
(Duke I, supra, B264579.)
A jury convicted Duke of first degree murder (§ 187) and
found true an allegation that Duke committed the offense for the
benefit of a criminal street gang (§ 186.22, subd. (b)). The trial
court sentenced Duke to 25 years to life in prison. In a prior
opinion (Duke I, supra, B264579), we conditionally reversed the
conviction because we could not rule out the possibility that the
jury relied on the natural and probable consequences doctrine to
convict Duke, and in People v. Chiu (2014) 59 Cal.4th 155 (Chiu),
decided after Duke’s trial, our Supreme Court held that the
natural and probable consequences doctrine cannot support a
conviction for first degree murder. Under Chiu, the natural and
probable consequences doctrine could still support a conviction
for second degree murder. (Id. at p. 166.) Consequently, we
offered the prosecution the option either to accept a reduction in
Duke’s sentence to second degree murder, or to retry him for first
degree murder. The prosecution chose the former option, and
the trial court sentenced Duke to 15 years to life in prison. Duke
filed a new appeal to challenge the court’s calculation of his credit

-- 7 of 15 --

8
for time served. The trial court corrected the calculation, and we
affirmed. (People v. Duke (May 1, 2018, B283598) [nonpub. opn.]
(Duke II).)
In 2018, after Duke’s second appeal, the Legislature
enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill No. 1437), which abolished the natural and probable
consequences doctrine in cases of murder, and limited the
application of the felony murder doctrine. The legislation
also enacted section 1170.95, which established a procedure for
vacating murder convictions for defendants who could no longer
be convicted of murder because of the changes in the law and
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
Duke filed a petition for resentencing on January 2, 2019.
The trial court appointed counsel to represent Duke, obtained
briefing from both sides, and found that Duke had made a prima
facie case that he was entitled to relief. After a final eligibility
hearing (see § 1170.95, subd. (d)(3)), the trial court denied the
petition.
DISCUSSION
Duke contends that the trial court erred by analyzing
his case as if he had been convicted on a felony-murder theory,
when that was not the case, and that the court therefore erred
by denying his petition. We agree with Duke that the court
incorrectly considered the case as if it involved felony murder,
but we nevertheless affirm because the court’s finding regarding
Duke’s involvement in the murder was both supported by
the evidence and sufficient to justify denying his petition.

-- 8 of 15 --

9
A. Background on Senate Bill No. 1437
The natural and probable consequences doctrine provides
that “ ‘[a] person who knowingly aids and abets criminal conduct
is guilty of not only the intended crime [target offense] but also
of any other crime the perpetrator actually commits [nontarget
offense] that is a natural and probable consequence of the
intended crime. . . .’ [Citation.]” (People v. Medina (2009) 46
Cal.4th 913, 920.) The doctrine “imposes vicarious liability for
any offense committed by the direct perpetrator that is a natural
and probable consequence of the target offense. . . .’ [Citation.]”
(Chiu, supra, 59 Cal.4th at p. 164). Prior to the enactment
of Senate Bill No. 1437, an aider and abettor to a crime that
resulted in a death could be convicted of murder even if he did
not intend or participate in the killing. Senate Bill No. 1437
amended section 188 to provide that, in order to be guilty of
murder, a principal must “act with malice aforethought,” and
that “[m]alice shall not be imputed to a person based solely
on his or her participation in a crime.” (Stats. 2018, ch. 1015,
§ 2, p. 6675; In re R.G. (2019) 35 Cal.App.5th 141, 144.) In this
way, the law eliminated the natural and probable consequences
doctrine in cases of murder. (People v. Verdugo (2020) 44
Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493
(Verdugo); People v. Lewis (2020) 43 Cal.App.5th 1128, 1134,
review granted Mar. 18, 2020, S260598 (Lewis).)
The sole exception to the malice requirement is in cases of
felony murder. (See § 188, subd. (a)(3).) In such cases, the law
added a new requirement that a participant in an enumerated
felony “in which a death occurs 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

-- 9 of 15 --

10
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.” (§ 189, subd. (e)(1)–(3).)
Senate Bill No. 1437 also enacted section 1170.95 to
allow previously convicted defendants an opportunity to petition
for resentencing. The statute requires a defendant to submit
a petition affirming that he meets three criteria of eligibility:
(1) He was charged with murder in a manner “that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine”
(§ 1170.95, subd. (a)(1)); (2) He “was convicted of ” or pleaded
guilty to “first degree or second degree murder” (§ 1170.95,
subd. (a)(2)); and (3) He “could not be convicted of first or
second degree murder because of changes to Section 188 or
189 made effective” as a part of Senate Bill No. 1437 (§ 1170.95,
subd. (a)(3)).
Upon receipt of a facially sufficient petition, the trial
court reviews it to determine whether the petitioner has made a
prima facie case for relief. (§ 1170.95, subd. (c).) If the petitioner
meets this requirement, the court issues an order to show cause
and holds a hearing to determine whether to vacate the murder
conviction. (§ 1170.95, subd. (d)(1).) At this final stage of
the proceeding, the prosecution bears the burden of proving
“beyond a reasonable doubt[ ] that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).)

-- 10 of 15 --

11
B. The Trial Court Erred by Analyzing This Case
Under the Requirements for Felony Murder, but
the Error Was Harmless
In this case, the only felony count alleged against Duke
was murder, and we have seen nothing in the record to indicate
that the prosecution ever alleged that Duke was guilty of felony
murder. Instead, as we explained in Duke I, the prosecution
argued that Duke was guilty of murder under two theories:
direct aiding and abetting, and as a natural and probable
consequence of his participation in assaulting Enriquez. (Duke I,
supra, B264579.) The trial court instructed the jury on both
theories, and we could not determine with certainty which theory
the jury relied on when finding Duke guilty. (Ibid.)
In adjudicating Duke’s section 1170.95 petition, the trial
court nevertheless treated the case as if Duke had been convicted
of felony murder, and attempted to determine whether Duke fell
within one of the three categories of felony-murder liability under
the newly amended section 189, subdivision (e).2 The court found
2 The trial court found that Senate Bill No. 1437 did not
eliminate the natural and probable consequences doctrine in
cases of murder. As a result, the court did not consider the
issue of whether Duke was guilty as a direct aider and abettor
or whether he was guilty only under the natural and probable
consequences doctrine. In reaching the conclusion that the
natural and probable consequences doctrine remained a viable
basis for a murder conviction, the trial court relied on the
Fourth Appellate District opinion in People v. Gentile, which was
published at the time but subsequently ordered not published
when the Supreme Court granted review. (See People v. Gentile
(May 30, 2019, E069088), review granted and opn. ordered
nonpub. Sept. 11, 2019, S256698; argument limited to specified

-- 11 of 15 --

12
that Duke was not the actual killer (see § 189, subd. (e)(1)),
but the court found “beyond a reasonable doubt that there
was sufficient evidence presented to show” that Duke met the
two remaining requirements for felony-murder liability under
the new law. Thus, the court found that Duke, acting “with
intent to kill, aided or abetted or assisted the actual killer in the
commission of the offense,” and that “he was a major participant
in the underlying felony and acted with reckless indifference to
human life.”
The court erred by treating the case as one involving felony
murder rather than the application of the natural and probable
consequences doctrine, but this error did not prejudice Duke.
In finding that there was sufficient evidence to show that Duke
acted with the intent to kill, the court found that Duke acted
with express malice. (See § 188, subd. (a)(1); accord, People v.
Beltran (2013) 56 Cal.4th 935, 941–942.) He therefore could still
be convicted of murder under the current section 188.
Duke argues that the trial court’s decision is
inconsistent with our prior opinion in Duke I, in which we
issues, Supreme Ct. Minutes, Oct. 30, 2019, p. 1546; pending
argument and decision.) Every published case that has
considered the issue has concluded, as we have above, that
Senate Bill No. 1437 did indeed eliminate the natural and
probable consequences doctrine issue in cases of murder. (See,
e.g., People v. Lopez (2019) 38 Cal.App.5th 1087, 1102–1103,
review granted Nov. 13, 2019, S258175; Verdugo, supra, 44
Cal.App.5th at p. 323, review granted Mar. 18, 2020, S260493;
Lewis, supra, 43 Cal.App.5th at p. 1134, review granted Mar. 18,
2020, S260598.) As we explain, however, the court’s error was
harmless.

-- 12 of 15 --

13
stated that “the evidence did not unequivocally show that
Duke intended for Enriquez to die.” (Duke I, supra, B264579.)
This misunderstands the difference in the standard of review
between Duke I and this case. In Duke I, after we held that
the trial court erred by instructing the jury on the natural and
probable consequences as a basis for first degree murder, we
had to determine whether the error was prejudicial. We were
required to reverse Duke’s conviction “unless we conclude[d]
beyond a reasonable doubt that the jury based its verdict on the
legally valid theory that defendant directly aided and abetted the
premeditated murder.” (Chiu, supra, 59 Cal.4th at p. 167, italics
added.) By holding that the error was not harmless under
this exacting standard, we held only that a rational jury could
have convicted Duke on the basis of the natural and probable
consequences doctrine. Our holding on this point does not
suggest what theory the jury actually relied on, nor whether
there was sufficient evidence to support any other theory.
In deciding a petition at the final stage of review under
section 1170.95, the trial court applies a very different standard.
The prosecution bears the burden “to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).) The primary requirement3 for eligibility
3 Section 1170.95, subdivision (a) contains two other
eligibility criteria: “(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

-- 13 of 15 --

14
for resentencing under section 1170.95 is that “[t]he 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)(3).) To carry its burden, the prosecution
must therefore prove beyond a reasonable doubt that the
defendant could still have been convicted of murder under
the new law—in other words, that a reasonable jury could find
the defendant guilty of murder with the requisite mental state
for that degree of murder. This is essentially identical to the
standard of substantial evidence, in which the reviewing court
asks “ ‘whether, on the entire record, a rational trier of fact could
find the defendant guilty beyond a reasonable doubt. . . . [¶] . . .’
[Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In rendering its decision, the trial court applied this
standard, finding “beyond a reasonable doubt that there was
sufficient evidence presented to show” that Duke acted with
the intent to kill. Under any standard of review, that decision
was correct. Duke was a gang member and viewed Enriquez as
a snitch, giving him a motive to kill Enriquez. Palmer testified
that Duke urged him to kill Enriquez and offered to provide a
gun. Tatum told police that he saw Duke and Crowder carrying
large knives as they went to confront Enriquez. Thomas told
police that Duke stood nearby while Crowder stabbed Enriquez,
not merely acting as lookout but ready to assist if Crowder
needed help. And Duke did nothing to attempt to restrain
murder.” These requirements can be determined simply by
examining the charging document and the record of the
defendant’s conviction. In this case, no one denies that Duke
meets both requirements. (§ 1170.95, subd. (a)(1) & (2).)

-- 14 of 15 --

15
Crowder even as he stabbed Enriquez 15 times. A reasonable
jury could conclude beyond a reasonable doubt on the basis of this
evidence that Duke acted with express malice, directly aiding and
abetting the murder. Thus, although the trial court erred
by examining the case as if it involved felony murder, it correctly
denied Duke’s petition for resentencing.
DISPOSITION
The trial court’s order is affirmed.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
SINANIAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

-- 15 of 15 --