P. v. Demery

Filed 2/17/21 P. v. Demery 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SIMONA DENISE DEMERY,
Defendant and Appellant.
B304487
Los Angeles County
Super. Ct. Nos.
KA048444-01,
KA049139-01
APPEAL from an order of the Superior Court of
Los Angeles County, Steven D. Blades, Judge. Affirmed.
Richard D. Miggins, 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,
Assistant Attorney General, Daniel C. Chang and David
W. Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________

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Simona Denise Demery appeals from the superior court’s
order denying her petition under Penal Code section 1170.95.1
That statute allows certain defendants convicted of murder under
a natural and probable consequences theory to petition the court
to vacate their convictions and for resentencing. Here, the court
properly determined Demery was not tried for or convicted of
murder under the natural and probable consequences doctrine
and, accordingly, she is not eligible for resentencing. We affirm.
FACTS AND PROCEDURAL BACKGROUND
In 2000 the People charged Demery and her co-defendant
Jefferey Jones with assault on a child causing death, murder,
conspiracy to commit assault on a child resulting in death, and
other crimes arising from the death of Demery’s three-year-old
daughter Alicia V. As the facts of Demery’s crimes are irrelevant
to our analysis, we summarize them only briefly.
Demery and her boyfriend Jones were living in an
abandoned storefront in Pomona with Demery’s twin daughters,
Alicia and Ebony, age three. On May 7, 2000, Demery reported
to police that Alicia had disappeared from a park. In the weeks
leading up to May 7, witnesses had seen “very noticeable marks
and bruises” on the girls. Demery’s mother told authorities
Demery had “beat[en]” and “[a]busively hit” the children. A
pediatric examination of Ebony five days after Alicia disappeared
revealed “pattern marks” of “bruises and scars,” “indicating
she had been hit with an object such as a clothes hanger or
an electrical cord.” Ebony had lost weight and “appeared
to be ill without any obvious medical cause.” (People v. Demery
(Nov. 8, 2002, B152859) [nonpub. opn.] (Demery I).)
1 References to statutes are to the Penal Code.

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Demery told police Jones had hit Alicia with a belt in
the week before her death. Demery said she had spanked Alicia
with a belt about two weeks earlier, and Alicia had “hit her head
on the wall and apparently passed out.” Demery claimed that
on the morning of May 6, Jones woke her up and told her Alicia
was dead. Demery and Jones then buried Alicia’s body in
“an empty field that was littered with trash and discarded
appliances.” Alicia’s body was never found. (Demery I.)
The People charged Demery and Jones with murder
(count 1), assault on a child under eight causing death (count 2),
conspiracy to commit the crime of assault on a child under eight
resulting in death (count 8), conspiracy to obstruct justice
(count 9), conspiracy to destroy or conceal evidence (count 10),
and several counts of child abuse or endangerment and corporal
injury to a child as to both Alicia (counts 4 and 6) and Ebony
(counts 3, 5, and 7). In 2001, a jury convicted Demery on
all counts, finding the murder to be in the second degree.
The trial court sentenced Demery to 33 years, eight months
to life in the state prison. The court chose count 8—conspiracy
to commit the crime of assault on a child under eight resulting
in death—as the principal count, imposing an indeterminate
sentence of 25 years to life. The court imposed indeterminate
sentences of 15 years to life and 25 years to life, respectively,
on the murder and assault on a child under eight causing death
counts, and stayed those sentences under section 654. The
court imposed consecutive determinate sentences on counts
3, 5, 9, and 10 (totaling eight years, eight months), and stayed
the determinate sentences on counts 4, 6, and 7. In November
2002, this court affirmed Demery’s conviction. (Demery I.)
After Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437) took effect, Demery filed on February 5, 2019
a petition for resentencing under section 1170.95. Demery

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used a downloadable form. In the copy of the form in the record
on appeal, it does not appear Demery checked any of the boxes,
except box 8 (concerning service of the petition), nor did she
fill in her name on the declaration line on page 2. The district
attorney seems not to have objected to these omissions, and
the trial court and prosecutor treated Demery’s petition as
if she had properly executed her declaration and checked
the applicable boxes.
On March 15, 2019, the court set a review date on the
resentencing petition for March 29. On April 8, 2019, Demery
filed a request that counsel be appointed. The court granted
that request and appointed counsel for her.2
On September 25, 2019, the district attorney filed a
response to Demery’s petition. The prosecution contended
Demery’s jury was not instructed on either felony murder or
the natural and probable consequences doctrine; therefore
she was not convicted of murder under either of those theories;
therefore she was ineligible for relief under section 1170.95.
The prosecution also argued SB 1437 was unconstitutional.
The prosecution attached copies of our November 2002 opinion
affirming Demery’s conviction and of the instructions given
to the jury at her trial.
On January 15, 2020, the public defender filed a reply
to the prosecution’s opposition. Counsel noted the trial court
had instructed Demery’s jury with CALJIC Nos. 8.11 (defining
express and implied malice), 8.31 (defining second degree
murder), 3.40 (act causing death/“but for” test), and 6.11
(members of conspiracy are liable for acts of other members
2 The court initially appointed counsel from the bar panel.
At some point between April and November 2019, the office of
the public defender assumed responsibility for the case.

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in furtherance of conspiracy). Counsel quoted from CALJIC
No. 3.40: “A cause of the death is an act or omission that sets
in motion a chain of events that produces as a direct, natural
and probable consequence of the act or omission the death and
without which the death would not occur.” (Emphasis omitted.)
Counsel argued, “The combination of the natural probable
consequences [sic] language, imputing malice through conspiracy
charges not including conspiracy to commit murder, and a
‘but for’ test that comingles specific and general intent, created
a situation where intent for the murder charge was imputed
on [Demery].”
On January 16, 2020, the trial court denied Demery’s
petition in a written order. The court rejected the prosecution’s
argument that SB 1437 is unconstitutional. The court then
stated that—because Demery was not convicted of second degree
murder under a theory of either felony murder or natural and
probable consequences—“she does not qualify for relief under
the statute.”
The court quoted from a 2018 pamphlet published by
Re:Store Justice—“an organization committed to helping inmates
navigate the justice system”—which, according to the court,
“worked with State Senator Nancy Skinner to help create
and pass SB 1437.” The pamphlet noted there was “ ‘a lot
of confusion’ ” because “ ‘the phrase “natural and probable
consequence” appears in a lot of other jury instructions that
do not convey the theory of murder as a natural and probable
consequence of aiding and abetting a target crime.’ ” The
pamphlet explained, “ ‘The [natural and probable consequences]
theory that allows a petitioner to petition for resentencing
will almost always include a jury instruction that talks about
a “target” crime. See CALCRIM [No.] 402, CALJIC [No.] 3.02.’ ”

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The court wrote it “appear[ed] from the record and the
information submitted by both sides that the trial court did not
instruct [Demery’s] jury on [CALJIC No.] 3.02.” The court added,
“The unpublished opinion of the Court of Appeal does not reflect
that the jury was instructed on the natural and probable
consequences theory of murder or that the prosecution relied
on that theory.”
DISCUSSION
To be eligible for resentencing under section 1170.95,3
Demery must have been tried and convicted under either (1) the
felony murder rule or (2) the natural and probable consequences
doctrine. (§ 1170.95, subd. (a); People v. Verdugo (2020) 44
Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493
(Verdugo); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-
1167 (Nguyen).) She was not tried or convicted under either
of these theories.4
In the superior court, citing the instructions given to the
jury at her trial, Demery confused the use of the phrases “natural
consequences” and “direct, natural and probable consequences”
in other jury instructions with the natural and probable
3 Demery’s petition sought resentencing only on the murder
count. As noted, the trial court stayed Demery’s 15 years to life
sentence on that count under section 654. The court sentenced
Demery to 25 years to life on the count charging conspiracy to
commit assault on a child under eight resulting in death. The
court also stayed the 25 to life sentence on the count that charged
assault on a child under eight causing death. As the Attorney
General notes, any resentencing on the murder count would
not affect Demery’s overall sentence or result in her release.
4 Demery did not contend in the trial court—nor does she
here—that she was tried or convicted of murder on a felony
murder theory.

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consequences doctrine for accomplice liability within the meaning
of section 1170.95. The trial court did not instruct the jury at
Demery’s trial on aiding and abetting, much less the natural and
probable consequences doctrine. The jury instructions attached
to the prosecution’s response in the trial court do not include
CALJIC No. 3.02 or any other instruction equivalent to
CALCRIM Nos. 402 and 403, instructing the jury on any
target crime on which murder based on a natural and probable
consequences theory could be predicated.
On appeal, Demery abandons her jury instructions
argument and contends instead that, because she checked the
boxes on the form petition,5 “the petition stated a prima facie
case, and as such the trial court was statutorily required to hold
a hearing to determine whether to vacate the murder conviction
and recall the sentence.” Demery does not cite—much less
distinguish—the many cases holding that section 1170.95’s
petitioning process includes (1) an initial review to determine the
petition’s facial sufficiency and (2) a prebriefing “first prima facie
review” to determine preliminarily whether the petitioner is
statutorily eligible for relief as a matter of law before reaching
(3) the second, postbriefing review to determine whether she
has made a prima facie case that she is entitled to relief. (See,
e.g., Verdugo, supra, 44 Cal.App.5th at pp. 323, 327-330; People
v. Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington),
review granted Aug. 12, 2020, S263219; People v. Perez (2020)
54 Cal.App.5th 896, 903-904, review granted Dec. 9, 2020,
S265254; Nguyen, supra, 53 Cal.App.5th at pp. 1165-1166.)
As our colleagues in Division Seven have noted, “the court’s
role in conducting the first prima facie review of the petition . . .
5 As noted, the copy of the petition in the clerk’s transcript
has only the proof of service box checked.

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must be something more than simply determining whether the
petition is facially sufficient.” (Verdugo, supra, 44 Cal.App.5th at
p. 328.) “The court’s role at this stage is simply to decide whether
the petitioner is ineligible for relief as a matter of law, making
all factual inferences in favor of the petitioner.” (Id. at p. 329.)
The statute “directs the court in considering the facial sufficiency
of the petition to access readily ascertainable information”—
“documents in the court file or otherwise part of the record of
conviction.” (Ibid.) Based on this threshold review, the court
can dismiss any petition filed by a person who is ineligible for
relief as a matter of law—for example, someone who was not
convicted of felony murder or murder under the natural and
probable consequences theory. (See People v. Edwards (2020)
48 Cal.App.5th 666, 673-674 (Edwards), review granted July 8,
2020, S262481 [trial court considered jury instructions and
reporter’s transcript of prosecutor’s closing argument in
determining petitioner had not been convicted of felony murder
or murder under the natural and probable consequences
doctrine]; People v. Soto (2020) 51 Cal.App.5th 1043, 1049-1050,
1058-1059, review granted Sept. 23, 2020, S263939 [trial court
could rely on jury instructions in assessing prima facie showing
under section 1170.95; CALJIC Nos. 8.11 and 8.31 are not
instructions on natural and probable consequences doctrine];
People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review
granted July 22, 2020, S262835 [“if the jury was not instructed
on a natural and probable consequences or felony-murder theory
of liability, the petitioner could not demonstrate eligibility as
a matter of law because relief is restricted to persons convicted
under one of those two theories”].)6
6 While Demery has abandoned on appeal her reliance on
CALJIC Nos. 3.40 and 6.11, as well as CALJIC Nos. 8.11 and

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In short, the superior court did not err in denying Demery’s
petition for resentencing. (See Tarkington, supra, 49 Cal.App.5th
at p. 899 [petitioner ineligible as a matter of law where jury not
instructed on natural and probable consequences doctrine or
felony murder rule]; Edwards, supra, 48 Cal.App.5th at p. 674
[although jury instructions included phrase “natural and
probable consequences,” petitioner ineligible because record
of conviction showed he was not convicted of murder under
the natural and probable consequences doctrine directed at
accomplice liability]; Nguyen, supra, 53 Cal.App.5th at p. 1157
[petitioner did not make requisite prima facie showing that
he was convicted of murder under a natural and probable
consequences theory]. Cf. People v. Roldan (2020) 56 Cal.App.5th
997, 1004, review granted Jan. 20, 2021, S266031 [affirming
summary denial of section 1170.95 petition where defendant
“failed to meet the threshold requirement of showing he was
convicted under a natural and probable consequences theory”;
by convicting defendant of second degree DUI murder under
People v. Watson (1981) 30 Cal.3d 290, jury found he acted with
implied malice].)7
8.31, we note CALJIC No. 3.40 concerns the cause of death
as “a direct, natural and probable consequence” of an act or
omission. It has nothing to do with the natural and probable
consequences doctrine. CALJIC No. 6.11 addresses the liability
of coconspirators for one another’s acts. Not only does it have
nothing to do with the natural and probable consequences
doctrine, but Demery was not charged with or convicted of
conspiracy to commit murder.
7 As an alternative ground for denying Demery’s petition,
the trial court stated, “In addition, it also appears that Petitioner
is not eligible for relief because she was an active participant
in the murder and the jury found that she acted with malice.”

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DISPOSITION
We affirm the superior court’s order denying Simona
Denise Demery’s petition to vacate her murder conviction and
for resentencing under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
I concur:
DHANIDINA, J.
Demery complains the trial court relied on the facts in our
opinion affirming Demery’s conviction and that “amounted to an
unauthorized investigation improperly exceeding the four corners
of appellant’s petition.” The issue of whether a superior court
may “consider the record of conviction in determining whether
a defendant has made a prima facie showing of eligibility for
relief under Penal Code section 1170.95” is currently before our
Supreme Court. (People v. Lewis, review granted Mar. 18, 2020,
S260598.) We need not reach this issue, as the trial court’s
reliance on the jury instructions is sufficient to support its
denial of Demery’s petition.

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LAVIN, J., Concurring :
I agree we should affirm the trial court’s order because any
error in this case was harmless under any standard of prejudice.
(See People v. Watson (1956) 46 Cal.2d 818; Chapman v.
California (1967) 386 U.S. 18.) Simona Denise Demery’s jury was
not instructed on either felony murder or the natural-and-
probable consequences doctrine. Because Demery was convicted
under a valid theory of murder, she is ineligible for relief under
Penal Code section 1170.95.
LAVIN, Acting P. J.

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