P. v. Jackson

1
Filed 10/1/20 P. v. Jackson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DERWIN JULES JACKSON,
Defendant and Appellant.
E073934
(Super.Ct.No. FSB11452)
OPINION
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. Affirmed.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.

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I
INTRODUCTION
Defendant and appellant Derwin Jules Jackson appeals from a postjudgment order
denying his petition for resentencing pursuant to Penal Code1 section 1170.95 and Senate
Bill No. 1437 (Senate Bill 1437). Based on our review of the record, we affirm the order.
II
FACTUAL AND PROCEDURAL BACKGROUND2
On the night of June 23, 1996, codefendant Rodrick Blackburn “shot and killed
two teenage boys, for no apparent reason other than that he ‘hate[d] Mexicans.’” (People
v. Blackburn (1999) 72 Cal.App.4th 1520, 1524 (Blackburn).) There was testimony
during Jackson’s criminal trial that he “encouraged Blackburn to shoot the teenagers,”
and that “[w]hen the shooting was over, Jackson drove Blackburn away.” (Ibid.)
Specifically, the factual background is as follows: Defendants Blackburn (a/k/a
“Moona”) and Jackson (a/k/a “D.J.”) are cousins.
On the night of Saturday, June 22, 1996, defendants went to the home of Delilah
Bryant (a/k/a “Tisha”). Bryant lived at the corner of Eleventh Street and Sierra Way in
San Bernardino. Defendants arrived in Jackson’s car, with Jackson driving. They joined
Bryant and some other people, including 14-year-old Anna Powell, on Bryant’s front
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual background is taken from this court’s opinions in defendants’ prior
appeals, case Nos. E021188 and E022053, which are part of the record on appeal. (See
Blackburn, supra, 72 Cal.App.4th 1520.)

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porch. Everyone was drinking Southern Comfort and beer and/or smoking a marijuana
“blunt.” Music was playing.
At one point, Blackburn lifted up his T-shirt; Powell could see a gun tucked into
the front of his pants. Powell later told police Blackburn was acting “hard” (i.e., excited)
because he had a gun, and Blackburn said he wanted to “dump” (i.e., shoot) somebody.
Also on June 22, 1996, Cesar Arellano and his brother Jose Arellano brought their
friends Oscar Esparza Morales and Renaldo Mendoza to stay overnight at their home.
The Arellanos lived on Eleventh, a little east of Sierra Way. Some time after midnight,
this group went to an AM/PM mini-market to get some food. They walked west on
Eleventh Street. When they passed Eleventh and Sierra Way, they noticed what seemed
to be a party going on; they saw six or seven black people, and they heard loud music. At
the AM/PM, they bought hamburgers and hot dogs. They began walking back.
Powell and Bryant both noticed some Hispanic males walking east on Eleventh.
At that point, Blackburn said, “I’m going to dump on the eses.”3 According to Powell,
Jackson said something to the effect of, “[G]o get ‘em.”4 Blackburn took out his gun,
pointed it toward the Hispanic males, and ran east across Sierra Way.
3 Both Powell and Bryant had told police Blackburn said, “I hate Mexicans.” At
trial, Bryant denied he said this.
4 Powell had told police Jackson “tried to get [Blackburn] to come back.” At
trial, however, she testified Jackson did nothing to try to stop Blackburn.
At the preliminary hearing, Bryant testified Jackson said “something like ‘stop, it
ain’t worth it . . . .’” At trial, she did not remember Jackson saying anything.

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The Hispanic group crossed Sierra Way and walked perhaps another 40 or
50 yards east on Eleventh. Just then, they realized two black men were running after
them. The men were coming from the direction of the party. One was about 12 feet
ahead of the other. The one in front had a gun. He began shooting.
As Blackburn ran, Bryant saw him fire a single shot into the air. Witnesses heard
a single shot, followed by “a lot” of shots. Various witnesses estimated the total number
of shots as “five to seven,” “seven or eight,” “ten,” “around twelve,” and “fifteen,
twenty.” Bryant and Powell could hear the shots. Powell ran to the corner and saw the
“fire of a gunshot.”
After the first shot, the Hispanic youths started running. Oscar Esparza got away.
Cesar Arellano, however, hid behind a bush and watched. He saw one of the black men
run up to Mendoza, who was lying on the ground, and fire two or three shots at
Mendoza’s head. Another witness saw Blackburn fire these shots at Mendoza, plus one
last shot at Jose Arellano, who was also on the ground.
Renaldo Mendoza was killed. He was hit in the head by three bullets, and in the
right arm and hip by three more. He was 16 years old. Jose Arellano was also killed. He
was hit in the neck by two shots. He was 17 years old.
Jackson got into his car, pulled it into the street, and waited. According to both
Powell and Bryant, he did so immediately after the shooting started. Powell had told
police, however, that Jackson “followed [Blackburn] for a little bit,” then came back,

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before pulling his car into the street. Blackburn ran back and jumped into the car;
Jackson drove off, “[b]urning rubber.”
Six .40-caliber bullets were recovered from the victims’ bodies. Three more spent
bullets were found at the scene. The police found eleven .40-caliber shell casings
scattered along Eleventh Street, including one in the pool of blood next to Mendoza’s
body.
At Blackburn’s mother’s home, the police found .40- and .45-caliber bullets, two
handgun cases, and a holster.
When the police interviewed Blackburn, he admitted being at Bryant’s house, but
he claimed he did not see anyone walking down the street; there was no confrontation,
and no shots were fired.
When the police interviewed Jackson, he, too, admitted being at Bryant’s house.
He told them he was standing on the front porch when he saw four Mexican males who
“looked like kids” walking east on Eleventh Street. There was a “confrontation” between
someone at the house and the Mexicans. When Jackson heard gunshots, he left in his car.
A jury convicted Jackson of two counts of second degree murder (§§ 187, 189)
under an aiding and abetting theory and found that a principal was armed with a firearm
(§ 12022, subd. (a)(1)) as to both murders. The trial court found true that Jackson had
suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) for discharging a
firearm at an occupied motor vehicle. Jackson was sentenced to two consecutive

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indeterminate terms of 30 years to life, plus two consecutive determinate terms of one
year, for a total of 62 years to life.5
Jackson subsequently appealed, arguing, in pertinent part, that (1) the testimony
that he encouraged codefendant Blackburn was too conclusory and uncertain to support
the verdict finding him guilty of aiding and abetting the murders; (2) the trial court
erroneously failed to instruct that a person who does nothing but facilitate the
perpetrator’s escape is not an aider and abettor; (3) his trial counsel rendered
constitutionally ineffective assistance in investigating and preparing for trial and in
closing argument; (4) there was insufficient evidence his prior conviction was a serious
felony for purposes of the Three Strikes law; and (5) the trial court imposed excessive
restitution fines.
On June 23, 1999, a panel of this court affirmed the judgment, with a modification
to clarify that the victim restitution order was joint and several between Jackson and his
codefendant Blackburn.
5 In March 2019, after Jackson filed a habeas petition in the superior court,
Judge Gregory S. Tavill granted Jackson’s petition for writ of habeas corpus, vacating his
sentence and remanding for resentencing without a strike. Judge Tavill granted the writ
petition after he determined the trial court incorrectly concluded Jackson’s prior strike
conviction for shooting at an occupied motor vehicle (§ 246) qualified as a strike in
violation of Jackson’s Sixth Amendment right to have a jury decide, beyond a reasonable
doubt, whether he personally used a firearm in that prior case. The People subsequently
appealed that decision, and the appeal is currently pending before this court in case
No. E072464.
Jackson was eventually resentenced to 32 years to life (30 years shorter than his
original sentence). We take judicial notice of the record on appeal from the People’s
pending appeal in case No. E072464, and Jackson’s appeal in case No. E072766. (See
Evid. Code, § 452, subd. (d).)

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On January 1, 2019, Senate Bill 1437 became effective (2017-2018 Reg. Sess.),
which amended the felony-murder rule and the natural and probable consequences
doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate
Bill 1437 also added section 1170.95, which allows those “convicted of felony murder or
murder under a natural and probable consequences theory . . . [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)
On January 16, 2019,6 Jackson filed a petition for resentencing pursuant to
section 1170.95.
On March 1, 2019, the People filed a motion to strike Jackson’s petition based on
the unconstitutionality of Senate Bill 1437 and resulting statutes. On this same day, the
People also filed an informal response to Jackson’s petition. The People claimed that
Jackson failed to demonstrate a prima facie showing he was entitled to relief because the
jury was instructed only “on one applicable theory: direct aiding and abetting.” In
support of their argument, the People cited this court’s opinion in defendants’ prior
appeal.
On March 21, 2019, Jackson’s appointed counsel filed a reply to the People’s
opposition to Jackson’s petition for resentencing, addressing the constitutionality of
Senate Bill 1437.
6 Erroneously date-stamped “January 16, 2018,” by the clerk of the San
Bernardino Superior Court.

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The petition was heard before Judge Ronald M. Christianson, the same judge that
presided over Jackson and Blackburn’s trial. At a hearing on May 31, 2019,
Judge Christianson noted, “Judge Tavill has ruled on that [writ petition], and then he sent
it back down here for a hearing on the [section 1170.95] petition.” Judge Christianson
also stated that he was “going to put” the constitutionality of Senate Bill 1437 “on
deferred status” and “address the issue of whether there’s going to be a prima facie case
able to be made.” Jackson’s counsel argued that Jackson was not the actual shooter or a
major participant and that Jackson was offered a plea to being an accessory after the fact.
Counsel also asserted that Jackson was not an aider and abettor that harbored the same
intent to kill as Blackburn and therefore defendant would be entitled to relief under
Senate Bill 1437.
The court responded, “What somebody’s offered to plead to to resolve the case
doesn’t constitute facts of the case. That offer that was made was not accepted at the
time, and the case went to trial. If you read the court of appeal opinion, it’s clear that
there was a straight aider and abettor theory. As a matter of fact, they referenced that
several times in [their] ruling on the sufficiency of the evidence as to Mr. Jackson’s
conviction.” Thereafter, because Jackson’s counsel had not responded to the People’s
informal response, the court continued the matter to July 26, 2019.
On June 14, 2019, Jackson’s counsel filed a supplemental reply to the People’s
opposition to Jackson’s petition, arguing Jackson had made a prima facie showing for
relief.

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On July 26, 2019, the trial court held a hearing to address whether a prima facie
case had been demonstrated on Jackson’s petition. Jackson’s counsel argued that in
reviewing the appellate decision, the facts show Blackburn was the actual shooter, and
that Jackson was present, “but he did not directly participate in the killing of the victims
in this case.” Counsel also asserted that Jackson was “neither a major participant nor did
he act with reckless indifference to human life,” and therefore, believed Jackson had set
forth a prima facie case for the court to issue an order to show cause and “go to the next
level.”
In response to the court’s question of whether section 1170.95 applies if a
defendant was convicted as a direct aider and abettor of a homicide, defense counsel
stated: “I believe the law has changed since then. I believe whether or not a person
would be a direct aider and abettor and how you look at whether or not he was
responsible as a direct aider and abettor, I think that would warrant an evidentiary hearing
and testimony, and I believe that’s where we should get to at this point.” After the court
clarified the query, defense counsel asserted: “If they’re a direct aider and abettor and
they act with reckless indifference to human life or harbor specific intent to kill, then I
don’t believe they’re entitled to relief. But I believe if you look at the facts that are set
forth by the appellate court opinion, they do not support a finding that Mr. Jackson was a
direct aider and abettor, and I believe for those reasons, based on the change in law and
based on [Senate Bill] 1437, they certainly set forth a prima facie case to get to the next
level.”

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The prosecutor responded that Jackson was convicted as a direct aider and abettor,
the statute does not apply to Jackson, and that “it’s not a forum for Mr. Jackson to
relitigate the sufficiency of the jury’s finding that he was a direct aider and abettor in the
murder.” The prosecutor noted that the jury was instructed with CALJIC 3.01, and
“[t]hat’s direct aiding and abetting, and for them to find him guilty, they had to find that
with the intent or purpose of committing or encouraging or facilitating the commission of
the crime by his act or advice he aided, promoted, encouraged or instigated the
commission of the crime.” The prosecutor further asserted that the jury “found that
[Jackson] knew what his cousin’s intent was and that he actively participated or aided and
abetted in that crime.” The prosecutor therefore requested the court deny Jackson’s
petition. The matter was thereafter taken under submission and continued for the court’s
ruling.
On October 11, 2019, after considering the oral arguments of counsel, the motions
submitted by the parties, the underlying trial files, and this court’s opinion in defendants’
prior appeal, the trial court found section 1170.95 did not apply to Jackson’s case. The
court explained: “The Court has determined that [defendant] was not convicted of the
murders based on the Natural and Probable Consequences Doctrine and was not
convicted of the murders based on the Felony Murder Rule. Therefore, Mr. Jackson’s
murder conviction did not fall within the statutory schemes set forth in Penal Code
Section 1170.95 pursuant to Section C of that statute. He has failed to make a prima
facie showing. The petition is therefore denied.”

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The trial court thereafter allowed Jackson’s counsel to be heard. Counsel argued
that Jackson’s petition stated a prima facie showing for relief to be entitled to an
evidentiary hearing because the facts showed “the only way the People could possibly
have established a theory of murder would have been based on the Natural and Probable
Consequence Doctrine as there was no evidence that he was a direct aider and abettor.”
Counsel noted that the evidence established Jackson was not the actual shooter and an
evidentiary hearing was necessary on whether the evidence showed Jackson was an
indirect, rather than a direct aider and abettor, because Jackson was not immediately
present and about 100 yards away. Counsel also asserted that at the time of Jackson’s
convictions, “the law was unsettled, and the law has significantly changed in light of
[Senate Bill] 1437.” Counsel thus asked the court to reconsider its ruling, issue an order
to show cause, and “shift the burden to the prosecution to prove ineligibility.”
The court concluded that based upon review of the entire record, section 1170.95
does not apply to Jackson’s convictions, and issued a written ruling denying Jackson’s
petition. In its written ruling, the court noted CALJIC 3.01 was given to the jury,
instructing the jury on aiding and abetting, and that this court stated in its opinion that
Jackson’s jury was not instructed on the “‘natural and probable consequences’” doctrine
and there was no mention “at all in the opinion of any type of felony-murder theory being
involved in the case.” Jackson timely appealed from the trial court’s denial of his petition
for resentencing.

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III
DISCUSSION
After Jackson appealed, upon his request, this court appointed counsel to represent
him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting
forth a statement of the case, a summary of the facts and potential arguable issues, and
requesting this court to conduct a review of the record.
We offered Jackson an opportunity to file a personal supplemental brief, and he
has done so. In his supplemental brief, Jackson asserts that Judge Tavill erred when he
believed he lacked jurisdiction to rule on his section 1170.95 petition and that this court
should remand the matter to allow Judge Tavill to determine his petition for resentencing.
He also argues that Judge Christianson erred in denying his petition without an
evidentiary hearing because he made a prima facie showing he qualified for relief and
under Senate Bill 1437, he could no longer be convicted of second degree murder.
Jackson also rehashes some of the arguments made in his first appeal concerning
instructions to the jury, the sufficiency of the evidence, and the court’s response to the
juror’s question without his presence as to the degree of murder.7 For the reasons
explained, we reject Jackson’s arguments.
7 Specifically, during deliberations the jury inquired “‘We need to know if we
convict one defendant of first degree murder, does the second defendant have to be
convicted of the offense in the same degree.’” The trial court responded, “No.”

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Senate Bill 1437, “which became effective on January 1, 2019, addresses certain
aspects of California law regarding felony murder and the natural and probable
consequences doctrine by amending Penal Code sections 188 and 189, as well as by
adding Penal Code section 1170.95, which provides a procedure by which those
convicted of murder can seek retroactive relief if the changes in law would affect their
previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722
(Martinez).)
Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted
a crime, the natural and probable consequence of which was murder or attempted murder,
could be convicted of not only the target crime but also of the resulting murder or
attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161 (Chiu); In re R.G. (2019)
35 Cal.App.5th 141, 144 (R.G.).) “This was true irrespective of whether the defendant
harbored malice aforethought. Liability was imposed ‘“for the criminal harms [the
defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’
[Citation.]” (R.G., at p. 144.) Aider and abettor liability under the doctrine was thus
“vicarious in nature.” (Chiu, at p. 164.)
Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of
murder, a principal must act with malice aforethought; malice can no longer ‘be imputed
to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)”
(R.G., supra, 35 Cal.App.5th at p. 144; accord, People v. Verdugo (2020) 44 Cal.App.5th

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320, 326 (Verdugo), review granted Mar. 18, 2020, S260493.8) “Senate Bill 1437 also
amended section 189, which defines first and second degree murder, by, among other
things, adding subdivision (e). Under that subdivision, a participant in enumerated
crimes is liable under the felony-murder doctrine only if he or she was the actual killer;
or, with the intent to kill, aided and abetted the actual killer in commission of first degree
murder; or was a major participant in the underlying felony and acted with reckless
indifference to human life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749; § 189,
subd. (e); Stats. 2018, ch. 1015, § 3; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099-
1100, review granted Nov. 13, 2019, S258175; Martinez, supra, 31 Cal.App.5th at
p. 723; People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted
Mar. 18, 2020, S260598.) “Senate Bill 1437 thus ensures that murder liability is not
imposed on a person who did not act with implied or express malice,” or—when the
felony-murder doctrine is at issue—“was not the actual 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.” (People v. Munoz, at pp. 749-750; Stats. 2018, ch. 1015, § 1,
subds. (f), (g); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; Martinez, at
p. 723.) However, while the amendment to section 188 effectively eliminated use of the
natural and probable consequences doctrine to support a murder conviction, the change
did not “alter the law regarding the criminal liability of direct aiders and abettors of
8 Under California Rules of Court, rule 8.1115, we may rely on appellate cases
while review is pending as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1),
eff. July 1, 2016.)

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murder because such persons necessarily ‘know and share the murderous intent of the
actual perpetrator.’ (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see Chiu, supra, 59
Cal.4th at p. 167 [a direct aider and abettor ‘acts with the mens rea required for first
degree murder’].)” (Lewis, supra, 43 Cal.App.5th at p. 1135.)
Senate Bill 1437 also added section 1170.95, which permits persons convicted of
murder under a felony murder or natural and probable consequences theory to petition in
the sentencing court for an order vacating their convictions and allowing defendant to be
resentenced. (Stats. 2018, ch. 1015, § 4; Martinez, supra, 31 Cal.App.5th at p. 723.) An
offender may file a section 1170.95 petition if he or she was prosecuted under a felony
murder or natural and probable consequences theory, but under amended sections 188 or
189, could not have been convicted of first or second degree murder. (§ 1170.95,
subd. (a).)
Section 1170.95, subdivision (c), sets forth the trial court’s obligations upon the
submission of a complete petition: “The court shall review the petition and determine if
the petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner. The prosecutor shall file and serve a response within
60 days of service of the petition and the petitioner may file and serve a reply within
30 days after the prosecutor response is served. . . . If the petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue an order to show cause.”
Once the order to show cause issues, the court must hold a hearing to determine whether

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to vacate the murder conviction and to recall the sentence and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1).) At such a hearing, both the prosecution
and the defense may rely on the record of conviction or may offer new or additional
evidence. (§ 1170.95, subd. (d)(3).) “[T]he burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th at pp. 723-724.)
The initial prima facie review is “to decide whether the petitioner is ineligible for
relief as a matter of law, making all factual inferences in favor of the petitioner.”
(Verdugo, supra, 44 Cal.App.5th at p. 329.) At this stage of review, the trial court may
rely upon the petitioner’s record of conviction, including the charging documents, jury
instructions, verdict forms, and appellate decision, to conclusively establish ineligibility
for relief. (See § 1170.95, subd. (a)(1)-(2); Verdugo, at p. 333; Lewis, supra, 43
Cal.App.5th at pp. 1137-1138.)
Here, an examination of Jackson’s record of conviction demonstrates that he
cannot make a prima facie showing he is entitled to relief under the provisions of
section 1170.95. Jackson’s record of conviction shows that he was prosecuted as a direct
aider and abettor under an express or implied malice theory, and not based on the natural
and probable consequences or felony-murder theory. His record of conviction further
demonstrates that there was substantial evidence to support the jury’s finding he directly
aided and abetted Blackburn in the commission of the murders. “‘A person aids and
abets the commission of a crime when he or she, (i) with knowledge of the unlawful

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purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating
or encouraging commission of the crime, (iii) by act or advice, aids, promotes,
encourages or instigates the commission of the crime.’ [Citations.]” (People v. Hill
(1998) 17 Cal.4th 800, 851, quoting People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
The trial court instructed the jury on aiding and abetting pursuant to CALJIC No. 3.01,
and this court found sufficient evidence to support the jury’s finding Jackson directly
aided and abetted Blackburn.
A direct aider and abettor can be convicted of murder notwithstanding the
amendments to sections 188 and 189, which did not change direct aider and abettor
liability. “One who directly aids and abets another who commits murder is thus liable for
murder under the new law just as he or she was liable under the old law.” (Lewis, supra,
43 Cal.App.5th at p. 1135.) Accordingly, Jackson was required to make a prima facie
showing that he was not convicted as a direct aider and abettor, and thereby “‘falls within
the provisions of’ the statute.” (Id. at p. 1137; § 1170.95, subds. (a)(3) & (c).) He failed
to do so. The trial court therefore properly denied the petition on the basis of its finding
that Jackson was not entitled to relief as a matter of law because he was not convicted
under a theory of felony murder or natural and probable consequences, the two theories
affected by Senate Bill 1437.
We also reject Jackson’s claims relating to Judge Tavill’s finding he lacked
jurisdiction to hear his section 1170.95 petition and sending the petition to
Judge Christianson to resolve. Under section 1170.95, subdivision (b)(1), “[t]he petition

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shall be filed with the court that sentenced the petitioner and served by the petitioner on
the district attorney, or on the agency that prosecuted the petitioner, and on the attorney
who represented the petitioner in the trial court or on the public defender of the county
where the petitioner was convicted.” (Italics added.) Judge Tavill thus properly sent
Jackson’s petition to Judge Christianson, who had originally sentenced defendant.
As to Jackson’s claims relating to jury instructions and the sufficiency of the
evidence of his criminal convictions, these issues have already been resolved in Jackson’s
first appeal and we may not address them here. Under the doctrine of the law of the case,
“‘[W]here an appellate court states a rule of law necessary to its decision, such rule
“‘must be adhered to’” in any “‘subsequent appeal’” in the same case, even where the
former decision appears to be “‘erroneous’”’ [Citation.] Thus, the law-of-the-case
doctrine ‘prevents the parties from seeking appellate reconsideration of an already
decided issue in the same case absent some significant change in circumstances.’
[Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 441, superseded by statute on
another ground.) “The principal reason for the doctrine is judicial economy.” (People v.
Stanley (1995) 10 Cal.4th 764, 786 (Stanley).)
“The doctrine is a rule of procedure, not of jurisdiction. [Citations.] ‘A court is
not absolutely precluded by the law of the case from reconsidering questions decided
upon a former appeal.’” (In re Saldana (1997) 57 Cal.App.4th 620, 625.) However,
“[i]n the absence of exceptional circumstances of hardship and injustice the need for
attributing finality to considered judicial determinations compels adherence to the

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previous decision.” (People v. Durbin (1966) 64 Cal.2d 474, 477; accord People v. Whitt
(1990) 51 Cal.3d 620, 638.)
Our Supreme Court has articulated this exception as follows: “Because the rule
[the law of the case doctrine] is merely one of procedure and does not go to the
jurisdiction of the court [citations], the doctrine will not be adhered to where its
application will result in an unjust decision, e.g., where there has been a ‘manifest
misapplication of existing principles resulting in substantial injustice’ [citation], or the
controlling rules of law have been altered or clarified by a decision intervening between
the first and second appellate determinations [citation].” (Stanley, supra, 10 Cal.4th at
p. 787.)
Here, in Jackson’s first appeal this court rejected his instructional error and
sufficiency of evidence claims. This holding is a “‘“principle or rule of law necessary to
the decision”’” (Stanley, supra, 10 Cal.4th at p. 786) in that appeal, and therefore the law
of the case doctrine precludes Jackson’s instant challenge to the same issues unless
grounds exist for ignoring the doctrine. We do not find such grounds exist here.
Although Senate Bill 1437 is an intervening change in the law, it does not affect the
outcome of Jackson’s earlier appeal or his current appeal. Therefore, Senate Bill 1437
does not justify making an exception to the operation of the law of the case doctrine.
We also reject Jackson’s assertion that he was denied his right to be present when
the court responded to the jurors’ question relating to the degree of murder because he
failed to raise the issue in his first direct appeal. “[W]here a criminal defendant could

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have raised an issue in a prior appeal, the appellate court need not entertain the issue in a
subsequent appeal absent a showing of justification for the delay.” (People v. Senior
(1995) 33 Cal.App.4th 531, 538 (Senior).) The rationale underlying the use of the waiver
rule is based on “various policy considerations, including the state’s ‘powerful interest in
the finality of its judgments’ [citation], the protection of ‘scarce judicial resources’
[citation], and the recognition that ‘piecemeal litigation prevents the positive values of
deterrence, certainty, and public confidence from attaching to the judgment.’ [Citation.]”
(Ibid.)
That rationale bars Jackson from raising the issue of his absence during the court’s
response to the jury’s question. The same factual basis was present in the first appeal and
Jackson does not argue any “significant change” in the law relating to his case or facts.
(Senior, supra, 33 Cal.App.4th at p. 538.) Because there is “no apparent justification” for
the failure to raise the issue in the first appeal, Jackson is not entitled to “‘“two bites at
the appellate apple”’ [citation].” (Ibid.)
An appellate court conducts a review of the entire record to determine whether the
record reveals any issues which, if resolved favorably to defendant, would result in
reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442;
People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744; see
People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)

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Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
reviewed the entire record for potential error and find no arguable error that would result
in a disposition more favorable to Jackson.
IV
DISPOSITION
The superior court’s order denying Jackson’s section 1170.95 petition for
resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
FIELDS
J.

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