P. v. Lavergne

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Filed 2/23/21 P. v. Lavergne CA4/2
See concurring opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
HARRISON LAVERGNE, JR.,
Defendant and Appellant.
E074809
(Super.Ct.No. INF050756)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Harrison Lavergne, Jr., in pro. per.; Joanna McKim, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

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FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On June 1, 2005, an information charged defendant and appellant Harrison
Lavergne, Jr., with the murder of Ignacio Garcia under Penal Code1 section 187,
subdivision (a) (count 1); attempted premeditated murder of Miguel E.2 under sections
664, and 187, subdivision (a) (count 2); and assault by means of force likely to produce
great bodily injury on Francisco L. under section 245, subdivision (a)(1) (count 3). As to
count 1, the information alleged defendant used a deadly and dangerous weapon, a knife,
in the commission of the murder under sections 12022, subdivision (b)(1), and 1192.7,
subdivision (c)(23).
On September 9, 2008, a jury found defendant guilty as charged, and found true
that defendant used a deadly and dangerous weapon in the commission of the murder.
Thereafter, the trial court sentenced defendant as follows: (1) an indefinite term of 25
years to life, plus one year for the weapon enhancement on count 1; (2) life with the
possibility of parole on count 2, to run consecutively; and (3) the upper term of four years
on count 3, to run consecutively. The court awarded defendant 1,370 actual days custody
credits, and ordered him to pay fines and fees. Defendant appealed and we affirmed the
judgment. (People v. Lavergne (Oct. 13, 2010, E047778) [nonpub. opn.].)
1 All further statutory references are to the Penal Code unless otherwise specified.
2 We refer to witnesses by their first names, with or without last initials, to
preserve their anonymity. (Cal. Rules of Court, rule 8.90(b).) No disrespect is intended.

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On January 23, 2019, defendant filed a petition for resentencing under section
1170.95 (the Petition). On March 19, 2019, the People filed a response contending that
defendant was ineligible for relief because he was the actual killer. The People argued
that the court lacked jurisdiction because the Petition was unconstitutional. After counsel
was appointed for defendant, he filed a reply. In the reply, defendant argued that Senate
Bill No. 1437 (Sen. No. 1437) was constitutional and requested that the court take
judicial notice of the arguments presented in People v. Lamoureux (2019) 42 Cal.App.5th
241; Lamoureux had not yet been decided. On August 23, 2019, the trial court stayed the
proceedings pending the outcome of Lamoureux. On November 19, 2019, the
Lamoureux court found that Sen. No. 1437 was constitutional. (Lamoureux, at p. 251.)
On November 22, 2019, the trial court lifted the stay in this case.
At the hearing on defendant’s petition for resentencing on February 14, 2020, the
People moved to dismiss the Petition. The prosecutor stated: “Looking at the
instructions in imaging, there were no instructions on natural and probable consequences
for felony murder. There was a true finding on personal knife use and the 201[0] opinion
in imaging shows [defendant] is the actual killer.” Defense counsel submitted.
Thereafter, the trial court noted defendant’s objection for the record and denied the
Petition. The record is unclear what defendant had objected to.
On February 20, 2020, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
“In May 2005, Garcia and Flavio T[.] lived in a trailer located inside a junkyard in
Thermal where they and [Francisco] worked; [Miguel] lived in his van in the same

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junkyard. [Francisco] was a friend of defendant and had stayed at defendant’s house for
a few days; [Miguel] had also visited defendant’s house several times. Neither
[Francisco] nor [Miguel] had had any problems with defendant. [Francisco] admitted he
was addicted to methamphetamine and used it as often as he could get it, sometimes
daily. [Francisco], [Flavio], and Garcia frequently used drugs together.
“Shortly before May 1, 2005, a problem arose between defendant and an
unidentified person at the junkyard. Garcia tried to intervene, but defendant told him not
to get involved and that he did not want to see Garcia at the junkyard.
“In the evening of May 1, 2005, Garcia, [Francisco], [Flavio], and a woman
identified only as Connie had used methamphetamine in [Flavio]’s trailer. Garcia and
Connie left, and a few minutes later, [Francisco] heard Garcia yelling for help and asking
for someone to call an ambulance. [Francisco] went outside and saw defendant, who was
standing next to the door of Garcia’s car, hitting Garcia, who was in the driver’s seat.
Another man, whom [Francisco] had never seen before and could not describe, was also
striking Garcia. Connie got out of the car.
“[Francisco] heard Garcia ask defendant what was happening and heard defendant
respond, ‘You’re gone’ and ‘Fuck the ambulance.’ Defendant continued to hit Garcia.
[Francisco] asked what was happening, and defendant said, ‘He’s gone, and you’re gone,
too.’ Defendant then came over to [Francisco] and hit him on the face, nose, and
stomach, knocked him to the ground, and kicked him in the face and body. [Francisco]
sustained fractures to his nose and forehead. [Francisco] asked why defendant was

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hitting him, and defendant said, ‘It was on the contract.’ At some point, [Francisco] saw
[Flavio] come out of the trailer and run away.
“Defendant went back to Garcia’s car and asked the man who was with him for
‘the blade.’ [Francisco] saw defendant pull something out of Garcia’s body. [Francisco]
then ran away. Garcia bled to death in his car as a result of multiple stab wounds.
“[Francisco] ran to an acquaintance’s house, and that man drove [Francisco] back
to his trailer park. The managers of the park called the police. [Francisco] was initially
reluctant to tell the police who had stabbed Garcia, but he later called the police and
identified defendant as the assailant. [Francisco] selected defendant’s photograph from a
photographic lineup.
“At about 11:00 the same night, [Miguel] left his van to urinate. On his way back,
defendant and two or three other men attacked him and hit him. Defendant stabbed him
nine times, inflicting life-threatening wounds. [Miguel] could not describe the other men
because it was too dark.” (People v. Lavergne, 2010 Cal.App.Unpub. LEXIS 8118, *3-6,
2010 WL 3994183.)
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and potential arguable issues, and has requested this
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issue to assist the court in its search of the record for error: “Whether there

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is a basis to find appellant eligible for relief under [Sen. No. 1437] and was there
compliance with the statutory requirements set forth in Penal Code section 1170.95?”
We offered defendant an opportunity to file a personal supplemental brief. On
January 29, 2021, defendant filed a 50-page handwritten supplemental brief. In the brief,
defendant contends that (1) the trial court erred in failing to comply with the statutory
requirements set forth in section 1170.95 because the record below fails to show
defendant was the actual killer or personally used a knife; and (2) his counsel provided
ineffective assistance of counsel (IAC).
A. PENAL CODE SECTION 1170.95
Sen. No. 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 Sen. No. 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; In re R.G. (2019) 35
Cal.App.5th 141, 144.) “This was true irrespective of whether the defendant harbored
malice aforethought. Liability was imposed ‘ “for the criminal harms [the defendant]

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. . . naturally, probably, and foreseeably put in motion.” ’ ” (R.G. at p. 144.) Aider and
abettor liability under the doctrine was thus “vicarious in nature.” (Chiu, at p. 164.)
Sen. No. 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.” [Citation.]’ [Citation.]
[Sen. No. 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,
fn. omitted.) “[Sen. No. 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.” (Id. at pp. 749-750.) 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 murder because such persons necessarily ‘know and share
the murderous intent of the actual perpetrator.’ ” (People v. Lewis (2019) 43 Cal.App.5th
1128, 1135.)

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Sen. No. 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 the 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 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

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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 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.” (People
v. Verdugo (2020) 44 Cal.App.5th at 320, 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. 1137-1139.)
In this case, an examination of the record shows that defendant cannot make a
prima facie showing that he is entitled to relief under the provisions of section 1170.95.
The record of the jury instructions given and defendant’s convictions show 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.
Defendant’s conviction record also shows that there was substantial evidence to support
the jury’s finding that defendant was the actual killer of Garcia and that he personally
used a knife in the commission of the murder. In our unpublished opinion, we
summarized that Francisco heard Garcia yelling for help. When Francisco went outside,
defendant was standing next to the door of Garcia’s car, hitting Garcia, who was in the
driver’s seat. Moreover, Francisco heard Garcia ask defendant what was happening.
Defendant responded, “ ‘You’re gone’ and ‘Fuck the ambulance.’ ” Defendant then
continued to hit Garcia. When Francisco asked defendant what was happening,

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defendant stated, “ ‘He’s gone, and you’re gone, too.’ Defendant then came over to
[Francisco] and hit him on the face, nose, and stomach, knocked him to the ground, and
kicked him in the face and body.” Thereafter, defendant “went back to Garcia’s car and
asked the man who was with him for ‘the blade.’ [Francisco] saw defendant pull
something out of Garcia’s body. [Francisco] then ran away. Garcia bled to death in his
car as a result of multiple stab wounds.” Francisco eventually told the police that
defendant was the person who stabbed Garcia.
Based on the record of conviction in defendant’s underlying case, the court
properly determined defendant was statutorily ineligible for resentencing because his
murder conviction was not based on the felony-murder rule or the natural and probable
consequences doctrine. Therefore, the court was not required to conduct a hearing on
defendant’s eligibility for resentencing.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
In order to establish a claim of IAC, a defendant must demonstrate that
“(1) counsel’s performance was deficient in that it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) counsel’s deficient
representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but
for counsel’s failings, defendant would have obtained a more favorable result.
[Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in
the outcome.” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Hence, an IAC claim
has two components: deficient performance and prejudice. (People v. Ledesma (1987)
43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails. An

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appellate court must “indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” (Strickland v. Washington (1984) 466
U.S. 668, 697, 687-694.) Trial counsel’s performance is deemed reasonably competent
unless the record does not provide an explanation for his performance, or “ ‘ “there
simply could be no satisfactory explanation.” ’ ” (People v. Lopez (2008) 42 Cal.4th 960,
966.)
In this case, defendant failed to establish either component of his IAC claim.
First, defendant failed to establish that his counsel’s performance fell below the objective
standard of reasonableness. It appears defendant is arguing his counsel rendered IAC
because there are “important facts that were given to counsel for appellant but she failed
to review any of the case facts or ask appellant for any information about the case.
[¶] . . . [¶] Counsel for appellant could not fulfill his duties without a clear idea of what
appellant was claiming in his petition for resentencing and he could not discharge his
duty to investigate by merely going by the prosecutor’s evidence or facts.” Defendant’s
argument fails because there was nothing defense counsel could have brought forth to
change the fact that defendant was convicted for murder as a principal and that he
personally used a knife in the commission of the murder. Second, defendant also failed
to establish that, but for his counsel’s failure to conduct a more thorough investigation for
defendant’s resentencing petition, he would have obtained a more favorable result. As
discussed in detail ante, defendant is ineligible for relief as a matter of law under section
1170.95 because he was the actual killer. Therefore, even if defense counsel had

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reviewed the petition more thoroughly, defendant would not have obtained a more
favorable result.
C. CONCLUSION
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error. We are satisfied that defendant’s
attorney has fully complied with the responsibilities of counsel and no arguable issue
exists. (Id. at p. 126; Wende, supra, 25 Cal.3rd at pp. 441-442.)
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
I concur:
FIELDS
J.

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[P. v. LAVERGNE, JR., E074809]
MENETREZ, J., Concurring.
The appellate review procedures under People v. Wende (1979) 25 Cal.3d 436
(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), in which we read the
entire record ourselves to search for arguable grounds for reversal, apply “only to a
defendant’s first appeal as of right.” (People v. Thurman (2007) 157 Cal.App.4th 36, 45;
People v. Serrano (2012) 211 Cal.App.4th 496, 498; People v. Cole (2020) 52
Cal.App.5th 1023, 1032 (Cole).) Because this appeal concerns a postjudgment
proceeding in which there is no constitutional right to effective assistance of counsel,
there is no right to Wende/Anders review.
Appellant Harrison Lavergne Jr.’s counsel filed a brief raising no issues.
Lavergne was notified and filed a personal supplemental brief. We should address the
issues raised in the supplemental brief but should not read the entire record ourselves to
look for arguable grounds for reversal. (Cole, supra, 52 Cal.App.5th at pp. 1039-1040.)
Lavergne argues that the trial court committed certain procedural errors. The
argument fails because the claimed procedural errors were harmless. The record of
conviction confirms that Lavergne is ineligible for relief under Penal Code section
1170.95 as a matter of law—he was not tried on a felony murder or natural and probable
consequences theory, and the true finding on the enhancement for use of a knife shows
that the jury found he was the actual killer. Lavergne also claims that he received
ineffective assistance of counsel on his petition. That argument too fails because he

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cannot show prejudice and also because there is no constitutional right to effective
assistance of counsel on a petition under Penal Code section 1170.95.
For all of the foregoing reasons, I concur in the judgment only.
MENETREZ
J.

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