P. v. Carter

Filed 12/23/20 P. v. Carter CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
IVAN RAY CARTER, JR.,
Defendant and Appellant.
A159196
(Solano County
Super. Ct. No. VCR165496)
In 2003, a jury convicted defendant of first degree murder. The jury
found a personal firearm use enhancement not true. He was sentenced to 25
years to life in state prison. This court affirmed his conviction in a
nonpublished opinion. (People v. Carter (Mar. 30, 2006, A106402) (Carter I).)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437), which altered liability for murder under the theories of
felony murder and natural and probable consequences. The bill also
established a procedure, under newly enacted Penal Code1 section 1170.95,
for eligible defendants to petition for resentencing.
In 2019, defendant filed a petition for relief under section 1170.95,
alleging he was convicted of murder either under the natural and probable
1 All statutory references are to the Penal Code unless otherwise
indicated.

-- 1 of 12 --

2
consequences doctrine or the felony-murder doctrine and could no longer be
convicted of murder because of Senate Bill 1437’s changes to the law. The
trial court denied the petition on the basis defendant was the actual killer.
On appeal, defendant contends the trial court erred in denying his
resentencing petition without issuing an order to show cause and holding an
evidentiary hearing pursuant to section 1170.95, subdivision (d).
Secondarily, he argues the trial court abused its discretion in denying his
motion to augment the record with the court reporter’s transcript of the
lawyers’ opening statements at trial and erroneously denied his motion to
unseal the jury’s notes to the trial judge during deliberations.
We conclude the trial court did not err in denying defendant’s petition,
but for different reasons as explained below, and any error by the court in
failing to augment the record was harmless.
I. FACTUAL AND PROCEDURAL BACKGROUND
We take the facts underlying defendant’s conviction from the
nonpublished judicial opinion in his direct appeal, Carter I, supra, A106402.2
The victim, Michael White, and his girlfriend, Tiffany V., lived together
in an upstairs apartment in a building on Reis Avenue in Vallejo. Defendant
and his girlfriend, D.J., lived in an adjoining upstairs unit. In late
December 2001 or early January 2002, White and Tiffany slammed the door
to their apartment during an argument. The slamming of the door caused
D.J.’s new clock to fall off the wall and break. D.J. testified that the clock
2 We grant defendant’s motion for judicial notice of our opinion
affirming the underlying murder conviction, Carter I, supra, A106402. We
previously granted the Attorney General’s request for judicial notice of the
record in defendant’s prior appeal in case No. A106402. (Evid. Code, §§ 459,
subd. (a) [“The reviewing court may take judicial notice of any matter
specified in Section 452.”]; 452, subd. (d) [permitting a court to take judicial
notice of records of “any court of this state”].)

-- 2 of 12 --

3
cost $45, and that White promised her three or four times that he would
replace it as soon as he had the money.
In January 2002, Tiffany overheard defendant discussing the broken
clock with White at the door of their apartment. Defendant sounded angry.
Another time, Tiffany heard defendant in the hallway telling White that
there was a $50 debt to be paid. According to Tiffany, defendant sounded
irate.
On February 22, 2002, D.J. and defendant moved out of the Reis
Avenue apartment. They moved into an apartment on Carolina Street with
D.J.’s cousin, Christina, and her husband, Jason Maxwell. D.J. returned to
the Reis Avenue building with defendant and Christina on February 27,
2002, about 2:30 p.m. D.J. saw White in front of the building talking to the
mother of his children, D.H. D.J. approached White and angrily told him
that he owed her $50 for the clock. D.H. heard D.J. say that if White did not
have the money by the end of the day, he would “see what happens.” D.J.
then got into the car and left with defendant and Christina.
That evening, defendant and Christina were drinking at the Carolina
Street apartment after D.J. had gone to bed. Maxwell returned home shortly
after 2:00 a.m. Christina eventually went to bed, and Maxwell and defendant
began discussing debts that were owed to Maxwell. Maxwell sold
methamphetamine and told defendant that he had been trying to collect from
a buyer who owed him money. Defendant said someone owed him money too,
and told Maxwell he would show him how to collect money owed to him.
Defendant ran upstairs to his room and returned wearing pants, a black
sweater, and black shoes. As Maxwell and defendant left the apartment,
defendant said he was going to go get his money.

-- 3 of 12 --

4
Defendant went up the stairs to White’s apartment while Maxwell
stayed downstairs and acted as the lookout. Maxwell heard defendant “hit”
White’s front door. After a pause, Maxwell heard defendant whispering for
him to come up the stairs. When Maxwell came up, defendant asked him to
kick the door in. Maxwell was able to kick the door partially open, causing
the door to splinter. Defendant rushed into the dark apartment. Maxwell
heard two gunshots in close succession immediately after defendant entered
the apartment. Between the shots, he heard a moaning sound from inside
the apartment. After the second shot, Maxwell ran down the stairs. When
he reached the bottom of the stairs, Maxwell heard a third and possibly a
fourth shot.
A short time later, defendant came down the stairs and he and Maxwell
ran to the car. On the drive back to Carolina Street, defendant while
“gloating” said, “Yeah, nigga, that’s how you do it.” Defendant said that he
had put “three in his head.” Defendant asked Maxwell to give him the shells.
Maxwell emptied the gun and dumped the shells into defendant’s hand.
The autopsy of White revealed that he had been shot four times in the
head. Three of the shots were fired from an intermediate range (a few inches
to one or two feet away), while the fourth shot was a contact wound. A blood
test revealed that White had methamphetamine in his system at the time of
death.
When Maxwell and defendant got home, Maxwell hid the gun in the
fireplace. Both men changed their clothes. They then drove back to Reis
Avenue and parked the car around the corner. They were walking toward
the crime scene when they were contacted by a Vallejo police officer.
Defendant appeared to be intoxicated and became argumentative and hostile

-- 4 of 12 --

5
during questioning. Both men were arrested. Both of their hands tested
positive for gunshot residue.
Beginning about 8:00 a.m. on February 28, 2002, officers conducted a
search of the Carolina Street apartment. They found a .357 revolver in the
fireplace, dark clothing on the floor of the living room, dark clothing on the
floor of defendant’s bedroom, and six .357 shell casings on the windowsill in
defendant’s bedroom.
The defense argued that there was nothing to connect defendant to the
murder other than the testimony of Maxwell. Defense counsel attacked
Maxwell’s credibility and maintained that he testified against defendant in
order to obtain a better plea deal for himself. Counsel pointed out that
Maxwell was a drug dealer who owned the gun used to kill White, and that
he lied repeatedly to police after his arrest. Citing the autopsy evidence that
White had methamphetamine in his system when he died, the defense argued
that White was killed by Maxwell over a drug debt, not by defendant over the
cost of a broken clock.
As noted in our prior opinion, the jury found defendant guilty of first
degree murder, however, it found the firearm enhancement not true.
The sole issue raised in the prior appeal was juror misconduct. In
2006, we upheld the trial court’s finding that no prejudicial conduct occurred
and affirmed the judgment. (Carter I, supra, A106402.)
In January 2019, defendant filed a petition for resentencing pursuant
to section 1170.95. The trial court appointed counsel, and following briefing,
denied the petition, finding defendant was the actual killer.

-- 5 of 12 --

6
II. DISCUSSION
A. Applicable Law
“Effective January 1, 2019, Senate Bill 1437 amended murder liability
under the felony-murder and natural and probable consequences theories.
The bill redefined malice under section 188 to require that the principal acted
with malice aforethought. Now, ‘[malice] shall not be imputed to a person
based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)”
(People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill also amended
section 189 to provide that a defendant who was not the actual killer and did
not have an intent to kill is not liable for felony murder unless he or she “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,” or
the victim was a peace officer performing his or her duties. (§ 189, subds. (e),
(f).)
Senate Bill 1437 also enacted section 1170.95, which authorizes “[a]
person 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).) As we recently
explained, “[t]he defendant initiates the process by filing a petition in the
sentencing court that must include three pieces of information. (§ 1170.95,
subd. (b).) First, the petition must include ‘[a] declaration by the petitioner
that he or she is eligible for relief under this section, based on all the
requirements of subdivision (a).’ (§ 1170.95, subd. (b)(1)(A).) Those
requirements are (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

-- 6 of 12 --

7
doctrine’; (2) ‘[t]he 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 or second degree murder’; and (3) ‘[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).) Second, the petition must include ‘[t]he superior court case
number and year of the petitioner’s conviction. (§ 1170.95, subd. (b)(1)(B).)
And finally, the petition must state ‘[w]hether the petitioner requests the
appointment of counsel.’ (§ 1170.95, subd (b)(1)(C).)” (People v. Cooper (2020)
54 Cal.App.5th 106, 114, review granted Nov. 10, 2020, S264684 (Cooper).)
“If a petition is missing any of these three pieces of information and the
missing information ‘cannot be readily ascertained by the [trial] court, the
court may deny the petition without prejudice’ to filing another petition that
includes the required information. (§ 1170.95, subd. (b)(2).)” (Cooper, at
p. 114.)
“Section 1170.95[, subdivision] (c) addresses the procedure by which a
trial court determines whether the petitioner is entitled to an evidentiary
hearing. The subdivision provides in full: ‘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[’s] response is served. These deadlines shall be extended for good
cause. 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.’ ” (Cooper,
supra, 54 Cal.App.5th at pp. 114–115, review granted.)

-- 7 of 12 --

8
B. Failure to Issue an Order to Show Cause and Hold an Evidentiary
Hearing
Defendant first contends the trial court erred in denying his
resentencing petition without issuing an order to show cause and holding an
evidentiary hearing pursuant to section 1170.95, subdivision (d). Because the
jury in the original trial found not true the allegation that defendant
personally used a firearm under section 12022.53, subdivision (d), defendant
claims this finding means the jury determined defendant was not the actual
killer, contrary to the trial court’s finding here that he was the actual killer.
He further claims he established a prima facie case for relief because “ ‘a
pleading charging murder generally allows the prosecution to proceed under
a theory of felony-murder,’ ” and there was “ ‘evidence that defendants sought
to recover a debt, such that the target offense could have been robbery or
extortion.’ ” We reject defendant’s claims. After reviewing the record of
conviction, we hold the trial court properly denied defendant’s petition for
resentencing but for different a reason than given by the trial court. Since
the jury was not instructed on felony murder or murder under the natural
and probable consequences doctrine, the jury could not have convicted
defendant of murder under either of these theories.
Whether courts may consider the record of conviction in determining if
the petitioner has made a prima facie showing of entitlement to relief under
section 1170.95, subdivision (c) is pending before the Supreme Court in
People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020,
S260598 (Lewis). Analogizing the section 1170.95 procedure to other forms of
postconviction relief, Lewis held that a trial court can “consider its file and
the record of conviction,” including the prior opinion in a petitioner’s direct
appeal. (Lewis, at pp. 1137–1138.) Division Three of this court then applied
Lewis to approve a trial court’s consideration of jury instructions in People v.

-- 8 of 12 --

9
Edwards (2020) 48 Cal.App.5th 666, review granted July 8, 2020, S262481
(Edwards). Edwards held that the trial court had properly reviewed “the
readily available record of conviction (charging information and jury
instructions)” to summarily deny a section 1170.95 petition on the basis that
the petitioner “was not charged or convicted of second degree felony murder
or murder under the natural [and] probable consequences doctrine directed at
accomplice liability.” (Edwards, at p. 674, italics added.) As a subsequent
decision explained, “[t]he jury instructions given at a petitioner’s trial may
provide ‘readily ascertainable facts from the record’ that refute the
petitioner’s showing,” permitting the trial court to determine that a petitioner
is not entitled to relief without engaging in “ ‘factfinding involving the
weighing of evidence or the exercise of discretion,’ ” which must wait until
after the order to show cause issues. (People v. Soto (2020) 51 Cal.App.5th
1043, 1055, italics added, review granted Sept. 23, 2020, S263939 (Soto).)
Even though we have taken judicial notice of the record of conviction
and at defendant’s request, the original opinion upholding his conviction,
defendant maintains that because the trial court did not hold an evidentiary
hearing, and the appellate record of the original appeal was not before the
trial court, “the only proper remedy is reversal so that such an evidentiary
hearing may be held at the trial court.” However, consistent with Edwards
and Soto, we conclude it is appropriate to consult the jury instructions in
determining whether the trial court erred in denying defendant’s motion for
resentencing.
The given instructions demonstrate that defendant was convicted of
first degree murder on a theory that survives Senate Bill 1437’s changes to
sections 188 and 189. (See § 1170.95, subd. (a)(3).) As to the homicide
instructions, the jury was instructed only on the theories of direct aiding and

-- 9 of 12 --

10
abetting, first degree and second degree murder, and involuntary
manslaughter, a lesser included offense. And importantly, it is undisputed
that no instructions were given on felony murder or the natural or probable
consequences doctrine. Moreover, even if the prosecutor could have
proceeded on a theory of felony murder based on the charging document,
which parenthetically makes no mention of felony murder, the record proves
she did not rely on this theory. Nor did the prosecutor argue the natural and
probable consequences doctrine. During the prosecutor’s closing argument,
she in fact argued defendant was either the actual perpetrator of the murder
or a direct aider and abettor, and no other theory.
Next, defendant claims the trial court erred because it made the factual
finding defendant was the “actual killer” without issuing an order to show
cause or holding an evidentiary hearing pursuant to section 1170.95,
subdivision (d). Additionally, he asserts the jury’s “not true” finding on the
personal use enhancement proved that Maxwell, and not defendant, was the
actual killer. We disagree with defendant on both counts.
First, defendant is incorrect that a “not true” finding on the personal
use enhancement necessarily proves defendant was not the actual killer.
Such a finding “may show no more than jury lenity, compromise, or mistake.”
(People v. Lewis (2001) 25 Cal.4th 610, 656.) In any event, even assuming the
trial court’s determination defendant was the “actual killer” was an improper
finding (see People v. Drayton (2020) 47 Cal.App.5th 965, 982), the denial of
the petition was proper based on the record of the jury instructions (In re
Marriage of Burgess (1996) 13 Cal.4th 25, 32 [appellate court reviews trial
court’s decision, not its reasoning]). As we have pointed out, considering the
murder instructions given by the trial court in defendant’s underlying case,
the jury had only two options: to find defendant guilty as the actual killer or

-- 10 of 12 --

11
as a direct aider and abettor to the actual killer. In short, because defendant
is not “[a] person convicted of felony murder or murder under a natural and
probable consequences theory,” he is therefore ineligible for relief as a matter
of law. (§ 1170.95, subd. (a); see Edwards, supra, 48 Cal.App.5th at p. 674,
review granted [absence of jury instructions on felony murder or natural and
probable consequences doctrine justified summary denial of petition].)
C. Failure to Augment the Record
Defendant claims the trial court erred in denying his motion to
augment the record with the attorneys’ opening statements and the jury’s
notes during deliberations from the original trial. We agree with defendant
that the requested augmentation was part of the record of conviction for
purposes of a section 1170.95 hearing, and thus the trial court erred. Any
error, however, was harmless (People v. Watson (1956) 46 Cal.2d 818, 836),
because the prosecutor never argued nor asked the jury to convict defendant
of murder based on either the felony-murder rule or the natural and probable
consequences doctrine, and likewise, the court did not instruct the jury on
these theories. Additionally, since the trial court in the original proceedings
did not instruct on either theory, we fail to see how the jury notes would have
been relevant to the court’s present ruling on defendant’s petition for
resentencing. We thus have no difficulty in concluding, as a matter of law,
that defendant is not entitled to relief.
III. DISPOSITION
Accordingly, the judgment is affirmed.

-- 11 of 12 --

12
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A159196
People v. Carter

-- 12 of 12 --