P. v. Mitchell

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Filed 5/11/21 P. v. Mitchell CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
DAMIAN MITCHELL,
Defendant and Appellant.
C091560
(Super. Ct. No. 93F04222)
Defendant Damian Mitchell appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1170.95.1 He contends the trial court erred by
summarily denying his petition without issuing an order to show cause and the court
erred in relying on this court’s prior opinion to conclude defendant was ineligible for
relief under section 1170.95 as a matter of law. We affirm.
1 Undesignated statutory references are to the Penal Code.

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BACKGROUND
Ruben Johns was killed by a single shotgun blast, fired by defendant, to his neck
and upper chest. Johns and codefendant Lamar Simms were involved in an ongoing
dispute. As the dispute continued, Simms paged defendant and entered the codes “911”
and “187,” for emergency and murder respectively. Simms took a 12-gauge shotgun
from the trunk of his car and waited for defendant to arrive. When defendant arrived, he
asked “ ‘who’s Johns?’ ” Simms and Johns began arguing again, and that arguing
escalated into a physical altercation. Johns stabbed Simms in the chest and Simms
dropped the shotgun. Defendant picked up the shotgun and pointed it Johns. As Johns
backed away with his hands up, defendant got down on one knee and fired once, striking
Johns in the upper chest and neck. Johns died at the scene. Defendant claimed the
shooting was in self-defense, and he only fired the weapon because Johns “ ‘flinched’ ” at
him with the knife. Defendant denied aiming at Johns and claimed he did not mean to
shoot Johns.
Defendant was charged with murder with malice aforethought. The information
also alleged that in the commission of the offense, defendant personally used a 12-gauge
shotgun. A jury found defendant guilty of second degree murder and found true the
allegation he personally used a firearm in the commission of the offense. The trial court
sentenced defendant to a term of 15 years to life plus 6 years. Defendant appealed,
claiming prosecutorial misconduct and that the trial court erred in refusing to reduce his
conviction to voluntary manslaughter. This court affirmed the judgment.
Defendant filed a petition for resentencing under section 1170.95. Defendant
declared the prosecution proceeded “under the natural and probable consequences
doctrine,” he was convicted of “2nd degree murder pursuant to the felony murder rule or
the natural and probable consequences doctrine,” and he “could not now be convicted of
1st or 2nd degree murder.” He further declared he was convicted under the natural and
probable consequences doctrine.

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The trial court appointed counsel for defendant and ordered briefing to determine
whether to issue an order to show cause. After reviewing the parties’ briefs and the
“court’s underlying file,” the trial court noted, based on the instructions given, the jury
could not have convicted defendant on a natural and probable consequences conspiracy
theory as he fired the fatal shot (i.e. was the actual killer), the jury was not instructed with
a natural and probable consequences aiding and abetting theory as to defendant, and the
jury was not instructed on felony murder. The trial court concluded defendant had not
shown he came within the provisions of section 1170.95 and was ineligible for statutory
relief. Accordingly, the trial court denied the petition.
DISCUSSION
Defendant contends the trial court erred in summarily denying his petition by
engaging in factfinding without having issued an order to show cause and considering the
record of conviction, including our appellate opinion, in determining whether he had
made a prima facie showing of eligibility for relief.
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which was enacted “to amend the
felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who is 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.” (Stats. 2018, ch. 1015, § 1,
subd. (f); see People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review granted Mar.
18, 2020, S260493 (Verdugo); People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
“Senate Bill No. 1437 achieves these goals by amending section 188 to require that a
principal act with express or implied malice and by amending section 189 to state that a
person can only be liable for felony murder if: (1) the ‘person was the actual killer’; (2)
the person was an aider or abettor in the commission of murder in the first degree; or (3)
the ‘person was a major participant in the underl[y]ing felony and acted with reckless

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indifference to human life.’ (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2,
3.)” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted March 18, 2020,
S260410 (Cornelius); see Verdugo, at p. 326.)
Senate Bill No. 1437 also added section 1170.95, which permits persons convicted
of felony murder or murder under a natural and probable consequences theory to petition
the sentencing court to vacate the conviction and be resentenced on any remaining counts
if he or she could not have been convicted of murder following Senate Bill No. 1437’s
changes to sections 188 and 189. (Stats. 2018, ch. 1015, § 4.) Section 1170.95,
subdivision (b) requires that the petitioner file a declaration showing his or her eligibility
for relief under subdivision (a), the superior court case number and year of the
petitioner’s conviction, and whether he or she requests the appointment of counsel.
Section 1170.95, subdivision (c) describes the next steps in the process as follows:
“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. 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.”
Analysis
Every Court of Appeal that has considered the issue has concluded that it is proper
for a trial court to consider the record of conviction in evaluating whether a defendant has
made a prima facie showing that he/she falls within the provisions of section 1170.95.
(People v. Lee (2020) 49 Cal.App.5th 254, 262-263, review granted July 15, 2020,
S262459; People v. Law (2020) 48 Cal.App.5th 811, 820-821, review granted July 8,
2020, S262490; People v. Edwards (2020) 48 Cal.App.5th 666, 673-674, review granted

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July 8, 2020, S262481; People v. Torres (2020) 46 Cal.App.5th 1168, 1178, review
granted Jul.7, 2020, S262011; Verdugo, supra, 44 Cal.App.5th at pp. 329-330, 333,
review granted; People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-1139, review granted
Mar. 18, 2020, S260598 (Lewis); see People v. Tarkington (2020) 49 Cal.App.5th 892,
898-899, review granted Aug. 12, 2020, S263219; People v. Offley (2020)
48 Cal.App.5th 588, 598-599.) And, these Courts of Appeal have found no error in the
summary denial of section 1170.95 petitions where the record of conviction showed the
defendant was ineligible for relief under section 1170.95 because he could be convicted
of first or second degree murder under the law as amended by Senate Bill No. 1437 and,
thus, did not fall within the provisions of section 1170.95. (People v. Lee, supra,
49 Cal.App.5th at pp. 262-263, review granted; People v. Edwards, supra,
48 Cal.App.5th at p. 674, review granted; Verdugo, supra, 44 Cal.App.5th at p. 333,
review granted; Cornelius, supra, 44 Cal.App.5th at p. 58, review granted; Lewis, supra,
43 Cal.App.5th at pp. 1137-1139, review granted.) The California Supreme Court
granted review in Lewis, supra, 43 Cal.App.5th 1128 and other cases to address whether
a trial court may consider the record of conviction in determining if a defendant has made
a prima facie showing of eligibility for relief under section 1170.95. Until our Supreme
Court decides the issue, we conclude it was proper for the trial court to consider the
record of conviction in determining whether defendant made a prima facie showing that
he fell within the provisions of section 1170.95.
“A court of appeal opinion, whether or not published, is part of the appellant’s
record of conviction. [Citations.] Accordingly, it [is] proper for [a] superior court to
consider” an opinion affirming a murder conviction “in determining whether [a
petitioner] ha[s] made a prima facie showing of eligibility for relief under section
1170.95 or whether he was ineligible for relief as a matter of law.” (Verdugo, supra,
44 Cal.App.5th at p. 333, review granted.)

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Here, the trial court relied on our prior opinion and the jury instructions given and
found defendant ineligible for section 1170.95 relief as a matter of law. A review of our
prior opinion shows that defendant actually killed the victim by shooting him in the chest
and neck. There was no dispute defendant was the actual killer. We note, in line with the
jury’s verdict, defendant’s form petition did not aver he was not the actual killer. Also,
the trial court correctly concluded the jury was not instructed on a felony-murder theory,
or on an accomplice liability theory as to defendant.
Because defendant was the actual killer, defendant is ineligible for resentencing as
a matter of law under section 1170.95. He simply does not come within the provisions of
the statute. No further briefing or evidence could aid the court in reaching this
conclusion. Indeed, “ ‘[i]t would be a gross misuse of judicial resources to require the
issuance of an order to show cause or even appointment of counsel based solely on the
allegations of the petition, . . . when even a cursory review of the court file would show
as a matter of law that the petitioner is not eligible for relief.’ ” (Lewis, supra,
43 Cal.App.5th at p. 1138, review granted.) The trial court’s summary denial of the
petition was proper.
DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
BLEASE, J.

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