Filed 1/8/20 P. v. Dancy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PAUL DANCY,

Defendant and Appellant.

E073306

(Super.Ct.No. FSB703006)

OPINION

APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno, Judge. Affirmed.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

INTRODUCTION

In August 2007, after a brief verbal exchange, defendant and appellant Paul Dancy fatally shot the victim with a semiautomatic firearm. A jury convicted defendant of one count of shooting at an occupied vehicle (Penal Code, § 246, count 2), two counts of assault with a semiautomatic firearm (§ 245, subd. (b), counts 3 and 4), and one count of being a felon in possession of a firearm (former § 12021, subd. (a)(1), count 5). The jury further found that defendant personally used a firearm in committing the assaults (former § 12022.5, subds. (a) & (d)). The jury could not come to a unanimous verdict on a count of first degree murder (§ 187, subd. (a), count 1) and an enhancement of count 2 for personally discharging a firearm and causing great bodily injury or death (former § 12022.53, subd. (d)). The trial court declared a mistrial on those charges. (People v. Dancy (Apr. 22, 2014, E056609) [nonpub. opn.] at p. 2 (Dancy I).)

On retrial, a second jury convicted defendant of first degree murder (§ 187, subd. (a)) and found true an enhancement of that conviction for personally discharging a firearm, causing great bodily injury or death (former § 12022.53, subd. (d)). Defendant waived jury trial on an enhancement for personally discharging a firearm causing great bodily injury or death (former § 12022.53, subd. (d)) with respect to defendant’s conviction for shooting at an occupied vehicle (count 2). After the jury’s verdict in the second trial, the court found the enhancement true. (Dancy I, supra, E056609, at p. 2.) In a bifurcated proceeding, the court also found true that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

After the second trial, the court sentenced defendant for both trials to an indeterminate term of 75 years to life, plus a determinate term of 33 years four months. (Dancy I, supra, E056609, at p. 2.)

Defendant appeals from a postjudgment order denying his petition for resentencing pursuant to section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437). Based on our independent review of the record, we affirm the order.

II

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On August 2, 2007, at about 2:30 p.m., Darrin Parris was driving his car in the right lane of a street in the city of San Bernardino, with his girlfriend (victim 2), who was in the front passenger seat, and their three-year-old son (victim 3), who was in the rear passenger seat. A car in the left lane pulled up next to Mr. Parris’s car and, after a brief verbal exchange between the two drivers, at least seven shots from a semiautomatic handgun were fired at Mr. Parris’s car. Three bullets struck Mr. Parris, one fatally. Victims 2 and 3 escaped with only minor cuts from broken glass. (Dancy I, supra, E056609, at p. 3.)

Defendant denied that he fired a gun at Mr. Parris. He claimed that his front seat passenger—someone defendant barely knew, named “Demetri” and nicknamed “Meech”—unexpectedly pulled out a gun and began firing at Mr. Parris’s vehicle. (Dancy I, supra, E056609, at p. 4.)

The prosecution challenged defendant’s account of the shooting, introducing evidence at both trials that defendant had personally fired the shots that killed Mr. Parris. Victim 2, who had known defendant and his family for many years, testified that she saw defendant drive up beside them, challenge Mr. Parris, and then, while driving, reach across the passenger compartment to aim and fire a handgun at them. She told police the same information immediately after the shooting. (Dancy I, supra, E056609, at pp. 4-5.)

A bystander who witnessed the shooting testified that she observed the driver of the vehicle in the left lane shooting at the vehicle in the right lane. Additionally, at defendant’s first trial, a police detective opined that the physical evidence gathered at the scene was consistent with a driver firing a semiautomatic handgun while reaching across the passenger compartment, rather than a passenger shooting out the passenger-side window. Statements by victim 3 to victim 2 implicating defendant as the shooter, made during breaks in a recorded police interview of victim 2 shortly after the shooting, were introduced into evidence only at defendant’s second trial. (Dancy I, supra, E056609, at p. 5.)

The prosecution also introduced evidence that it was not “Meech,” but rather defendant’s brother Martess who was defendant’s passenger at the time of the shooting. Victim 2 positively identified Martess as defendant’s passenger at the time of the shooting. Martess accompanied defendant on the flight to North Carolina the morning after the shooting. In addition, at defendant’s second trial, a police investigator testified he only located one person named “Demetri” and nicknamed “Meech” (or a variant spelling of that moniker), who was incarcerated on August 2, 2007. (Dancy I, supra, E056609, at pp. 5-6.)

In defendant’s first trial, the prosecution rested its case entirely on the theory that defendant was the shooter, not his passenger (no matter who that passenger might have been). The jury was not instructed on the law of aiding and abetting, and the prosecution explicitly disclaimed any reliance on such a theory to the jury. (Dancy I, supra, E056609, at p. 6.)

In defendant’s second trial, the prosecution continued to argue that defendant was the shooter as its primary theory of the case. But the prosecution also asked, in the alternative, for the jury to find defendant guilty on an aiding and abetting theory if it believed defendant’s passenger was the shooter. The jury was instructed by the court on the law of aiding and abetting. (Dancy I, supra, E056609, at p. 6.)

B. Procedural Background

Following defendant’s convictions, on April 22, 2014, this court affirmed defendant’s judgment and conviction in a nonpublished opinion. (See Dancy I, supra, E056609, at pp. 3, 15.)

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), eff. Jan. 1, 2019.) 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 28, 2019, defendant filed a petition for resentencing pursuant to section 1170.95, alleging that he was tried and convicted on a charging instrument that permitted his conviction under a felony murder theory or under a natural and probable consequences theory.

On February 28, 2019, the People filed a motion to strike defendant’s petition for resentencing and request for judicial notice of this court’s nonpublished opinion in case No. E056609 and the files and records in superior court case No. FSB703006-1. The People argued Senate Bill 1437 was unconstitutional and that defendant was a major participant acting with reckless disregard for human life. On this same day, the People also filed an informal response, contending defendant failed to set forth a prima facie case for relief as required under section 1170.95.

After the trial court appointed counsel for defendant, on April 10, 2019, defendant’s appointed counsel filed opposition to the People’s motion to strike the petition for resentencing.

On May 31, 2019, the trial court tentatively found that defendant had failed to establish a prima facie showing of eligibility for relief, and for that reason, any need for a ruling on the constitutionality of the statute was moot. The court set the matter for further hearing to allow the parties an opportunity to address the tentative ruling.

At the further hearing held on June 28, 2019, the prosecutor and defense counsel submitted on the pleadings. The trial court found that defendant was statutorily ineligible for relief under section 1170.95 because he was the actual shooter.

On July 29, 2019, defendant filed a timely notice of appeal.

III

DISCUSSION

After defendant 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 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 requesting this court to conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.

On September 30, 2018, the Governor signed Senate Bill 1437. “The legislation, 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 sections 188 and 189, as well as by adding 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; 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.” (People v. 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.) “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; Martinez, supra, 31 Cal.App.5th at p. 723.) “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.)

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).) If the petitioner makes a prima facie showing that he or she is entitled to relief, the trial court must conduct 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, subds. (c), (d)(1); Martinez, at pp. 723-724.) 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, at pp. 723-724.)

In this case, defendant’s record of conviction demonstrates he is not eligible for relief under the provisions of section 1170.95. Defendant’s record of conviction shows that he was the actual killer. Accordingly, defendant cannot make a prima facie showing he is entitled to relief under section 1170.95.

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. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.

IV

DISPOSITION

The order denying defendant’s section 1170.95 petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

FIELDS

J.

RAPHAEL

J.