People v. Collier CA4/2

Opinion

Filed 10/31/25 P. v. Collier 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E084331

v. (Super.Ct.No. SCR56699)

TRACY COLLIER, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, James M.

Toohey and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant Tracy Lavail Collier appeals an order denying his Penal

Code1 section 1172.6 resentencing petition at the prima facie stage of the proceedings.

We affirm.

PROCEDURAL BACKGROUND2

In 1992, a jury found defendant guilty of willful, deliberate, premeditated

attempted murder. (§§ 664/187 (a), count 1.) It also found that he personally used a

firearm in the commission of the offense, within the meaning of former section 12022.5,

subdivision (a). A trial court sentenced him to a term of life with the possibility of

parole, plus four years on the firearm use enhancement.

On May 30, 2019, defendant filed an amended petition for resentencing under

former section 1170.95 (renumbered section 1172.6 by Stats. 2022, ch. 58, effective June

30, 2022)3, alleging that he was entitled to relief under Senate Bill No. 1437 (Senate Bill

1437). (People v. Collier (Jan. 9, 2020, E073168 [nonpub. opn.] (Collier).) On June 28,

2019, the trial court denied the petition after determining that section 1172.6 did not

apply to attempted murder. (Ibid.) Defendant appealed, and defense counsel filed a brief

1 All further statutory references will be to the Penal Code unless otherwise indicated.

2 Because the facts of the case are not relevant to the issue raised on appeal, we have not included a statement of facts.

3 To avoid confusion, we will refer to the statute as section 1172.6 in this opinion.

2 pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirmed the judgment. (Collier,

supra, E073168.)

On or around January 18, 2022, defendant filed a resentencing petition form

pursuant to section 1172.6, in propria persona. On March 3, 2022, he filed another in

propria persona petition form under section 1172.6. He filed yet another section 1172.6

resentencing petition form on April 22, 2022. On September 8, 2022, the trial court

denied defendant’s petition (hereinafter, the second petition)4, noting that he was

ineligible for resentencing under section 1172.6 as a matter of law because a jury

convicted him of deliberate, premeditated attempted murder. The court also noted the

jury found that defendant personally used a firearm in the commission of the offense.

On June 24, 2024, defendant filed a handwritten “Renewed Petition for

Resentencing [and] Request for Appointment of Counsel” (renewed resentencing

petition), pursuant to section 1172.6.

On July 1, 2024, the trial court issued a minute order, which indicated that it had

reviewed defendant’s renewed resentencing petition and stated the following:

“Defendant convicted of willful, deliberate, premeditated attempted murder, and

that [sic] he personally used a firearm in the commission of that crime.¶ The Petition

does not allege Defendant was convicted under the natural and probable consequences

doctrine as required. (PC 1172.6 (a) (1)(A).)¶ Moreover, Defendant not eligible as a

matter of law based on jury instructions and jury’s verdict and findings.”

4 The court apparently ruled on all three of defendant’s petitions as if they were one petition, since they were all virtually the same.

3 The court attached copies of the jury instructions regarding count 1, the attendant

“willful, deliberate, and premeditated” allegation, and the personal firearm use allegation.

The instructions explained that defendant was accused of committing attempted murder

in count 1, and that in order to prove that crime, the following elements had to be shown:

(1) “A direct but ineffectual act was done by one person towards killing another human

being” and (2) “The person committing such act harbored express malice aforethought,

namely, a specific intent to kill unlawfully another human being.”

The instructions further explained that if the jury found defendant guilty in count

1, it had to determine whether the allegation that the crime attempted was willful,

deliberate, and premeditated murder was true. The instruction stated that an attempt to

commit willful, deliberate, and premeditated murder was defined as “preceded and

accompanied by a clear, deliberate intent to kill, which was the result of deliberation and

premeditation, so that it must have been formed upon pre-existing reflection . . . ” The

jury was also instructed that it had to determine whether defendant personally used a

firearm in the commission of count 1.

Additionally, the court attached the verdict forms demonstrating that the jury

found defendant guilty of count 1 and found true the allegations that count 1 was an

attempt to commit willful, deliberate and premeditated murder and that defendant

personally used a firearm in the commission of the offense.

Defendant filed a timely notice of appeal from the denial of the renewed

resentencing petition.

4 DISCUSSION

The Trial Court Properly Denied the Renewed Resentencing Petition

Defendant contends the trial court erred in summarily denying his renewed

resentencing petition at the prima facie stage, without appointing him counsel, offering

the parties the chance for further briefing, or holding a hearing to determine if he had

made a prima facie case for relief. Defendant also asserts that the court did not include a

full set of jury instructions with its ruling, and it improperly relied on the fact that the jury

found that he personally used a firearm in the commission of the crime. Finally, he

claims that “[n]othing in the record dispositively establishes [he] was the personal [sic]

who personally acted with express malice.” Thus, defendant argues the denial order

should be reversed and the matter remanded with directions to appoint counsel, allow the

opportunity for briefing, and hold a prima facie hearing.

The People contend the renewed resentencing petition is procedurally barred by

the doctrine of collateral estoppel because the court’s prior findings in denying his

resentencing petition on September 8, 2022 “remained undisturbed” and the applicable

law has not changed since then.

We conclude the court properly denied defendant’s renewed resentencing petition,

and defendant has not shown otherwise.

A. Resentencing Law

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess., Stats.

2018, ch. 1015 (Senate Bill 1437)) was enacted “‘to amend the felony murder rule and

5 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.’” (People v. Lewis (2021) 11 Cal.5th 952, 959

(Lewis).) Senate Bill 1437 “substantially modified the law relating to vicarious liability

for murder by eliminating the natural and probable consequences doctrine as a basis for

finding a defendant guilty of murder [Citation] and by narrowing the scope of felony

murder [Citation].” (People v. Lopez (2022) 78 Cal.App.5th 1, 11 (Lopez).) It

“eliminated the natural and probable consequences doctrine by adding the following

language to section 188: ‘Except as stated in subdivision (e) of Section 189, in order to

be convicted of murder, a principal in a crime shall act with malice aforethought. Malice

shall not be imputed to a person based solely on his or her participation in a crime.’”

(Ibid.; § 188, subd. (a)(3).) Effective January 1, 2022, Senate Bill 775 amended section

1172.6 to clarify, among other things, that persons convicted of attempted murder under

the natural and probable consequences doctrine are eligible for resentencing under the

statute. (Stats. 2021, ch. 551, §§ 1-2.)

Senate Bill 1437 added section 1172.6, which provides a procedure for individuals

convicted of attempted murder who could not be convicted under the law as amended to

retroactively seek relief. (Lewis, supra, 11 Cal.5th at p. 957.) Under section 1172.6, the

relief process begins with the filing of a petition containing a declaration that all

requirements for eligibility are met (§ 1172.6, subd. (b)(1)(A)), “including that ‘[t]he

6 petitioner could not presently be convicted of murder or attempted murder because of

changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,’ the

effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3)).” (People v. Strong (2022) 13

Cal.5th 698, 708 (Strong).)

When the trial court receives a petition containing the necessary declaration and

other required information, the court must “hold a hearing to determine whether the

petitioner has made a prima facie case for relief.” (§ 1172.6, subd. (c).) “If the court

finds the petitioner has made a prima facie case, the court must issue an order to show

cause.” (Lopez, supra, 78 Cal.App.5th at p. 12; § 1172.6, subds. (c).) However, “[i]f the

petition and record in the case establish conclusively that the defendant is ineligible for

relief, the trial court may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708;

Lewis, supra, 11 Cal.5th at pp. 970-972.)

The record of conviction includes the charging document, verdict forms, closing

arguments, and jury instructions. (People v. Jenkins (2021) 70 Cal.App.5th 924, 935.)

“A petitioner is ineligible for resentencing as a matter of law if the record of conviction

conclusively establishes, with no factfinding, weighing of evidence, or credibility

determinations, that (1) the petitioner was the actual killer, or (2) the petitioner was not

the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded,

induced, solicited, requested, or assisted the actual killer in the commission of murder in

the first degree, (3) the petitioner was a major participant in the underlying felony and

acted with reckless indifference to human life, or (4) the petitioner acted with malice

7 aforethought that was not imputed based solely on participation in a crime.” (Lopez,

supra, 78 Cal.App.5th at p. 14.)

The trial court here denied defendant’s resentencing petition on the ground that he

had failed to make a prima facie case for resentencing relief. “‘“A denial at that stage is

appropriate only if the record of conviction demonstrates that 'the petitioner is ineligible

for relief as a matter of law.’ [Citations.] This is a purely legal conclusion, which we

review de novo.”’” (Lopez, supra, 78 Cal.App.5th at p. 14.)

B. Collateral Estoppel Bars Relitigation of the Issue of Defendant's Entitlement to Relief

Under Senate Bill 1437

We first note the People’s argument that defendant’s renewed resentencing

petition was procedurally barred. Collateral estoppel “bars relitigation of issues earlier

decided ‘only if several threshold requirements are fulfilled. First, the issue sought to be

precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding. Third, it

must have been necessarily decided in the former proceeding. Fourth, the decision in the

former proceeding must be final and on the merits. Finally, the party against whom

preclusion is sought must be the same as, or in privity with, the party to the former

proceeding.’” (Strong, supra, 13 Cal.5th at p. 716.) Collateral estoppel “applies in

criminal as well as civil proceedings.” (Ibid.)

Collateral estoppel applies here. As the People assert, defendant raises an issue

that was already decided by the court denying his second resentencing petition. In his

8 second petition, defendant claimed he was entitled to relief under Senate Bill 1437

because he was convicted of attempted murder on a now invalid theory (i.e., the natural

and probable consequences doctrine). On September 8, 2022, the court deciding his

second petition determined that he was ineligible for resentencing under section 1172.6

as a matter of law because a jury convicted him of deliberate, premeditated attempted

murder. We note that defendant filed the second petition, and the court ruled on it, after

the effective date of Senate Bill 775, which clarified that persons convicted of attempted

murder under the natural and probable consequences doctrine are eligible for

resentencing under section 1172.6. We also observe that defendant is not claiming there

were any irregularities in the proceedings, and it does not appear that he appealed the

court’s decision; thus, it has become final. (See People v. Bunn (2022) 27 Cal.4th 1, 21

[a judgment becomes final when the time for appealing an inferior court decision has

expired]; People v. Mendez (1999) 19 Cal.4th 1084, 1094 [to appeal from a judgment of

conviction, a defendant must file a notice of appeal within 60 days after rendition of

judgment].) Accordingly, defendant cannot relitigate this issue. “[A] section [1172.6]

petition is not a means by which a [petitioner] can relitigate issues already decided.”

(People v. Coley (2022) 77 Cal.App.5th 539, 549 (Coley).)

C. The Record of Conviction Demonstrates Defendant is Ineligible for Relief as a Matter

of Law

Even if defendant is not procedurally barred, we conclude the trial court properly

denied his renewed resentencing petition. Section 1172.6 applies by its terms only to

9 attempted murders based on the natural and probable consequences doctrine. (§ 1172.6,

subd. (a) [“A person convicted of . . . attempted murder under the natural and probable

consequences doctrine . . . may file a petition”].) There is no indication in the record

before us that the court instructed the jury on this doctrine. Rather, it instructed the jury

that to convict defendant of attempted murder, it was required to find that:

“1. A direct but ineffectual act was done by one person towards killing another

human being; and

2. The person committing such act harbored express malice

aforethought, namely, a specific intent to kill unlawfully another human being.”

The court also instructed the jury as to the “willful, deliberate, and premeditated”

allegation on count 1, in part, as follows: “If you find that the attempt to commit murder

was preceded and accompanied by a clear, deliberate intent to kill, which was the result

of deliberation and premeditation, . . . it is attempt to commit willful, deliberate, and

premeditated murder.”

The record shows that the jury instructions specifically advised that an attempted

murder conviction required a finding that defendant harbored a specific intent to kill.

Further, a true finding on the “willful, deliberate, and premeditated” allegation required

the jury to find that defendant acted with a “clear, deliberate intent to kill.” Accordingly,

since the jury found defendant guilty of willful, deliberate, premeditated attempted

murder, it necessarily found that he acted with the intent to kill. In other words, the

record of conviction before us shows the jury found defendant acted with the intent to

10 kill, and that he was convicted of attempted murder as a perpetrator and not under the

natural and probable consequences doctrine. Therefore, the court properly found that he

was ineligible for relief under section 1172.6. (Lopez, supra, 78 Cal.App.5th at p. 14

[petitioner is ineligible as a matter of law if record of conviction establishes he “acted

with malice aforethought that was not imputed based solely on participation in a crime”];

see Coley, supra, 77 Cal.App.5th at pp. 547-548; see also, People v. Cortes (2022) 75

Cal.App.5th 198, 204.) To the extent the court may have erred by summarily denying

defendant’s renewed resentencing petition without first appointing counsel (§ 1172.6,

subd. (b)(3)), any error was harmless, since defendant is ineligible for relief as a matter of

law.

Defendant attempts to circumvent this result by arguing that the record on appeal

“does not contain the full set of jury instructions nor does it contain a reporter’s transcript

of any portion of the underlying trial such as instructions to the jury or closing

arguments.” He also contends that “because the jury instructions and closing arguments

were not reviewed and are not part of the appellate record, it is impossible to determine

what theories of guilt may have been presented to [the] jury.” Nothing in the record

supports the contention that the trial court did not review the jury instructions and closing

arguments. “Since the record discloses no basis for defendant’s assertion, we decline to

engage in such speculation.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20;

see also, People v. Birdwell (1967) 253 Cal.App.2d 621, 626-627 [“‘[An] appellate court

will not consider assignments of error based upon asserted matters not shown by the

11 record and supported by nothing more than statements in an appellant’s brief.’”].)

Rather, we presume the trial court regularly performed its duties. (Evid. Code, § 664.)

Furthermore, “it is the appellant’s burden to affirmatively demonstrate error.”

(People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 ; People v. Tang (1997) 54

Cal.App.4th 669, 677 [“‘it is defendant’s burden on appeal to affirmatively demonstrate

error — it will not be presumed. [Citation.]’”].) Not only does defendant bear the burden

of demonstrating the court erred, “but the defendant further bears the burden to provide a

record on appeal which affirmatively shows that there was an error below, and any

uncertainty in the record must be resolved against the defendant.” (People v. Sullivan

(2007) 151 Cal.App.4th 524, 549 (Sullivan).)

Defendant specifically complains that the record on appeal does not contain the

full set of jury instructions. He similarly claims that the trial court “purported to cite the

jury instructions on this case, but only a small portion[] of those instructions were

included in the record on appeal.” Notably, defendant has not argued or demonstrated

that the court erred in its decision, as he does not claim he was convicted under the

natural and probable consequences doctrine. Instead, he contends that it is “impossible to

determine” what theories were presented to the jury because of the allegedly deficient

record on appeal. However, it was his burden to provide a record on appeal which

affirmatively shows there was error below. (Sullivan, supra, 151 Cal.App.4th at p. 549;

see also, People v. Alvarez (1996) 49 Cal.App.4th 679, 694 [“It has long been settled that

12 the burden is on an appellant to affirmatively show in the record that error was committed

by the trial court”].) He has not done so.

As to defendant’s claim that “the court did not include a full set of jury

instructions” with its order finding him ineligible for relief (emphasis added), we assume

the court just included the instructions and verdict forms that supported its decision.

Ultimately, upon de novo review, we find no error based on the record

before us. We conclude the court properly found that defendant was ineligible for relief

under section 1172.6 as a matter of law.

DISPOSITION

The order denying defendant’s renewed resentencing petition under 1172.6 is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

McKINSTER Acting P. J. RAPHAEL J.