Filed 7/26/24 P. v. Smith CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079476
v. (Super.Ct.No. RIF136041)
NIIKO DAVON SMITH, ORDER MODIFYING OPINION AND DENYING REHEARING Defendant and Appellant. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on July 8, 2024, be modified as follows:
On page 16, in the second paragraph, we delete the second sentence, which reads:
“The jury verdicts themselves reveal the prosecutor’s argument had no effect, insofar as the jury found defendant guilty of deliberate and premediated attempted murder, a finding that the jury instructions given in this case required that it find defendant personally premeditated involvement in the crime and acted with deliberation.
As modified, the petition for rehearing is denied.
RAMIREZ P. J.
1 Filed 7/8/24 P. v. Smith CA4/2 (unmodified opinion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
NIIKO DAVON SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.
Affirmed.
Patricia L. Brisbois, 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, A. Natasha Cortina and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1 In 2008, defendant Niiko Davon Smith, a member of the Edgemont Criminal
Gang, a criminal street gang, was convicted of two counts of attempted murder
(Pen. Code,1 §§ 664, 187, subd. (a)), respecting two separate victims, with true findings
on allegations that attempted murders were deliberate and premeditated, that a principal
discharged a firearm (§12022.53, subds. (c), (e)), and that the attempted murders were
committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) In addition,
defendant was convicted of actively participating in a street gang (§186.22, subd. (a).)
He was sentenced to an aggregate term of 35 years to life in state prison. His conviction
was affirmed on direct appeal.
In 2022, defendant petitioned for resentencing following the enactment of Senate
Bill No. 1437, but the trial court found he had not established a prima facie showing that
he was entitled to relief. Defendant appeals.
On appeal, defendant argues the trial court erred in denying his petition at the
prima facie stage because the instructions given at trial relating to aiding and abetting
may have misled the jury to find him “equally guilty” as the actual shooter, and the fact
the jury was not instructed on theories of felony murder, or the natural and probable
consequences doctrine did not preclude defendant from showing his eligibility for relief.
We affirm the judgment.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 BACKGROUND
We take the background facts from our unpublished opinion issued in defendant’s
direct appeal (People v. Smith (Mar. 30, 2011, E049071 [nonpub. opn.]), supplemented
with information relating to the postjudgment proceedings seeking resentencing.
“On February 15, 2007, there was a shooting at the Racquet Club Apartments in
Moreno Valley. Five empty nine-millimeter Luger shell casings and one unexpended
nine-millimeter Luger round were collected. Some of the residents were interviewed;
however, no one was able to identify the shooter or shooters. The best that was
discovered was that two vehicles, a van and a four-door sedan with persons of African
American descent[,] were in the location of the sound of the shots.
“On February 23, 2007, about a week after the shooting, Sergeant Robert Spivacke
of the Riverside County Sheriff’s Department conducted a tape-recorded interview of
defendant about an unrelated matter. Detective Lance Colmer, a member of the gang
unit, was called in to interview defendant. Unbeknownst to the parties present, when
Detective Colmer began to interview defendant, it was not tape-recorded. When
Detective Colmer walked in, defendant stood up and greeted the detective with a smile,
saying ‘Colmer, my nigga.’ The two began to talk, asking each other about members of
defendant’s gang. The detective had known defendant since 2003, interviewing him
during investigations, talking to him in the community, and arresting him. Defendant
admitted to Detective Colmer that he is a member of the Edgemont Criminal Gang (also
referred to as ‘Edgemont’ or ‘Edgemont gang’). Defendant had been present at ‘the
3 Shaw residence, which is one of the primary members and primary locations of activity
for the Edgemont Criminal gang.’ Also, defendant’s ‘participation in prior criminal acts
with other members of the gang … validates his membership.’
“After talking with defendant for about 20 minutes, Detective Colmer asked about
the shooting at the Racquet Club Apartment complex. Defendant indicated he knew
about it because he was there with others. Specifically, defendant identified Craisean
Evans as being in the front of the van and the shooter. Defendant was in the far rear of
the van, and other gang members or associates included ‘C-Mel’ (Davon King) and
Davion Shaw. Upon arrival, defendant saw Sex Cash Money gang members in front of
the apartment complex, including ‘Blue Devil’ (Noel Frazier), ‘Young Blue Devil’
(Tyreon Richmond), and ‘Deeko’ (Dekovan Washington). Defendant stated the shooting
occurred because of the ‘rivalry that Edgemont Criminals and Moreno Valley had with
Sex Cash Money, another gang in Moreno Valley.’ He explained this shooting was
retaliation for an act the Edgemont gang believed Sex Cash Money had committed
against it. After the shooting, they fled in the van.
“Supervising Deputy District Attorney Kamaria Henry observed Detective
Colmer’s interview with defendant on a monitor at the police station on February 23,
2007. Her recollection of the interview differed in that she testified defendant had
identified Craisean Evans as the driver. She also believed defendant had denied being a
member of the Edgemont gang.
4 “Detective Colmer also testified as a gang expert and opined that defendant,
Craisean Evans, and Davion Shaw were Edgemont gang members and Davon King was
an associate of the gang. He also opined the shooting was gang related and motivated by
the ongoing rivalry between the two gangs.” (People v. Smith, supra, E049071,
fn. omitted.)
“On October 6, 2008, a jury found defendant and appellant Niiko Davon Smith
guilty of two counts of attempted premeditated murder (Pen. Code, §§ 664, 187,
subd. (a); counts 3 & 4) and one count of active participation in a criminal street gang
(§ 186.22, subd. (a); count 5). The jury found true the allegations that a principal
personally and intentionally discharged a firearm (§ 12022, subd. (a)(1)) and that the
crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). On
August 17, 2009, defendant was sentenced to prison for a total term of 35 years to life.”
(People v. Smith, supra, E049071, fn. omitted.)
Defendant appealed the conviction and sentence, in People v. Smith, supra,
E049071. On March 30, 2011, we modified the sentence to reflect concurrent terms on
counts 3 and 4 of life with the possibility of parole, plus 20 years for the section 12022.53
firearm enhancement, and we stayed the concurrent two-year sentence on count 5. In all
other respects, we affirmed the judgment.
On April 18, 2022, defendant filed a pro se petition for resentencing under former
section 1170.95 (currently numbered and hereafter referred to as § 1172.6), alleging he
was eligible for resentencing. On July 22, the People requested that the petition be
5 denied because the record of conviction shows that the jury was not instructed on theories
of felony murder or the natural and probable consequences doctrine, rendering defendant
ineligible for resentencing. Defense counsel agreed. The court concluded there was no
basis for relief and denied the petition.
Defendant appealed.
DISCUSSION
Defendant does not dispute that the jury in his trial was not instructed on
principles of felony murder or the natural and probable consequences doctrine. However,
he argues that “[t]he absence of instruction on these particular theories did not
categorically preclude [defendant] from showing his eligibility for relief. All he needed
to allege to make a prima facie showing was that he was convicted of attempted murder
on an invalid theory was to assert that malice had been imputed to him based on someone
else's mental state and that changes to [section 188] would preclude such a conviction
now.” He goes on to argue that the instructions on aiding and abetting, combined with
the prosecutor’s closing argument to the jury, allowed the jury to convict him of
attempted murder based on the shooter’s mental state rather than his own. We disagree.
6 A. Defendant Failed to Establish a Prima Facie Basis for Relief under Section 1172.6
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended
the felony-murder rule by adding section 189, subdivision (e). It provides that a
participant in the qualifying felony is liable for felony murder only if the person: (1) was
the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct
aider and abettor; or (3) was a major participant in the underlying felony and acted with
reckless indifference to human life. (See People v. Gentile (2020) 10 Cal.5th 830, 842.)
The Legislature also eliminated the natural and probable consequences doctrine
for persons who were not the actual killer by amending section 188, subdivision (a)(3),
which now states that “[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3).) The amendments included a
procedure by which those convicted of murder can seek retroactive relief if the changes
in law would affect their previously sustained convictions. (§ 1172.6; People v. Saibu
(2022) 81 Cal.App.5th709, 731.)
Effective January 1, 2022, the statutory scheme was further amended to clarify
that the new procedures applied also to persons convicted of attempted murder or
manslaughter under a theory of felony murder and the natural and probable consequences
doctrine and permitted the same relief as those persons convicted of murder under the
same theories. (Sen. Bill No. 775 (2021-2022 Reg. Sess.); People v. Birdsall (2022) 77
Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388; see
7 People v. Sanchez (2022) 75 Cal.App.5th 191, 193; People v. Porter (2022) 73
Cal.App.5th 644, 651-652.)
Under section 1172.6, a person convicted of felony murder or murder based on the
natural and probable consequences doctrine may 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 because of these statutory changes. (See People v. Lewis
(2021) 11 Cal.5th 952, 959-960 (Lewis).)
A person may seek resentencing by filing a section 1172.6 petition. (§ 1172.6,
subd. (a).) Upon such filing, the court must “determine whether the petitioner has made a
prima facie case for relief.” (§ 1172.6, subd. (c).) The petitioner is entitled to relief if he
alleges, as relevant here, (1) “[a] complaint, information, or indictment was filed against
[him] that allowed the prosecution to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine or other theory under which malice
is imputed to a person based solely on that person’s participation in a crime, or attempted
murder under the natural and probable consequences doctrine,” (2) he “accepted a plea
offer in lieu of a trial at which the petitioner could have been convicted of … attempted
murder,” and (3) he “could not presently be convicted of … attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(1)-
(3).)
The prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) The court
must accept the petitioner’s allegations as true and “should not make credibility
8 determinations or engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ [Citation.]” (Id. at p. 974.) “If the petition and record in the case
establish conclusively that the [petitioner] is ineligible for relief, the trial court may
dismiss the petition” as a matter of law. (People v. Strong (2022) 13 Cal.5th 698, 708; In
re Serrano (1995) 10 Cal.4th 447, 456.)
‘“However, if the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.””’ (Lewis, supra, 11 Cal.5th at
p. 971.)
Thus, at the prima facie stage, the trial court’s inquiry “‘is limited to readily
ascertainable facts from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference to human life in the
commission of the crime).’” (People v. Pacheco (2022) 76 Cal.App.5th 118, 125.) “If,
accepting the facts asserted in the petition as true, the petitioner would be entitled to relief
…, then the trial court should issue an order to show cause.” (People v. Drayton (2020)
47 Cal.App.5th 965, 980 [overruled on a different point in Lewis, supra, 11 Cal.5th at
p. 963].)
“We independently review a trial court’s determination of whether a petitioner has
made a prima facie showing.” (People v. Patton (2023) 89 Cal.App.5th 649, 656, review
granted June 28, 2023, S279670.) Whether the petitioner has made a prima facie
9 showing of entitlement to relief under section 1172.6 is a “‘purely legal conclusion,
which we review de novo.’” (People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
B. Analysis
1. Defendant’s Attempted Murder Convictions, Based on a Specific Intent to Kill
and a Finding of Premeditation, Rendered Defendant Ineligible for
Resentencing Relief.
Defendant’s petition includes the required assertions pursuant to section 1172.6,
subdivision (a): that defendant was prosecuted and convicted of first or second degree
murder or attempted murder or manslaughter pursuant to a theory of felony murder or
murder under a natural and probable consequences theory or other theory under which
malice is imputed solely based on the person's participation in the crime and that he or
she could not now be so convicted because of changes to sections 188 or 189 that took
effect January 1, 2019. (See § 1172.6, subd. (a)(l)-(3).)
However, the record of conviction refutes the assertion that he was convicted
under theories of felony murder or as an aider and abettor under the natural and probable
consequences doctrine. As to the attempted murder counts, defendant is statutorily
ineligible for resentencing, even after the amendments to sections 188 and 189, because
no theory of felony murder or the natural and probable consequences doctrine were
presented to the jury. Thus, the record of conviction refutes the allegations of the
petition, because defendant was not ‘“[a] person convicted of felony murder or murder
10 under a natural and probable consequences theory,”’ and he is therefore ineligible for
relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 677 (Daniel).)
Section 1172.6 applies by its terms only to 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 …”].) The jurors in this case were not instructed on that doctrine. They were
given CALCRIM Nos. 400 and 401, on the theory of direct aiding and abetting, as well
as CALCRIM No. 600, which advised them that an attempted murder conviction required
a finding that the “defendant intended to kill [the victim].” “Direct aiding and abetting
remains a valid theory of attempted murder after the enactment of Senate Bill No. 775.”
(People v. Coley (2022) 77 Cal.App.5th 539, 548, citing People v. Sanchez (2022) 75
Cal.App.5th 191, 197.) The jury verdicts establish defendant harbored the intent to kill
and acted as a direct aider and abettor.
As the California Supreme Court has recently concluded, the finding of specific
intent to kill may be binding and preclusive. (People v. Curiel (2023) 15 Cal.5th 433,
453-454.) It explained that “a relevant jury finding is generally preclusive in section
1172.6 proceedings, i.e., it ‘ordinarily establish[es] a defendant's ineligibility for
resentencing under Senate Bill [No.] 1437 and thus preclude[s] the defendant from
making a prima facie case for relief.’” (Curiel, supra, at pp. 453-454.)
In Curiel, the Supreme Court addressed the question of whether the jury’s finding
of “intent to kill” in the gang-murder special circumstance was entitled to preclusive
11 effect, concluding that the defendant there was bound by that finding. (Curiel, supra, 15
Cal.5th at pp. 450, 452-453.) However, in that case, where the defendant’s jury had been
instructed on the now-invalid natural and probable consequences theory as to the
underlying murder, the court went on to hold that the gang-murder verdicts, viewed in
light of the natural and probable consequences instructions given to the jury, may have
established an intent to kill, but did not show the jury necessarily made factual findings
covering the elements of mens rea and actus reus. Thus, it concluded the trial court could
not reject Curiel’s prima facie showing on this basis.
The circumstances of Curiel are easily distinguished from the present case. First,
the intent to kill language was found in the instruction related to the special circumstance
allegation related to a killing for the benefit of a street gang, while the instructions for the
underlying murder included the natural and probable consequences theory. (See People
v. Lovejoy (2024) 101 Cal.App.5th 860, 869, fn. 6.)
Here, there were no instructions on felony murder or the natural and probable
consequences doctrine, so the only theory of liability on the attempted murder counts was
that defendant directly aided and abetted the shooter of that victim. (People v. Edwards
(2020) 48 Cal.App.5th 666, 674, review dismissed Jan. 5, 2022, S262481; overruled on a
different point in Lewis, supra, 11 Cal.5th at p. 963 [absence of jury instructions on
felony murder or natural and probable consequences doctrine justified summary denial of
petition]; see Daniel, supra, 57 Cal.App.5th at p. 677 [“no instructions were given on
felony murder or murder under the natural and probable consequences doctrine”]; People
12 v. Cortes (2022) 75 Cal.App.5th 198, 205 [no prima facie showing where the record of
conviction demonstrated the jury was not instructed on any theory of liability for murder
or attempted murder that required that malice be imputed to him].)
As we observed in the direct appeal, the defendant’s pretrial statements established
he knew he was accompanying his codefendant to a retaliatory gang shooting and
expressed that he shared that intent. (People v. Smith, supra, E049071.) The jury
instructions clearly informed the jury it must find the defendant committed the requisite
actus reus for attempted murder, and that defendant must have had the specific intent to
kill. The jury rendered verdicts finding defendant guilty of attempted murder and found
the attempted murder was premeditated. These findings are preclusive under Curiel,
supra, 15 Cal.5th 433 at pages 453-454.
A person whose conviction involves a finding of intent to kill is ineligible for
relief. (See People v. Medrano (2021) 68 Cal.App.5th 177, 182-183 [conviction of
conspiracy to murder rendered defendant ineligible because the crime requires intent to
kill]; see also People v. Coley (2022) 77 Cal.App.5th 539, 548 [by finding appellant
guilty of attempted murder, the jury necessarily found he had personally harbored intent
to kill or express malice when he aided and abetted the second degree murder], citing
People v. Moon (2005) 37 Cal.4th 1, 29; & People v. Smith (2005) 37 Cal.4th 733, 741.)
Defendant was statutorily ineligible for relief under section 1172.6. The trial court
correctly determined defendant had failed to make a prima facie showing he was entitled
to relief under section 1172.6.
13 2. CALCRIM No. 400. “Equally Guilty” Language
In making his argument that he was not precluded from seeking relief from his
convictions due to the lack of instructions on felony murder or the natural and probable
consequences doctrine, defendant asserts the jury instructions given at his trial in
combination with the prosecutor’s closing arguments allowed the jury to convict him of
attempted premeditated murder based on the shooter’s mental state rather than his own.
We disagree.
We begin by noting that challenges to the propriety of jury instructions are more
properly made on direct appeal as claims of trial error. Section 1172.6 “does not permit a
petitioner to establish eligibility on the basis of alleged trial error.” (People v. DeHuff
(2021) 63 Cal.App.5th 428, 438.) “‘The purpose of section [1172.6] is to give defendants
the benefit of amended sections 188 and 189 with respect to issues not previously
determined, not to provide a do-over on factual disputes that have already been
resolved.’” (People v. Farfan (2021) 71 Cal.App.5th 942, 947.)
Claims that the trial court gave jury instructions on felony murder, or the natural
and probable consequences doctrine may be considered by a reviewing court in
determining if the defendant was convicted under a now-invalid theory. However, where
no such instructions were given, and no instructional challenge was argued on direct
appeal, nor any claim of prosecutorial misconduct in closing arguments, arguing that the
prosecutor’s argument in combination with the instructions given are nonstarters. (See
People v. Cortes (2022) 75 Cal.App.5th 198, 205-206 [no merit in Cortes’s suggestion
14 that the jury may have, without instruction, relied on such a charge due to the
prosecutor’s argument].)
Defendant argues that the instructions on aider and abettor liability given by the
trial court in this case, based on CALCRIM No. 400, improperly informed the jurors an
aider and abettor ‘“is equally guilty of the crime whether he committed it personally or
aided and abetted the perpetrator who committed it.”’ This is not a meritorious challenge
under the amendments to sections 188 and 189 because the idea that a ‘“direct
perpetrator’s culpability could be imputed to an aider and abettor’ represented a ‘legally
viable theory of aider and abettor murder liability,’ and that the amendment to the law
occasioned by Senate Bill No. 1437 ‘changed that legal viability,’” has been rejected.
(People v Burns (2023) 95 Cal.App.5th 862, 868 (Burns).)
In Burns, the court noted that “Use of the ‘equally guilty’ language in the
instruction provided at Burns’s trial created a potential issue of instructional error, but it
did not operate to offer the jury a theory of legal liability that can no longer support a
conviction for murder as a result of the recent statutory changes. If Burns believed that
the trial court in his case prejudicially erred by instructing the jury using the then-current
version of CALCRIM No. 400, he had every basis and opportunity to raise that issue on
his direct appeal.” (Burns, supra, 95 Cal.App.5th at pp. 868-869.)
15 The same holds true here. The trial court only instructed the jury on principles of
direct aider and abettor liability, stating correct legal principles that are still valid. Recent
enactments ‘“did not change accomplice liability for murder under direct aiding and
abetting principles”’ (Burns, supra, 95 Cal.App.5th at p. 869, citing People v. Jenkins
(2021) 70 Cal.App.5th 924, 931; & People v. Gentile (2020) 10 Cal.5th 830, 848), so
defendant is not entitled to relief.
Similarly, the comments made by the prosecutor during closing argument are not a
proper basis for a challenge under section 1172.6, particularly where the prosecutor relied
only on direct aider and abettor liability principles and did not refer in any way to an
invalid theory of liability. The jury verdicts themselves reveal the prosecutor’s argument
had no effect, insofar as the jury found defendant guilty of deliberate and premeditated
attempted murder, a finding that the jury instructions given in this case required that it
find defendant personally premeditated involvement in the crime and acted with
deliberation. The jury was not presented with a felony-murder theory of guilt or guilt
under the natural and probable consequences theory. Under these circumstances, a
petitioner is ineligible for relief as a matter of law. (Daniel, supra, 57 Cal.App.5th at
p. 677.)
16 The trial court properly denied the defendant’s petition for resentencing relief at
the prima facie stage.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur:
McKINSTER J. RAPHAEL J.