Opinion
B324753
08-09-2023
THE PEOPLE, Plaintiff and Respondent, v. RAKYM YANELL THIBODEAUX, Defendant and Appellant.
NOT TO BE PUBLISHED
(Los Angeles County Super. Ct. No. MA070962)
THE COURT: [*]
Defendant and appellant Rakym Yanell Thibodeaux (defendant) appeals from the denial of his petition for vacatur of his murder conviction and for resentencing under Penal Code section 1172.6. Defendant's appointed counsel identified no arguable issues and filed a brief requesting we exercise our discretion to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 and as set forth in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Following the standard articulated in Delgadillo, we consider defendant's supplemental brief and conduct a limited review of the record. (See id., at pp. 226-230.) Finding no merit to defendant's appeal, we affirm the judgment.
Defendant's petition was filed as a petition under section 1170.95, but heard and decided after the effective date of the statute's renumbering as 1172.6. (See Stats. 2022, ch. 58, § 10.)
BACKGROUND
In 2019 defendant was convicted by a jury of second degree murder. The jury found true the enhancement of section 12022.53, subdivision (d). On June 24, 2019, the trial court denied defendant's motion for new trial, struck the enhancement under section 12022.53, subdivision (d), and sentenced defendant to 15 years to life in prison, plus 20 years pursuant to section 12022.53, subdivision (c), for personally and intentionally discharging a firearm during the commission of the offense. We affirmed the judgment in People v. Thibodeaux (Jan. 8, 2021, B299468) [nonpub. opn.].
The basic facts presented at trial were that after defendant walked into an acquaintance's garage where the victim and a friend were hanging out, defendant pointed a gun at them, waved it back and forth, and then shot the victim in the face, killing him. In his defense, defendant testified that the victim grabbed
These facts are taken from our opinion affirming the judgment entered against defendant and we summarize them only for context.
All further unattributed code sections are to the Penal Code unless otherwise stated. the gun from defendant's pocket and when defendant tried to take it back it fired.
Effective January 1, 2019, the Legislature amended the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, "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).) The Legislature also added what is now section 1172.6, which provides a procedure for convicted murderers to seek retroactive relief if they could not be convicted under sections 188 and 189 as amended effective January 1, 2019. (People v. Lewis (2021) 11 Cal.5th 952, 957.)
On May 10, 2022, defendant filed a petition to vacate his murder conviction and for resentencing under section 1172.6. Defendant's petition set forth the three conditions to eligibility for resentencing: (1) he was charged with murder under a theory of felony murder or the natural and probable consequences doctrine; (2) he was convicted of murder; and (3) he could not presently be convicted of murder because of changes to section 189, effective January 1, 2019. (See § 1172.6, subd. (a).) The court appointed counsel for defendant, ordered the prosecution to file a response, scheduled defendant's reply, if any, and set the matter for a hearing.
The hearing was held on September 21, 2022. Defendant was allowed to argue in place of counsel with counsel's consent. The trial court found defendant had not made a prima facie showing of eligibility and denied the petition on that ground. Defendant filed a timely notice of appeal from the order of denial.
DISCUSSION
Defendant argues, as he did in the trial court, that the evidence was insufficient at trial to establish that he acted with conscious disregard for human life under an implied malice theory.
Defendant also argued at the hearing that because the jury was instructed with CALCRIM No. 520, he was prosecuted under the natural and probable consequences doctrine. Although CALCRIM No. 520 uses the words "natural consequences" or "natural and probable consequences" in defining implied malice, it is not intended to invoke the natural and probable consequences doctrine. (People v. Soto (2020) 51 Cal.App.5th 1043, 1058.)
In the attached declaration, defendant admitted he discharged the firearm, resulting in the victim's death. At the hearing on his petition he admitted he had been waving the gun around when it was fired and killed the victim. Thus, defendant was the actual killer.
Despite the contrary allegations of his petition, defendant did not point to any part of the record that would refute the prosecutor's argument or his admissions showing he was the actual killer who acted alone, not as an aider and abettor. Section 1172.6 does not provide an actual killer relief from a second degree, implied malice murder conviction that remains a valid theory of murder. (Delgadillo, supra, 14 Cal.5th at p. 233; see People v. Strong (2022) 13 Cal.5th 698, 707-708.)
Moreover, a substantial evidence argument was also presented in defendant's appeal from the judgment after trial. (See People v. Thibodeaux, supra, B299468.) We found that the jury was correctly instructed on the elements of implied malice and second degree murder, and we rejected defendant's contention that substantial evidence did not support the jury's second degree murder verdict. Defendant's judgment is now final." '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.)
We conclude the trial court correctly found defendant had failed to demonstrate prima facia eligibility and did not err in denying the petition.
DISPOSITION
The order of September 21, 2022, denying defendant's section 1172.6 petition is affirmed.
[*]LUI, P. J. CHAVEZ, J. HOFFSTADT, J.