People v. Russell CA2/7
B305287
| Cal. Ct. App. | Jul 19, 2021Background:
- Defendant Raymond Russell was charged with first-degree murder and two counts of attempted premeditated murder for a 2011 drive-by shooting that killed Keshawn Corbin; police found Russell’s cell phone at the scene and his phone statements were played at trial.
- Jury was instructed on first-degree murder (CALCRIM 521) and malice/express vs. implied malice (CALCRIM 520) and on direct aiding and abetting (CALCRIM 400/401); the jury was not instructed on felony-murder or the natural-and-probable-consequences theory.
- The jury convicted Russell of first-degree, premeditated murder and two counts of attempted murder, found gang and firearm enhancements true, and he was sentenced to an aggregate term of 105 years to life plus 20 years.
- Russell filed a petition under Penal Code § 1170.95 seeking resentencing on the ground his murder conviction could have been based on the now-invalid natural-and-probable-consequences doctrine or felony-murder after Senate Bill 1437.
- The prosecutor opposed, citing the record and jury instructions showing a conviction as a direct aider/abettor acting with express malice; the trial court denied the petition on prima facie review and Russell appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Russell is eligible for resentencing under §1170.95 because his murder conviction was based on felony-murder or the natural-and-probable-consequences doctrine | Conviction was for direct aiding and abetting a murder with express malice, not felony-murder or N&P; thus ineligible | Jury’s instruction on implied malice (CALCRIM 520) uses “natural and probable consequence” language, so conviction could rest on N&P doctrine and be eligible | Denied — record shows conviction as direct aider/abettor who shared express intent to kill; §1170.95 relief unavailable as a matter of law |
| Whether the trial court properly denied the §1170.95 petition on prima facie review using the record of conviction | Court may summarily deny when the record indisputably shows ineligibility under §1170.95 | Petitioner argued he had made a prima facie showing and was entitled to an order to show cause | Affirmed — trial court properly reviewed record and denied petition without issuing an OSC because the conviction rested on valid direct-aiding-and-abetting liability |
Key Cases Cited
- People v. Gentile, 10 Cal.5th 830 (California 2020) (explaining SB 1437’s narrowing of felony-murder and elimination of N&P as a basis for murder)
- People v. Verdugo, 44 Cal.App.5th 320 (Cal. Ct. App. 2020) (record-of-conviction review can show petitioner ineligible for §1170.95 relief as a matter of law)
- People v. Soto, 51 Cal.App.5th 1043 (Cal. Ct. App. 2020) (distinguishing implied-malice aiding-and-abetting from N&P doctrine; SB 1437 does not affect convictions based on express or implied malice)