People v. Posey CA1/4

Filed 7/26/24 P. v. Posey CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A169370

v. (Napa County Super. Ct. MICHAEL SCOTT POSEY, No. CR122583) Defendant and Appellant.

Michael Scott Posey appeals from the trial court’s denial of his petition for relief pursuant to Penal Code section 1172.6.1 Section 1172.6 allows a “person convicted of felony murder or 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” to petition to have the murder conviction vacated and to be resentenced if the conviction would not be valid under the recent amendments to sections 188 and 189. (§ 1172.6, subd. (a).) At the hearing Posey’s attorney stated Posey did not qualify for resentencing and submitted on the prosecutor’s opposition brief. The trial court agreed and denied the request for relief pursuant to section 1172.6. Posey filed a supplemental brief arguing the court erred in denying his petition for relief. We disagree.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND As described in our prior opinion in this matter, “[d]efendant’s estranged wife, Elizabeth Posey (Liz) [fn. omitted], was shot to death when she went to defendant’s house to drop off the couple’s children for a weekend visit. She died from a contact shot to the head; the muzzle of the gun had been pressed under her chin against the skin. Defendant told the police the gun discharged accidentally during a struggle to disarm Liz after she tried to kill him because he reneged on a promise to pay a $2,000 expense.” (People v. Posey (Jan. 22, 2009, A118361) [nonpub. opn.] at p. 1–2.) “The prosecution maintained that defendant planned to murder Liz when she came to the house and did so by holding her down and shooting her in the head. The prosecution presented numerous police officers and forensic scientists who testified that the defendant’s account of the shooting was inconsistent with the physical evidence. The prosecution also presented evidence that Liz was too frightened and intimidated by defendant to attack him as defendant claimed and that defendant, not Liz, had a reputation for violent behavior.” (People v. Posey, supra, A118361 at p. 2.) Nothing in the record suggests anyone else other than Posey was involved in the murder of Liz. No jury instructions were given on aiding and abetting. The court did instruct on excusable homicide; on justifiable homicide; on imperfect self-defense; on manslaughter; on murder with express and implied malice; and on provocation to reduce first-degree to second-degree murder. DISCUSSION I. Relevant Legal Principles and Standard of Review Under section 1172.6 a person convicted of felony murder or murder under the natural or probable consequences doctrine or other theory under