People v. Beaudreaux CA1/4

Filed 8/31/20 P. v. Beaudreaux 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A159751

v. (Alameda County NICHOLAS BEAUDREAUX, Super. Ct. No. 160022B) Defendant and Appellant.

Nicholas Beaudreaux appeals an order denying his petition for resentencing under Penal Code1 section 1170.95. He argues that, in determining whether he made a prima facie showing of entitlement to a resentencing hearing under section 1170.95, the trial court improperly took judicial notice of facts set forth in the appellate opinion affirming the underlying conviction and denied him a hearing before denying his petition. We disagree and will affirm the order. I. Beaudreaux was originally convicted in 2009 of first degree murder (§ 187) and attempted second degree robbery (§§ 211, 664). As pertinent here, the jury found true the allegation charged with the murder count that

1 All subsequent statutory references are to the Penal Code. 1

Beaudreaux personally and intentionally discharged a firearm inflicting great bodily injury causing death in violation of section 12022.53, subdivision (d). He received an aggregate sentence of 50-years-to-life imprisonment. This court affirmed the judgment of conviction. (People v. Beaudreaux (Jul. 21, 2011, A126140 [nonpub. opn.].) In his second trip to this court in this case, Beaudreaux seeks review of the denial of his petition for resentencing pursuant to section 1170.95, which provides for the resentencing of individuals convicted of murder under a felony-murder or natural and probable consequences theory if they could no longer be convicted of murder under recent amendments to sections 188 and 189, effective January 1, 2019. (Sen. Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437).) Those amendments require that all principals to murder must act with express or implied malice to be convicted of that crime. The amendments also require, for a felony-murder theory to lie, that defendants who were not the actual killer or a direct aider and abettor must have been a major participant in the underlying felony and acted with reckless indifference to human life. Here, the trial court, based on the record of conviction—including facts stated in our opinion affirming the conviction and sentence, as well as its own court file—ruled that Beaudreaux’s jury determined he was the actual killer. The court thus concluded that Beaudreaux’s resentencing petition failed to set forth a prima facie case for relief and dismissed it. He now asks that we reverse and remand to the trial court with directions that it conduct an evidentiary hearing and decide the petition on the merits. The appeal presents two arguments. First, Beaudreaux contends that, in deciding whether his resentencing petition established a prima facie case, the trial court erred by relying on this court’s unpublished opinion affirming