People v. Young CA1/4

Filed 12/28/20 P. v. Young 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A158216 v. (Contra Costa County TORIANO ADARYL YOUNG, Super. Ct. No. 5-991206-4)

Defendant and Appellant.

Toriano Adaryl Young appeals from the summary denial of his petition for resentencing under Penal Code section 1170.95.1 His attorney has filed a brief raising no issues in accordance with the procedure prescribed in People v. Wende (1979) 25 Cal.3d 436. Young filed a supplemental pro se brief, which we have considered. We shall affirm. I. An indictment filed by the Contra Costa County District Attorney charged Young and Jason Payne with, as pertinent here, the murder of Jonathan Washington (§ 187), conspiracy to commit murder and robbery (§ 182, subd. (a)(1)), street terrorism (§ 186.22, subd. (a)), and second degree robbery (§§ 211; 212.5(c)).

1 All subsequent statutory references are to the Penal Code.

1

On September 19, 2001, a jury convicted Young of these and other charges. The murder was found to be of the first degree. The court found true the following overt act committed in furtherance of the conspiracy to commit murder: “On April 8, 1999, at Contra Costa County, Jason Payne shot Jonathan Washington in the face,” but the jury found not true the allegations appellant used and discharged a firearm during the commission of the murder. On the first degree murder conviction, the court sentenced appellant to 25 years to life in prison for murder. On February 14, 2019, appellant filed a pro se petition for resentencing under section 1170.95. He alleged he was not the actual killer, did not have the intent to kill, did not aid and abet the killing, and could not be convicted of murder under current law. He attached a notarized affidavit from codefendant Jason Payne. Payne stated Young never discussed any plan to shoot and kill Jonathan Washington. According to Payne, “This act was done by me, and the actions I took to use a firearm in the death of Jonathan Washington was my own choice.” The court appointed counsel to represent appellant and the prosecutor filed an opposition. The opposition argued appellant was not entitled to resentencing because he was not convicted of felony murder or under a natural and probable consequences doctrine. “He was convicted of murder based upon his own express malice aforethought, a fact which is uncontrovertibly proven by the verdicts.” Appointed counsel filed no reply. Agreeing with the prosecutor, the court denied appellant’s resentencing petition. After stating that in doing so it considered “the Indictment, Abstract of Judgment, jury notes, minute orders, and the unpublished decision on direct appeal,” the court explained the denial as follows: “[Young]