People v. Wheeler CA2/5

California Court of Appeal Mar 16, 2021 No. B305257Unpublished

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Holding. The court held that the defendant was ineligible for resentencing under Penal Code section 1170.95 because he was not convicted under the natural and probable consequences doctrine, but rather as a direct aider and abettor of murder.

Issues

Did the trial court err in finding the defendant failed to make a prima facie showing of eligibility for relief under Penal Code section 1170.95?
Was the defendant's murder conviction based on the natural and probable consequences doctrine?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The court concluded that the jury was not instructed on the natural and probable consequences theory and did not rely on this theory to convict Wheeler.”

“The prosecutor’s use of “natural and probable consequences” language in this context did not transform Wheeler’s conviction into one for murder under the natural and probable consequences doctrine.”

Filed 3/16/21 P. v. Wheeler CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B305257

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA287781) v.

DWAYNE TYRONE WHEELER, JR.

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Ray G. Jurado, Judge. Affirmed.

Neil J. Rosenbaum, under appointment by Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

__________________________

Dwayne Tyrone Wheeler, Jr., appeals from an order denying his petition to vacate his murder conviction and to be resentenced under Penal Code section 1170.95.1 His appointed counsel filed a brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496, raising no issues. Wheeler filed a supplemental brief arguing the trial court erred in finding he had not made a prima facie showing of entitlement to relief. We find no error. FACTUAL AND PROCEDURAL BACKGROUND Close to midnight on July 28, 2005, Wheeler and fellow gang member Joshua Mansion approached Loli Castaneda and Carlos Avalos in a supermarket parking lot. Wheeler asked Avalos and Castaneda if they were from a rival gang. Avalos and Castaneda denied gang membership, and got into their car. Wheeler said to Mansion, “Shoot that fool.” As Avalos and Castaneda’s car was pulling out of their parking space, Mansion fired one shot through the passenger side window, hitting Castaneda who died soon after. Wheeler and Mansion were tried together. The jury found defendants guilty of the willful, deliberate, and premeditated first degree murder of Castaneda, and the attempted murder of Avalos. The jury also found true as to Wheeler, among other findings, that a principal had discharged a firearm while committing the crime for the benefit of a gang. The trial court sentenced Wheeler to 65 years to life plus a determinate term of 20 years. We affirmed the judgment in an unpublished opinion. (People v. Mansion (Nov. 15, 2007, B194414) [nonpub. opn.].)

People v. Wheeler CA2/5

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B305257

DWAYNE TYRONE WHEELER, JR.

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