People v. Wagner CA6

Filed 8/17/21 P. v. Wagner CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048840 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1900064)

v.

CLINTON FRED WAGNER,

Defendant and Appellant.

Penal Code section 1170.951 permits “[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition . . . to have [his or her] murder conviction vacated and to be resentenced on any remaining counts” when certain conditions apply. (§ 1170.95, subdivision (a).) The trial court denied defendant Clinton Fred Wagner’s section 1170.95 petition for failure to make a prima facie case for relief because the jury instructions from his trial show that he was convicted as a direct aider and abettor. As such, he is not a person convicted of felony murder or murder under a natural and probable consequences theory and, accordingly, is ineligible for section 1170.95 relief. On appeal, Wagner contends the trial court erred by considering the record of conviction in determining whether he made the requisite prima facie showing. Our Supreme Court’s recent decision in People v. Lewis (July 26, 2021, S260598) __ Cal.5th

1 All further statutory references are to the Penal Code unless otherwise indicated.

__, __ [2021 Cal. LEXIS 5258 at p. 30] (Lewis), which held that “the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief,” compels us to reject that argument. Therefore, we shall affirm. I. BACKGROUND A. Factual Summary2 The underlying facts are not relevant to the issue on appeal, so we summarize them briefly. On May 22, 1997, Wagner, Ayana Green, and a third person drove around San Jose. After Green received a page, they stopped at a gas station where she used the telephone. During the call, she motioned for Wagner to join her, which he did. Wagner and Green returned to the car and Wagner drove the group to King and McKee. After cruising the area, Wagner stopped the car. Green got out and shot Harry Garrett, who was standing on the sidewalk. Meanwhile, Wagner drove around the corner, parked, and left the car running. Green ran back to the car and got in; Wagner drove away. Both Green and Wagner told the third person not to say anything about the shooting. B. Procedural History3 Wagner and Green were charged with Garrett’s murder, among other offenses. The information alleged that Green personally used a handgun during the commission of the murder. Wagner and Green were jointly tried on the murder count, which was severed from the other counts. The jury convicted them both of first degree murder and found true the allegation that Green personally used a handgun. This court affirmed their murder convictions in an opinion issued on March 13, 2001. Wagner filed a section 1170.95 petition in January 2019. The trial court appointed him counsel. The prosecutor filed a response opposing the petition. Among other things,