People v. Howard CA1/1

Filed 11/4/21 P. v. Howard CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi- cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or- dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A162150

v. (Alameda County MARK ALAN HOWARD, Super. Ct. No. 118354) Defendant and Appellant.

MEMORANDUM OPINION1 Defendant Mark Alan Howard was convicted of first degree murder (Pen. Code, § 187)2, second degree murder (§ 187), and assault with a firearm (§ 245, subd. (a)(2)). The jury also found true that during the crimes, defendant personally used a firearm (§ 12022.5). It additionally found true multiple murder special circumstances. (§ 190.2, subd. (a)(3).) Defendant was sentenced to a prison term of life without possibility of parole, plus nine

This case is appropriately resolved by way of memorandum opinion 1 pursuant to pursuant to California Standards of Judicial Administration, section 8.1, subdivisions (1) and (3). All further statutory references are to the Penal Code unless 2 otherwise indicated.

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years, and his conviction was affirmed on appeal. (People v. Howard (June 24, 1999, A080339) [nonpub. opn.].)3 Defendant here appeals from the denial of his petition for resentencing under section 1170.95. The Attorney General concedes the trial court erred in ruling defendant failed to allege a prima facie case of entitlement for resentencing without first appointing counsel to represent him. Under our Supreme Court’s recent decision in People v. Lewis (2021) 11 Cal.5th 952, 961-970 (Lewis), this concession is well-made. The Attorney General urges, however, that the error is harmless because the record of conviction conclusively demonstrates defendant was not convicted of murder under either a felony-murder or as an aider and abettor under natural and probable consequences theory. Defendant did not file a closing brief disputing this assertion, and on review of the record, we agree and therefore affirm. Section 1170.95 People v. Mancilla (2021) 67 Cal.App.5th 854 (Mancilla) ably summarizes the pertinent procedural aspects of section 1170.95 following our high court’s decision in Lewis: “Senate Bill 1437 [(2017-2018 Reg. Sess.)] substantially modified the law relating to accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 . . . (Gentile)) and significantly narrowing the felony-murder exception to the malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e)(3). . . .) With respect to the former change, ‘to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): “Except [for felony-murder liability] as stated in subdivision (e) of Section 189, in order to be