People v. Marston CA1/5

Filed 12/30/22 P. v. Marston CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A165863 v. THOMAS JOHN MARSTON, (Mendocino County Super. Ct. No. Defendant and Appellant. SCUKCRCR 19848139)

Thomas John Marston appeals from the denial of his post-conviction petition for resentencing under Penal Code section 1170.95.1 His attorney has filed a brief seeking our independent review of the appellate record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), to determine whether there is any arguable issue on appeal. Appellant has filed a supplemental brief. We affirm. I. FACTS AND PROCEDURAL HISTORY A. Background In 1985, Marston was convicted of two counts of first degree murder with special circumstances for multiple murders and murder in the course of a robbery. The judgment was affirmed on appeal.

1 Penal Code section 1170.95 has been renumbered as section 1172.6. All statutory references herein are to the Penal Code.

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B. Current Proceedings On January 5, 2022, Marston filed a petition for resentencing in the Mendocino County Superior Court. In the petition, he declared under penalty of perjury that he was convicted of first degree murder under theories of felony murder and murder under the natural and probable consequence doctrines, he was not the actual killer, he did not act with an intent to kill, he was not a major participant in the felony, and he did not act with reckless indifference to human life. The superior court appointed the Public Defender to represent Marston and stated it would review the record to determine if there was a prima facie showing of entitlement to relief, as required under the statute and People v. Lewis (2021) 11 Cal.5th 952. After reviewing the charging documents, jury verdict forms, trial transcripts, and an unpublished appellate opinion, the court issued a tentative ruling that Marston failed to make a prima facie showing because the record demonstrated that he was the actual killer and had not been convicted under a theory entitling him to relief. The court set the matter for a hearing to allow the defense to oppose the tentative ruling. On July 18, 2022, Marston (through counsel) filed a written brief in support of his prima facie showing. Marston claimed it was clear from the prosecutor’s rebuttal argument at trial that the defense had relied on a theory that there was another killer, while the prosecutor insisted that Marston was the sole killer. Marston had testified that he was not the actual killer but had purchased marijuana from the victims and was present when they were shot by two armed men, whom he did not know, who then forced him to drive them away. The prosecutor proceeded under theories of first degree murder based on premeditation with malice, as well as felony murder.