People v. Fox CA3

Filed 5/5/23 P. v. Fox CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C096615

Plaintiff and Respondent, (Super. Ct. No. NCR48952)

v.

MATTHEW ROBERT FOX,

Defendant and Appellant.

In 1999, a jury found defendant Matthew Robert Fox guilty of first degree murder and found true that defendant committed the murder, that the murder was intentional, and that the murder involved the infliction of torture. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(18); statutory section citations that follow are found in the Penal Code unless otherwise stated.) In July 2021, defendant petitioned for resentencing under section 1172.6.

1

We note that effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Defendant filed his petition under former section 1170.95, but we will cite to the current section number throughout this opinion. The trial court denied the petition in July 2022, finding him ineligible for relief because the jury had found he was the actual killer. On appeal, defendant challenges the trial court’s order, arguing the record fails to conclusively establish he was convicted under a now-valid theory because the jury was instructed on felony murder and aiding and abetting liability. We affirm the trial court’s order.

FACTS AND HISTORY OF THE PROCEEDINGS Given the nature of this appeal, a detailed recitation of the facts underlying defendant’s convictions is unnecessary. It is enough to say that defendant believed the victim had stolen jewelry and cash from defendant and a female friend. The next day, defendant and a male friend brought the victim to a trailer. The victim was later found dead. He had numerous injuries (including burns), showed signs of strangulation, and had a fatal dose of methamphetamine in his system. (People v. Fox (Apr. 20, 2000, C032729) [nonpub. opn.].) A jury found defendant guilty of first degree murder (§§ 187, 189), torture (§ 206), false imprisonment (§ 236) (a lesser included offense of kidnapping pursuant to section 207), and possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)). The jury also found that the murder was intentional and involved infliction of torture. (§ 190.2, subd. (a)(18).) Specifically, the verdict form regarding murder by torture read: “We, the jury find that the murder of [the victim] was committed by [defendant], and that the murder was intentional and involved the infliction of torture within the meaning of [section 190.2, subdivision (a)(18)], to be” true. In addition, the jury found false (1)