California Court of Appeal Jun 23, 2023 No. E080144Unpublished
Filed 6/23/23 P. v. Simpson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080144
v. (Super.Ct.No. RIF10002518)
DARIONNE STEVEN SIMPSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.
Affirmed with directions.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Senior Assistant Attorney General, Melissa Mandel and
Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant, Darionne Simpson, appeals from a judgment summarily denying his
petition for resentencing, made pursuant to Penal Code section 1172.6. Defendant was
convicted in 2011 of two counts of attempted murder (Pen. Code1, §§ 664, 187, subd. (a),
counts 1 and 3), one count of shooting at an occupied vehicle (§ 246, count 2), one count
A person may seek resentencing by filing a section 1172.6 petition. (§ 1172.6,
subd. (a)(3).) Upon such filing, the court must “determine whether the petitioner has
made a prima facie case for relief.” (§ 1172.6, subd. (c).) The petitioner is entitled to
relief if he alleges, as relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that person’s participation in a
crime, or attempted murder under the natural and probable consequences doctrine,” (2) he
“accepted a plea offer in lieu of a trial at which the petitioner could have been convicted
of . . . attempted murder,” and (3) he “could not presently be convicted of . . . attempted
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murder because of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a).)
The prima facie inquiry is limited. (People v. Lewis, supra, 11 Cal.5th at p. 971.)
The court must accept the petitioner’s allegations as true and “should not make credibility
determinations or engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ [Citation.]” (Id.at p. 974.) “If the petition and record in the case
establish conclusively that the [petitioner] is ineligible for relief, the trial court may
dismiss the petition” as a matter of law. (People v. Strong (2022) 13 Cal.5th 698, 708, In
re Serrano (1995) 10 Cal.4th 447, 456.)
“‘However, if the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.’ [Citations.]” (People v. Lewis,
supra, 11 Cal.5th at p. 971.)
Thus, at the prima facie stage, the trial court’s inquiry “‘is limited to readily
ascertainable facts from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference to human life in the
commission of the crime).’ [Citation.]” (People v. Pacheco (2022) 76 Cal.App.5th 118,
125.) “If, accepting the facts asserted in the petition as true, the petitioner would be
entitled to relief . . . , then the trial court should issue an order to show cause.” (People v.
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Drayton (2020) 47 Cal.App.5th 965, 980–981 [overruled on a different point in People v.
Lewis, supra, 11 Cal.5th at p. 963].)
“We independently review a trial court’s determination whether a petitioner has
made a prima facie showing”. (People v. Patton (2023) 89 Cal.App.5th 649, 656.)
Whether the petitioner has made a prima facie showing of entitlement to relief under
section 1172.6 is a “‘purely legal conclusion, which we review de novo.’ [Citation.]”
(People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
Defendant argues that the instructions to the jury resulted in a conviction lacking
in a determination that defendant acted with malice aforethought, requiring an evidentiary
hearing. He also emphasizes the fact that from our prior opinion in the direct appeal, it is
unclear who was sitting in the front passenger seat, from which the shots at M.J. in count
3 were fired.2 From this, defendant argues he was convicted as an aider-abettor.
Whether the jury considered defendant an aider-abettor or not matters little in this case.
The jury expressly found he had an intent to kill and that his conduct in count 3 was
further accompanied by a mental state of willfulness, deliberation and premeditation.
It is true that the amended provisions of section 188 direct that malice may not “be
imputed to a person based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).) However, here, defendant’s attempted murder conviction was not based on the
felony murder doctrine. The section further provides that “to be convicted of murder, a
2 We are precluded from making factual findings in reviewing a petition for resentencing that was summarily denied. For this reason, we do not comment on contradictory information in the trial transcripts or probation report.
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principal in a crime shall act with malice.” (§ 188, subd. (a)(3); see also, People v.