People v. Colon CA6

Filed 6/29/23 P. v. Colon CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H050141 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 122562)

v.

JOSE ANTHONY COLON,

Defendant and Appellant.

THE COURT1 Defendant Jose Anthony Colon appeals from an order denying his petition for resentencing under former Penal Code section 1170.95.2 For the reasons set forth below, we will affirm the order. I. PROCEDURAL BACKGROUND Colon was convicted by a jury of first degree murder (§ 187; count 1) in 1990. 3 The jury found true the special circumstance that the murder was committed while Colon was engaged in the commission or attempted commission of a robbery (§ 211). Colon was also convicted of robbing the murder victim on the night of the murder. (§ 211– 212.5, subd. (a); count 2.) As to counts 1 and 2, the jury found true that Colon personally

1 Before Grover, J., Greenwood, P.J., and Lie, J. 2 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no changes to the text. (Stats. 2022, ch. 58, § 10.) 3 We omit the facts of the offense as they are not relevant to the analysis and disposition of the appeal.

used a deadly and dangerous weapon (knife) during the commission of the offenses. (§ 122022, subd. (b).) Colon was convicted of numerous other offenses at trial: two counts of possessing stolen property (§ 496; counts 4 and 7); three counts of automobile theft (Veh. Code, § 10851, subd. (a); counts 6, 13, and 14); four counts of first degree burglary (§ 459–460.1; counts 8, 9, 11, and 12); and two counts of petty theft (§ 484–488; counts 10 and 15). The trial court sentenced Colon to life in prison without possibility of parole on count 1, consecutive to a 10-year prison term imposed on the remaining felony counts, and a county jail term (deemed served) on the petty theft counts. On appeal, this court reversed one conviction for receiving stolen property and otherwise affirmed the judgment. (People v. Colon (May 12, 1992, H007298) [nonpub. opn.]) On January 27, 2022, Colon petitioned for resentencing under former section 1170.95. Colon’s petition alleged that he had been convicted of murder under the felony murder rule or the natural and probable consequences doctrine and could not be presently convicted of murder because of changes made to sections 188 and 189. The trial court ruled that Colon was not entitled to relief as a matter of law, and it denied the petition without issuing an order to show cause. The court noted that the jury instructions provided a path to first degree murder under both felony murder and willful, premeditated, and deliberate murder, but not based on a natural and probable consequences theory. In reaching its decision, the trial court stated that it relied on: (1) Colon’s testimony at trial that he was the actual killer and that he personally inflicted the fatal blows; (2) this court’s previous opinion, which showed that Colon’s liability for the murder was predicated on him being the actual killer and that his defense was an unsuccessful attempt to negate malice; and (3) the jury’s finding that Colon personally used a knife during the commission of the murder. The court found that because Colon’s testimony did not reveal the participation of a third party in the killing, the jury instructions necessarily premised his first degree murder liability either on a malice theory or on a felony murder theory with Colon as the actual killer. The court noted 2