People v. Wagner CA6

Filed 12/8/23 P. v. Wagner CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H050209 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 201285)

v.

CLINTON WAGNER,

Defendant and Appellant.

THE COURT1 Clinton Wagner appeals from an order denying his petition for resentencing under Penal Code section 1172.6.2 Counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Wagner subsequently filed supplemental briefs on his own behalf. For the reasons set forth below, we affirm the order. I. PROCEDURAL BACKGROUND3 In 1998, a jury convicted Wagner and his codefendant, Ayana Green, of first degree murder. Green was tried as the direct perpetrator of the murder, and Wagner was tried as an aider and abettor to Green. The court sentenced Wagner to a term of 25 years

1 Before Greenwood, P. J., Grover, J., and Lie, J. 2 All statutory references are to the Penal Code, unless otherwise stated. Wagner filed his petition under former section 1170.95. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6 with no substantive change. (Stats. 2022, ch. 58, § 10.) For clarity, we will cite to current section 1172.6 throughout this opinion. 3 The underlying facts are not relevant to the issues raised on appeal.

to life in prison. We affirmed both defendants’ convictions in People v. Green, et al. (Mar. 13, 2001, H018964 [nonpub. opn.] (Green).) In 2019, Wagner filed his first petition pursuant to former section 1170.95 (2019 petition).4 In the petition, Wagner asserted that he was convicted of murder under a felony murder theory of the offense and was entitled to relief under that provision. The trial court appointed counsel to represent Wagner and invited both sides to file written responses. In its response, the prosecution argued that Wagner was ineligible for relief because he was “convicted as a direct aider and abettor of murder.” The prosecution attached jury instructions from Wagner’s trial, which showed that the jury was not instructed on either the felony murder rule or the natural and probable consequences doctrine. The instructions showed that the jury was instructed on direct aiding and abetting principles. Wagner’s counsel did not file a reply. The trial court denied the 2019 petition at the prima facie stage, concluding that Wagner “was not and could not have been convicted of first degree murder under the natural and probable consequences or felony murder doctrines.” The jurors in Wagner’s case “were not instructed on either doctrine; rather, as to [Wagner’s] potential liability for murder, the jury was only instructed on direct aiding and abetting principles.” Thus, “in finding [Wagner] guilty of first degree murder, the jury necessarily found him culpable for murder based on his own actions and mental state as a direct aider and abettor of murder.” Wagner appealed from the denial of the 2019 petition. (People v. Wagner (Aug. 17, 2021, H048840) [nonpub. opn.].) The sole issue Wagner raised on appeal was “whether the trial court is permitted to review the record of conviction at the prima facie stage” when considering his petition. Relying on People v. Lewis (2021) 11 Cal.5th 952, we concluded that the trial court may rely on the record of conviction in making this