People v. Marsh CA2/5

Filed 12/14/23 P. v. Marsh CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B325371

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA061125) v.

VERNON LEE MARSH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Alan K. Schneider, Judge. Affirmed. Emry J. Allen, under the appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

Vernon Lee Marsh appeals the trial court’s order denying his petition for vacatur of his convictions of second degree murder (Pen. Code1, § 187, subd. (a); count 1) and attempted murder (§§ 187, subd. (a) & 664; count 2). The trial court denied Marsh’s petition because he failed to make a prima facie showing that he was eligible for relief. We affirm the trial court’s order.

FACTS AND PROCEDURAL HISTORY

On October 22, 2006, Gabriel Delira Caro and Giovanni Mariona were in Caro’s car stopped at a red light.2 Marsh exited a store nearby. He rapidly fired a handgun at Caro and Mariona, and then fled. Both men were wounded. Caro suffered an injury to his vertebrae, and ultimately died from the injury two years later. Marsh was charged with murder (§ 187, subd. (a); count 1), attempted murder (§§ 187, subd. (a) & 664; count 2), and shooting at an occupied vehicle (§ 246; count 3). It was alleged in all three counts that Marsh personally used a firearm. (§ 12022.53, subds. (b)–(d).) As relevant here, the jury was instructed regarding murder with malice aforethought (CALCRIM No. 520) and attempted murder (CALCRIM No. 600). The jury was not instructed on accomplice liability, the natural and probable consequences doctrine, felony murder, or any other theory of liability for murder based on participation in a different crime.