People v. Savary CA2/8

California Court of Appeal Apr 2, 2024 No. B333620Unpublished

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Holding. The court affirmed the denial of the defendant's Penal Code section 1172.6 petition, holding that the defendant failed to establish a prima facie case for relief because he was convicted as the actual killer and the jury was not instructed on any theory of imputed malice.

Issues

Whether the defendant is entitled to resentencing under Penal Code section 1172.6 for a murder conviction where the jury was not instructed on imputed malice or vicarious liability.
Whether a section 1172.6 appeal allows for the litigation of unrelated claims of trial error or prosecutorial misconduct.
Whether a defendant has a constitutional right to a Marsden hearing regarding appointed counsel in an appeal from a section 1172.6 resentencing proceeding.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The trial court is entitled to review the record of conviction and deny a resentencing petition without holding an evidentiary hearing if the record establishes ineligibility for resentencing as a matter of law.”

“Vicarious liability and imputed malice were not theories presented to the jury.”

“An appeal from the denial of a petition for resentencing is not a first appeal as of right and there is no constitutional right to effective assistance of counsel on appeal from resentencing appeals.”

Filed 4/2/24 P. v. Savary CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B333620

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA083613-01) v.

KEFFIER HORACE SAVARY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Jacqueline H. Lewis, Judge. Affirmed.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we review this appeal of an order denying appellant’s petition for resentencing brought under Penal Code1 section 1172.6. We affirm. BACKGROUND In 2012, a jury convicted appellant Keffier Savary of first degree murder with enhancements for personal use of and discharge of a firearm causing great bodily injury and death during commission of the offense. (§§ 187, subd. (a), 12022.53, subds. (b), (c) & (d).) Under a different case number, KA094210, a second jury convicted appellant of witness intimidation and conspiracy to commit murder. (§§ 182, subd. (a)(1), 136.1, subd. (a)(1).) On February 28, 2013, the court sentenced appellant to an aggregate term of 77 years to life on all counts of conviction. In 2023, Savary filed a petition for resentencing on the murder conviction pursuant to section 1172.6. The trial court appointed counsel to represent Savary. The People opposed the petition, arguing that the jury was not instructed on any theory of culpability that imputed malice to appellant based solely on his participation in a crime. Nor was the jury instructed on aiding and abetting. He was prosecuted as the actual killer who acted with actual malice. Attached to the People’s opposition are the instructions given to the jury in the murder case. On August 17, 2023, the trial court denied the petition, ruling that appellant had not made a prima facie case for resentencing because he had not been prosecuted for murder on a now-invalid theory of guilt and he “was prosecuted as the actual

People v. Savary CA2/8

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B333620

KEFFIER HORACE SAVARY,

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

GRIMES, J.

WILEY, J.

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