People v. Beaudreaux

319 Cal.Rptr.3d 816

The PEOPLE, Plaintiff and Respondent,

v.Nicholas BEAUDREAUX, Defendant and Appellant.

A166001

Court of Appeal, First District, Division 4.

Filed March 28, 2024

As Modified April 17, 2024

Trial Court: Superior Court of California, County of Alameda, Trial Judge: Hon. Morris D. Jacobson (Alameda County Super. Ct. No. 160022B)

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bridget Billeter, Supervising Deputy Attorney General, and Masha A. Dabiza, Deputy Attorney General, for Plaintiff and Respondent.

STREETER, J.

Nicholas Beaudreaux, who is now serving an aggregate sentence of 50 years to life for the first degree murder and attempted robbery of Wayne Drummond, has twice unsuccessfully petitioned for resentencing under Penal Code section 1172.6.¹ In the resentencing proceedings on his second petition, the trial court ruled that the order denying relief on his first petition, an order we affirmed in 2020, forecloses relief.

Beaudreaux appeals again, this time relying on our Supreme Court’s decision in People v. Lewis (2021) 11 Cal.5th 952, 281 Cal.Rptr.3d 521, 491 P.3d 309 (Lewis), which clarified the applicable procedural law governing section 1172.6 resentencing proceedings in some notable ways. He also relies on Senate Bill No. 775 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 551) (Senate Bill 775), which was enacted in late 2021, codifying and in some respects clarifying Lewis.

We will again affirm. We agree with Beaudreaux that, in light of Lewis and Senate Bill 775, the trial court erred at the prima facie stage of these resentencing proceedings by once again failing to appoint counsel, and by relying on substantive facts summarized in this court’s 2011 opinion affirming his conviction. But those errors were harmless.

The dispositive question here is this. Based on the record of conviction before us—which consists of the jury instructions in Beaudreaux’s 2009 trial, the jury’s verdicts, and the findings accompanying the verdicts—must we conclude that Beaudreaux was convicted as Drummond’s actual killer? We think so. The record here is limited, but it is sufficient to refute conclusively Beaudreaux’s attempt to allege entitlement to section 1172.6 relief.

I. BACKGROUND

[1, 2] The pertinent record of conviction consists of the clerk’s transcript, the trial court minutes, and the jury instructions and verdicts from the underlying proceedings against Beaudreaux in 2009.² Supplementing that, we grant Beaudreaux’s request for judicial notice under Evidence Code sections 452 and 459 of (1) our 2011 appellate opinion affirming his conviction in the underlying case (People v. Beaudreaux, 2011 WL 2976826 (Jul. 21, 2011, A126140) [nonpub. opn.] (Beaudreaux I)), and (2) the clerk’s transcript filed in the appeal from the trial court’s denial of his previous resentencing petition (People v. Beaudreaux, 2020 WL 5105042 (Aug. 31, 2020, A159751) [nonpub. opn.] (Beaudreaux II).) From this limited record, we glean the following procedural facts.

A. Beaudreaux’s 2009 Trial and Convictions

In December 2008, Beaudreaux and a codefendant, Brandon Crowder, were charged in an information filed by the Alameda County District Attorney with the same two counts: (1) murdering Drummond in violation of section 187, subdivision (a), and (2) attempting to rob Drum- mond in violation of section 211, both crimes occurring on or about September 4, 2006.

Each count included the same two sentencing enhancement allegations: against Crowder, under section 12022, subdivision (a)(1), that during the commission of the crime "a principal" was armed with a firearm; and against Beaudreaux, under sections 12022.5, 12022.7, and 12022.53, that he personally and intentionally discharged a firearm and caused great bodily injury and death to Drummond. But only Beaudreaux was charged with personally and intentionally discharging a firearm, causing great bodily injury and death to Drummond.

A jury trial followed. In the parlance of criminal trial practice, Crowder "flipped" just as trial began. On the second day of the proceedings, the trial court accepted Crowder’s change of plea on the murder count from not guilty to no contest to the lesser included offense of voluntary manslaughter under section 192, subdivision (a). The court dismissed the remainder of the charges against him and proceeded against Beaudreaux alone, with Crowder among the witnesses testifying on behalf of the prosecution.

The jury was instructed in relevant part on malice murder, felony murder, and attempted robbery, including the instruction that "[t]he defendant has been prosecuted for first degree murder under two theories: (1) The murder was willful, deliberate and premeditated; and (2) Felony murder." The instruction on malice murder stated: "The defendant is charged in Count 1 with murder in violation of Penal Code [section] 187. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person. [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought." (Italics added.)

The felony-murder instruction stated: "The defendant is charged in Count 1 with murder, under a theory of felony murder. [¶] To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: [¶] 1. The defendant committed attempted robbery; [¶] 2. The defendant intended to commit attempted robbery; [¶] AND [¶] 3. While committing attempted robbery, the defendant did an act that caused the death of another person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent." (Italics added.)

The jury was also instructed that, if it found Beaudreaux guilty of the crimes charged against him, it was to consider the firearm use allegations in accordance with the following guidance: "To prove that the defendant intentionally discharged a firearm, the People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission of that crime; [¶] AND [¶] 2. The defendant intended to discharge the firearm. [¶] If the People have proved both 1 and 2, you must then decide whether the People also have proved that the defendant’s act caused the death of a person." (Italics added.)

There was a jury instruction addressing Crowder’s testimony, which stated as follows: "Before you may consider the testimony of Brandon Crowder as evidence against the defendant regarding the crimes of murder and attempted robbery, you must decide whether Brandon Crowder was an accomplice to those crimes. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if: [¶] 1. He or she knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 2. He or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime." The instruction further stated that if the jury decides a witness is an accomplice, it could not convict based on his or her testimony alone and should view with caution any incriminating testimony by the accomplice.

In July 2009, the jury found Beaudreaux guilty of the first degree murder and attempted robbery of Drummond, and found the sentencing enhancement allegations against him to be true. The jury did not indicate whether it based its first degree murder verdict on a theory of malice murder or felony murder. But it did specifically find that he "personally and intentionally discharge[d] a firearm and caused great bodily injury and death to WAYNE DRUMMOND."

The trial court sentenced Beaudreaux to a total state prison term of 50 years to life, consisting of 25 years to life for first degree murder and 25 years to life under section 12022.53, subdivision (d).³ On appeal, this court affirmed in Beaudreaux I. Our opinion there includes a lengthy summary of the facts on which the conviction is based.

B. Beaudreaux’s First and Second Resentencing Petitions

After Senate Bill 1437 went into effect on January 1, 2019 (People v. Strong (2022) 13 Cal.5th 698, 708, 296 Cal.Rptr.3d 686, 514 P.3d 265 (Strong)), Beaudreaux, representing himself, filed a petition for resentencing and checked a box requesting appointment of counsel. Without appointing counsel or seeking further briefing, a id based on the facts of the crime as recounted in Beaudreaux I, the trial court denied his petition for failure to set forth a prima facie case for relief. This court affirmed that denial by unpublished opinion in Beaudreaux II.

Eighteen months later, Beaudreaux, still representing himself, again petitioned for resentencing under section 1172.6. He contended under penalty of perjury that he could not have been found guilty of murder under present law and requested, based on Lewis, that the court appoint counsel for him based on his facially sufficient petition. The trial court denied Beaudreaux’s second petition in a written order without seeking any response from the People, and also denied Beaudreaux’s request for counsel. The court explained as follows:

"The instant petition appears to be similar to defendant’s prior petition. Notwithstanding defendant’s actual reliance on Lewis, supra, 11 Cal.5th 952, 281 Cal. Rptr.3d 521, 491 P.3d 309 and apparent reliance on Senate Bill 775 …, neither authority appears to contemplate, let alone permit, giving defendants such as Beaudreaux a second or subsequent opportunity to litigate a claim that was decided against them and that decision is final. Put another way, Beaudreaux does not appear to be entitled to a second bite of the apple. [¶] For all these reasons, the [section 1172.6] petition...