Filed 7/23/26 P. v. Harvey CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B342243
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. BA205676)
DAREION LEE HARVEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Alison S. Matsumoto, Judge. Affirmed.
Kieran D.C. Manjarrez, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant Dareion Lee Harvey appeals after the trial court summarily
denied his Penal Code section 1172.61 resentencing petition. As the trial
court noted, defendant had filed a prior resentencing petition, and this court
affirmed the trial court’s denial of that prior petition. Defendant’s new
petition did not indicate it was based on any change in the law, and contained
only “conclusory, checkbox allegations” regarding his eligibility for
resentencing (see People v. Patton (2025) 17 Cal.5th 549, 564 (Patton)).
On appeal, defendant contends that new legal authority undermines
the rationale this court used in affirming the denial of his previous petition.
We hold that defendant’s petition was properly denied as successive because
it did not indicate it was based on any change in the law. We therefore affirm
without prejudice to defendant refiling a new resentencing petition that is
based on new legal authority.
I. BACKGROUND
A. Trial Evidence and Direct Appeal
In 2002, a jury convicted defendant of second-degree murder. The jury
found that the murder was committed for the benefit of a criminal street
gang, that defendant personally used a firearm, and that a principal
personally and intentionally discharged a firearm causing death.
The evidence at trial included defendant’s statement to police.2
Defendant admitted that he had participated in the murder. He and two
fellow gang members had encountered the victim in their neighborhood and
asked where he was from. Defendant and his two companions then beat the
1 Unspecified section references are to the Penal Code.
2 The details about defendant’s trial are taken from this court’s opinion
in People v. Harvey (June 25, 2003, B158517) [nonpub. opn.] (Harvey I).
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victim. Defendant then drew his gun. Defendant was going to shoot the
victim, but one of the other gang members was in the way. According to
defendant, that other gang member actually shot the victim.
At trial, the prosecutor argued that defendant was the actual shooter,
but alternatively argued that defendant intended to aid and abet a murder.
Although the jury also received instructions on the natural and probable
consequences doctrine, the prosecutor did not argue that theory of culpability.
On direct appeal, defendant argued that the natural and probable
consequences instructions erroneously allowed the jury to convict him of
murder based on his intent to commit a misdemeanor assault. This court
determined that any instructional error was harmless, in light of defendant’s
admission about intending to shoot the victim and the prosecutor’s closing
argument. (Harvey I, supra, at pp. 13–16.) This court stated: “[Defendant’s]
guilt under the evidence was clearly based on his direct encouragement of a
shooting and his own willingness to shoot.” (Harvey I, supra, at p. 15.)
B. First Resentencing Petition and Appeal
“In 2018, the Legislature amended the law of homicide, eliminating
several theories of liability based on imputed malice. It has also offered relief
to those convicted under certain homicide theories, such as murder or
attempted murder under the natural and probable consequences doctrine,
whose convictions are now tainted. (Pen. Code, § 1172.6, subd. (a).)
Petitioners seeking relief under section 1172.6 must, first, file a facially valid
petition that states the statutory requirements for relief (id., subd. (b)), and
second, make a ‘prima facie showing’ (id., subd. (c)), before a court must issue
an order to show cause and hold an evidentiary hearing on the ultimate
question of resentencing at which the People will bear the burden of
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defending a conviction under the amended law (id., subd. (d)).” (Patton,
supra, 17 Cal.5th at p. 556, fn. omitted.)
In 2019, defendant filed a resentencing petition under former section
1170.95, a predecessor statute to section 1172.6. In the petition, defendant
asserted that he was convicted under the natural and probable consequences
doctrine and was therefore eligible for resentencing.
The trial court appointed counsel and received further briefing from the
People and defendant. The trial court found defendant failed to make a
prima facie showing and denied the 2019 resentencing petition without an
evidentiary hearing. The trial court relied on Harvey I in finding that the
record of conviction showed that defendant was convicted as a direct aider
and abettor, and not based on the natural and probable consequences
doctrine.
In 2021, this court affirmed the trial court’s denial of the 2019
resentencing petition. (People v. Harvey (Feb. 23, 2021, B304497 [nonpub.
opn.] (Harvey II).) This court held that the trial court properly considered the
Harvey I opinion as part of the record of conviction and did not thereby
“engage[] in impermissible fact-finding.” (Harvey II, at p. 11.) This court
determined that because of the Harvey I holding—that defendant’s guilt was
“clearly based” on a direct aiding and abetting theory—resentencing was
precluded “as a matter of law.” (Harvey II, at p. 11.)
C. Current Resentencing Petition and Appeal
In August 2024, petitioner filed a second resentencing petition. The
petition is on a preprinted form with “conclusory, checkbox allegations.” (See
Patton, supra, 17 Cal.5th at p. 564.) Nothing in the petition indicated that it
was based on a change in the law since Harvey II.
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The trial court summarily denied the petition, stating in a minute
order: “The Petitioner is advised that this matter was previously resolved,
the petition being denied. The previous denial was affirmed by the Court of
Appeals in B304497 on November 4, 2021.”
II. DISCUSSION
A. The Parties’ Arguments
Defendant argues that the trial court should have found that his 2024
resentencing petition made a prima facie case for relief because it “contained
the required statutory recitals.” (See § 1172.6, subds. (a) & (b).) He contends
the trial court erred by summarily denying the petition without appointing
counsel, receiving briefing, and holding a hearing. Defendant further
contends that this court’s decision in Harvey II is no longer “persuasive under
current law.” Specifically, defendant asserts that, in Harvey II, this court
improperly relied on factual findings made in Harvey I.
The Attorney General asserts that, even assuming the 2024
resentencing petition was facially sufficient to warrant appointment of
counsel, briefing, and a hearing “to determine whether the petitioner has
made a prima facie case for relief” (§ 1172.6, subd. (c)), any error was
harmless because the petition was barred by the doctrines of issue preclusion
and law of the case.
B. Summary Denial Was Proper
Generally, a trial court may not summarily deny a facially sufficient
resentencing petition. Section 1172.6 “does not envision a structure by which
courts can make an initial determination without briefing and without the
appointment of counsel.” (People v. Lewis (2021) 11 Cal.5th 952, 966.)
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“[O]nly after the appointment of counsel and the opportunity for briefing may
the superior court consider the record of conviction to determine whether ‘the
petitioner makes a prima facie showing that he or she is entitled to relief.’”
[Citation.]” (Id. at p. 957.)
However, when a defendant files a successive resentencing petition,
summary denial is appropriate unless “the subsequent petition rest[s] on new
legal authority which challenge[s] the basis for the superior court’s ... denial
of the previous petition.” (People v. Farfan (2021) 71 Cal.App.5th 942, 946–
947 (Farfan); see also People v. Harden (2022) 81 Cal.App.5th 45, 52 [second
petition’s claims were “based on new law”].) As the Farfan court recognized,
this is an evolving area of law, such that “judicial interpretations of [former]
section 1170.95 may afford a petitioner grounds for claiming eligibility for
relief under the statute that were not previously available under other
judicial interpretations.” (Farfan, supra, at p. 951.)
The “conclusory, checkbox allegations” in defendant’s 2024
resentencing petition (see Patton, supra, 17 Cal.5th at p. 564) did not provide
the trial court with any “new legal authority.” (Farfan, supra, 71 Cal.App.5th
at pp. 946–947; compare People v. Jimenez (2024) 103 Cal.App.5th 994, 1000
[second petition cited statutory amendments that became effective after first
petition]; People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1235 [second
petition relied on new case law and new legislation].) Only on appeal does
defendant assert that “since 2021, the law on aiding and abetting has
undergone significant changes and it thus remains a reasonable possibility
that his conviction was not permissible under current law.” Because no new
legal authority was cited as the basis for the 2024 petition, however, the trial
court did not err by summarily denying it.
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DISPOSITION
The order denying defendant’s August 27, 2024 petition for
resentencing is affirmed, without prejudice. Defendant may file a new
resentencing petition that asserts a change in the law since Harvey II. We
express no opinion about the potential merit of such a petition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COGLIATI, J.*
We concur:
ZUKIN, P. J.
TAMZARIAN, J.
*Judge of the Santa Cruz Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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