Opinion
C089493
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. TAMARA BASSETT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09F002925)
In 2012 a jury found defendant Tamara Bassett guilty of first degree murder with a drive-by shooting special circumstance, and other charges and enhancements not material to this appeal. (Pen. Code, §§ 187, 190.2, subd. (a)(21).) We affirmed the resulting conviction in 2015. (People v. Bassett (Mar. 12, 2015, C071072) [nonpub. opn.] (Slip Opinion).)
Further undesignated statutory references are to the Penal Code.
On our own motion, we take judicial notice of our opinion affirming the judgment of conviction and sentence in defendant's direct appeal. (Evid. Code, §§ 459, subd. (a) ["The reviewing court may take judicial notice of any matter specified in Section 452"], 452, subd. (d) [permitting a court to take judicial notice of records of "any court of this state"].)
We explained in our opinion that the jury found the murder " 'was intentional . . . with the intent to inflict death,' " which finding "establishe[d] beyond a reasonable doubt that the jury found Bassett guilty as an aider and abettor of first degree drive-by murder." (Slip Opinion, supra, at p. 42.)
In February 2019 defendant filed a petition for resentencing under then newly enacted section 1170.95. The trial court found defendant ineligible for relief in a brief written order, entered without eliciting any response from the People or holding a hearing. Defendant timely appealed, and now contends: (1) the trial court erred by denying the petition without first appointing counsel; (2) the intent-to-kill component of the drive-by special circumstance was adjudicated under a defective legal theory; and (3) application of the drive-by special circumstance to her "as a mere accomplice" would render the special circumstance unconstitutional.
We disagree with the first contention, reject the other two as improperly raised in this appeal from the denial of defendant's section 1170.95 petition, and affirm the order.
This court is aware that defendant seeks to join this appeal with her petition for writ of habeas corpus pending in In re Tamara Bassett, case No. C091562. Joinder is not appropriate, particularly considering the different procedural postures of these cases. No order to show cause has been issued in the habeas proceeding, and that petition might ultimately be summarily denied. Considering the issues presented, there is otherwise no reason to delay the filing of the direct appeal opinion for resolution of the habeas petition.
LEGAL BACKGROUND
Senate Bill No. 1437 and Section 1170 .95
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.). Senate Bill No. 1437 was enacted to "amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) Effective January 1, 2019, the legislation amended sections 188 and 189 and added section 1170.95 to the Penal Code.
Section 188, which defines malice, now provides in part: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Section 189, subdivision (e) now limits the circumstances under which a person may be convicted of felony murder: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
The new section 1170.95 permits those convicted of felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts where: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).)
The petition filed under section 1170.95 must include the following: "(b)(1)(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [¶] (C) Whether the petitioner requests the appointment of counsel."
If the petition is missing any of the information required by section 1170.95, subdivision (b)(1) and that information "cannot be readily ascertained by the [trial] court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information." (§ 1170.95, subd. (b)(2).)
Once a complete petition is filed, section 1170.95, subdivision (c) sets out the trial court's responsibilities: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
PROCEDURAL BACKGROUND
Defendant's Section 1170 .95 Petition
In February 2019 defendant filed a petition to vacate her conviction pursuant to section 1170.95; the petition included a form declaration that she had completed. In her declaration, defendant stated (1) a complaint, information, or indictment was filed against her that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) at trial, she was convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and (3) she could not be convicted of first or second degree murder under the changes to sections 188 and 189. Defendant also requested the trial court appoint counsel. She did not include any attachments or exhibits to her form petition and declaration. The record does not contain a response to defendant's petition, and the parties agree in their briefing that the People did not respond.
The petition is file stamped February 15, 2016, but the parties agree that it was filed in 2019. The court may accept the parties' mutual stipulation. (See Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. 3.)
Trial Court Order
In April 2019 the trial court summarily denied defendant's petition. The court concluded that defendant failed to make a prima facie showing that she fell within the provisions of section 1170.95, because the jury's true finding on the section 190.2, subdivision (a)(21) (drive-by shooting) special circumstance signaled the jury "necessarily found that defendant Bassett acted with intent to kill in aiding and abetting the murder."
The trial court quoted the special circumstance instruction provided to the jury at defendant's trial: " '[i]f you decide that defendant TAMARA BASSETT is guilty of first degree murder but was not the actual killer, when you consider the special circumstances, you must also decide whether the defendant TAMARA BASSETT acted with intent to kill. [¶] In order to prove the special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove that the defendant acted with intent to kill. [¶] If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that she acted with the intent to kill for the special circumstance to be true. If the People have not met this burden, you must find the special circumstance has not been proved true for defendant TAMARA BASSETT.' "
Defendant timely appealed the trial court's order denying her petition.
DISCUSSION
I
Summary Denial of Section 1170 .95 Petition Without Appointing Counsel
Defendant first contends the trial court erred by summarily denying her section 1170.95 petition before appointing counsel. Specifically, she argues that because she requested counsel, section 1170.95, subdivision (c) permitted the trial court to rule her ineligible for relief "only after appointment of counsel, and an opportunity to be heard." She further argues she had a Sixth Amendment right to appointment of counsel at the "critical stage" of the trial court's determination whether she made a prima facie showing that she fell within the provisions of section 1170.95.
The Attorney General disagrees with defendant's argument that she had a statutory right to appointment of counsel, and contends that even if the trial court erred in failing to appoint counsel, the failure was harmless because defendant is statutorily ineligible for relief.
The Attorney General does not address defendant's Sixth Amendment argument.
A. Standard of Review
"Because this contention involves a question of statutory construction, our review is de novo. [Citation.] Under settled canons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them 'their usual and ordinary meaning.' [Citation.] 'The statute's plain meaning controls the court's interpretation unless its words are ambiguous.' [Citations.] 'If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.]" (Imperial Merchant Services., Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388.)
B. Analysis
Multiple recently published cases, now under review by our high court, have concluded that section 1170.95, subdivision (c) requires the trial court to make two separate prima facie determinations: one before appointing counsel and receiving briefing, and one after those procedural steps have been taken. (See, inter alia, People v. Verdugo (2020) 44 Cal.App.5th 320, 327-329, review granted Mar. 18, 2020, S260493 (Verdugo); People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020, S260598 (Lewis).) We agree with these cases.
"The first sentence of section 1170.95, subdivision (c), directs the court to review the petition and determine if the petitioner has made the requisite prima facie showing. The second sentence provides, if the petitioner has requested counsel, the court must appoint counsel to represent him or her. The third sentence requires the prosecutor to file and serve a response to the petition within 60 days of service of the petition and permits the petitioner to file a reply to the response. The structure and grammar of this subdivision indicate the Legislature intended to create a chronological sequence: first, a prima facie showing; thereafter, appointment of counsel for petitioner; then, briefing by the parties. (Lewis, supra, 43 Cal.App.5th at pp. 1139-1140 ['[w]hen the statutory framework is, overall, chronological, courts will construe the timing of particular acts in relation to other acts according to their location within the statute; that is, actions described in the statute occur in the order they appear in the text']; [Citations.]" (Verdugo, supra, 44 Cal.App.5th at p. 332, review granted, italics added.)
Defendant's Sixth Amendment argument also fails to persuade.
Under both the state and federal constitutions, a defendant has a right to counsel at all critical stages of the proceedings. (U.S. Const., 6th Amend.; Cal. Const., art I, § 15; Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1004-1005.) Critical stages are those "events or proceedings in which the accused is brought in confrontation with the state, where potential substantial prejudice to the accused's rights inheres in the confrontation, and where counsel's assistance can help to avoid that prejudice." (Gardner, at pp. 1004-1005.)
A trial court's determination whether a defendant has made the prima facie showing that she falls within the provisions of section 1170.95 is not a critical stage of the proceedings for purposes of the right to counsel, because when a trial court makes that determination, it draws all factual inferences in the defendant's favor. (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) Thus, this is not a proceeding at which a defendant is "brought in confrontation with the state . . . and where counsel's assistance can help." The trial court is not called upon to exercise its discretion in any way; it is making the relevant determination as a matter of law. (See Lewis, supra, 43 Cal.App.5th at p. 1138, review granted [permitting the trial court to consider its file and the record of conviction before appointing counsel in a section 1170.95 proceeding is "sound policy" " 'when even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief' "], italics added; cf. People v. Drayton (2020) 47 Cal.App.5th 965, 977 ["with respect to the prima facie showing under section 1170.95(c), habeas corpus procedures provide a suitable analogy"]; In re Clark (1993) 5 Cal.4th 750, 780 [if a habeas corpus petition "attacking the validity of a judgment states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns"], italics added.)
Defendant concedes the absence of an "adversarial proceeding" here, but nonetheless contends that "a trained advocate representing appellant's interests diligently could have argued forcefully against the result." But this misperceives the relevant inquiry. Counsel certainly could have argued against the summary denial; but as a matter of law the summary denial was the only correct result. This is so because, as the trial court reasoned, the jury's true finding on the drive-by shooting special circumstance established beyond a reasonable doubt that defendant acted with intent to kill. This reasoning is consistent with our holding on direct appeal that the jury's special circumstance finding "establishes beyond a reasonable doubt that the jury found [defendant] guilty as an aider and abettor of first degree drive-by murder." (Slip Opinion, supra, at p. 42.)
Thus, the trial court correctly ruled that defendant is statutorily ineligible for section 1170.95 relief. (See § 189, subd. (e)(2) [defendant "was not the actual killer, but, with the intent to kill, aided, abetted . . . or assisted the actual killer in the commission of murder in the first degree"].) Therefore, no argument properly could have resulted in a different outcome, and any conceivable error in failing to appoint counsel is harmless.
In her reply brief, defendant does not respond to the People's harmless error contention.
II
Remaining Challenges to the Special Circumstance Finding
Defendant's remaining arguments challenge the propriety of the special circumstance, arguing that "[t]his case involves a combination of an erroneous instruction on transferred intent, coupled with natural and probable consequence theories, and an erroneous prosecutorial argument that 'intent to kill' need not be tethered to specific victims" and that the special circumstance "has been applied to her in an unconstitutional manner." In response to the Attorney General's assertion that these appellate claims "are unauthorized under section 1170.95" and are forfeited for failure to raise them on direct appeal from her conviction, defendant argues (for the first time in her reply brief) that she received ineffective assistance of appellate counsel on direct appeal.
We agree that defendant's remaining claims, which are challenges to her original conviction, are beyond the scope of this appeal from the order denying her section 1170.95 petition. (Cf. O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 564, fn. 6 [declining to consider issues that were "beyond the scope of the [ ] appeal"; United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 122, fn. 14 ["Because the trial court . . . did not reach the . . . issue[]," it was "beyond the scope of th[e] appeal"].)
This appeal is not an appropriate venue for raising collateral attacks on defendant's conviction, which we affirmed on appeal and is long since final. (Cf. In re Spears (1984) 157 Cal.App.3d 1203, 1208 ["habeas corpus is the appropriate means to remedy deprivation of the effective assistance of appellate counsel"].)
A judgment is final " 'where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed . . . .' " (People v. Kemp (1974) 10 Cal.3d 611, 614.) The time to file a petition for a writ of certiorari in the United States Supreme Court is 90 days after judgment is entered by a state court of last resort or discretionary review is denied by a state court of last resort. (U.S. Supreme Ct. Rules, rule 13.1.) Our Supreme Court denied review of our opinion in defendant's direct appeal on July 8, 2015.
DISPOSITION
The order denying defendant's petition is affirmed.
/s/_________
DUARTE, J. We concur: /s/_________
MAURO, Acting P. J. /s/_________
RENNER, J.