Opinion
B302256
12-28-2021
THE PEOPLE, Plaintiff and Respondent, v. SHAWN MARIE DAILEY, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County, No. BA063895, George G. Lomeli, Judge.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION FOLLOWING TRANSFER FROM SUPREME COURT
WILLHITE, ACTING P.J.
Shawn Marie Dailey, who was convicted of second degree murder, appeals from the summary denial of her petition for resentencing under Penal Code section 1170.95. We affirmed the denial in a previous opinion (People v. Dailey (Dec. 15, 2020, B302256) [nonpub. opn.] (Dailey II)), but the Supreme Court granted review and transferred the matter back to us with directions to vacate our prior decision and reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis). We vacate our opinion in Dailey II and, after reconsidering the cause, we conclude the trial court erred by summarily denying Dailey's section 1170.95 petition without appointing her counsel. However, we conclude the error was harmless. Accordingly, we affirm the judgment.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
Our summary of the background regarding the murder and Dailey's conviction is based upon our opinion affirming the conviction, People v. Dailey, et al. (April 29, 1997, B095260) [nonpub. opn.] (Dailey I).
A. The Murder and Conviction
Dailey and her boyfriend, Virgil Curt Grundy, along with Dailey's three sons, lived with and were supported by Dailey's mother, Clara Christine Dailey (Christine). On August 18, 1992, Dailey's eldest son, 11-year-old Anthony, had gone to bed after saying goodnight to Christine, and was awakened by the sound of gunshots. He heard Christine's bedroom door (which was downstairs) being opened, his mother scream, and his mother and Grundy running upstairs to Dailey's bedroom. He heard Grundy saying to Dailey, "Come on Shawn, come on," then heard them go downstairs and out of the house, with Grundy saying, "Come on, hurry up."
From his bedroom window, Anthony saw Dailey and Grundy (who was carrying Christine's purse) get into Christine's van and drive away, leaving Anthony behind (his brothers were at summer camp). About 15 minutes later, Anthony went downstairs and found Christine lying in a pool of blood. She had numerous wounds to her head, face, neck, chest, and knees, consistent with being beaten with a baseball bat, and had died from a single gunshot wound to her head.
At the scene of the killing police found, among other items, a torn strip of duct tape from which they recovered Dailey's fingerprints. They also found a gag made out of duct tape and a towel in Dailey's bedroom.
Dailey was arrested two weeks later, and Grundy was arrested a few weeks after Dailey. Both were charged by information with one count of murder (§ 187, subd. (a)) and one count of first degree residential robbery (§ 211). It was further alleged that a principal in the murder and the robbery was armed with a firearm (§ 12022, subd. (a)(1)), and that the murder was committed by Dailey and Grundy while they were engaged in the commission of a robbery within the meaning of section 190.2, subdivision (a)(17). A jury found both Dailey and Grundy guilty of murder, found it was in the second degree, found the firearm allegation to be true, and found the special circumstances allegation to be false. The jury acquitted both Dailey and Grundy on the robbery count.
The trial court sentenced Dailey to 15 years to life for the murder, plus one year for the firearm enhancement. Dailey appealed from the judgment, and we affirmed.
B. The Petition for Resentencing
In August 2019, Dailey filed a form petition for resentencing under section 1170.95. On the form, she checked the boxes indicating that an information had been filed against her that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, that she was convicted of first or second degree murder under one of those theories, that she could not now be convicted because of changes made to sections 188 and 189, and that she requested the appointment of counsel for the resentencing process.
Without appointing counsel for Dailey or allowing briefing, the trial court denied the petition in a written order. In recounting Dailey's conviction, the court stated that she and Grundy "were convicted of one count of second degree murder, one count of robbery with the jury also finding true the firearm enhancement as well as the special circumstance under [section] 190.2(c)(19) [sic] in that murder during the commission of a robbery." The court concluded that-based upon its "review of the overall court record"-"the overall evidence clearly establishes that the petitioner's conduct in the robbery and murder of her mother established that she either with the intent to kill aided and abetted the murder of her mother and/or was a major participant who acted with reckless indifference to human life," and therefore she was not entitled to resentencing under section 1170.95. Dailey timely appealed from the order denying her petition.
We note that the trial court also found that section 1170.95, and Senate Bill No. 1437 (S.B. 1437), which enacted section 1170.95, were unconstitutional. However, because the Attorney General conceded in his respondent's brief that this ruling was erroneous, we need not discuss the court's reasoning or address it further.
C. Dailey II, Petition for Review, and Transfer
We affirmed the order denying the petition in Dailey II. In our decision, we adopted the reasoning set forth in People v. Verdugo (2020) 44 Cal.App.5th 320, abrogated by Lewis, supra, 11 Cal.5th 952, which had held that the trial court could consider the record of conviction to determine whether a petitioner was eligible for resentencing under section 1170.95 before appointing counsel for the petitioner. We found that although the trial court exceeded its authority by finding that Dailey was a major participant in the murder who acted with reckless indifference to human life (and erroneously stated that Dailey had been convicted of robbery and that the special circumstances allegation was found to be true), there was no prejudicial error because the record of conviction established that Dailey was not eligible for resentencing.
Dailey petitioned for review in the Supreme Court. The Supreme Court granted review and, after issuing its decision in Lewis, supra, 11 Cal.5th 952, transferred the matter back to this court. The Court directed us to vacate our decision in Dailey II and to reconsider the cause in light of Lewis. Following the transfer, Dailey and the Attorney General submitted supplemental briefs addressing the impact of Lewis on this case.
DISCUSSION
In her supplemental brief, Dailey contends the trial court erred by failing to appoint counsel for her before denying her petition. We agree the court erred, but find the error was harmless.
Section 1170.95 provides that "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition" for resentencing if: (1) the "complaint, information, or indictment . . . filed against [him or her] . . . 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 [he or she] could be convicted for first degree or second degree murder"; and (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).)
In Lewis, our Supreme Court held that if a petitioner files a section 1170.95 petition in which the petitioner declares that all three requirements are met, and also requests the appointment of counsel, the court must appoint counsel to represent the petitioner, direct the prosecutor to file a response to the petition, and allow the petitioner to file a reply before the court may determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (Lewis, supra, 11 Cal.5th at p. 966.) However, the Supreme Court found that a trial court's failure to appoint counsel before making its prima facie determination is state law error to which the Watson harmless error test applies. (Lewis, supra, 11 Cal.5th at pp. 973-974.) Accordingly, the Court held that a petitioner "'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing."'" (Id. at p. 974.)
People v. Watson (1956) 46 Cal.2d 818.
In the present case, Dailey has not met-and cannot meet-that burden because the record of conviction conclusively establishes that she was not convicted of murder under a felony murder theory or under the natural and probable consequences doctrine.
At Dailey's trial, the jury was instructed on two alternative theories for the murder charge: malice murder and felony murder. The jury also was given three instructions on first degree murder. First, it was instructed that a murder "which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree." Second, it was instructed that "[t]he unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime as a direct causal result of Robbery is murder of the first degree when the perpetrator had the specific intent to commit such crime." Third, the jury was instructed that "[i]f a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of Robbery, all persons, who either directly and actively commit the act constituting such crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental." Finally, the jury was instructed on second degree murder as follows: "Murder of the second degree is also the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation."
The jury instruction defining murder (CALJIC No. 8.10) stated: "Defendants are accused in Count 1 of having committed the crime of murder, a violation of Penal Code Section 187. [¶] Every person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of Robbery is guilty of the crime of murder in violation of Section 187 of the Penal Code. [¶] In order to prove such crime, each of the following elements must be proved: [¶] 1. A human being was killed. [¶] 2. The killing was unlawful, and [¶] 3. The killing was done with malice aforethought or occurred during the commission or attempted commission of Robbery."
The jury found Dailey guilty of murder in the second degree, found the allegation that the murder was committed while Dailey was engaged in the crime of robbery to be false, and found Dailey not guilty of robbery. Thus, based upon the instructions given to the jury and the jury's verdicts, the only reasonable conclusion is that the jury rejected the felony murder theory of guilt and instead found Dailey guilty of murder with malice aforethought. Dailey argues, however, that the instructions and verdicts do not conclusively establish that she was not convicted under the felony murder theory because "courts have long recognized that juries sometimes knowingly depart from strict adherence to the instructions they are given and return a lesser verdict they see as more commensurate with the defendant's culpability." (Citing People v. Underwood (1986) 181 Cal.App.3d 1223, 1237 (Underwood); People v. Brown (1973) 35 Cal.App.3d 317, 326 (Brown); People v. Ghione (1953) 115 Cal.App.2d 252, 255 (Ghione).) This argument does not assist Dailey.
Jurors are presumed to have followed the trial court's instructions, and a court may not presume that the jury ignored the jury instructions in reaching its verdict. (People v. Silveria and Travis (2020) 10 Cal.5th 195, 244-245; People v. Sanchez (2001) 26 Cal.4th 834, 852.) Nor may a court presume that the jury engaged in arbitrariness or nullification. (See People v. Jackson (1996) 13 Cal.4th 1164, 1232 [in determining whether an error affected a jury's verdict, the court must "'"exclude the possibility of arbitrariness, whimsy, caprice, 'nullification,' and the like"'"].) The cases Dailey relies upon do not provide otherwise.
In Underwood, the jury found the defendant guilty of the robbery during which the victim was murdered, but found the murder was of the second degree despite being instructed that felony murder is murder in the first degree. (Underwood, supra, 181 Cal.App.3d at p. 1237.) The defendant sought to reverse the judgment based on asserted instructional errors (regarding aiding and abetting, and accessory after the fact), improper admission of evidence, and jury misconduct. (Id. at pp. 1227-1228.) The appellate court noted that "[i]f defendant was as a matter of law an intentional perpetrator of the robbery, then it is equally clear as a matter of law that the killing was 'committed in the perpetration of' the robbery [citation] as that statutory phrase has been construed by the cases. [Citation.] [¶] Where a defendant is guilty of first degree felony murder as a matter of law, there is no reason to reverse a second degree verdict which is more favorable to defendant than warranted by the evidence." (Id. at p. 1237.) It is in this context that the appellate court made the observation relied upon by Dailey here: "Given the state of the record in this case, the second degree verdict had to be the product, not of erroneous instructions or prejudicial confusion on the part of the jury, but rather of an attempt by the jury to show unwarranted leniency. Having already received the benefit of jury leniency not supported by the evidence, defendant is in no position to seek outright reversal." (Ibid.)
The Underwood court's observation has no bearing on this case. Unlike in this case, where the jury found Dailey not guilty of the robbery at issue, the jury in that case found that the defendant was guilty of the robbery. Thus, there was no possible explanation for the jury in Underwood to find the defendant guilty of second, rather than first, degree murder other than that the jury ignored the court's instruction.
The other two cases Dailey relies upon simply involved situations in which the jury found the defendant guilty of a lesser offense (which verdict was supported by the evidence and the instructions) even though the evidence was such that the jury could have found the defendant guilty of a greater offense. They have no applicability to this case. For example, in Brown, the defendant was charged with two counts of rape, one count of sodomy, one count of attempted rape, one count of unlawful possession of secobarbital, and two counts of unlawful sexual intercourse of a female under the age of 18 years. (Brown, supra, 35 Cal.App.3d at p. 320.) The jury found the defendant guilty of the two counts of unlawful sexual intercourse and the sodomy count, but found him not guilty on the other counts. (Ibid.) One of the arguments raised by the defendant on appeal was that the unlawful sexual intercourse statute was unconstitutional because it authorized a punishment that was grossly disproportionate to the offense. (Id. at p. 325.) In rejecting the defendant's assertion that the crime of unlawful intercourse was a trivial offense, the appellate court observed that "the evidence clearly showed that what took place was a violent and forcible rape. Under the circumstances the fact that the jury chose to convict appellant of unlawful intercourse instead of forcible rape can only be attributed to the mercy and leniency of the jury." (Id. at p. 326.)
Similarly, in Ghione, the defendant was an ex-boxer who had killed the victim during a fist fight in which the defendant hit the victim on the face or head. (Ghione, supra, 115 Cal.App.2d at p. 252.) The defendant was charged with manslaughter, but the jury was also instructed on battery as a lesser included offense. (Id. at p. 253.) The defendant's sole defense was that he acted in self-defense. (Ibid.) The jury convicted him of battery. The defendant appealed, arguing that the trial court erred by instructing on battery because if he was guilty of battery he must have been guilty of manslaughter. (Ibid.) The appellate court found that the case was governed by the rule that "'[a]n appellant is precluded from complaining that he was convicted of a lesser offense than the one of which he is guilty according to undisputed evidence, or according to that view of the evidence which, it indisputably appears, the trier of fact accepted.'" (Id. at p. 254.) The court then observed that "[t]he case on its facts was anything but close and on the record before us it seems clear that the jury seized, for some reason known only to themselves, on the opportunity, given them by the instruction that they might find the defendant guilty of battery, to ameliorate the law in its application to the facts." (Id. at p. 255.)
In the present case, the jury was instructed that if it found that the victim, Christine, was killed during the commission or attempted commission of a robbery, or if the killing was willful, deliberate, and premeditated with malice aforethought, Dailey was guilty of murder in the first degree, but that Dailey was guilty of murder in the second degree if Dailey had an intent to kill but there was insufficient evidence to establish deliberation and premeditation. The jury found that neither Dailey nor her codefendant were guilty of robbery, and that both were guilty of murder in the second degree. In light of these instructions and verdicts, there is no reasonable basis to conclude-or even speculate-that the jury's second-degree murder verdict was based upon a felony murder theory but nevertheless was the product of an attempt by the jury to show unwarranted leniency, as the court found in Underwood.
In other words, the record of conviction establishes as a matter of law that Dailey was not convicted of murder under a felony murder theory or the natural and probably consequences doctrine. As such, Dailey failed to meet her burden to show it is reasonably probable that her petition would not have been summarily denied had she been afforded assistance of counsel. (Lewis, supra, 11 Cal.5th at p. 974.) Accordingly, although the trial court erred by not appointing counsel for Dailey, the error was harmless.
DISPOSITION
The order denying Dailey's section 1170.95 petition is affirmed.
We concur: COLLINS, J., CURREY, J.