Opinion
A157755
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. RANDI LEN DEES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-120610-1)
Appellant Randi Len Dees pleaded no contest to second degree murder in 2014. In 2019, she filed a petition for resentencing pursuant to Penal Code section 1170.95, which provides for resentencing of individuals convicted of felony murder or murder under a natural and probable consequences theory if they can no longer be convicted of murder under January 1, 2019 amendments to the Penal Code. Based on its review of the preliminary hearing transcript, the superior court concluded that appellant failed to set forth a prima facie basis for relief under the statute and summarily denied her petition without ordering an evidentiary hearing. Appellant contends, and the Attorney General concurs, that she is entitled to a hearing to adjudicate her eligibility for resentencing. We agree and reverse the superior court's order with directions that it issue an order to show cause and conduct an evidentiary hearing on her petition.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Shelby Barnes was living in a home that had belonged to her family but was in foreclosure. The home became a crash pad for young drug users. Donald Waldecker, Jonathan Harriel, and appellant were staying in a detached back unit in Barnes's home. Waldecker told appellant that he wanted to get rid of Barnes and take over the house. On or about the night of October 20, 2011, Waldecker, Harriel, and appellant entered Barnes's home and restrained Barnes with duct tape. Appellant held Barnes's head while Waldecker taped her mouth. Waldecker dragged Barnes into the basement and murdered her.
Because appellant was convicted by plea rather than trial, these facts are taken from the preliminary hearing.
Following a preliminary hearing, Waldecker, Harriel, and appellant were charged by information with murder (§ 187, subd. (a); count 1), torture (§ 206; count 2), and residential burglary (§§ 459/460, subd. (a); count 3). The information further alleged that Waldecker personally used a deadly and dangerous weapon (a knife) (§ 12022, subd. (b)) in the commission of all the above offenses.
Pursuant to a negotiated disposition, and to avoid a possible conviction of first degree murder under a felony murder theory, appellant entered a plea of no contest to an amended information charging her with second degree murder (count 4), in exchange for dismissal of the balance of the charges. The plea deal applied to appellant only. Waldecker pleaded guilty to first degree murder.
At the sentencing hearing in January 2014, the prosecutor stated his belief that appellant was "legally responsible through the felony murder rule, conspiracy and aiding and abetting. But the People believe that Donald Waldecker inflicted the actual injuries, all of the injuries himself." The trial court imposed a mandatory 15 years-to-life prison sentence.
In 2018, the Legislature enacted Senate Bill. No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which took effect on January 1, 2019. (Stats. 2018, ch. 1015.) Among other changes, Senate Bill 1437 amended section 189 to limit liability for murder under a felony murder or natural and probable consequences theory to a person who is the actual killer, who "with the intent to kill" aids and abets the actual killer, or who is a major participant in the underlying felony and acts with reckless indifference to human life. (Stats. 2018, ch. 1015, §§ 1(f), 3(e); see § 189, subd. (e).) Senate Bill 1437 permits individuals previously convicted of murder under these theories to petition the sentencing court to vacate their convictions and to be resentenced on any remaining counts under certain enumerated procedures. (Stats. 2018, ch. 1015, § 4; see § 1170.95.)
In January 2019, appellant petitioned for resentencing under section 1170.95. In a form petition she averred that she had been convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine and that she could not now be convicted of first or second degree murder because of the amendments to sections 188 and 189. She further declared: "I was not the actual killer"; "I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree"; and "I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony." In February 2019, she filed another petition with additional averments and requested the appointment of counsel.
The superior court appointed counsel to represent appellant. The prosecutor filed an opposition to the petition, and appellant filed a response to that opposition. In her response, appellant identified evidence that she claimed would have undermined the prosecution's case at trial, or that would have affirmatively supported a finding that she did not act with intent to kill and was not a major participant in a felony who had acted with reckless indifference to human life.
For example, appellant's attorney stated that Dees had no history of being violent, had only known Waldecker for a few days before the murder, and that none of the many text messages she and Waldecker exchanged in the days leading up to the murder referenced a plan to harm Barnes.
On June 19, 2019, the superior court summarily denied appellant's petition in an 18-page opinion. Relying on the 2012 preliminary hearing transcript as "a record of conviction," the court concluded appellant had failed to make a prima facie showing of eligibility for resentencing because she could be convicted of murder under the amended law. Citing to section 189, subdivisions (a) and (e)(2), the court found that "a reasonable trier of fact could reach a guilty verdict on a charge of murder on the basis that the defendant, with intent to kill, aided and abetted Waldecker's willful, deliberate, and premeditated killing of Shelby Barnes." Alternatively, the court found that appellant could be convicted under revised section 189, subdivision (e)(3), because she was a " 'major participant' " in a burglary/attempted burglary and " 'acted with reckless indifference to human life.' " In so concluding, the superior court relied on "reasonable and credible" evidence adduced at the preliminary hearing. This appeal followed.
DISCUSSION
A. Senate Bill 1437 and Section 1170 .95
To be convicted of murder, a jury must ordinarily find that the defendant acted with " 'malice aforethought.' " (People v. Chun (2009) 45 Cal.4th 1172, 1181, quoting § 187, subd. (a).) The felony murder rule provided an exception that makes "a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state." (Chun, at p. 1182.) Under a separate rule known as the natural and probable consequences doctrine, a " ' "person who knowingly aids and abets criminal conduct is guilty of not only the intended crime . . . but also of any other crime the perpetrator actually commits . . . that is a natural and probable consequence of the intended crime." ' " (People v. Chiu (2014) 59 Cal.4th 155, 161.)
Senate Bill 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.' " (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted Mar. 18, 2020, S260598.) To effectuate this purpose, Senate Bill 1437 amended the definition of malice in section 188 to provide that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); People v. Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), review granted Mar. 18, 2020, S260493.) As a result of this amendment, the natural and probable consequences doctrine can no longer be used to support a murder conviction. (See People v. Lopez (2019) 38 Cal.App.5th 1087, 1103 & fn. 9, review granted Nov. 13, 2019, S258175); Stats. 2018, ch. 1015, §§ 1(f), 1(g).)
As noted above, Senate Bill 1437 amended section 189 to limit liability for murder under a felony murder theory to a person who (1) was the actual killer; (2) though not the actual killer, acted "with intent to kill" and "aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer" in the commission of first degree murder; or (3) 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." (§ 189, subd. (e); Verdugo, supra, 44 Cal.App.5th at p. 326.)
Senate Bill 1437 did not "alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator.' " (Lewis, supra, 43 Cal.App.5th at p. 1135.) Accordingly, "[o]ne who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law." (Ibid.)
Section 1170.95 provides that "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts." (§ 1170.95, subd. (a).) A petition may be filed when the following three conditions are met: "(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)(1)-(a)(3).)
The petitioner must declare that he or she is eligible for relief based on the requirements above, provide the case number and year of conviction, and specify whether the petitioner requests the appointment of counsel. (§ 1170.95, subd. (b)(1).) "If any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the 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).)
Section 1170.95, subdivision (c) sets forth the trial court's obligations upon the submission of a complete petition: "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."
Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) If the prosecutor does not stipulate to vacating the conviction and resentencing the petitioner (§ 1170.95, subd. (d)(2)), the People may present new and additional evidence at the hearing to demonstrate that petitioner is not entitled to resentencing. (§ 1170.95, subd. (d)(3).) The petitioner may also present new or additional evidence in support of the resentencing request. (Ibid.) The People bear the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (Ibid.) B. The Trial Court Erred In Finding Appellant Had Not Made Out a Prima Facie Case For Relief
Appellant first contends that the trial court erred in going outside the contents of the petition to determine that she did not establish a prima facie basis for relief. This issue is presently before our Supreme Court. The high court granted review in Lewis and is currently considering whether a trial court may rely on the record of conviction to determine if a defendant has made a prima facie showing of eligibility for relief under section 1170.95. (See Lewis, supra, 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598.) We need not address this question because we agree that the trial court erred in determining that appellant had not set forth a prima facie basis of eligibility for resentencing.
In Lewis, the appellate court found that the trial court properly considered the defendant's record of conviction, including a prior Court of Appeal opinion, in evaluating the sufficiency of the petition. (Lewis, supra, 43 Cal.App.5th at pp. 1137-1138.)
Appellant argues that the trial court improperly relied on the preliminary hearing transcript to evaluate the sufficiency of her prima facie showing. She explains that a preliminary hearing is limited to determining whether probable cause exists to commit a defendant for trial, and is a much less searching examination into the merits of a case than a criminal trial governed by a reasonable-doubt standard of proof. While the Attorney General does not directly address this contention, he agrees that the lower court's determination "was based on an assessment of the facts adduced at the preliminary hearing" and "such a factual determination was not appropriate at this preliminary stage."
We agree that appellant is entitled to an evidentiary hearing in which evidence may be admitted and the merits of her petition may be adjudicated. The parties agree that appellant's petition pleaded all averments necessary to obtain relief under the statute. An evidentiary hearing is the proper avenue in which to evaluate disputed questions about appellant's mental state and her degree of participation in the commission of the offense. And as both sides point out, the state bears the ultimate burden of proving beyond a reasonable doubt that appellant is ineligible for resentencing. (§ 1170.95, subd. (d)(3). The trial court erred in prematurely weighing the evidence and summarily denying appellant's petition.
People v. Drayton (2020) 47 Cal.App.5th 965 (Drayton), supports our conclusion. In Drayton, our colleagues in the Sixth District Court of Appeal recently addressed a similar situation in which the trial court relied on a preliminary hearing transcript to conclude that the defendant failed to make out a prima facie case for relief under section 1170.95. The defendant in Drayton had pleaded guilty to murder of a victim who was killed by a coparticipant during a home invasion robbery. (Id. at pp. 968-969.) In January 2019, he filed a petition under section 1170.95 asserting he was eligible for resentencing because he " 'was not a major participant in the felony or [he] did not act with reckless indifference to human life during the course of the crime or felony.' " (Drayton, at pp. 969-970.)
The trial court summarily denied the defendant's petition, refusing to issue an order to show cause: "Based on facts drawn from the testimony at the preliminary hearing, the court 'f[ound] that petitioner was a major participant in the underlying felony, both the burglary and the robbery.' " (Drayton, supra, 47 Cal.App.5th at p. 982.) The lower court also found that the defendant " 'acted with reckless indifference to human life,' " as " 'blatantly apparent by his conduct, being armed and his participation in this event, as well as the conduct of his co-conspirators, the other individuals.' " (Ibid.) In reversing, the appellate court observed that section 1170.95, subdivision (c), "is ambiguous in that the text does not set out the procedure the trial court should employ when evaluating the prima facie showing of entitlement to relief." The court further observed the statute's legislative history "is similarly silent on the issue." (Id. at p. 977.)
Applying the de novo standard of review (47 Cal.App.5th at p. 981), the Drayton court looked to habeas corpus procedures for guidance in construing section 1170.95, subdivision (c): "A court receiving a petition for habeas corpus relief 'evaluates it by asking whether, assuming the petition's factual allegations are true, the petitioner would be entitled to relief. [Citations.] If no prima facie case for relief is stated, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an [order to show cause]. [Citation.] When reviewing a petition seeking habeas corpus relief, a court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing." (Id. at p. 978.) "However, if the record, including the court's own documents, 'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified in making a credibility determination adverse to the petitioner.' " (Id. at p. 979.)
Finding habeas corpus procedures to be "sufficiently similar" to the procedures contained in section 1170.95, subdivision (c), the Drayton court concluded that "when assessing the prima facie showing, the trial court should assume all facts stated in the section 1170.95 petition are true. [Citation.] The trial court should not evaluate the credibility of the petition's assertions, but it need not credit factual assertions that are untrue as a matter of law—for example, a petitioner's assertion that a particular conviction is eligible for relief where the crime is not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in habeas corpus, if the record 'contain[s] facts refuting the allegations made in the petition . . . the court is justified in making a credibility determination adverse to the petitioner.' [Citation.] However, this authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subd. (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime)." (Drayton, supra, 47 Cal.App.5th at p. 980.) The appellate court reversed the trial court's order, holding that "[a]t this stage of the petition review process . . ., the trial court should not have engaged in this factfinding without first issuing an order to show cause and allowing the parties to present evidence at a hearing, as described in section 1170.95, subdivision (d)." (Id. at p. 982.)
Similar to Drayton, the superior court below weighed the evidence based on a limited transcript of appellant's preliminary hearing. The court determined that "a reasonable trier of fact could reach a guilty verdict on a charge of murder on the basis that [appellant], with intent to kill, aided and abetted Waldecker's willful, deliberate, and premeditated killing of Shelby Barnes." Alternatively, the court found that appellant was a " 'major participant' " in a burglary/attempted burglary and acted with "reckless indifference to human life." In evaluating the sufficiency of appellant's prima facie basis for relief, "the trial court should not have evaluated and weighed the evidence, but instead should have accepted [her] asserted facts as true." (Drayton, supra, 47 Cal.App.5th at p. 982.)
In short, appellant's petition asserted facts which, if accepted as true, fulfilled the requirements for relief listed in section 1170.95, subdivision (a). An order to show cause should have issued. Accordingly, we reverse the trial court's order denying the petition and remand with directions to issue an order to show cause under section 1170.95, subdivision (c) and to hold an evidentiary hearing pursuant to section 1170.95, subdivision (d). We express no opinion about appellant's entitlement to relief following the hearing.
DISPOSITION
The order summarily denying appellant's petition for resentencing under section 1170.95 is reversed. The matter is remanded to the superior court with directions to issue an order to show cause (§ 1170.95, subd. (c)) and to hold an evidentiary hearing to determine whether appellant's murder conviction should be recalled and appellant should be resentenced (§ 1170.95, subd. (d)).
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Margulies, Acting P.J. /s/_________
Banke, J.