Opinion
B305461
12-17-2021
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY ANTHONY FLORES, Defendant and Appellant.
Chambers Law Firm and Dan E. Chambers, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. LA058594, Michael Jesic, Judge. Affirmed.
Chambers Law Firm and Dan E. Chambers, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, P. J.
INTRODUCTION
In 2008, appellant Johnny Anthony Flores and three passengers fled in a stolen vehicle following a string of auto burglaries by the group. After a high-speed police chase, appellant crashed into a concrete barrier, killing one of his accomplices. A jury convicted appellant of first degree felony murder and other offenses. In 2019, appellant filed a petition to vacate his murder conviction under Senate Bill No. 1437 (2017-2018 Reg. Sess.; SB 1437), which narrowed the felony-murder rule and eliminated the natural and probable consequences theory as a basis for murder liability. The trial court denied the petition, finding that appellant was conclusively ineligible for relief because he was the actual killer.
The superior court concluded in the alternative that appellant was ineligible for relief because he was a major participant in the underlying felony who acted with reckless indifference to human life. Because we agree that appellant was the actual killer, we need not address appellant's challenge to this alternative finding by the court.
On appeal, appellant contends the superior court erred by denying his petition before issuing an order to show cause. He argues he was not the actual killer because he did not act with malice and because he killed an accomplice, rather than an innocent victim. As explained below, we conclude the trial court correctly determined that appellant was ineligible for relief as a matter of law because he was the actual killer, a theory of felony murder that requires no malice and does not depend on the identity of the victim. Accordingly, we affirm.
BACKGROUND
According to the evidence at trial, in 2008, appellant and three accomplices committed a series of auto burglaries, with appellant serving as the getaway driver. After a local resident spotted the group, a high-speed police chase ensued, during which appellant swerved through multiple lanes and aggressively applied the brakes, causing the vehicle to skid and collide with a concrete barrier. Jose Ramos, one of appellant's accomplices, was killed in the collision. Following trial, a jury convicted appellant of first degree murder under a theory of felony murder, two counts of burglary, and other offenses. He was sentenced to 25 years to life in prison.
The burglary statute does not distinguish between burglary of a structure and auto burglary. (§ 459.)
In 2019, appellant filed a petition to vacate his murder conviction under Penal Code section 1170.95, claiming he could not be convicted of murder today because of SB 1437's changes to the law. After appointing counsel and accepting additional briefing, the superior court denied appellant's petition. The court concluded, inter alia, that appellant was the "actual killer," a theory of felony murder that remained valid under SB 1437, and that he was therefore ineligible for relief. Appellant timely appealed.
Undesignated statutory references are to the Penal Code.
DISCUSSION
Appellant contends the trial court erred by denying his section 1170.95 petition without issuing an order to show cause. He asserts he could not be convicted of murder following the enactment of SB 1437, arguing that he was not the actual killer for purposes of section 189 because he did not act with malice and because he killed his accomplice, rather than an innocent victim. We conclude, as did the superior court, that appellant was conclusively ineligible for relief because he was the actual killer for purposes of the felony-murder rule as amended by SB 1437, a theory that does not require malice and does not distinguish between the death of an accomplice and an innocent victim.
A. Principles
1. Felony-Murder Liability Before SB 1437
Before SB 1437, section 189 provided, "All murder . . . which is committed in the perpetration of, or attempt to perpetrate, [specified felonies] . . . is murder of the first degree." (Prior § 189.) In People v. Dillon (1983) 34 Cal.3d 441, 465, 472, our Supreme Court held that section 189 codified the felony-murder rule, under which a killing in the course of a qualifying felony constituted first degree murder, even without proof of malice. "This felony-murder rule covers 'a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident . . . .'" (People v. Billa (2003) 31 Cal.4th 1064, 1068 (Billa).) In Billa, our Supreme Court explained that "[t]he rule's primary purpose is 'to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit, '" and held that it "applies to the death of a cohort as much as to the death of an innocent person." (Id. at 1070.)
2. SB 1437's Substantive Change to Murder Liability
"Effective January 1, 2019, the Legislature passed Senate Bill 1437 '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).)" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) SB 1437 accomplished this purpose by amending sections 188 and 189.
In section 188, SB 1437 added subdivision (a)(3), which states: "Except [for felony-murder liability] 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." Thus, a murder conviction under any theory other than felony-murder now requires proof that the defendant acted with malice.
Turning to the felony-murder rule, SB 1437 added subdivision (e) to section 189, providing: "A participant in the perpetration . . . of [qualifying felonies] 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 and abetted] . . . the actual killer in the commission of murder . . . . [¶] (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." In discussing the term "actual killer" in the analogous felony-murder special-circumstance statute (§ 190.2, subds. (b), (c) & (d)), one Court of Appeal recently explained that its meaning is "literal": "The actual killer is the person who personally kills the victim . . . ." (People v. Garcia (2020) 46 Cal.App.5th 123, 152 (Garcia).) Nothing suggests the Legislature intended a different meaning in using the same term in section 189. Accordingly, pursuant to section 189, subdivision (e)(1), a person who personally kills another while committing a qualifying felony is guilty of murder under the felony-murder rule.
Section 190.2, subdivision (a), lists special circumstances under which a person convicted of first degree murder shall be sentenced to death or imprisonment in the state prison for life without the possibility of parole. (Ibid.) One of those special circumstances is the commission of murder in the course of a qualifying felony. (§ 190.2, subd. (a)(17).) Under subdivision (d), a person who was "not the actual killer" will be subject to this special circumstance if the person was a major participant in the felony and acted with "reckless indifference to human life." (§ 190, subd. (d).)
SB 1437 therefore made no changes to the felony-murder rule's application to a perpetrator who personally killed the victim. In that context, the rule still requires no showing of malice, and makes no distinction between the death of an innocent person and that of an accomplice in the underlying felony.
In addition to its substantive changes, SB 1437 added section 1170.95, which permits a defendant who was convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437's changes to the law, to petition the sentencing court to vacate the conviction. (§ 1170.95, subd. (a).) After ascertaining that the petition includes certain basic information, the court must appoint counsel for the petitioner (if requested), receive the People's response, allow the petitioner to file a reply, and determine whether the petitioner has made a prima facie showing of entitlement to relief. (§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at 961-970.) In determining whether the petitioner has made a prima facie showing, the court may consider the record of conviction. (Lewis, supra, at 970-971.)
If the court determines the petitioner has made a prima facie showing, it must issue an order to show cause. (§ 1170.95, subd. (c).) Unless the parties then stipulate that the petitioner is entitled to relief, the court must hold a hearing and, if the People fail to prove the petitioner's ineligibility for relief beyond a reasonable doubt, vacate the petitioner's murder conviction. (Id. at subd. (d).) We review de novo whether the superior court properly interpreted and fulfilled its duty under the statute. (People v. Swanson (2020) 57 Cal.App.5th. 604, 612.)
We note that the Legislature recently enacted Senate Bill No. 775 (2021-2022 Reg. Sess.), which amends section 1170.95. (Stats. 2021, ch. 551, § 2.) This legislation, effective January 1, 2022, "clarifies existing law" to, inter alia, include certain non-murder convictions as eligible for retroactive relief under SB 1437's changes to the law. (Sen. Com. on Pub. Safety, com. on Sen. Bill No. 775 (2021-2022 Reg. Sess.), p. 9.) Neither party suggests this new legislation is pertinent to this appeal.
B. Analysis
The superior court correctly determined that appellant was conclusively ineligible for relief because he was the actual killer. Appellant was convicted of murder under the felony-murder rule. Under that rule, even after SB 1437, the perpetrator of a qualifying felony in which a death occurs is guilty of murder if he was the actual killer. (See § 189, subd. (e)(1).) Appellant's underlying felony, burglary, is a qualifying felony. (See § 189, subd. (a) [listing burglary].) Finally, appellant was the actual killer: he personally caused Ramos's death when, during a high-speed police chase, he crashed the getaway car into a concrete barrier. (Cf. Garcia, supra, 46 Cal.App.5th at 152.) Accordingly, because appellant could be convicted of murder even after SB 1437's changes to the law, he was ineligible for relief as a matter of law.
Appellant claims that he was not the actual killer, or that the felony-murder rule otherwise does not apply to him, because the victim was his accomplice, rather than an innocent person, and the killing was accidental, rather than intentional. His contention lacks merit. Initially, as discussed, the term "actual killer" simply means that the defendant personally killed the victim (cf. Garcia, supra, 46 Cal.App.5th at 152) -- it does not encompass an intent to kill and makes no reference to the victim's identity. Appellant offers no textual basis or authority to the contrary.
People v. Howard (2005) 34 Cal.4th 1129 (Howard), cited by appellant, is inapposite. There, the California Supreme Court held that a violation of Vehicle Code section 2800.2 (driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing officer) -- which was not an enumerated felony that could serve as a predicate for first degree felony murder (see § 189, subd. (a)) -- was also not a felony "inherently dangerous to human life," which could serve as a predicate for a conviction under the judicially created second degree felony-murder rule. (Howard, supra, at 1130.) Thus, the defendant in Howard, who caused a fatal collision while fleeing from police, could not be convicted of felony murder. (Id. at 1132-1133, 1139.) But unlike an offense under Vehicle Code section 2800.2, appellant's burglary conviction is an enumerated felony for purposes of the first degree felony-murder rule under section 189. (§ 189, subd. (a).)
Moreover, appellant's claim is precluded by our Supreme Court's pronouncements in Billa that (1) the primary purpose of the felony-murder rule is "'to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit, '" and (2) the rule "applies to the death of a cohort as much as to the death of an innocent person." (Billa, supra, 31 Cal.4th at 1070.) Appellant acknowledges Billa but urges us to disregard it. He asserts that this California Supreme Court case is unpersuasive and conflicts with prior, more persuasive state Supreme Court cases, including People v. Ferlin (1928) 203 Cal. 587, People v. Washington (1965) 62 Cal.2d 777, and People v. Antick (1975) 15 Cal.3d 79. He further contends that SB 1437, which was enacted after Billa, modified the felony-murder rule to apply only to the accidental killing of an innocent victim. We reject these arguments.
First, this court is bound by California Supreme Court precedent, regardless of appellant's view of its persuasive force. (See Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510, 517 ["As an intermediate appellate court we are bound by decisions of our Supreme Court and we must follow the reasoning found therein"].) Notably, Billa expressly declined to follow the reasoning of the prior cases appellant cites. (See Billa, supra, 31 Cal.4th at 1071 [stating that the reasoning of Ferlin and its progeny is "flawed"].)
The cases appellant cites relied in part on the rationale that the accomplice's death "'was not in furtherance of the conspiracy, but entirely opposed to it, '" and thus should not subject the defendant to liability. (Billa, supra, 31 Cal.4th at 1071.) Billa rejected this reasoning, explaining that it is the act that must be in furtherance of the underlying felony, rather than the result of that act. (Ibid.) Here, appellant's attempt to escape police at high speed was in furtherance of the auto burglaries. It is immaterial that causing a fatal crash in the course of that attempt did not further the criminal aim.
Second, as discussed above, SB 1437 did not modify the felony-murder rule's application to a perpetrator who personally killed the victim. The rule still requires no showing of malice, and the identity of the victim remains irrelevant to it.
Appellant cites new section 188, subdivision (a)(3), as establishing that no one may be convicted of murder without proof of malice. In support, he provides a partial quote of this provision's language. He states: "in order to be guilty 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.'" (Quoting § 188, subd. (a)(3).) However, the portion appellant neglects to include defeats his argument. Subdivision (a)(3) of section 188 requires a showing of malice, "[e]xcept as stated in subdivision (e) of Section 189 . . . ." (Ibid.) As explained, the felony-murder rule in section 189, subdivision (e), permits a murder conviction without malice for a person who was the actual killer. (§ 189, subd. (e).) Nothing in SB 1437's statutory scheme suggests that Billa's pronouncements, as applied to a defendant who personally killed the victim, are no longer good law. In short, appellant was conclusively ineligible for relief under section 1170.95.
DISPOSITION
The superior court's order is affirmed.
We concur: WILLHITE, J., CURREY, J.