Opinion
A159164
03-30-2021
THE PEOPLE, Plaintiff and Respondent, v. TODD LAMONT GILLARD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 911567-6)
Defendant appeals from the denial of his petition pursuant to Penal Code section 1170.95. That section allows defendants convicted of murder under the felony-murder rule or natural and probable consequences doctrine to petition for resentencing due to changes to the Penal Code enacted under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant was tried and convicted of second degree murder under the provocative act doctrine. Defendant contends that because provocative act murder is a version of the natural and probable consequences doctrine, he is entitled to resentencing. Provocative act murder requires proof of malice, thereby distinguishing it from felony murder and natural and probable consequences murder. Thus, defendant is not entitled to resentencing under section 1170.95.
All statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
We take the facts from our nonpublished opinion affirming defendant's conviction, People v. Gillard (July 19, 1994, A061283). "Edward Grant lived in a Point Richmond apartment with Anthony Granado. On the night of April 6, 1991, Grant, Granado, and a friend, Anton Hypolite, drank beer and watched television at the apartment. Sometime after midnight, Granado went to bed. The other two remained in the living room; Hypolite was dozing on the couch and Grant was still watching television.
"Grant went out on the porch to investigate a noise. As he started back inside, three men approached him, wearing black ski masks and carrying guns. They held the guns to his head and entered the apartment; one of the men said something like, 'You know what this is.' Believing it was a robbery, Grant lay on the floor. One man reached into Grant's pocket, in which he had $120 in $20 bills.
"Hypolite, was awakened by a loud commotion and saw two or three people scuffling by the front door. He tried to get up but was forced back down by a man pointing a revolver at his chest. The man was 5 feet 11 inches or 6 feet tall, and was wearing a ski mask and a big puffy down jacket. Hypolite hit the gun, heard a loud bang, and knew he had been shot. As he tried to get up, he was shot again, his leg buckled, and he fell. Grant said the man who struggled with Hypolite was about 6 feet tall, weighed about 175 pounds, and was wearing gray stonewashed jeans and a 'dark midnight jacket' which looked like a 'big down jacket.'
"Granado, who was in the bedroom, heard the gunshots. He looked out into the living room and saw a man pointing a gun at Hypolite. The man was wearing gray pants and a three-quarter length puffy goose down jacket, which was turned inside out. It was either dark blue or black, with an overall pattern of small white or gray geese.
"Grant said that almost immediately after the first two shots, he heard a third shot, which appeared to come from the man standing over him. The three intruders fled. Grant grabbed his own loaded pistol from under the couch and ran out onto the porch. He spotted three men, running; one of them turned and started shooting at Grant. Grant fired back, several times. Feeling weak, he realized that he was bleeding and returned to the house.
"Hector Quijas was walking to his Point Richmond home at about 1:30 a.m. on April 7 when he heard several gunshots, followed by the sound of someone running. He saw two men in dark clothing running down the street. They drove off in a dark blue, small or midsized four-door car, with one headlight out. Its license number began with a 2 and ended with 28.
"After calling the police, Quijas went back outside and found a man lying in the middle of the street. The man, who was wearing a black ski mask and black jacket, was Clyde Maurice Muccular. He died from multiple gunshot wounds.
"Richmond Police Officer Roger Buhlis heard a radio dispatch about the shooting and a description of the vehicle. He spotted two Black males in a small blue car with a headlight out; its license number was 2 EFH 428. He followed the car, which stopped across the street from 1741 Dunn, where [defendant] lived with his mother. Two men, later identified as [defendant] and Michael McMillan, got out of the car and went up onto the porch at 1741 Dunn. Although Buhlis described the jacket worn by [defendant] as a white-hooded parka-type puffy jacket, Buhlis also said it could have been a dark jacket covered with a pattern.
"McMillan came back outside and was detained as he sat in another parked car. He had $121 in his pocket, six $20 bills and one $1 bill. Officers searched 1741 Dunn with [defendant]'s mother's consent but did not find him; she said that he had been there earlier, but had left.
"Albert Young was Muccular's uncle and lived in Richmond with Muccular and other relatives. On the evening of April 6, Young saw [defendant] and McMillan at his house with Muccular. Muccular was dressed in black, with a black hood and black sweats. Muccular told Young he 'had something up' that night. To Young, Muccular's comment and his clothing meant that he was going to rob somebody. Muccular left with [defendant] and McMillan in the blue car belonging to McMillan's girlfriend. Young said that [defendant] was wearing a puffy goose down jacket, a 'birdy jacket' because it had birds inside it. The jacket was burgundy on the outside, black with white geese inside. [Defendant] was wearing the jacket inside out.
"According to Young, [defendant] and McMillan returned later that night in the blue car; Muccular was not with them. [Defendant] handed Young a bag and asked him to hold it. When Young asked about Muccular, [defendant] said he was at a girl's house, kicking back. After [defendant] left, Young looked in the bag and found two guns, which he hid. Later [defendant] returned for the guns. When Young asked again about Muccular, [defendant] said that everything was cool. But the next morning, a police officer arrived and told Young that Muccular was dead. A few days later, Young went to the police station and told the officer what he knew. Young acknowledged that he had been granted immunity for receiving the guns after the robbery." (People v. Gillard, supra, A061283.)
A jury trial was held, and following the close of evidence, among other instructions, the jury was instructed on the provocative act theory of murder as follows: "A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime, in a reasonable response to an intentional provocative act by a perpetrator of the crime, other than the deceased is considered in law to be an unlawful killing by the perpetrator of the crime." As to malice, the jury was instructed: "Malice is implied when the provocative act was deliberately performed with knowledge of the danger to and with conscious disregard for human life." This instruction also distinguished between first and second degree murder, explaining that if the provocative act causing death occurred during the commission or attempted commission of robbery, the murder committed is first degree murder, but if the provocative act occurred during the commission of assault with a firearm, the murder committed is second degree murder.
On February 2, 1993, defendant was convicted of second degree murder (§ 187; count one), assault with a deadly weapon (§ 245, subd. (a)(2); counts two and three), robbery of an inhabited dwelling (§§ 211, 212.5, subd. (a); count four), and possession of a firearm by a felon (former § 12021, subd. (a); count six). As to counts one and two, the jury found true enhancements for personal use of a firearm. (§ 12022.5, subd. (a).) The abstract of judgment also reflects true findings for personal use of a firearm as to counts three and four. The court sentenced defendant to fifteen years to life for second degree murder, a five-year consecutive term for use of a firearm in the commission of the murder, a four-year concurrent term for the robbery, and a two-year concurrent term for possession of a firearm by a felon. We affirmed the judgment in 1994. (People v. Gillard, supra, A061283.)
In January 2019, defendant filed a petition for resentencing pursuant to section 1170.95, claiming he "was not the actual killer" and "was charged with the underlying felony (robbery) and was convicted of [Penal Code section] 187 under the theory of first degree/second degree felony murder and, murder under the natural and probable consequences doctrine."
The court appointed counsel and both parties filed briefing addressing the resentencing petition.
The court denied defendant's section 1170.95 petition for resentencing, concluding defendant failed to establish a prima facie case because he " 'was a major participant in [an] underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2' (§189[, subd.] (e)(3))."
II. DISCUSSION
Defendant contends the court's reliance on subdivision (e) of section 189 was erroneous because this section did not apply to his conviction for second degree murder. Since section 189, subdivision (e) only applies to "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a)" including robbery, "in which a death occurs," and the jury found defendant guilty only of second degree murder, defendant maintains the jury necessarily found the murder was not committed during the commission of a robbery or attempted robbery. Thus, defendant argues that the court erred in making its ruling that he was a major participant in the underlying robbery and acted with reckless indifference to human life because the trial court relied on "considerations" related to felony murder, and he was not tried on a felony murder theory.
Additionally, defendant contends the court, without holding an evidentiary hearing, engaged in improper factfinding to conclude defendant was a major participant in the underlying felony and acted with reckless disregard for human life. This finding, defendant argues, fails because once again defendant was "not tried for felony murder."
Though we conclude the trial court denied the petition for the wrong reason pursuant to section 189, the felony murder rule, we may affirm the denial on an alternative basis, here, the provocative act doctrine. (People v. Zapien (1993) 4 Cal.4th 929, 976 [holding the trial court " ' "ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason" ' "].)
Anticipating that we need not address the court's reasoning for denying his resentencing petition because we may affirm based on the provocative act doctrine, defendant claims that as amended, section 188 provides, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime" (§ 188, subd. (a)(3)), and provocative act murder "is a type of imputed malice murder," eliminated by section 188. Moreover, defendant asserts the provocative act doctrine does not apply independent of the natural probable consequences doctrine, and is "inextricably intertwined with it." Because the purpose of Senate Bill 1437 was to abrogate all forms of vicarious liability for murder under the natural and probable consequences doctrine, defendant urges us to hold provocative act murder is a form of vicarious murder liability under the natural and probable consequences doctrine that was also abrogated by Senate Bill 1437. We are not persuaded. A. Senate Bill 1437 and Section 1170 .95
Section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437. "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.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
Specifically, "The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).) Senate Bill 1437 also amended section 189, which defines the degrees of murder, by limiting the scope of first degree murder liability under a felony-murder theory. (§ 189, subd. (e).)" (People v. Turner (2020) 45 Cal.App.5th 428, 433.)
By adding section 1170.95, the Legislature created a new petitioning procedure for eligible defendants to have their murder convictions vacated and seek resentencing on the remaining counts. Pursuant to section 1170.95, a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition for resentencing. To initiate the process, first, the petition must include a declaration by the petitioner stating he or she is eligible for relief because "(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, subds. (b)(1)(A) & (a).) Second, the petition must include "[t]he superior court case number and year of the petitioner's conviction." (Id., subd. (b)(1)(B).) Lastly, the petition must state "[w]hether the petitioner requests the appointment of counsel." (Id., subd. (b)(1)(C).) If the petition does not include any of these three requirements and the missing information "cannot be readily ascertained by the [trial] court, the court may deny the petition without prejudice" to filing another petition that includes the required information. (Id., subd. (b)(2).) A petition with the required information under section 1170.95, subdivision (b) is considered a facially sufficient petition. (People v. Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493.)
Under the procedure set out in section 1170.95, subdivision (c) the court determines whether the petitioner is entitled to an evidentiary hearing. "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['s] response is served. These deadlines shall be extended for good cause. 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." (§ 1170.95, subd. (c).) B. Defendant is Not Eligible for Resentencing Under Section 1170 .95 for Provocative Act Murder
"Under the provocative act [murder] doctrine, when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder. [Citations.] 'In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.' " (People v. Gonzalez (2012) 54 Cal.4th 643, 655 (Gonzalez).)
As noted, defendant was tried under the provocative act doctrine, and convicted of second degree murder. However, contrary to defendant's contention that this theory of liability is merely a form of the natural and probable consequences theory abrogated by Senate Bill 1437, it still remains valid following the enactment of this bill. That is because the provocative act doctrine requires " 'the defendant personally harbored the mental state of malice' " during the commission of a provocative act. (People v. Swanson (2020) 57 Cal.App.5th 604, 613, review granted Feb. 17, 2021, S266262 (Swanson); People v. Bell (2020) 48 Cal.App.5th 1, 14; Gonzalez, supra, 54 Cal.4th at p. 655; People v. Mejia (2012) 211 Cal.App.4th 586, 603 [mental element of provocative act murder requires defendant "personally possess the requisite mental state of malice aforethought"].) The doctrine specifically contemplates implied malice, which is defined as the commission of an act likely to cause death with a conscious disregard for life. (Swanson, at p. 613.)
In People v. Lee (2020) 49 Cal.App.5th 254, review granted July 15, 2020, S262459 (Lee), the appellate court ruled that perpetrators of provocative acts are not entitled to resentencing under section 1170.95. (Lee, at p. 263.) As the Lee court explained, "Unlike felony murder or murder under the natural and probable consequences doctrine, '[a] murder conviction under the provocative act doctrine . . . requires proof that the defendant personally harbored the mental state of malice, and either the defendant or an accomplice intentionally committed a provocative act that proximately caused' the death of another accomplice." (Id. at p. 264.) Two other recent cases, People v. Johnson (2020) 57 Cal.App.5th 257, 271 (Johnson), and Swanson, supra, 57 Cal.App.5th at p. 612, review granted, have followed Lee's reasoning in concluding the defendants were ineligible for resentencing relief under section 1170.95 because they were convicted of provocative act murder, not felony murder or murder under a natural and probable consequences theory.
We agree with the Lee court and those courts that have followed it. Because the jury found defendant guilty on a provocative act theory, it necessarily found he acted with malice, and thus he cannot show that he " 'could not be convicted of first or second degree murder because of changes to Section 188 or 189' " as required for relief under section 1170.95, subdivision (a)(3). (Lee, supra, 49 Cal.App.5th at p. 265, rev. granted.)
Defendant argues Lee was wrongly decided because "implied malice, . . . required by the provocative act doctrine is a form of imputed malice abrogated by section 188." Next, defendant argues that provocative act murder "requires the jury to find that the killing was a natural and probable consequence of some other act" and since this doctrine incorporates the natural and probable consequences doctrine, Senate Bill 1437 "must be construed to have also abrogated the provocative act doctrine." Lastly, he argues the purpose of Senate Bill 1437 was to abolish imposition of vicarious liability under the natural and probable consequences doctrine and provocative act murder is a type or subset of natural and probable consequences murder. We disagree with defendant on all counts.
First, the malice requirement for provocative act murder is well established. (See People v. Gilbert (1965) 63 Cal.2d 690, 703-704 [defendant's murder conviction based on police officer's killing of accomplice required proof of malice]; People v. Mai (1994) 22 Cal.App.4th 117, 124 ["an element of the provocative act doctrine is implied malice"], disapproved on other grounds in People v. Nguyen (2000) 24 Cal.4th 756, 758.) Second, the requirement of implied malice is in sharp contrast to what is required under the natural and probable consequences doctrine, which arises when " ' "a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." ' " (People v. Chiu (2014) 59 Cal.4th 155, 162; Lee, supra, 49 Cal.App.5th at p. 261, rev. granted [the natural and probable consequences doctrine is not an implied malice theory].) Rather, the provocative act doctrine requires that the perpetrator exhibit a conscious disregard for life. (Gonzalez, supra, 54 Cal.4th at p. 655.) As amended, section 188 establishes, "in order to be convicted of murder, a principal in a crime shall act with malice aforethought." (§ 188, subd. (a)(3).) Defendant was convicted of provocative act murder, meaning the jury necessarily found he acted with malice aforethought.
Finally, we reject defendant's argument that the provocative act doctrine is merely a subset of the natural and probable consequences theory. Defendant relies on the language found in several cases discussing the requirement, under the provocative act doctrine, that liability attaches when a victim's death is a natural and probable consequence of the defendant's act. Specifically, defendant cites People v. Fowler (1918) 178 Cal. 657, People v. Roberts (1992) 2 Cal.4th 271, People v. Medina (2009) 46 Cal.4th 913, and People v. Gardner (1995) 37 Cal.App.4th 473 to argue the provocative acts doctrine is grounded on the application of the natural and probable consequences doctrine. As the court recently explained in Swanson, however, those cases are distinguishable because their references to "natural and probable consequences" concern proximate causation. (Swanson, supra, 57 Cal.App.5th at pp. 614-615, rev. granted.) "None of these cases held that a provocative act murder falls under the natural and probable consequences theory of malice-free murder. They merely held that a provocative act murder requires a showing that defendant's act was the proximate cause of death, which can be shown where the death was a natural and probable consequence of the act." (Id. at p. 615; see Johnson, supra, 57 Cal.App.5th at p. 267 [discussing similar statement in Gonzalez, supra, 54 Cal.4th at pp. 655-656]; Lee, supra, 49 Cal.App.5th at p. 266, rev. granted [discussing similar statement in People v. Concha (2009) 47 Cal.4th 653, 661].)
Because defendant was convicted of second degree murder under a provocative act theory, we conclude he has failed to demonstrate he is eligible for resentencing under section 1170.95.
III. DISPOSITION
Accordingly, the order denying defendant's petition for resentencing is affirmed.
MARGULIES, J. WE CONCUR: HUMES, P. J. BANKE, J.