Opinion
C092131
04-05-2022
THE PEOPLE, Plaintiff and Respondent, v. ANDRE HARRIS, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 05F04486
HULL, ACTING P. J.Defendant Andre Harris appeals the superior court's denial of his petition for resentencing under Penal Code section 1170.95 (statutory section citations that follow are to the Penal Code unless otherwise stated). He contends the superior court erred by finding he did not make a prima facie showing that he was entitled to relief, by relying on an incorrect standard of proof, by summarily denying his petition without issuing an order to show cause or holding an evidentiary hearing, and by relying on the record of conviction to conclude defendant was ineligible for relief under section 1170.95 as a matter of law. We affirm the judgment.
Facts and History of the Proceedings
In 2005, defendant was charged with one count of murder with malice aforethought (§ 187, subd. (a)) and one count of being a felon in possession of a firearm (former § 12021, subd. (a)(1)). It was further alleged that defendant had personally used a firearm (§ 12022.53, subd. (b)) and intentionally and personally discharged a firearm (§ 12022.53, subd. (c)) in the commission of the murder, and that he had served two prior prison terms (§ 667.5, subd. (b)). A jury found him guilty of second degree murder and being a felon in possession of a firearm. The jury also found that during the commission of the murder, defendant personally and intentionally discharged a firearm causing great bodily injury to the victim (§ 12022.53, subd. (d)). As relevant here, defendant was sentenced to 15 years to life for second degree murder, plus a consecutive term of 25 years to life on the firearm enhancement. In 2008, this court affirmed defendant's conviction in an unpublished decision. (People v. Harris (Jan. 4, 2008, C053394) [nonpub. opn.] (Harris).)
In our opinion on direct appeal, we summarized the incident resulting in these convictions as follows: When the victim attempted to start a fight with defendant, "defendant jumped back and pulled out a knife, but then walked away from the scene." Later that night, the victim was shot twice in the head behind a nearby bar. "Witnesses implicated defendant in the shooting. When defendant was initially apprehended, he tried to hide his identity. The officers released defendant after an interview, but arranged a surveillance videotape of a meeting between defendant and a friend. In this meeting, defendant said he had gotten the gun from another friend to 'solve a mutual problem,' and said the gun was now 'on a freight train headed elsewhere.' Defendant said he had jumped a fence and approached [the victim]. [The victim] put down his drink, took off his shirt, and prepared to fight. As they neared each other, defendant pulled out a gun at the last moment and shot him twice. Defendant told his friend that [the victim] had 'crossed the line for the last time.'" (Harris, supra, C053394.)
On March 7, 2019, defendant filed a petition for resentencing under section 1170.95. Defendant declared that a complaint was filed against him allowing the prosecution to proceed "under a theory of felony murder or murder under the natural and probable consequences doctrine," that he was convicted of "1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine," and that he "could not now be convicted of 1st or 2nd degree murder." The superior court appointed the public defender's office to represent defendant. After it received additional briefing from the parties and reviewed the court file, the court denied defendant's petition because he failed to make a prima facie showing of eligibility for resentencing because the record of conviction showed that he was the actual killer.
In its order, the court noted that the newly amended sections 188 and 189 "still permit murder liability where the defendant kills with malice aforethought or is a major participant in a robbery acting with reckless indifference to human life." The court then indicated that defendant had not been convicted under a felony-murder theory or the natural and probable consequences doctrine: "In the probation report the defendant admits [he]'. . . walked up to about six feet away from the victim and pulled out his gun. When the victim saw the gun, he tried to block his face by putting up his hands. The defendant stated he tried to shoot the victim in the face, but the victim ducked. His first shot hit the victim in the back of the neck and his second shot hit the victim in the head.' [¶] The court's file indicates the defendant was found guilty by a jury of second degree murder [in] violation of [] section 187. [¶] Defendant [] has not shown that he falls within the provisions of [section] 1170.95."
Defendant filed a timely notice of appeal.
Discussion
Defendant contends the superior court erred in finding he failed to make a prima facie showing that he was entitled to relief and by summarily denying his petition for resentencing by engaging in factfinding based on his record of conviction without having issued an order to show cause or holding an evidentiary hearing. He further contends that it was error for the trial court to consider the record of conviction in determining that he was an actual killer and is ineligible for relief under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), effective January 1, 2019. We disagree. Because these arguments are interrelated and due to recent clarification from our Supreme Court following briefing in this case, we will address defendant's arguments together.
I
Legal Background
Senate Bill 1437 (2017-2018 Reg. Sess.), which 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); see People v. Martinez (2019) 31 Cal.App.5th 719, 723.) "Senate Bill No. 1437 achieves these goals by amending section 188 to require that a principal act with express or implied malice and by amending section 189 to state that a person can only be liable for felony murder if: (1) the 'person was the actual killer'; (2) the person was an aider or abettor in the commission of murder in the first degree; or (3) the 'person was a major participant in the underl[y]ing felony and acted with reckless indifference to human life.' (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)" (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted Mar. 18, 2020, S260410 (Cornelius).)
Senate Bill 1437 (2017-2018 Reg. Sess.) also added section 1170.95, which permits persons convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder following Senate Bill 1437's changes to sections 188 and 189. (Stats. 2018, ch. 1015, § 4.) Section 1170.95, subdivision (b) requires that the petitioner file a declaration showing his or her eligibility for relief under subdivision (a), the superior court case number and year of the petitioner's conviction, and whether he or she requests the appointment of counsel.
Section 1170.95, subdivision (c) describes the next steps in the process as follows: "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. 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."
II
Analysis
Our Supreme Court recently held in People v. Lewis (2021) 11 Cal.5th 952, 971-972 (Lewis) that it is proper for a trial court to consider the record of conviction in determining whether the petitioner has made a prima facie showing that he or she falls within the provisions of section 1170.95. The Supreme Court reasoned: "The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process. [Citation.]" (Lewis, at p. 971.)
Defendant's argument that the trial court erred in considering its own case file, including the probation report, is not well taken in light of Lewis. Our high court reasoned: "[T]he trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief." (Lewis, supra, 11 Cal.5th at p. 971.) Here, the superior court's own documents and this court's opinion on direct appeal demonstrated that defendant was the actual killer, supporting the superior court's determination. Further, defendant expressly incorporated the probation report and other portions of the record of conviction by reference in his reply to the People's motion to dismiss his petition.
Even if the court had erred in considering the probation report, the same information is included in this court's opinion on appeal, to wit, that defendant shot the victim, admitted he shot the victim, and claimed he acted in self-defense. It is well established that the record of conviction includes trial court documents and a reviewing court's opinion in an appeal from the judgment. (People v. Woodell (1998) 17 Cal.4th 448, 454.) Following Lewis, we conclude that the trial court properly considered the record of conviction in concluding that defendant failed to make a prima facie showing in favor of relief.
Further, we reject defendant's argument that the superior court engaged in impermissible factfinding and applied "an incorrect standard of proof" by relying on the record of conviction to determine that defendant was the actual killer. We recognize that prior to the Supreme Court's decision in Lewis, some courts of appeal approved the summary denial of a section 1170.95 petition based on a substantial evidence review. (See, e.g., People v. Garcia (2020) 57 Cal.App.5th 100, 115, review granted Feb. 10, 2021, S265692, citing People v. Duke (2020) 55 Cal.App.5th 113, review granted Jan. 13, 2021, S265309.) Duke, however, involved a section 1170.95 petition that was denied after the trial court conducted a full evidentiary hearing. (Duke, at p. 119.) An evidentiary hearing conducted under section 1170.95, subdivision (d) is separate from, and occurs after, the prima facie showing required under section 1170.95, subdivision (c). At the evidentiary hearing, the prosecution must prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d).) Several courts have explicitly disagreed with Duke's application of the substantial evidence test at the evidentiary hearing, but Duke does not advocate conducting a substantial evidence review at the prima facie stage. Nor was such a substantial evidence review conducted here. While defendant conflates these two stages of the process, as we have discussed, the record demonstrates that the superior court considered the record of conviction in reaching the conclusion that defendant is ineligible for relief as a matter of law because he was the actual killer. Accordingly, we reject his contention of error.
Consistent with our Supreme Court's opinion in Lewis, the Courts of Appeal have found no error in the summary denial of section 1170.95 petitions where the record of conviction showed the defendant was ineligible for relief under section 1170.95 because he or she could be convicted of first or second degree murder under the law as amended by Senate Bill 1437 (2017-2018 Reg. Sess.) and, thus, did not fall within the provisions of section 1170.95 as a matter of law. (People v. Lee (2020) 49 Cal.App.5th 254, 262-263, review granted July 15, 2020, S262459; Cornelius, supra, 44 Cal.App.5th at p. 58, review granted.)
Here, the superior court relied on the record of conviction, and found defendant ineligible for section 1170.95 relief as a matter of law. As we have discussed, a review of our prior opinion shows that defendant actually killed the victim by repeatedly shooting him. (Harris, supra, C053394.) As the superior court noted in its denial of the petition, defendant admitted he shot the victim. At trial, there was no dispute defendant was the actual killer; instead, defendant claimed he acted in imperfect self-defense. (Ibid.) We note, in line with the jury's verdict, defendant's form petition did not aver he was not the actual killer.
Because defendant was the actual killer, he is ineligible for resentencing as a matter of law under section 1170.95. (Cornelius, supra, 44 Cal.App.5th at pp. 57-58, review granted.) In Cornelius, the court reasoned: "The jury convicted him of second degree murder and found true that he personally and intentionally used a firearm to commit the crime. Thus, the jury implicitly found Cornelius was the 'actual killer,' and the changes to sections 188 and 189 are inapplicable." (Id. at p. 58, review granted.) An identical record of conviction is presented here: The jury found defendant guilty of murder in the second degree and found that during the commission of the murder, defendant personally and intentionally discharged a firearm causing great bodily injury to the victim (§ 12022.53, subd. (d)). Defendant simply does not come within the provisions of the statute.
Defendant acknowledges he was not convicted of second degree murder under a felony-murder theory, and he does not argue that he was convicted of second degree murder under the natural and probable consequence doctrine. Rather, he takes the position that even actual killers convicted of second degree murder are eligible for resentencing if they are not convicted under a felony-murder theory.
Defendant cites no authority to support his claim that whether he was the actual killer "is irrelevant to a determination of his suitability for section 1170.95 relief, since being an actual killer is a disqualifying element only under section 189, subdivision (e)(1), as it refers only to felony-murder." The inapplicability of the statute to defendant is clarified by the text's statement that Senate Bill 1437 (2017-2018 Reg. Sess.) 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), italics added; see People v. Gentile (2020) 10 Cal.5th 830, 842.)
The text of Senate Bill 1437 made it clear that section 1170.95 does not offer relief to actual killers, regardless of the theory of guilt, and defendant is not eligible for relief as a matter of law. No further briefing or evidence presented in an evidentiary hearing following an order to show cause could aid the court in reaching this conclusion. As our Supreme Court observed, the purpose of section 1170.95 is "to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Lewis, supra, 11 Cal.5th at p. 971.) The superior court's denial of the petition was proper.
Disposition
The order denying defendant's section 1170.95 petition is affirmed.
We concur: ROBIE, J., KRAUSE, J.