Opinion
E074686
01-29-2021
THE PEOPLE, Plaintiff and Respondent, v. TRAVIS LEE HAWKINS, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CR58553) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
In 1997, petitioner Travis Lee Hawkins was convicted of first degree murder, with special circumstances, on a felony-murder theory. In 2019, he filed a petition for resentencing under the then-recently amended version of the felony murder statute. (See § 1170.95.) The trial court denied the petition; it ruled that the special circumstance findings conclusively established that he was not eligible for relief.
This and all further statutory citations are to the Penal Code.
Petitioner contends that this was error. It will take the bulk of this opinion for us to explain exactly what the issue is and how it arose in this case. Its resolution, however, is simple. Under a recently published opinion of this court, the trial court's ruling was correct. Hence, we will affirm.
I
FACTUAL, PROCEDURAL, AND LEGAL DEVELOPMENTS
A. The Tison Standard.
Under Tison v. Arizona (1987) 481 U.S. 137, a person found guilty of murder on a felony-murder theory cannot constitutionally be sentenced to death unless he or she either (1) was the actual killer, (2) intended to kill, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (Id. at pp. 150, 158.)
In 1990, after petitioner's conviction, Proposition 115 amended section 190.2 so as to expressly incorporate the requirements of Tison. (See now § 190.2, subds. (b), (c), (d).)
B. The Facts as Shown at Petitioner's Trial.
We adopt petitioner's summary of the underlying facts, which in turn is quoted from our opinion in his previous appeal:
"On August 27, 1994, a group of men, including [codefendant Joseph Manuel] Montes, [coappellant Ashley Gonzalo] Gallegos, and [appellant] robbed, carjacked and kidnapped Walker, placing him in the trunk of his own car. Later that evening, the group went to [codefendant Salvador Tirado] Varela's birthday party in Walker's car. At the party, Varela agreed to assist the group in dumping the car. Varela led the others to an isolated location, where Montes shot and killed Walker." (Petitioner's brackets.)
C. Petitioner's Conviction and Appeal.
In 1997, in a jury trial, petitioner was convicted of:
(1) First degree murder (§§ 187, subd. (a), 189, subd. (a)), with a robbery-murder special circumstance and a kidnapping-murder special circumstance (former § 190.2, subds. (a)(17)(i), (a)(17)(ii); see now § 190.2, subd. (a)(17)(i), (a)(17)(ii));
(2) Kidnapping during a carjacking (§ 209.5); and
(3) Carjacking (§ 215, subd. (a)).
An armed principal enhancement was found true as to each count. (§ 12022, subd. (a)(1).)
Petitioner was sentenced to life without the possibility of parole, plus nine years.
The jury had been instructed, in accordance with Tison, that it could not find any special circumstance true unless the defendant either (1) was the actual killer, (2) intended to kill, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life.
In 1999, in petitioner's direct appeal, this court affirmed the judgment. (People v. Varela, et al. (Nov. 15, 1999), E020144 [nonpub. opn.].) We held, among other things, that there was sufficient evidence that petitioner was a major participant in the underlying felony and acted with reckless indifference to human life.
D. Banks and Clark .
In 2015 and 2016, the California Supreme Court issued two opinions relating to the meaning of "major participant" and "reckless indifference to human life."
First, in People v. Banks (2015) 61 Cal.4th 788, the evidence showed that defendant Matthews acted as the getaway driver in a planned armed robbery, which turned into a murder when another participant shot a security guard. (Id. at p. 795.) Our Supreme Court held that, under Tison, this was insufficient evidence that he was a major participant (People v. Banks, supra, at pp. 804-807) as well as insufficient evidence that he acted with reckless indifference to life. (Id. at pp. 807-811.) It disapproved cases holding that mere knowledge that one's accomplice in a robbery is armed is sufficient to establish reckless indifference to human life. (Id. at p. 809, fn. 8.)
In 2016, in People v. Clark (2016) 63 Cal.4th 522, the Supreme Court found insufficient evidence that the defendant acted with reckless indifference to life. (Id. at pp. 614-623.) It specifically listed five factors that are potentially relevant to this inquiry. First, "[a] defendant's use of a firearm, even if the defendant does not kill the victim or the evidence does not establish which armed robber killed the victim, can be significant to the analysis of reckless indifference to human life." (Id. at p. 618.) Second, a defendant's physical presence at the scene, while not absolutely required, is relevant, as is the failure to render aid to a victim. (Id. at pp. 619-620.) Third, the duration of the felony is relevant. (Id. at pp. 620-621.) Fourth, it is relevant whether the defendant knows that an accomplice has a propensity to violence, especially lethal violence. (Id. at p. 621.) Fifth, it is relevant, although not controlling, that the defendant took steps to minimize the risk to human life. (Id. at pp. 621-622.)
E. Senate Bill No. 1437.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.)
SB 1437, among other things, amended section 189 so as to provide that the felony murder rule (§ 188, subd. (a)) applies to a person only if:
"(1) The person was the actual killer.
"(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
"(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . .
"[(4) T]he victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties." (§ 189, subds. (e), (f).)
SB 1437 also enacted section 1170.95, which allows a person who has been convicted of first or second degree murder under a felony murder theory, but who could no longer be so convicted under SB 1437, to petition to have the conviction vacated. If the underlying felony was not charged, the conviction is reduced to the underlying felony, and the petitioner is resentenced. (§ 1170.95, subd. (e).) The petitioner also must be resentenced on any remaining counts. (§ 1170.95, subd. (a).)
F. Petitioner's Petition for Resentencing.
Petitioner promptly filed a petition for resentencing under section 1170.95.
At the hearing on the petition, defense counsel indicated that he wanted to present new evidence that would raise "significant issues about what Mr. Hawkins' participation, if any, was in this case." For example, "Mr. Hawkins is a twin, and so there may have been a mistaken identity . . . ." Counsel also questioned whether petitioner knew the victim.
The trial court denied the petition. It explained: "If a jury has determined that the special circumstance is true, he is not entitled, except by way of appeal, to relitigate the finding of proof beyond a reasonable doubt that he is guilty in the way that the statute now contemplates."
II
THE EFFECT OF THE SPECIAL CIRCUMSTANCE FINDINGS
Petitioner contends that the trial court erred by ruling that the jury's true findings on the special circumstances conclusively established that he was not eligible for resentencing. He argues that Banks and Clark significantly narrowed the definition of "major participant" and "reckless indifference to human life," so that the jury's pre-Banks and Clark true findings do not establish that he comes within that definition.
Recently, however, in People v. Jones (2020) 56 Cal.App.5th 474, review granted January 27, 2021, S265854, this court rejected an identical contention. (Id. at pp. 482-485.) We held that "Banks and Clark did not change the law," and therefore "[a] special circumstance finding renders [a petitioner] ineligible for relief under section 1170.95 as a matter of law." (Id. at pp. 480-481.)
We readily acknowledge that there is a split of authority on this point. (People v. Jones, supra, 56 Cal.App.5th at pp. 482-483.) Unless and until the Supreme Court tells us otherwise, however, we must adhere to our opinion in Jones. Even though review in Jones has been granted, it remains persuasive (Cal. Rules of Court, rule 8.1115(e)) in this court.
Earlier, in People v. Law (2020) 48 Cal.App.5th 811, review granted July 8, 2020, S262490, we held: "[T]he trial court erred by concluding the special circumstance finding, on its own, rendered Law ineligible for relief [under section 1170.95] . . . ." (Id. at p. 825.) We follow Jones, rather than Law, because Jones is more recent. (In re Lane (1962) 58 Cal.2d 99, 105 ["It is an established rule of law that a later decision overrules prior decisions which conflict with it, whether such prior decisions are mentioned and commented upon or not."].) --------
As we suggested in Jones (People v. Jones, supra, 56 Cal.App.5th at pp. 478-479, and cases cited), a person in petitioner's position is not wholly without a remedy. He or she can challenge prior special circumstance findings — under Banks and Clark, and/or based on new evidence — in a habeas proceeding. (See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 676-683.) We express no opinion as to whether, in petitioner's case, there might be some procedural bar to such a proceeding at this point.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.