Opinion
A162980
08-02-2022
THE PEOPLE, Plaintiff and Respondent, v. RONALD LOU HIGGINS, Defendant and Appellant.
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FC15777
WISS, J. [*]In 1982, a jury found defendant Ronald Lou Higgins guilty of murder in the first degree and found true the special circumstance of murder with infliction of torture, and the special circumstance that he had previously been convicted of second-degree murder. He was sentenced to life without the possibility of parole. The following year, the trial court granted the prosecutor's motion to strike the special circumstances allegations based upon defendants' agreement to testify in a co-defendant's trial. Defendant was then resentenced to a state prison term of 25 years to life.
In this appeal, defendant claims that he is entitled to resentencing under Penal Code section1172.6. In a supplemental brief, he contends that Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, and the holding in People v. Langi (2022) 73 Cal.App.5th 972 further support his position. We disagree and affirm.
Defendant filed a petition for resentencing in 2020 pursuant to Penal Code section 1170.95. Effective June 30, 2022, the Legislature renumbered Penal Code section 1170.95 to Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion. All further statutory references are to the Penal Code unless otherwise noted.
I.
Factual and Procedural Background
In 1982, defendant and Richard J. Mayer were charged with the murder of a fellow inmate while incarcerated at the California Medical Facility at Vacaville. The cases were severed before trial and defendant was tried first. A jury found defendant guilty of first-degree murder (§ 187, subd. (a)) and found true the special circumstance allegations that he had previously been convicted of second-degree murder (§ 190.2, subd. (a)(2)) and had inflicted torture in the underlying murder (§ 190.2, subd. (a)(14)). He was sentenced to state prison for life without the possibility of parole.
"Prior to [the] commencement of [co-defendant Mayer's] trial, [defendant] entered into a witness agreement with the prosecution whereby he would testify against [Mayer] in return for having the special circumstance finding of torture stricken from his sentence." (People v. Mayer (Sept. 20, 1984, A022918 [nonpub. opn.] at p. 2.) The trial court granted the prosecution's motion and resentenced defendant to state prison for 25 years to life. Defendant appealed his conviction. This division affirmed the judgment. (People v. Higgins (Sept. 24, 1984, A020350) [nonpub. opn.] (Higgins I).)
The underlying facts are taken from Higgins I, supra, A020350:
Our factual summary is based on the facts as stated in our opinion in defendant's direct appeal. We provide these facts for background purposes because they were recited by both parties in their briefing. However, we do not rely on these facts in resolving the issues presented in this appeal. (See § 1172.6, subd. (d)(3).)
The nature of the claimed errors requires only a brief recital of the factual circumstances surrounding the brutal murder. Shortly before noon of October 16, 1981, the body of Doug Wright, a CMF inmate, was discovered in a walk-in garbage can storage cooler near the prison kitchen loading dock. The victim had been savagely bludgeoned and stabbed to death, a metal rod found protruding from his left eye socket. A bloodied 20-inch "square pipe" with a configuration consistent with the victim's wounds was discovered in a nearby garbage can. Forensic evidence supported a conclusion that the victim had been restrained while the vicious beating was being administered.
In the weeks following the murder defendant gave detailed accounts of the killing to other inmates, including "Speedy" Collins, who later testified on behalf of the prosecution after receiving transactional immunity. During the ensuing investigation defendant made three statements to the authorities: 1) a tape-recorded statement on December 15, 1981, in which defendant admitted knowledge of the murder plot conceived by codefendant Mayer and Collins; 2) a July 1, 1982, statement to William Bennett, an investigator for the California Department of Justice, in which he admitted his presence during the planning of the murder, expressed a refusal to actively participate in the killing but admitted his eventual participation by acting as a "point" or a lookout while codefendant Mayer entered the cooler and killed the victim; and 3) a July 18, 1982, statement to Bennett admitting he had entered the cooler struck and partially restrained the victim as Mayer began beating him with a metal brace or pipe. In each instance defendant received, and waived, his Miranda rights. (Defendant makes no contrary contention herein.) Both the July 1 and July 18 oral statements were memorialized in defendant's handwritten signed statements in which he expressly acknowledged that the statements were made of his "own [free] will" with "no promises or threats."
Testifying in his own behalf, defendant admitted his presence when the murder plan was discussed by Mayer and Collins and his limited participation as "lookout" in the back door area while Mayer and the victim entered the cooler. Defendant also stated that Collins joined the two men while he (defendant) immediately left the area and returned to his dormitory."
(Higgins I p. 3-4, footnotes omitted.)
In its discussion of the facts, the opinion notes that it took judicial notice of defendant's testimony (as a prosecution witness) as reflected in the record of People v. Mayer (A022918) "in which defendant provided a substantially different account of Collins' complicity and details of his participation in the assault upon the victim in the cooler." (Higgins I at p. 4, footnotes omitted.)
The Legislature subsequently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted former section 1170.95 (now section 1172.6), for eligible defendants to petition for resentencing.
On September 16, 2020, defendant filed a petition for resentencing under section 1172.6 alleging that he was convicted of first-degree murder under the natural and probable consequences doctrine and could no longer be convicted of that crime because of Senate Bill 1437's changes to the law. In December 2020, the superior court appointed counsel for defendant.
On June 28, 2021, the superior court denied the petition on the basis that defendant had failed to make a prima facie case for resentencing.
On appeal, defendant claims that the superior court erred because the jury instructions permitted a conviction for murder as a natural and probable consequence of other actions, in contravention of Senate Bill 1437. In a supplemental brief, he also asserts that Senate Bill No. 775, which further amended section 1172.6 effective January 1, 2022, makes all murder convictions obtained under an imputed malice theory available for resentencing. For the reasons discussed below, we disagree with these contentions and affirm.
II.
Discussion
A. Senate Bill 1437 and Section 1172.6
" 'Effective January 1, 2019, Senate Bill [No.]1437 amended murder liability under the felony-murder and natural and probable consequences theories. 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).)' [Citation.] The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she '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,' or the victim was a peace officer performing his or her duties. (§ 189, subds. (e) &(f).)" (People v. Daniel (2020) 57 Cal.App.5th 666, 672 (Daniel).)
"In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, [now renumbered as 1172.6 (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10)] which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis (2021) 11 Cal.5th 952, 959.)" '[T]he defendant initiates the process by filing a petition in the sentencing court that must include three pieces of information. (§ [1172.6], subd. (b).) First, the petition must include "[a] declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a)." (§ [1172.6], subd. (b)(1)(A).)'" (Daniel, supra, 57 Cal.App.5th at p. 672.) Those requirements are that (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; or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine"; (2) "[t]he petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted of murder or attempted murder"; and (3) "[t]he petitioner could not be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)" 'Second, the petition must include "[t]he superior court case number and year of the petitioner's conviction." (§ [1172.6], subd. (b)(1)(B).) And finally, the petition must state "[w]hether the petitioner requests the appointment of counsel." (§ [1172.6], subd. (b)(1)(C).)'" (Daniel, supra, at p. 672.)
In October 2021, Senate Bill No. 775 was enacted and amended section 1172.6, effective on January 1, 2022 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 551, § 1) (Senate Bill 775). As a result of the amendments, section 1172.6 now clarifies that "person[s] convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter," may file a petition to have that conviction vacated under certain circumstances. (§ 1172.6, subd. (a), italics added.) The amendments also codified the holding in Lewis, supra, that "[u]pon receiving a petition in which the information required by this subdivision is set forth ..., if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner." (§ 1172.6, subd. (b)(3).) After the petition is filed, the People shall file a response and the petitioner may serve a reply. (Id. at subd. (c).)
If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the trial court must issue an order to show cause. If an order to show cause issues, the court "hold[s] a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts," unless the parties "waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her . . . conviction vacated and to be resentenced." (§ 1172.6, subd. (d)(1)-(2).) "At the hearing ... the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder...." (Id. subd. (d)(3).)
Lewis, supra, held that it is proper for trial courts to consider the record of conviction in determining whether the defendant has made a prima facie case for relief under section 1172.6. (Lewis, supra, 11 Cal.5th at pp. 970-972.) Whether the court conducted a proper inquiry under 1172.6 subdivision (c) is reviewed de novo. (People v. Harrison (2021) 73 Cal.App.5th 429, 437.) Lewis explained that "the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause." '" (Lewis at p. 971.)
B. Defendant Is Ineligible for Relief Under Section 1172.6.
Defendant concedes that he was not charged with felony murder or with murder based upon the natural and probable consequences theory. However, he claims the superior court erred in denying his petition. Specifically, he asserts that there is an underlying factual ambiguity in the case with regard to the extent to which he participated in Wright's killing. He points to the different versions of events he gave to authorities regarding his involvement in the crime and argues that they raise questions as to his state of mind with respect to the possibility that Wright could be killed, arguing that he "might have thought some lesser crime, such as an assault, was going to take place." He also asserts that multiple jury instructions, including instructions pertaining to the torture special circumstance and to murder, implied that he could be convicted of murder as a natural and probable consequence of other actions. As will be explained, we find the allegations, instructions, and true finding on the torture special circumstance establish that the jury did not convict defendant of first degree premeditated murder based on any imputed malice theories, and that he is ineligible for resentencing under section 1172.6 as a matter of law.
The court may rely on jury instructions, which are part of the record of conviction, to make the prima facie determination, because the instructions "given at a petitioner's trial may provide 'readily ascertainable facts from the record' that refute the petitioner's showing, and reliance on them to make the eligibility or entitlement determinations may not amount to 'factfinding involving the weighing of evidence or the exercise of discretion.'" (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, disapproved on another ground in Lewis, supra, 11 Cal.5th 952.)
1. Special Circumstance of Torture
Defendant first acknowledges that the verdict form on the torture special circumstance shows that the jury found true that the murder was intentional and involved the infliction of torture. Notwithstanding this finding, he contends that the jury instructions on the special circumstance permitted the jury to find intentionality "without necessarily concluding that [he] assisted the actual killer while acting with an intent to kill." We are not persuaded.
At the time of trial, section 190.2, subdivision (a)(18) imposed a sentence of death or life without the possibility of parole where the "murder was intentional and involved the infliction of torture." (§ 190.2, former subd. (a)(18); see People v. Davenport (1985) 41 Cal.3d 247, 271 ["Proof of a murder committed under the torture-murder special circumstance . . . requires proof of first-degree murder, [citation], proof the defendant intended to kill and to torture the victim [citation], and the infliction of an extremely painful act upon a living victim."].) Where the defendant was not the actual killer, this special circumstance applied only where he or she intentionally aided, abetted, counseled commanded, induced, solicited requested or assisted any actor in the commission of first-degree murder. (§ 190.2, former subd. (b).)
In connection with the torture special circumstance, the jury was instructed with CALJIC 8.81.18 which required the jury to find that (1) the murder was intentional, and (2) the murder involved the infliction of torture. The court also gave CALJIC 8.80. That instruction stated that if defendant was not the actual killer, to find true the special circumstance it must be proved beyond a reasonable doubt that he "intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of the murder in the first degree...." (Italics added.) Such a finding is incompatible with a conviction of first-degree murder based on the natural and probable consequences doctrine because it required a finding that defendant intentionally participated in the commission of first-degree murder, rather than that he intentionally participated in a different crime, the natural and probable consequence of which was murder.
The jury found the special circumstance of murder by torture to be true, after first finding defendant guilty of first-degree murder. The true finding on the special circumstance therefore establishes the jury made the findings necessary to show an intent to kill. Thus, the record of conviction shows as a matter of law that defendant could still be convicted of murder under the newly amended laws, and that he was therefore ineligible for resentencing under section 1172.6.
Defendant argues that nothing in CALJIC No. 8.81.18 required the jury to find that he personally did anything, and observes that unlike CALJIC No. 8.80, the current CALCRIM No. 401 requires that an aider and abettor must both" 'know of the perpetrator's unlawful purpose'" and" 'specifically intend to'" assist the perpetrator's commission of the crime. The argument does not alter our conclusion. If the jury determined defendant was not the actual killer, CALJIC No. 8.80 expressly required the jury to find he intentionally aided, abetted, or otherwise assisted the actual killer in the commission of first-degree murder. Defendant does not suggest how an individual could intentionally aid and abet an actual killer in the commission of first-degree murder without also intending to kill.
2. Other Instructions Pertaining to Murder Conviction
Defendant asserts that other jury instructions on murder "also raise concerns that the jury could have reached a 'murder' conviction under the theory that the murder was a 'natural and probable consequence' of other actions, such as an assault." He points to the instructions on aiding and abetting and conspiracy.
The trial court gave CALJIC Nos. 3.00 and 3.01 on aiding and abetting. CALJIC No. 3.00 includes language that one who aids and abets "is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged." Defendant posits that this instruction "would permit a 'murder' conviction based on the commission of an assault of Wright, as long as the jury believed that the murder was a natural consequence of the assault plan." We are not persuaded.
CALJIC No. 3.01 as given stated, in part: "A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime."
" 'Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought.'" (People v. Medrano (2021) 68 Cal.App.5th 177, 183 citing People v. Gentile (2020) 10 Cal.5th 830, 848 (Medrano); see also People v. McCoy (2001) 25 Cal.4th 1111, 1118.) The natural and probable consequences doctrine abolished by Senate Bill No. 1437 is a theory of vicarious liability under which "[a]n aider and abettor is guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime." (People v. Smith (2014) 60 Cal.4th 603, 611; see People v. Chiu (2014) 59 Cal.4th 155, 164.) Here, the jury was not instructed on any crime other than murder. Thus, murder was the target crime; not the natural and probable consequence of some other crime.
The jury was fully instructed on murder as well as murder by torture. In connection with the charge of murder the jury was given CALJIC No. 8.10. That instruction sets forth the elements necessary to prove murder including: (1) death of a human being, (2) unlawful killing, and (3) malice aforethought. The jury was also given CALJIC No. 8.11 which defined malice, CALJIC No. 8.20 which defined first degree-murder, and CALJIC No. 3.31.5 which provides that in the crime charged of murder, the necessary mental state is malice aforethought. The court also gave CALJIC Nos. 8.70, 8.71 and 8.74 which defined first and second-degree murder and instructed the jury to determine whether defendant was guilty of first or second-degree murder. As to murder by torture, the trial court instructed the jury with CALJIC No. 8.24 which defines murder by torture as murder in the first degree. The instruction states that the essential elements are (1) the acts which caused the death must involve a high degree of probability of death, and (2) the intent to cause cruel pain and suffering for revenge, extortion persuasion or sadistic purposes.
The trial court also gave several instructions on conspiracy. CALJIC No. 6.11 stated, in part, that each member of a criminal conspiracy is liable for each act of every other member of the conspiracy done in furtherance of the object of the conspiracy. The instruction goes on to state that a member of a conspiracy "is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as a part of the original plan and even though he was not present at the time of the commission of such act." Defendant suggests the "probable and natural consequences" language in CALJIC 6.11 amounted to an instruction on the no-longer-valid theory of murder under the natural and probable consequences doctrine. We disagree.
Defendant was not charged or convicted of conspiracy to commit murder. Even if he had been the object of any conspiracy, if there was one, was murder. Again, to find defendant liable as a conspirator, the jury had to find he agreed and intended to commit the target offense of murder since that was the only charged offense. Which means the instructions did not permit the jury to convict him under the natural and probable consequences doctrine because that doctrine "applies to unintended, nontarget offenses." (Medrano, supra, 68 Cal.App.5th 177 at p. 185,; see also People v. Beck and Cruz (2019) 8 Cal.5th 548, 645 [because the defendants "were charged with conspiracy to murder, not conspiracy to commit a lesser crime that resulted in murder," there was "no possibility they were found guilty of murder on a natural and probable consequences theory"]; Medrano, at pp. 183-184 ["in convicting [the defendant] of first degree murder, the jury did not rely on the natural and probable consequences doctrine because it found him guilty of conspiracy to commit first degree murder"].) The jury necessarily found that defendant had the specific intent to commit murder, rather than merely to commit a lesser target offense, such as assault. Put differently, the instructions here did not permit the jury to find defendant guilty of murder under a conspiracy theory without finding he intended to kill.
In any event, any ambiguity in the instructions regarding aiding and abetting, or conspiracy, does not undermine our conclusion. As discussed above, the special circumstance finding makes it clear that the jury determined defendant participated in the murder with intent to kill. (See People v. Beardslee (1991) 53 Cal.3d 68, 90-91.) We presume the jury is capable of understanding and correlating the court's instructions. (People v. Frandsen (2011) 196 Cal.App.4th 266, 278; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
C. Senate Bill No. 775 Does Not Aid Defendant
Defendant also contends he is entitled to relief as a result of the passage of Senate Bill 775 and the holding in People v. Langi (2022) 73 Cal.App.5th 972 (Langi). Senate Bill 775 provides that the provisions of 1172.6 pertain to not only "felony murder or murder under the natural and probable consequences doctrine" but also any "other theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a); Stats. 2021, ch. 551, § 2.) In other words, section 1172.6 now echoes section 188's requirement that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
In Langi, the defendant was part of a group who accosted the victim with the purpose of robbing him. (Langi, supra, 73 Cal.App.5th at p. 975.) A fist fight erupted, and the victim was killed by a blow to the head after he was punched by one member of the group. The defendant was charged with murder. The jury found him not guilty of felony murder but guilty of second-degree murder as well as robbery and battery. He applied for relief under 1172.6. The trial court denied the petition after concluding the jury had found him guilty as the actual killer. The defendant that argued the jury could have found him guilty of aiding and abetting an implied malice murder and that the instruction permitted the jury to impute malice to him based upon his participation in a crime, without having to find that he personally acted with malice. (Id. at p. 981.) The Court of Appeal agreed and remanded the case to the trial court for an evidentiary hearing to determine whether the defendant could be convicted under the amended definition of murder.
Langi is inapplicable. Here, as discussed above, defendant's conviction for murder in the first degree was based on the direct theory of aiding and abetting with the intent to kill, and not on an indirect theory based on imputed malice. We thus conclude that defendant was ineligible for resentencing under section 1172.6 as a matter of law based on the instructions given to the jury and the verdicts in this case.
III.
Disposition
The June 28, 2021 order denying defendant's petition under section 1172.6 is affirmed.
WE CONCUR: HUMES, P. J., BANKE, J.
[*] Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.