Opinion
B296014
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KEITH LAWS, Defendant and Appellant.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA008785) APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed. Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
Brian Laws appeals from a summary denial of his petition for resentencing pursuant to Penal Code section 1170.95, which provides for resentencing of a defendant convicted of felony murder or murder under the natural and probable consequences theory if the defendant could no longer be convicted of murder based on recent amendments to sections 188 and 189. Laws contends the trial court erred in denying his facially sufficient petition without appointment of counsel. We affirm.
Further statutory references are to the Penal Code.
BACKGROUND
In June 1991, Laws demanded money from a convenience store clerk, who gave him $40, after which Laws shot the clerk once in the head. (See prior opinion in the underlying action, People v. Laws (June 30, 1994, B075311 [nonpub. opn.]) at pp. 3-4, 9-10 (Laws I).)
We grant respondent's request and take judicial notice of our opinion in Laws I, and an excerpt from the February 17, 1993 reporter's transcript from trial.
By information, Laws was charged with first degree murder (§ 187, subd. (a) (count 1)), and second-degree robbery (§ 211 (count 2)). The information alleged as special circumstances that the murder was committed in the course of the robbery (§ 190.2, subd. (a)(17)), and alleged Laws personally used a firearm. (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1).)
In 1993, a jury convicted Laws on both counts, as charged, and found true the special circumstances and firearm allegations. As to count 1, Laws was sentenced to life in prison without possibility of parole, plus four years for the firearm enhancement. Sentencing as to count 2 for robbery was stayed (§ 654), and the firearm enhancement as to that count was stricken for purposes of sentencing. Laws appealed and, in Laws I, we affirmed both convictions and the jury's true findings.
In 2019, Laws, representing himself, filed a form petition for resentencing under section 1170.95 and newly enacted Senate Bill No. 1437 (SB 1437), requesting vacation of his first-degree murder conviction, resentencing and appointment of counsel. In his petition, Laws checked boxes stating, among other things, that he had been "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 because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019." Laws also checked a box stating he "could not now be convicted because of changes to Penal Code § 189 . . . for the following reasons": "[He] was not the actual killer; [He] did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; [He] was not a major participant in the felony or [he] did not act with reckless indifference to human life during the course of the crime or felony; [and] The victim of the murder was not a peace officer in the performance of his or her duties." Laws attached to his petition a declaration which, among other things, recited the charges against him and his conviction, and reiterated his now refuted claim that it had been his friend who actually murdered the clerk, and circumstances leading to the charges against him. He requested that counsel be appointed for him and attached copies of the information and sentencing report, and excerpts from transcripts of the preliminary hearing, his counsel's closing argument at trial, and jury instructions.
The petition was summarily denied. The trial court found that Laws "[was] not entitled to relief as a matter of law," because he "was convicted of murder but the court file reflects that [Laws] was the actual killer and was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences. There are no jury instructions for aiding and abetting, felony murder, or natural and probable consequences."
DISCUSSION
Laws contends the trial court erred in summarily denying his petition for resentencing because he alleged a prima facie for relief, and the matter should be remanded with directions to the court to appoint counsel. We disagree.
Statutory Principles and the Standard of Review
"Senate Bill No. 1437 [effective January 1, 2019] was enacted to 'amend the felony murder rule and the natural and probable consequences doctrine, . . . 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 of the underlying felony who acted with reckless indifference to human life.' (Stats. 2018, ch. 1015, § 1, subd. (f).) 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 underling 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 (Cornelius), review granted March 18, 2020, No. S260410.)
On the same date, the California Supreme Court granted review in Cornelius and two other cases raising issues akin to the questions here. (See People v. Lewis (2020) 43 Cal.App.5th 1128 (Lewis), review granted March 18, 2020, No. S260598; People v. Verdugo (2020) 44 Cal.App.5th 320 (Verdugo), review granted March 18, 2020, No. S260493.) The Court deferred briefing in Cornelius and Verdugo, pending its consideration and disposition of Lewis, or further order. (Cornelius, supra, S260410; Verdugo, supra, S260493.) Review was granted in Lewis to consider two issues: "(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)." (Lewis, supra, S260598 .)
"Senate Bill No. 1437 . . . added section 1170.95, which allows a 'person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts.' (§ 1170.95, subd. (a).) . . . [A]ll three of the following conditions must be met: '(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 or second degree murder following a trial . . . . [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection 188 or 189 [effective beginning January 2019].' (Ibid.) The petition shall include a declaration stating that 'he or she is eligible for relief under this section' based on the three requirements of subdivision (a). (§ 1170.95, subd. (b)(1).)" (Cornelius, supra, 44 Cal.App.5th at p. 57.)
Section 1170.95 sets forth the basic procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417; People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).) The petition for resentencing must include each of the following: "(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [¶] (C) Whether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1).)
"Section 1170.95, subdivision (c), sets forth the process for the trial court's review of the petition. The trial 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. . . . 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).)" (Cornelius, supra, 44 Cal.App.5th at pp. 57-58.)
Finally, section 1170.95, subdivision (d)(1) states: "Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been [sic] previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. This deadline may be extended for good cause."
We independently review whether the trial court properly interpreted and fulfilled its duty under the statute. (See Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 287 [questions of law are reviewed de novo]; cf. Verdugo, supra, 44 Cal.App.5th at p. 328, fn. 8 [appellate court's principal task in interpreting a statute is to determine Legislative intent and give effect to the law's purpose].)
The Trial Court Did Not Err in Refusing to Accept Laws' Petition at Face Value
Laws does not dispute that, on the merits, once his record of conviction is considered, he could still be convicted of felony murder as the actual killer after SB 1437. Laws' petition alleged he was not the actual killer, and stated he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine," and "could not now be convicted of 1st or 2nd degree murder because of changes to Penal Code §§ 188 and 189." Laws insists the trial court was required to accept his facially sufficient allegations (and documents attached to the petition) as a functional "offer of proof that he was entitled to relief under section 1170.95 and to appointment of counsel. He is mistaken. The trial court was not required to accept his representations at face value. Such bare assertions, unsupported by evidence, are insufficient to make a prima facie showing in the face of the jury's verdict. (See Lewis, supra, 43 Cal.App.5th at p. 1139.)
As our colleagues recently explained in Verdugo, "the relevant statutory language, viewed in context, makes plain the Legislature's intent to permit the sentencing court, before counsel must be appointed, to examine readily available portions of the record of conviction to determine whether a prima facie showing has been made that the petitioner falls within the provisions of section 1170.95." (Verdugo, supra, 44 Cal.App.5th at p. 323; § 1170.95, subds. (a) and (c).) Naturally, the trial court's consideration of the adequacy of a resentencing petition requires it to ascertain whether the petition is facially sufficient. (See § 1170.95, subd. (b)(2).) The analysis does not end there. Once it has performed that initial evaluation, the court must proceed to "review the petition and determine if the petitioner has made a prima facie showing that [he] falls within the provisions of [section 1170.95]." (§ 1170.95, subd. (c); Verdugo, supra, at p. 327.)
At the next stage of the evaluation, logic dictates that the court should determine if "the petitioner is ineligible for relief as a matter of law." (Verdugo, supra, 44 Cal.App.5th at p. 329.) Information from the record of conviction (e.g., charging documents, jury instructions and verdict forms) may conclusively establish the petitioner is not eligible, as in actions in which the petitioner was not prosecuted under a felony murder or natural and probable consequences theory. (See § 1170.95, subd. (a)(1)-(2); Verdugo, supra, at p. 330.) As part of this process, the court may consider court records reflecting the basis of the petitioner's conviction (id. at pp. 329-330; Lewis, supra, 43 Cal.App.5th at pp. 1137-1138), and any prior appellate opinion in the underlying case that bears on relevant aspects of the petitioner's conviction, e.g., a showing that the conviction was affirmed, as was the case here. (Id. at p. 1136, fn. 7 ["The record of conviction includes a reviewing court's opinion"]; People v. Woodell (1998) 17 Cal.4th 448, 456-457 [record of conviction includes appellate opinion and trial court records]; Verdugo, supra, at p. 333 ["A court of appeal opinion, whether or not published, is part of the appellant's record of conviction"].)
As a leading treatise explained, while "the court must determine whether a prima facie basis has been shown, the statute does not specify the process for making that determination, other than the court is to consider any response or reply filed by the parties. Nothing in the statute . . . precludes the court from conducting its own review of other readily available information such as the court's file. It would be a gross misuse of judicial resources to require the issuance of an order to show cause or even appointment of counsel based solely on the allegations of the petition, which frequently are erroneous, when even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief." (Couzens, et al., Cal. Practice Guide: Sentencing Cal. Crimes (The Rutter Group, Oct. 2019 Update) § 23:51(H).)
Laws' resentencing petition was facially sufficient, but his factual representations were false. Laws does not dispute that he was charged with first degree murder of the store clerk, and personally using a firearm in doing so. His section 1170.95 petition and exhibits reflect as much. A jury convicted Laws as charged. We affirmed both the jury's conviction and true finding. It is now established that Laws was the actual killer. The trial court conducted an appropriate screening of and properly denied Laws' petition.
In his declaration, Laws asserts he did not actually kill the clerk. The jury rejected this claim.
Further, the doctrines of felony murder or natural and probable consequences did not apply in the underlying action and, as the actual killer, Laws was ineligible for relief under either doctrine. There is no merit to his implicit assertion that he falls within the purview of SB 1437 because he committed murder in the course of commission of a robbery. As amended, section 189 provides that a defendant may be convicted of murder under the felony murder doctrine where, as here, he "was the actual killer." (§ 189, subd. (e)(1).) Even if Laws were convicted under the felony murder rule, he is ineligible for relief under section 1170.95. (See § 189, subd. (e); In re Taylor (2019) 34 Cal.App.5th 543, 550, fn. 4 [under amended section 189, "a participant in the underlying felony that results in death is 'liable for murder' only if he or she (1) was the actual killer"].) The verdict of first-degree murder leaves no doubt the jury rejected the theories of lesser included offenses, and with them the claim that Laws did not act with an intent to kill. We affirmed that finding. Laws is not entitled to the protections of SB 1437, which was enacted to ensure that liability for murder is not imposed on a person who did not act with an intent to kill. (See Martinez, supra, 31 Cal.App.5th at p. 723.)
Laws claims he was convicted "under the old felony murder rule [Section 190.2, subd. (a)(17)]," because the jury also found true the special circumstances allegation that the murder was committed in the course of a robbery.
The trial court inaccurately stated that the jury was not instructed as to felony murder. Excerpts from the court's oral instructions (attached as an exhibit to Laws' petition) indicate the jury was instructed on felony murder and accessory to a felony as lesser included offenses to first degree murder. --------
A petitioner is eligible for relief under section 1170.95 only if he "could not be convicted of first or second degree murder because of changes to Section 188 or 189." (§ 1170.95, subd. (a)(3), italics added.) The trial court committed no error by summarily denying Laws' petition; Laws was ineligible for relief.
Finally, to the extent Laws claims he was entitled to appointed counsel without regard to the veracity of his allegations. we reject his assertion. Section 1170.95 mandates the appointment of counsel, not during the initial "screening" phase, but only after the trial court has determined the petition sets forth a prima facie case. (See Lewis, supra, 43 Cal.App.5th at p. 1140; Verdugo, supra, 44 Cal.App.5th at pp. 332-333; Cornelius, supra, 44 Cal.App.5th at p. 58 [rejecting claim that petitioner was entitled to appointed counsel where he was indisputably ineligible for relief under section 1170.95].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.