Opinion
B310646
11-16-2021
THE PEOPLE, Plaintiff and Respondent, v. GLENN MARTELL, Defendant and Appellant.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. A776727, Ray G. Jurado, Judge. Reversed and remanded with directions.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
KIM, J. 1
I. INTRODUCTION
Defendant Glenn Martell appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.95. We reverse with directions for the trial court to issue an order to show cause and hold a hearing.
Further statutory references are to the Penal Code.
II. BACKGROUND
A. Conviction at Trial
In 1986, defendant and codefendant Jederick Leonard Bond were tried by a jury for the murder of Ericka Johnson. (People v. Bond (Mar. 15, 1990, BO24349 [nonpub. opn.].) In instructing the jury on murder, the trial court delivered CALJIC No. 3.00 as follows: "'The persons concerned in the commission of a crime who are regarded by law as [principals] in the crime thus committed and equally guilty thereof include: One, those who directly and actively commit the acts constituting the crime; [¶] Or, two, those who aid and abet the commission of the crime. [¶] 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 and intentionally aided or encouraged." 2
The jury found Bond and defendant guilty of murder in the first degree (§ 187) and the trial court sentenced defendant to 25 years to life in prison.
Defendant is no longer incarcerated.
B. Petition for Resentencing
On October 21, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. Defendant contended, among other things, that "[a]t trial, [he] was convicted of [first] . . . degree murder pursuant to . . . the natural and probable consequences doctrine. . . ." Defendant further asserted that he could not now be convicted of first degree murder because of changes made to sections 188 and 189. Defendant also requested appointment of counsel.
On September 10, 2020, the Los Angeles County District Attorney's Office (District Attorney) filed its response to defendant's petition. The District Attorney opposed the petition contending that defendant was not convicted "pursuant to either a felony murder or a natural and probable consequences theory of culpability. His jury was not instructed on either of those theories of culpability. Rather, [defendant] was prosecuted as a direct aider and abettor to the murder who acted with the intent to kill the victim." The District Attorney attached as supporting exhibits the appellate opinion of People v. Bond, supra, BO24349 and the reporter's transcript of the trial court's instructions to the jury. 3
C. Hearing
The trial court appointed counsel to represented defendant and on January 25, 2021, held a hearing on defendant's petition. Defense counsel appeared and submitted on the record. Counsel continued: "As an officer of the court, because I have a duty of candor to the court, I'll let you know that I've reviewed the entire record.... So I have no further argument to make on the subject of whether he can show a prima facie case for proceeding further with his sentencing petition. It appears on the face of it, and from the record, that he's not eligible." Defense counsel then added: "[J]ust based on my review of the trial, it appears that the theory on which he was tried and convicted was that he was a direct aider and [abettor]. . . and the Court of Appeal did make reference in [its] opinion to the fact that the record could have been also reasonably construed as [defendant] having been the actual killer."
The trial court denied defendant's resentencing petition, finding that "defendant is ineligible for resentencing, that is, not eligible for resentencing because he was not prosecuted under a theory of either felony murder or under [a] natural and probable consequences theory of murder. As pointed out, the jury was not instructed on either of these theories but, instead, was instructed and there was evidence beyond a reasonable doubt to find that he was either a direct aider and [abettor] or the actual killer." 4
III. DISCUSSION
"Senate Bill [No.] 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).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds . . . section 1170.95, which allows those '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).)
"An offender may file a petition under section 1170.95 where all three of the following conditions are 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 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[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree 5 murder because of changes to [s]ection[s] 188 or 189 made effective January 1, 2019.' (§ 1170.95, subd. (a)(1)-(3).)" (People v. Martinez(2019) 31 Cal.App.5th7l9, 723 (Martinez))
Where a petitioner files a section 1170.95 petition that contains all of the statutorily required information and requests counsel, the court must appoint counsel and order briefing. (People v. Lewis (2021) 11 Cal.5th952, 966 (Lewis).) The court then evaluates whether the petitioner made a prima facie showing that he is eligible for relief. (Id. at p. 960.) In making this evaluation, a court may rely on the record of conviction, which generally includes appellate opinions. (Id. at pp. 971-972.) "However, as [our Supreme Court] cautioned in [People v. Woodell (1998) 17 Cal.4th448, 454-455 (Woodell)], the probative value of an appellate opinion is case specific, and 'it is certainly correct that an appellate opinion might not supply all answers.' (Id. at p. 457.) In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' ([People v.] Drayton [(2020)] 47 Cal.App.5th [965, ] 980.) . . . [T]he 'prima facie bar was intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972.)
If the petitioner has made a prima facie showing, the trial court "shall issue an order to show cause." (§ 1170.95, subd. (c).) "The trial court must then 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. . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' (§ 1170.95, subd. (d)(1).) . . . Significantly, if a hearing is held, '[t]he prosecutor and the 6 petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' (§ 1170.95, subd. (d)(3).) '[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' ([Ibid].) 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.' ([Ibid].)" (Martinez, supra, 31 Cal.App.5that pp. 723-724.)
B. Prima Facie Showing
Defendant contends that the trial court erred by finding he did not meet his burden of making a prima facie showing of entitlement to section 1170.95 relief. We agree. Here, the record of conviction demonstrates that the jury was instructed it could convict defendant of murder under a natural and probable consequences theory of liability. Defendant therefore met his prima facie burden to establish he was entitled to relief. (See People v. Offley (2020) 48 Cal.App.5th588, 599.)
The Attorney General makes the general assertion that "[t]he pattern jury instructions regarding aiding and abetting at the time of [defendant's] trial included language regarding the natural and probable consequences; if prosecutors were relying on the latter theory of liability, they would identify a target offense for the jury[.]" But the Attorney General raises no specific argument as to why this general observation is relevant to defendant's ability to meet his prima facie burden. We thus decline to further discuss this assertion. 7
The Attorney General next contends that the prosecutor's closing argument demonstrates that defendant was tried on a direct aider and abettor theory. We disagree. As part of his closing argument, the prosecutor stated: "Let me put it to you simply. This is a first degree murder. No question about it. First degree execution homicide. [¶] I don't have to get into all the instructions, and I don't choose to get into [a] lecture on homicide and murder. This is a first degree murder or it is nothing." The prosecutor continued: "This is not second degree murder, this is not manslaughter, this is not anything other than murder first. This is execution homicide, ladies and gentlemen. He put three into her when she's on the ground." This argument, however, does not refute our conclusion that, on this record, the jury could have convicted defendant under a natural and probable consequences theory. (See People v. Morales (2001) 25 Cal.4th 34, 47 ["we presume that the jury relied on the instructions, not the arguments, in convicting defendant"].)
we granted judicial notice of the prosecutor's closing argument at defendant's criminal trial. As the reporter's transcript of defendant's trial is a part of his record of conviction (see Woodell, supra, 17 Cal.4th at p. 456), we may consider it when evaluating whether defendant made a prima facie showing of eligibility for relief under section 1170.95 (see Lewis, supra, 11 Cal.5thatp. 971).
The prosecutor acknowledged that the evidence was unclear as to whether defendant or Bond was the shooter.
The Attorney General also argues that defense counsel's statement at the hearing-that the record demonstrated defendant had not made a prima facie showing of entitlement to relief-was a judicial admission. Although oral statements by 8 counsel may constitute judicial admissions (People v. Jackson (2005) 129Cal.App.4thl29, 161), a "'mixed factual-legal conclusion'" is not binding on a party (see Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1325; accord, Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 384). Here, defense counsel made his statement prior to the issuance of our Supreme Court's opinion in Lewis, supra, 11 Cal.5th 952, which held that the threshold for demonstrating a prima facie case for section 1170.95 relief is "Very low.'" (Id. at p. 972.) We thus conclude that defense counsel's statement was not a binding judicial admission.
We also reject the Attorney General's argument that defense counsel's statement constituted invited error. A "claim may be waived under the doctrine of invited error if trial counsel both '"intentionally caused the trial court to err'" and clearly did so for tactical reasons." (People v. Souza (2012) 54 Cal.4th 90, 114.) We can find no tactical reason for defense counsel to undermine defendant's eligibility for section 1170.95 relief. (See also People v. Tapia (1994) 25 Cal.App.4th 984, 1031 [invited error only if counsel made clear he acted for tactical reasons, not out of ignorance, mistake, or forgetfulness].) Defense counsel did not invite error.
At this preliminary juncture, we do not find that defendant is precluded from section 1170.95 relief. The trial court therefore erred in denying defendant's petition without issuing an order to show cause and holding a hearing at which the prosecution has the burden of establishing that defendant is ineligible for relief beyond a reasonable doubt. (§ 1170.95, subd. (d)(3); People v. DeHuff (2021) 63 Cal.App.5th 428, 442.) 9
IV. DISPOSITION
The order denying the section 1170.95 petition is reversed. The matter is remanded with directions for the trial court to issue an order to show cause under section 1170.95, subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d)(3).
We concur: RUBIN, P. J. MOOR, J. 10