Opinion
G059190
07-20-2021
THE PEOPLE, Plaintiff and Respondent, v. SINQUE BEIAMA MORRISON, Defendant and Appellant.
Alan S. Yockelson, 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, Assistant Attorney General, Lynne G. McGinnis and Arlene A Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of San Bernardino County, John M. Tomberlin, Judge. Affirmed.
Alan S. Yockelson, 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, Assistant Attorney General, Lynne G. McGinnis and Arlene A Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THOMPSON, J.
Defendant Sinque Beiama Morrison appeals from an order denying his petition for resentencing under Penal Code section 1170.95. The trial court concluded defendant failed to make a prima facie case for relief under section 1170.95, but, nevertheless, conducted an evidentiary hearing at which it again found defendant ineligible for relief.
All further statutory references are to the Penal Code.
Defendant contends the court made various procedural and evidentiary errors in conducting the evidentiary hearing.
We affirm the order, though not on the ground relied on by the trial court. Defendant's conviction for conspiracy in count 4 necessarily required the jury to find that defendant acted with the intent to kill. That finding rendered defendant ineligible for relief under section 1170.95.
FACTS
Defendant was found guilty of first degree murder (count 1; § 187, subd. (a)), two counts of attempted murder (counts 2 and 3; §§ 187, subd. (a), 664), conspiracy to commit murder (count 4; § 182, subd. (a)(1)) and shooting at an inhabited dwelling (count 5; § 246). The jury found various firearm and gang enhancements true as to all counts, resulting in a total prison term of 109 years to life.
Another panel of this court affirmed a modified judgment in 2011. (People v. Barnett (July 28, 2011, G041416) [nonpub. opn.] (Barnett I).) As noted in the prior opinion, defendant was convicted of first degree murder “for the senseless shooting death of 11-year-old Mynisha Crenshaw, who died in a fusillade of bullets defendants and their cohorts fired into the wrong apartment in a mistargeted, retaliatory gang strike.” (Ibid.) “The jury also convicted [defendant] of two counts of attempted murder for seriously wounding the victim's 14-year-old sister and for earlier mistargeting a compatriot just before the fatal barrage....” (Ibid.) Additional factual details concerning the crime may be found in this court's prior opinion. (Ibid.)
In January 2019, defendant filed a petition for resentencing pursuant to section 1170.95. At the hearing, the People stated their position that defendant had not established a prima facie case for relief. The People based their argument on the conspiracy charge, stating, “[T]he jury in finding that [defendant] possessed the intent to kill sufficiently disqualified him from resentencing under [section 1170.95] that the Court should find that he is not eligible for resentencing.” The court responded, “Oh, I don't disagree. I agree with you on the eligibility issue but [defendant] is here, and I'm prepared to go forward with the full blown hearing. In case someone disagrees on that issue in the future with respect to eligibility....” The court went on to take judicial notice of the court's own record. The prosecutor argued, mostly based on the statement of facts in our prior opinion, that defendant was ineligible for relief under section 1170.95.
The court denied the petition, stating, “Let's now go to the point that I want to make, and then I remember this case very well. This is not something that I have to hear all these facts repeated. They're pretty much emblazoned in my memory. It's an outstanding case in terms of the factual scenario of what actually occurred. The fact that it was brought to the High Desert for trial because of the tension that this whole case brought to the community at large here in San Bernardino back this number of years ago when there was an article per day, it seems like, in the press about the 11-year-old girl that was killed in this case.
“So it has made an impression on me probably more so than... most other cases that I've heard over the almost 24 years now that I've been a judge. I certainly believe that minds could differ as to whether or not Mr. Morrison is someone who qualifies legally on the relief he petitions the Court to receive. What I do not believe is that reasonable minds could differ on his being entitled to receive that relief like the circumstances of this case because I believe it was more than adequately demonstrated that he was an active participant, that he was a person who was leading the charge or at least one of the ring leaders, if not the person in charge of everything himself. He was certainly probably that has been established, but he was at least a major participant.”
“My discretion would be absolutely to in no way strike any of the enhancements that he's been sentenced to.... [S]o his petition is denied.” Defendant appealed.
DISCUSSION
Applicable Law and Standard of Review
Senate Bill 1437 (2017-2018 Reg. Sess.) (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).) It accomplished that purpose by substantively amending sections 188 and 189 and adding section 1170.95, which is a resentencing provision.
Under section 188, subdivision (a)(3), as amended, “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” And under section 189, as amended, to be liable for murder based on felony murder or a natural and probable consequences theory, a person must fall into one of the following categories of people: (1) the actual killer; (2) although not the actual killer, a person who intended to kill and assisted the actual killer in the commission of first degree murder; or (3) a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e) (1)-(3).)
Persons convicted of felony murder or murder under a natural and probable consequences theory may seek resentencing pursuant to section 1170.95. (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) To be eligible, a defendant must show that he or she “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).) The process begins by the person filing “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.” (Id., subd. (a).) Next, the trial court examines whether the petition is facially sufficient to show eligibility for relief. (Id., subd. (b)(2); People v. Verdugo (2020) 44 Cal.App.5th 320, 329, review granted Mar. 18, 2020, S260493.)
If the petitioner makes this facial showing of eligibility, the court reviews readily ascertainable information, such as the record of conviction, to determine if the petitioner is ineligible for relief as a matter of law. (People v. Verdugo, supra, 44 Cal.App.5th at pp. 329-330, review granted; People v. Lewis (2020) 43 Cal.App.5th 1128, 1137 [to evaluate prima facie showing, trial court may rely on record of conviction, including appellate opinion concerning underlying conviction], review granted Mar. 18, 2020, S260598.) “[I]f the petitioner's ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction, the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties' briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief. (People v. Verdugo, at p. 330.) Following briefing, if the trial court is convinced the petitioner has established a prima facie case of entitlement to relief, the court must issue an order to show cause, and thereafter hold a full hearing on the issue of entitlement. (§ 1170.95, subds. (c), (d)(1).)
We review the issue of whether defendant made a prima facie case for relief de novo. (People v. Garcia (2020) 57 Cal.App.5th 100, 110, review granted Feb. 10, 2021, S265692).
Defendant's arguments on appeal primarily revolve around alleged procedural and evidentiary deficiencies in the hearing held by the court. Specifically, defendant contends that the statement of facts in our prior opinion is hearsay and cannot be relied upon at the evidentiary hearing. Also, defendant's petition included citations to the reporter's transcript of the original trial, which the court held was hearsay, and which defendant claims was error.
We decline to address those issues, however, because we are persuaded that defendant was ineligible for relief as a matter of law. At the outset, we note that the only count even potentially eligible for relief was the first degree murder conviction (count 1). The two counts of attempted murder do not fall within the ambit of section 1170.95. (People v. Love (2020) 55 Cal.App.5th 278-279, review granted Dec. 16, 2020, S265445.)
Count 4, conspiracy to commit murder, is not only itself outside the scope of section 1170.95, but it disqualifies defendant for relief under count 1 as well. The trial court provided CALCRIM No. 563, which instructed the jury that defendant had to have an intent to kill to be guilty of conspiracy to commit murder. The instructions provided in relevant part: “To prove that a defendant is guilty of [conspiracy to commit murder], the People must prove that: [¶] 1. The defendant intended to agree and did agree with the other defendant... to intentionally and unlawfully kill; [¶] 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would intentionally and unlawfully kill.” Thus, the jury's guilty verdict on the conspiracy count necessarily required the jury to find defendant harbored a specific intent to unlawfully kill another human being. (People v. Johnson (2013) 57 Cal.4th 250, 257 [“‘A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act'” (italics added)].)
The parties did not address this issue in their briefs. Consequently, we invited, and received, additional briefing from both parties on the impact of the conspiracy conviction on defendant's eligibility for relief.
This finding necessarily leads to the conclusion that defendant was, at minimum, a direct aider and abettor, and thus ineligible for relief. (See People v. Gentile (2020) 10 Cal.5th 830, 848 [“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”].) With regard to murder, the People presented alternate theories: either defendant directly aided and abetted, or he was guilty under a natural and probable consequences theory. The natural and probable consequences theory was based on an uncharged offense of brandishing a firearm, particularly in rival gang territory. But given that the jury necessarily found defendant acted with the intent to kill, brandishing a firearm would, in turn, necessitate a finding that defendant directly aided and abetted the murder. Under the instructions given to the jury, defendant aided and abetted if, with the intent to kill, he “aid[ed], facilitate[d], promote[d], encourage[d], or instigate[d] the perpetrator's commission of that crime.” Plainly, brandishing a firearm with the intent to murder fulfills that standard. Any way you slice it, therefore, defendant was, at minimum, a direct aider and abettor. Accordingly, he was ineligible for relief under section 1170.95.
DISPOSITION
The postjudgment order denying defendant's petition for resentencing is affirmed.
WE CONCUR: MOORE, ACTING P. J., FYBEL, J.