Opinion
B323993
08-02-2023
THE PEOPLE, Plaintiff and Respondent, v. DANA LAMAR OFFLEY et al., Defendants and Appellants
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Dana Lamar Offley. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Robert Mitchell Keller. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Chung L. Mar, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. VA092410 Roger T. Ito, Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Dana Lamar Offley.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Robert Mitchell Keller.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Chung L. Mar, Deputy Attorneys General for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Defendants Dana Lamar Offley and Robert Mitchell Keller appeal from orders denying their petitions to vacate their murder and attempted murder convictions and be resentenced under Penal Code section 1172.6. They contend: (1) At an evidentiary hearing held under section 1172.6, subdivision (d)(3), the court should not have admitted into evidence the transcript of their 2006 trial without requiring the prosecution to establish the unavailability of the trial witnesses; and (2) Because the court did not find beyond a reasonable doubt that the defendants acted willfully, deliberately, and with premeditation, the court should have reduced Keller's first degree murder conviction to second degree murder and vacated the jury's findings as to both defendants that they committed attempted murder willfully, deliberately, and with premeditation. We reject these contentions and affirm the court's orders.
Subsequent unspecified statutory references are to the Penal Code. Offley and Keller filed their petitions for resentencing under former section 1170.95, which the Legislature later renumbered section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We hereafter cite to section 1172.6 for ease of reference.
FACTUAL AND PROCEDURAL SUMMARY
On February 13, 2005, Alejandro Barrales was driving a vehicle on Parmelee Avenue in Los Angeles. Pedro Portillo was riding in the front passenger seat. When Barrales stopped at the intersection with Nadeau Street, three or four individuals fired numerous gunshots at the vehicle. A bullet hit Barrales in the chest causing his death. Portillo was shot in the back and survived. Offley and Keller were later identified as two of the persons involved in the shooting.
Our summary of the facts concerning the defendants' crimes is based on our review of the transcript of the defendants' 2006 trial. As discussed below, the trial court properly considered the transcript in denying the defendants' petitions. Although the transcript was not included in our record of the instant appeal from the orders denying the defendants' section 1172.6 petitions, we granted the People's unopposed motion for judicial notice of the transcript.
In November 2006, the People charged Offley and Keller in a second amended information with the murder of Barrales (count 1; § 187, subd. (a)), the willful, deliberate, and premeditated attempted murder of Portillo (count 2; §§ 187, subd. (a), 664), and shooting at an occupied vehicle (count 3; § 246). In connection with each count, the People alleged certain gang and firearm enhancements. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b)-(e).)
The defendants were tried together before a single jury in 2006. The jury found Offley guilty of second degree murder of Barrales (count 1), willful, deliberate, and premeditated attempted murder of Portillo (count 2), and shooting at an occupied vehicle (count 3). As to each of the counts charged against Offley, the jury found true the gang enhancement allegation and the allegation that Offley personally and intentionally discharged a firearm, which proximately caused great bodily injury and death to Barrales.
The jury found Keller guilty of first degree murder of Barrales (count 1), willful, deliberate, and premeditated attempted murder of Portillo (count 2), and shooting at an occupied vehicle (count 3). As to each of the counts charged against Keller, the jury found true the gang enhancement allegation and the allegation that a principal personally and intentionally discharged a firearm, which caused great bodily injury and death to Barrales.
The court sentenced Offley to prison for a term of 80 years to life, and sentenced Keller to prison for 75 years to life.
In January 2019, the defendants filed separate facially sufficient petitions in the trial court for resentencing under the predecessor to section 1172.6. They also requested the court to appoint counsel to represent them. The court denied the defendants' petitions without appointing counsel or holding a hearing.
In April 2020, we reversed and directed the trial court to appoint counsel for the defendants and to conduct further proceedings under section 1172.6. (People v. Offley (2020) 48 Cal.App.5th 588, 600.)
After remand, the court appointed counsel, established a briefing schedule, and set an evidentiary hearing.
Prior to the evidentiary hearing, defendants asserted that the transcript of the 2006 trial is not admissible at the evidentiary hearing unless the People establish that the witnesses whose testimony the prosecution intends to offer are unavailable, in accordance with Evidence Code section 1291. The People disagreed. The court heard argument on the issue and ruled that the transcripts are admissible regardless of the availability of the trial witnesses.
At the evidentiary hearing, on September 20, 2022, the prosecution submitted on the transcripts of the 2006 trial. Neither the People nor the defendants offered any other evidence.
The court stated that it reviewed the entirety of the trial transcripts, but was not considering gang expert testimony introduced in the 2006 trial, which the court determined would not be admissible after the Supreme Court's decision in People v. Sanchez (2016) 63 Cal.4th 665. The court also explained that it was not considering the facts recited in Court of Appeal opinions concerning this case.
After hearing arguments from counsel, the court found "beyond a reasonable doubt" that Keller and Offley "participated in this particular crime and aided and abetted specifically with the intent to kill. They're not merely present. They're both firing weapons. They are both actual shooters engaged."
The court then raised an "issue" as to whether the court could reduce Keller's conviction of first degree murder to second degree murder. The court observed that the jury had convicted Offley of second degree murder, but convicted Keller of first degree murder even though, in the court's view, "[t]heir level of culpability . . . is identical." Although the court reiterated its conclusion that Keller, as well as Offley, "is guilty beyond a reasonable doubt of murder," the court suggested that it might not find "beyond a reasonable doubt that there is evidence of willful, premeditated activity that preceded that murder." After some further colloquy among the court and counsel, the court stated that it had "denied the request for relief under [section 1172.6]," and is "disinclined to make any other rulings."
Offley and Keller timely appealed.
DISCUSSION
Defendants contend that the court erred by considering the transcript of their 2006 trial at the evidentiary hearing. They assert that the transcripts are hearsay and inadmissible in the absence of a showing that the witnesses who testified in 2006 are unavailable to testify at the evidentiary hearing.
Keller contends that his conviction for first degree murder should, in the absence of a finding that he acted willfully, deliberately, and with premeditation, be reduced to second degree murder. For the same reason, he contends that his conviction of willful, deliberate, and premeditated attempted murder should be reduced to simple attempted murder. Offley, who was convicted of second degree murder, joins this argument as to his conviction for willful, deliberate, and premeditated attempted murder.
These are statutory interpretation arguments, which we review de novo. (People v. Tran (2015) 61 Cal.4th 1160, 1166.) "Our role in construing a statute is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction. [Citations.] If the statutory language contains no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs." (People v. Johnson (2002) 28 Cal.4th 240, 244.)
A. Admission into Evidence of the 2006 Trial Transcript
Section 1172.6, subdivision (d)(3) provides: "The admission of evidence in the [evidentiary] hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed."
The defendants contend that this language restricts the use of testimony given in a prior trial to testimony "that is admissible under current law." (§ 1172.6, subd. (d)(3).) Under current law, they argue, prior testimony offered for the truth of the matter asserted is hearsay and inadmissible unless, among other requirements, "the declarant is unavailable as a witness." (Evid. Code, § 1291, subd. (a).) Therefore, defendants conclude, at an evidentiary hearing held pursuant to section 1172.6, the prosecution must establish the unavailability of the 2006 trial witnesses before introducing the 2006 trial transcript into evidence.
The argument was recently rejected in People v. Cody (2023) 92 Cal.App.5th 87 (Cody), petition for review pending, petition filed July 3, 2023, S280561. As the Cody court explained, Section 1172.6, subdivision (d) provides:" 'The admission of evidence in the hearing shall be governed by the Evidence Code ....' [Citation.] If the Legislature had stopped there, then we would likely agree with [the petitioner's] interpretation of the statute. That is, we would find the prosecution is required to make a showing of witness unavailability under Evidence Code section 1291, before the trial court could admit the former testimony of witnesses at the evidentiary hearing. However, the law has an explicit exception that provides for the admission of former testimony: 'The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony ....' (§ 1172.6, subd. (d)(3), italics added.)" (Cody, supra, 92 Cal.App.5th at p. 104.)
Cody further reasoned that section 1172.6 "does contemplate that there may be some evidence that was admitted at a former trial that would not be admissible under current law. (See, e.g., People v. Sanchez[, supra,] 63 Cal.4th [at p.] 686 . . . [an expert cannot relate case-specific out-of-court statements to support the expert's opinion].) However, that does not mean that all witness testimony at a prior trial cannot be admitted without the prosecution making a showing of witness unavailability." (Cody, supra, 92 Cal.App.5th at p. 104.) Lastly, the court stated that adopting the petitioner's interpretation "would mean that all section 1172.6 evidentiary hearings would effectively become new court trials," a result "that is plainly not what the Legislature intended." (Cody, supra, at p. 104, citing People v. Clements (2022) 75 Cal.App.5th 276, 297.)
We agree with Cody's reasoning and reject defendants' arguments to the contrary. Accordingly, the court did not err in allowing the prosecution to introduce the 2006 transcript into evidence without requiring compliance with Evidence Code section 1291, subdivision (a).
B. Section 1172.6 Does Not Permit a Reduction of the Degree of Murder
Keller contends that, because the court failed to make a finding that he committed murder and attempted murder willfully, deliberately, and with premeditation, his convictions for first degree murder and willful, deliberate, and premeditated attempted murder should be reduced, and he should be resentenced in accordance with the lesser crimes. Offley joins the argument with respect to his conviction for attempted murder. We reject the argument.
Section 1172.6, subdivision (d)(3) provides: "At the hearing to determine whether the petitioner is entitled to relief, 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 under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.... 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."
We agree with the courts that have addressed the issue that the plain language of the statute requires no judicial construction. (See People v. Didyavong (2023) 90 Cal.App.5th 85, 96-97 (Didyavong), review granted June 28, 2023, S280047; People v. Gonzalez (2023) 87 Cal.App.5th 869, 880-881.) As the Didyavong court explained: Section 1172.6 "does not detail eligible degrees of murder. For relief it simply requires the defendant to have been convicted of 'murder, attempted murder, or manslaughter' in a situation in which the petitioner 'could not presently be convicted of murder or attempted murder' because of changes to section[s] 188 or 189. [Citation.] . . . [Citation.] . . . [T]his language is reasonably clear. It treats all murder as a single, generic crime and requires resentencing when a defendant could not now be convicted of murder, generically. The statute authorizes the court to take one of two actions: deny the petition for relief or grant the petition for relief. [Citation.] In granting the petition, the court vacates the murder conviction and redesignates it as the target offense or the underlying felony. In directing the court to redesignate the murder conviction to the target offense or the underlying felony, the statute provides no mechanism for the court to reduce a first degree murder conviction to second degree." (Didyavong, supra, at p. 96, review granted; see also Gonzalez, supra, at pp. 880-881.)
Keller's arguments that the law should permit courts to reduce the degree of murder are more appropriately addressed to the Legislature than this court. (See People v. Riolo (1983) 33 Cal.3d 223, 230; see also Didyavong, supra, 90 Cal.App.5th at p. 97, review granted ["if the Legislature intended to ensure that no defendant remains convicted of a crime greater than what he or she would be guilty of under the revised statutes, it is free to amend section 1172.6 to say so"].)
The same rationale the Didyavong and Gonzalez courts applied in holding that the statute does not permit courts to reduce the degree of a murder conviction applies to the defendants' further argument that the court should reduce their willful, deliberate, and premediated attempted murder convictions to simple attempted murder: The statute provides "no mechanism for the court," in effect, to vacate the jury's findings that the defendants acted willfully, deliberately, and with premeditation in attempting to kill Portillo. (Didyavong, supra, 90 Cal.App.5th at p. 96.)
DISPOSITION
The orders denying Keller's and Offley's petitions for resentencing are affirmed.
We concur: BENDIX, J. WEINGART, J.