Opinion
E076313
04-20-2022
THE PEOPLE, Plaintiff and Respondent, v. DENNIS LAMAR REED, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB054315 Annemarie G. Pace, Judge. Reversed and remanded with directions.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
Defendant and appellant, Dennis Lamar Reed, filed a petition for resentencing pursuant to Penal Code section 1170.95, which the court summarily denied by memorandum of decision. On appeal, defendant contends the court erred in denying his petition. We reverse and remand the matter for reconsideration.
All further statutory references are to the Penal Code unless otherwise indicated.
On our own motion, we take judicial notice of our nonpublished opinion in People v. Reed (Oct. 5, 2012, E052504) [nonpub. opn.], from defendant's appeal from the judgment, which was attached to the People's opposition to defendant's petition and is relied upon by both parties on appeal for their factual recitations. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We, however, do not rely on the facts contained in that opinion because with the enactment of Senate Bill No. 775 (2021-2022 Reg. Sess.) and section 1170.95 (Stats. 2021, ch. 551, § 2), the Legislature effectively prohibited such reliance effective January 1, 2022. (People v. Clements (2022) 75 Cal.App.5th 276, 292.)
On September 14, 2010, a jury found defendant guilty of first degree murder (§ 187, subd. (a)) and shooting at an occupied motor vehicle (§ 246). The jury further found true allegations that defendant personally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53, subd. (c)), and personally discharged a firearm causing death (§ 12022.53, subd. (d)) in the commission of the murder. The court sentenced defendant to imprisonment for 50 years to life.
On September 23, 2020, defendant filed a petition for resentencing pursuant to section 1170.95 requesting the appointment of counsel. On October 9, 2020, the People filed an opposition to defendant's petition in which they argued that defendant was not convicted under a felony-murder theory or the natural and probable consequences doctrine. The People further argued that in finding that defendant personally discharged a firearm causing death, the jury determined that defendant was the actual killer.
The court denied the petition by memorandum of decision. The court noted that defendant was not entitled to relief as a matter of law because he was convicted as the actual killer and not under the felony-murder theory or the natural and probable consequences doctrine. The court noted: "There are no jury instructions for felony murder, or natural and probable consequences."
II. DISCUSSION
Defendant contends the court erred in summarily denying his petition prior to appointing him counsel and permitting briefing. Defendant also maintains that any error cannot be deemed harmless because the court records do not clearly establish that defendant was the actual killer and was not convicted under a natural and probable consequences theory. We agree.
"Effective January 1, 2019, the Legislature passed Senate Bill 1437 [(2017-2018 Reg. Sess.)] '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).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, 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 (Lewis).)
The Legislature amended section 1170.95 to, in part, apply to convictions for attempted murder. "The amendment also codifies certain holdings in Lewis . . . ." (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2.)
"Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring 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[;] [¶] (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 murder because of changes to Section 188 or 189 made effective January 1, 2019.' [Citations.] Additionally, the petition shall state '[w]hether the petitioner requests the appointment of counsel.' (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), 'the court may deny the petition without prejudice to the filing of another petition.'" (Lewis, supra, 11 Cal.5th at pp. 959-960.)
"[P]etitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition . . . ." (Lewis, supra, 11 Cal.5th at p. 957.) "[O]nly after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether 'the petitioner makes a prima facie showing that he or she is entitled to relief.'" (Ibid.)
"A denial at [the prima facie] stage is appropriate only if the record of conviction demonstrates that 'the petitioner is ineligible for relief as a matter of law.' [Citations.] This is a purely legal conclusion, which we review de novo." (People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978; accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted Oct. 14, 2020, S264284.)
"The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) "'[I]f the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."'" (Ibid.) "Appellate opinions . . . are generally considered to be part of the record of conviction." (Id. at p. 972.) "[T]he parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief . . . ." (Ibid.)
The Lewis court announced a harmless error standard when a trial court deprives a defendant of his statutory rights under section 1170.95: "[W]e conclude that the deprivation of [the defendant's] right to counsel under subdivision (c) of section 1170.95 was state law error only, tested for prejudice under People v. Watson (1956) 46 Cal.2d 818." (Lewis, supra, 11 Cal.5th at pp. 957-958.) "[A] petitioner 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing."'" (Id. at p. 974.) We presume that standard would also apply to the deprivation of defendant's statutory right to briefing. Thus, defendant has the burden of showing that it is reasonably probable that if he had been afforded the right to file a reply brief, his petition would not have been summarily denied.
Where the jury was not instructed on felony-murder or the natural and probable consequences theories, "the jury necessarily found [the defendant] culpable for murder based on his own actions . . ." and, therefore, the defendant was ineligible for section 1170.95 relief as a matter of law. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055 (Soto); see People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July 22, 2020, S262835 ["[I]f the jury was not instructed on a natural and probable consequences or felony-murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law because relief is restricted to persons convicted under one of those two theories."]; People v. Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius) [The defendant "was ineligible for relief because he was not convicted of felony murder or murder as an aider or abettor under a natural consequences theory."].)
Here, the court erred in denying defendant's facially sufficient petition prior to appointing him counsel and permitting briefing. Moreover, because whatever documentation the court relied upon in denying defendant's petition is not part of the record on appeal, we have no basis for discerning whether the court's denial was harmless. (See People v. Langi (2022) 73 Cal.App.5th 972, 984 [Where the record of conviction does not conclusively negate the possibility that defendant was not the actual killer or convicted under the felony-murder rule or natural and probable consequences doctrine, the matter must be reversed.].) Although the facts recited in People v. Reed, supra, E052504, suggest that defendant was the actual killer, reliance on those facts is now verboten. Thus, the best course would be to simply reverse the order and remand for the appointment of counsel, briefing, and a new prima facie hearing at which the parties can introduce portions of the record of conviction to establish whether defendant is eligible for relief.
The People argue that by rendering a true finding on the personal and intentional use of a firearm enhancement attached to the murder conviction, the jury implicitly found that the defendant was the actual killer. (Cornelius, supra, 44 Cal.App.5th at p. 58.) However, Cornelius relied, in part, on the facts it derived from its own opinion from the defendant's appeal from the judgment. (Cornelius, at p. 56 ["In 1998, Cornelius fatally shot his brother after an argument."].) Since such reliance is no longer permissible, Cornelius cannot stand for the proposition that such a jury finding, alone, renders a defendant ineligible for section 1170.95 relief as a matter of law. Moreover, the court in People v. Offley (2020) 48 Cal.App.5th 588, disagreed with Cornelius, holding that a true finding on a section 12022.53, subdivision (d) enhancement does not establish, as a matter of law, that a defendant is ineligible for section 1170.95 relief. (Offley, at pp. 598-599 ["Because an enhancement under section 12022.53, subdivision (d) does not require that the defendant acted either with the intent to kill or with conscious disregard to life, it does not establish that the defendant acted with malice aforethought."].) Thus, we cannot say that the jury finding, alone, renders defendant ineligible for relief as a matter of law.
The California Supreme Court granted review in Cornelius and held that matter for resolution of Lewis, supra, 11 Cal.5th 952; however, the Supreme Court subsequently dismissed the petition for review in Cornelius, remanded the matter, and deemed the case "non-citable and nonprecedential 'to the extent it is inconsistent with' [the] decision in Lewis." (People v. Cornelius (Oct. 27, 2021, S260410).)
On the other hand, based on the court's instruction of the jury with CALCRIM No. 520, defendant incorrectly contends that "the jurors did receive instruction on the legal theory of natural and probable consequences." However, although in "defining implied malice, CALCRIM No. 520 mentions the concept of the 'natural and probable consequences' of a defendant's own act[, t]he 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. Daniel (2020) 57 Cal.App.5th 666, 677, fn. 4.) "Unlike aiding and abetting implied malice murder, which requires the aider and abettor to (at least) share the mental state of the actual perpetrator of implied malice murder [(CALCRIM No. 520)], '"aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense [e.g., murder] because the nontarget offense was not intended at all."'" (Soto, supra, 51 Cal.App.5th at p. 1058.) Thus, the court's instruction of the jury with CALCRIM No. 520 is not evidence that defendant was potentially convicted under a natural and probable consequences doctrine.
Here, because the court did not document and introduce into the record the evidence it used in determining defendant's ineligibility, the matter must be reversed and remanded. The court is directed to appoint counsel for defendant and permit briefing on the matter. Thereafter, the court may find that defendant is ineligible for relief as a matter of law if it determines that defendant was not convicted pursuant to the felony-murder rule or the natural and probable consequences.
"If the trial court determines that a prima facie showing for relief has been made, the trial court [shall] issue[] an order to show cause, and 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.' [Citation.] 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' [Citation.] At the hearing stage, 'the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.'" (Lewis, supra, 11 Cal.5th at p. 960.)
III. DISPOSITION
The order denying defendant's petition is reversed, and the matter is remanded to the court below with directions to appoint counsel for defendant, allow the filing of a reply to the People's opposition, and hold a hearing to determine whether defendant can make a prima facie showing of relief.
We concur: MILLER, J. CODRINGTON, J.