Opinion
F074785
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. DAWN MARIE SINGH, Defendant and Appellant.
Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F09904296)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This case arises out of the brutal, senseless murders of victims Gary D. and Sandy D. Defendant Dawn Marie Singh joined together with coparticipants Neko Wilson, Christopher Butler, Andrew Jones, Jose Reyes and Leroy Johnson in a plan, masterminded by Wilson, to steal cash and marijuana from the victims' residence. Defendant was the getaway driver and she waited outside the residence in her car with Butler and Jones while Reyes and Johnson entered to commit the theft. Wilson was nearby in his truck.
In accordance with the California Rules of Court, rule 8.90, we refer to the victims by their first names. No disrespect is intended.
As we shall discuss, there is no evidence that killing Gary and Sandy was part of the plan, but as Reyes searched the house with Gary, Johnson slit Sandy's throat in another room and then approached Gary from behind and slit his throat. Reyes ran out the back of the house and was picked up by Wilson shortly thereafter. Johnson fled through the front door and returned to defendant's car. Gary survived his injuries long enough to call 911.
Unbeknownst to participants in the robbery scheme, the victims' residence was under surveillance at the time by law enforcement. After an officer attempted to pull defendant's vehicle over a short distance from the residence to investigate why it had been there, defendant initiated a high-speed pursuit that eventually ended in a traffic collision and the apprehension of defendant, Butler, Jones and Johnson. Wilson and Reyes were arrested sometime later.
Defendant was tried by jury and convicted of two counts of first degree felony murder (Pen. Code, §§ 187, subd. (a), 189, subd. (a)) (counts 1 & 2) and one felony count of evading a peace officer with willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)) (count 3). As to the murder counts, the jury found true the robbery-murder and burglary-murder special circumstances allegations under section 190.2, subdivision (a)(17)(A) and (G), and, in a bifurcated proceeding, defendant admitted suffering three prior convictions for purposes of prior prison term enhancements under section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified.
Section 189 was amended effective January 1, 2019, to limit liability for first degree murder under subdivision (a) to those individuals who actually committed the killing, who did not actually commit the killing but who acted with intent to kill, or who were major participants in the underlying felony and acted with reckless indifference to human life. (Stats. 2018, ch 1015, § 3 (Senate Bill No. 1437 or Sen. Bill No. 1437).) Defendant's request for relief on direct appeal from her felony murder convictions in light of this change in the law, raised in supplemental briefing, is addressed in part III. of the Discussion.
Section 190.2 was amended effective January 1, 2019, to reflect the renumbering of section 288a to section 287. (Stats. 2018, ch. 423, § 43.)
Section 667.5, subdivision (b), was amended effective January 1, 2020, to provide: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code , provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (Sen. Bill. No. 136, approved by Governor, Oct. 8, 2019 (2019-2020 Reg. Sess.) ch. 590, § 1, italics added.)
The trial court sentenced defendant on count 3 to the upper term of three years, plus an additional three years for three prior prison term enhancements, for a total determinate term of six years. On counts 1 and 2, the trial court sentenced defendant to two consecutive terms of life in prison without the possibility of parole (LWOP) pursuant to section 190.2, subdivision (a).
On appeal, defendant challenges the jury's special circumstances findings as unsupported by substantial evidence, and she claims that the trial court's error in instructing the jury on possession of stolen property as evidence of a crime (CALCRIM No. 376) resulted in prejudice as to the jury's special circumstances findings. Regarding her admission of the prior conviction allegations, defendant claims that the trial court failed to advise her of her constitutional rights and, therefore, her admission was not knowing and voluntary. Finally, in supplemental briefing, defendant claims that she is entitled to reversal of her first degree felony murder convictions under Senate Bill No. 1437, and, if we do not agree the special circumstances findings are unsupported by substantial evidence, that her LWOP sentence constitutes cruel and unusual punishment in light of Senate Bill No. 1437.
The People dispute defendant's entitlement to relief on her substantial evidence claim or from her felony murder convictions under Senate Bill No. 1437. They concede the trial court erred in instructing the jury with CALCRIM No. 376, but contend the error was harmless, and they concede defendant is entitled to reversal of the prior prison term enhancements because she was not advised of her rights prior to admitting the allegations.
In accordance with the California Supreme Court's decisions in People v. Clark (2016) 63 Cal.4th 522 (Clark) and People v. Banks (2015) 61 Cal.4th 788 (Banks), we conclude the jury's robbery-murder and burglary-murder special circumstances findings are unsupported by substantial evidence that defendant was a major participant in the underlying felony and that she acted with reckless indifference to human life, and we reverse the findings. This conclusion renders moot defendant's instructional error claim and her constitutional challenge to her LWOP sentence. We also reverse the trial court's findings on the prior conviction allegations because the record does not demonstrate that defendant was advised of her constitutional rights prior to admitting the allegations. Finally, we conclude that with respect to defendant's first degree felony murder convictions, relief under Senate Bill No. 1437 must be sought in the trial court in the first instance through the petition process set forth in section 1170.95. Except as modified, we affirm the judgment.
FACTUAL SUMMARY
I. Background
Spouses Gary and Sandy, who were in their early 60's, had a well-organized marijuana grow operation set up inside their residence in Kerman. At the time of their murders, law enforcement had information about the grow operation and their residence was under surveillance by MAGEC, a multi-agency gang task force, based on a tip that they had been targeted by the Asian Boyz, a criminal street gang, for theft of money and drugs. Officers were in the process of obtaining a search warrant for the residence when the crime in this case occurred.
Although Reyes was in a criminal street gang in July 2009, he was not a member of the Asian Boyz and there was no evidence introduced at trial tying any of the participants in this case to a plot organized by a criminal street gang. Officers watching the house saw Reyes and Johnson get out of defendant's car and approach the house, but they thought Reyes and Johnson were probably there to buy drugs given that neither appeared to fit the typical profile of an Asian Boyz gang member. II. The Plan
Reyes, who entered the victims' residence with Johnson, and Butler, who stayed in the getaway car, testified for the prosecution in exchange for plea deals.
Wilson was friends with Gary and he hatched a plan to steal cash and processed marijuana, which Wilson believed would be ready for sale, from Gary and Sandy. To that end, Wilson contacted Reyes and Jones, and, prior to the crime, the three made a trip to Kerman to scout the locations of Gary's and Sandy's residence and the residence of their son, who lived nearby.
Jones and Butler are related and the day before the murders, Jones showed up at Butler's home and told him about Wilson's plan to steal cash and marijuana. Wilson came over later and told Butler that he knew an older man who had cash and "a nice amount" of high-grade marijuana he wanted to get ahold of before it was sold. Wilson said he needed a driver and mentioned defendant, whom Butler did not know. Wilson contacted defendant by phone and then reported to Butler and Jones that he had a driver. The three planned to meet up later and went their separate ways.
Several hours later, Butler picked up Jones and Reyes and took them back to his house. Wilson then arrived and said everything was set. He called defendant and the five of them met at a shopping center. Butler, who was a drug dealer, wanted the marijuana, but did not want to be involved in a home invasion robbery and was having doubts. Wilson explained the layout of the house to them, and defendant commented that Gary and Sandy had been together for many years, so if they grabbed Sandy, Gary would cooperate.
Defendant, with Wilson as a passenger, headed toward Kerman in her car. Butler, with Reyes and Jones as passengers, drove Wilson's truck. At Jones's suggestion, Butler also picked up Johnson, whom he did not know. Butler testified that although Jones knew Johnson's cousin, he did not think Jones knew Johnson. Butler's doubts about participating continued and when the two groups met up just outside of Kerman, Butler told Wilson he wanted no part of it and he drove back to Fresno. As Butler did not know Johnson and did not want Johnson to know where he lived, he dropped Johnson off somewhere in Fresno before again meeting up with Wilson and defendant at the same shopping center as before.
Wilson proposed returning to Kerman the next morning and set about persuading Butler that no one would be home then because Sandy would be at work and Gary would be away from the house. Butler either agreed to the new plan or agreed to consider the new plan. His assigned role was to drive Wilson's truck and wait in the alley behind the house, where the group would load the stolen marijuana into the truck. The second vehicle—defendant's car—would be positioned in front of the house.
The next morning, Jones called Butler and woke him up. Butler agreed to go along and, driving his own vehicle, met up with Wilson. Wilson was driving his truck and had Jones, Reyes and Johnson with him. Butler followed Wilson into Kerman and they met up with defendant in a parking lot near Gary's and Sandy's residence. The victims knew Wilson's truck, so he changed the plan to involve only defendant's car and he handed out latex gloves. Jones, Reyes and Johnson took some, but Butler did not.
With Butler, Jones, Reyes and Johnson as passengers, defendant drove to Gary's and Sandy's residence. Reyes left his firearm in Wilson's truck, so the group returned to get the gun and then drove back to the residence. Reyes testified that he thought he was the only one armed with a gun, but Butler testified he also had a gun with him. As defendant dropped Reyes and Johnson off and drove by the residence, she noted the front door was open, which Butler testified she described as "'perfect.'" As they drove off, Butler watched from over his shoulder as Reyes and Johnson approached the doorway.
Butler testified that Jones was supposed to go inside the residence with Reyes and Johnson, but Butler, who is Jones's older cousin, held him back. Butler had realized someone was home because there was a truck in the driveway and he told defendant to take him back to his vehicle or drop him off. She refused and said she was not leaving anyone or taking him to his truck.
Reyes testified Butler and Jones were both supposed to go in, but he did not know why they stayed in the car.
Defendant drove to the alley behind the residence as planned but after seeing and hearing nothing, she drove back around to the front.
III. The Murders
Reyes and Johnson entered the victims' residence through the open front door. Reyes had his gun tucked in his waistband. He did not see Johnson armed with anything. He testified there was a knife in the back of Wilson's truck, and although he did not later look for the knife in the truck, he did not think Johnson had picked it up. He also testified that he did not see a knife in defendant's car and he never saw the sheath that was later recovered from the area between the passenger seat and the center console.
Sandy was sitting on the couch in the living room when Reyes and Johnson entered. Reyes asked if anyone else was there and Sandy said Gary was in the shower. She remained seated on the couch. Reyes went down the hall to locate Gary, putting on latex gloves as he went. Reyes found Gary getting dressed and asked him if anyone else was there. Gary said no. By then, Reyes had his gun out.
After Gary put on some clothing and sat down on his bed, he asked if his wife was okay. Reyes said yes and put his gun away. Johnson then entered the bedroom with Sandy. Reyes and Johnson argued a bit because Reyes wanted Johnson to get Butler and Jones, but Johnson did not want to.
Reyes asked Gary where the cash and marijuana were located. Gary said there was no cash and the only marijuana he had was that being grown. Gary showed Reyes a room where some marijuana plants were growing and then showed him another bedroom where he said his son might have something. As Reyes was going through the closet, he heard a male voice next to him say, "'ouch.'" He turned and saw Johnson, knife in hand, cutting Gary's throat and Gary fighting back.
Reyes testified that he was "'[v]ery'" surprised because it was never the plan to kill Gary and Sandy during the robbery, and that he said, "'What the fuck are you doing?'" Reyes pulled out his gun again for his own protection against Johnson, holding it at an angle toward the floor. He testified he "was perplexed due to the circumstances of him killing this old elderly man for no reason or what he was doing to him." Reyes said Johnson said something to the effect of, "'They didn't give me what I wanted.'" Reyes described Johnson as not showing much emotion and as "someone in control."
Johnson took off down the hallway and when Reyes followed, he saw Sandy lying on the floor. He testified that although he did not then know she was dead, he was not surprised to see her on the floor because he thought Johnson might have tied her up even though it was not part of the plan. Reyes saw Johnson exit through the front door and he ran out the back in so much haste that he went through the closed screen door. He threw his gloves in the backyard as he went and testified he was thinking, "I'm dealing with an idiot." Reyes entered the alley expecting to see defendant's car but no one was there. As he kept running, he saw Wilson's truck and waved him down. Wilson picked Reyes up and asked what happened. Reyes told him, "[T]his idiot cut [Gary's] throat for no apparent reason." As they drove, they saw a lot of police cars but made their way back to Fresno, got rid of Reyes's gun and checked into a motel for the night.
Sandy was found lying face down on the floor and one of the responding officers described the scene as "relatively clean" given the fatal wound to her neck.
Reyes turned himself in to police approximately one week later.
IV. The High-speed Pursuit
Johnson ran outside as defendant was pulling around to the front of the house. He had what Butler described as "a dumb look on his face," dropped his gloves on the front lawn and got in the rear passenger seat next to Butler. Johnson was bleeding, and Butler asked him what happened. Johnson said, "'They're dead.'" Butler testified he was shocked and asked, "'What do you mean they're dead?'" Johnson said the man got out of the shower screaming and yelling, and "he had to do what he had to do."
Defendant made a comment about Johnson bleeding in her car and gave him something to wipe it up. She also asked Johnson if he was going to leave his DNA on the lawn, which prompted Johnson to get out of the car to retrieve his gloves. Johnson got back in the car and the group asked where Reyes was, so Johnson went back inside the residence to look for him. Defendant proceeded down the street, made a U-turn and parked in front of a neighbor's house. Butler tried to get defendant to leave because he wanted "to get away from [Johnson] as far as possible," but defendant said she was not leaving anyone.
Gary managed to call 911 after Johnson cut his throat and he asked for an ambulance. Before becoming nonresponsive, he told the dispatcher that his wife had been murdered and his throat had been cut. As previously set forth, the victims' residence was under surveillance at the time of the crimes and a nearby motorcycle officer arrived quickly in response to Gary's 911 call. Johnson had returned to the car by then, unable to find Reyes in the house. As he and Butler argued back and forth about what Johnson had just done, the responding motorcycle officer pulled up. Defendant's car was still in front of the residence and, as she backed her car up, a patrol car also arrived and waved them away. Defendant then drove off.
A call went out to stop defendant's vehicle to investigate its presence at the residence and a nearby California Highway Patrol officer assigned to MAGEC spotted the car traveling at a high rate of speed and then, after slowing to turn, run a stop sign. The officer attempted to initiate a vehicle stop, but defendant accelerated away. As they were driving, Johnson took out Gary's wallet and began removing cash from it. Defendant led pursuing law enforcement officers on a high-speed chase from Kerman to Fresno, at times driving 130 miles per hour, running stop signs and stop lights, and weaving around stopped traffic. Eventually, defendant exited the highway she had entered onto and lost control of her car at an intersection, hitting another vehicle. After her car came to a rest, defendant, Butler, Jones and Johnson exited the car and ran into a nearby auto dismantling yard, where they were eventually located and apprehended. By the time Johnson was located, he was wearing only socks and underwear, but officers later recovered his bloody clothing from a vehicle in the yard.
V. Other Evidence
Sandy suffered one deep cut to her throat, which was fatal within minutes of infliction due to injury to a carotid artery. Gary suffered two cuts to his neck, one of which was fatal, and he had some defensive cuts on the palm of one hand. Because the fatal cut to Gary's neck involved a jugular vein but not a carotid artery, he was able to survive longer than Sandy and place the call to 911.
Inside the residence, officers found five bags of processed marijuana in a file cabinet and 48 immature marijuana plants. They also located a bloody knife on the floor in the entryway, which the parties stipulated had Gary's blood and DNA on it. One latex glove was recovered from the backyard, but no blood or DNA evidence was recovered from it.
After Johnson was apprehended at the auto dismantling yard wearing only his socks and underwear, officers recovered clothing, a hat and latex gloves from inside a white vehicle in the yard. Inside defendant's car, officers found, in relevant part, a .38-caliber handgun Butler identified as his, a wallet with Gary's identification in it, bloody paper towels stuffed into a hat, a black knife sheath between the center console and the front passenger seat, a roll of duct tape on the right rear floorboard, and four latex gloves in the glovebox. The parties stipulated to the following blood and DNA evidence: Gary's blood and DNA were present on the banister and the floor in the entryway of the residence, and on a pair of shorts and a shoe found inside the white vehicle in the auto dismantling yard; Johnson's blood and DNA were present on the steps to the victims' residence, on a button-up shirt and a hat found inside the white vehicle in the auto dismantling yard, and on a T-shirt recovered from the area by the fence Johnson climbed while fleeing police; and both Gary's and Johnson's blood and DNA were located on the walkway in front of the victims' residence and on a rubber glove and papers towels found inside defendant's car.
DISCUSSION
I. Substantial Evidence Challenge to Special Circumstances Findings
The penalty for first degree murder is death, LWOP, or a term of 25 years to life in prison. (§ 190, subd. (a).) Section 190.2 is a sentencing scheme that applies to a defendant who is found guilty of first degree murder where the factfinder also finds true one or more of the special circumstances enumerated therein. (Id., subd. (a).) A true finding by the trier of fact under this sentencing scheme results in a sentence of either death or LWOP.
Relevant here, the sentencing scheme under section 190.2 applies to murder committed "while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit" robbery or burglary. (Id., subd. (a)(17)(A), (G).) The statute further provides, "[E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." (Id., subd. (d), italics added.)
The statutory requirements of major participation and reckless indifference to human life were imported from the United States Supreme Court's decisions in Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v. Florida (1982) 458 U.S. 782 (Enmund), which are discussed in detail below. The Tison-Enmund standard "make[s] lookouts, getaway drivers, and others involved in, but absent from, a robbery or homicide scene categorically ineligible for death [or LWOP] without additional showings as to the degree of their participation and the extent of their awareness or intent that a fatality might result." (People v. Armstrong (2019) 6 Cal.5th 735, 756, citing § 190.2, subd. (d), Enmund, supra, at pp. 795-798 & Banks, supra, 61 Cal.4th at pp. 798-804.)
The parties in this case disagree whether the jury's findings that defendant was a major participant who acted with reckless indifference to human life are supported by substantial evidence. The evidence here demonstrates that although defendant was a willing and committed participant in Wilson's scheme to steal from the victims, her role was confined to that of the classic getaway driver. Moreover, as a matter of law, participation in an armed robbery, alone, does not demonstrate reckless indifference to human life. (Banks, supra, 61 Cal.4th at p. 808, citing Tison, supra, 481 U.S. at p. 157; accord, Clark, supra, 63 Cal.4th at p. 618.) As discussed, post, we find that there is insufficient evidence in the record from which a reasonable jury could have concluded that defendant was a major participant who acted with reckless indifference to human life, thereby bringing her within the purview of section 190.2. As such, the law compels reversal of the jury's special circumstances findings.
B. Standard of Review
"The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' [Citations.] The standard is the same under the state and federal due process clauses. [Citation.] We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (Clark, supra, 63 Cal.4th at p. 610; accord, People v. Hardy (2018) 5 Cal.5th 56, 89; People v. Brooks (2017) 3 Cal.5th 1, 57.)
C. Analysis
1. Decisions in Enmund , Tison , Banks and Clark
With the core constitutional principle that "punishment must accord with individual culpability" as the starting place (Banks, supra, 61 Cal.4th at p. 801; accord, Tison, supra, 481 U.S. at pp. 147-149; accord, Enmund, supra, 458 U.S. at p. 798), the California Supreme Court "described the range of felony-murder participants as a spectrum" (Banks, supra, at p. 800). The Enmund case exemplifies one extreme end of this spectrum: a minor actor not on the scene who did not intend to kill anyone and lacked "'any culpable mental state.' [Citation.] At the other extreme were actual killers and those who attempted or intended to kill." (Banks, supra, at p. 800.) The Tison case exemplifies those cases in "the gray area in between" in which the actor was not the actual killer and did not attempt or intend to kill but was nonetheless a major participant who exhibited reckless indifference to human life and thus satisfies the culpability requirement. (Banks, supra, at p. 800.) The Enmund, Tison, Banks and Clark decisions necessarily guide our application of the relevant standard to the facts in this case and, therefore, we turn first to those decisions.
Although Tison and Enmund were death penalty cases, "[a]s a matter of state statute ..., the Tison-Enmund standard is 'applicable to all allegations of a felony-murder special circumstance, regardless of whether the People seek and exact the death penalty or a sentence of life without parole.'" (Banks, supra, 61 Cal.4th at p. 804, quoting People v. Estrada (1995) 11 Cal.4th 568, 576.)
a. Enmund
In Enmund, an elderly couple was shot to death during an armed robbery in their home. (Enmund, supra, 458 U.S. at p. 784.) Earl Enmund was the getaway driver who sat waiting in his parked car a few hundred feet away from the victims' house while his two confederates were inside. (Ibid.) Enmund and the actual killer were both convicted of first degree murder and sentenced to death. (Id. at p. 785.)
The United States Supreme Court considered whether it was constitutional to impose the death penalty on a defendant who did not kill the victims, did not attempt to kill the victims and did not intend the victims be killed. (Enmund, supra, 458 U.S. at p. 787.) The court concluded that the punishment was unconstitutional and reversed Enmund's sentence, explaining, "Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the [victims]. This was impermissible under the Eighth Amendment." (Id. at p. 798.) "Enmund's criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just des[s]erts." (Id. at p. 801.)
b. Tison
Five years later, the United States Supreme Court considered whether it was constitutional to impose the death penalty where the defendants—two of three brothers involved in the crimes with their father and his prison cellmate—were not the actual killers and did not specifically intend the victims' deaths, but played a greater role in the crimes than did the getaway driver in Enmund. (Tison, supra, 481 U.S. at pp. 151, 158.) The court rejected the minority position among courts that an intent to kill was required to support imposition of capital punishment, stating "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result." (Id. at pp. 157-158.) The court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." (Id. at p. 158.)
In Tison, the two Tison brothers, along with a third brother, entered a prison with an ice chest containing guns. (Tison, supra, 481 U.S. at p. 139.) Once inside, they armed their father and his cellmate, both convicted murderers, and the group fled the prison. (Ibid.) Several days later, after the group's car got a flat tire and they decided to steal a car, one brother flagged down a passing motorist. (Id. at pp. 139-140.) After the others emerged from hiding, the motorist and his family were forced into the group's disabled car and driven into the desert by two of the brothers. (Id. at p. 140.) After transferring belongings from the group's disabled car to the victims' car, one brother drove the disabled car even farther into the desert at his father's direction. (Ibid.) The motorist begged the group for his life but after the brothers' father apparently considered the options, he and his cellmate shot to death the motorist as well as the motorist's wife, his toddler son and his teenage niece. (Id. at pp. 140-141.) The group fled and was stopped several days later at a roadblock. (Id. at p. 141.) One brother was killed during the shootout with police, their father died of exposure after fleeing into the desert, and the two remaining Tison brothers, along with their father's cellmate, were brought to trial, convicted and sentenced to death. (Ibid.)
The court found the facts "clearly support a finding that [the Tison brothers] subjectively appreciated that their acts were likely to result in the taking of innocent life" (Tison, supra, 481 U.S. at p. 152) and described the brothers' participation in the crime as "'substantial,'" thus satisfying the Enmund standard (Tison, supra, at p. 158).
c. Banks
Almost three decades later, in Banks, the California Supreme Court applied the Tison-Enmund standard in a case that involved the armed robbery of a medical marijuana dispensary. (Banks, supra, 61 Cal.4th at p. 795.) An armed security guard who exchanged gunfire with Leon Banks was shot and killed, and the group escaped. (Id. at pp. 795-796.) The court concluded that the getaway driver, the defendant Lovie Troy Matthews, was not a major participant and did not act with reckless indifference to human life, and it reversed the jury's true special circumstance finding. (Id. at p. 807.)
Matthews was not at the scene of the armed robbery; after dropping his three confederates off to rob the dispensary, he waited three blocks away for 45 minutes before he received a phone call from one of them and picked them up. (Banks, supra, 61 Cal.4th at pp. 804-805.) There was no evidence Matthews had a role in planning the robbery, obtained the weapons, could see or hear the shooting, instigated the shooting or could have prevented the shooting. (Id. at p. 805.) There was also no evidence Matthews had previously committed any crimes of violence (ibid.); of his three confederates, evidence of past acts of violence was nonexistent as to one and "so attenuated as to be essentially nonexistent" as to the other two (id. at p. 811); and there was no evidence Matthews knew there would be a guard at the dispensary, let alone an armed guard (ibid.).
The court concluded that "Matthews was, in short, no more than a getaway driver, guilty like Earl Enmund of 'felony murder simpliciter' [citations] but nothing greater." (Banks, supra, 61 Cal.4th at p. 805.) "Because nothing in the record reflects that Matthews knew there would be a likelihood of resistance and the need to meet that resistance with lethal force, the evidence failed to show Matthews 'knowingly engag[ed] in criminal activities known to carry a grave risk of death.'" (Id. at p. 811.)
d. Clark
A year later, the California Supreme Court considered a case that involved a defendant who, although not present at the scene of the murder, was more than just a mere getaway driver. (Clark, supra, 63 Cal.4th at pp. 611-612.) In contrast with Matthews in Banks, the defendant in Clark, William Clinton Clark, masterminded and organized an after-hours armed robbery of a computer store, and he orchestrated the robbery itself from a car in the store's parking lot. (Id. at pp. 612, 623.)
The court considered that the group of robbers knew there would still be employees present in the store at the planned time, although most would have left already. (Clark, supra, 63 Cal.4th at pp. 612-613.) During the robbery, those inside the store handcuffed the employees who were present and left them in the bathroom, as planned. (Id. at pp. 536, 613, 620.) There was one weapon involved in the robbery, loaded with one bullet, although there was some evidence that the gun was supposed to be unloaded. (Id. at pp. 613, 619.) When the mother of an employee approached the store, apparently to find out what was taking her son so long to come out, her arrival caught one of the participants, Nokkuwa Ervin, off guard and he shot her in the head, killing her. (Id. at pp. 535, 537, 612-613.) At that time, Clark was in a car in the parking lot and was not in the immediate area of the shooting. (Id. at pp. 614, 619.) The court found no evidence that Clark directed Ervin to use lethal force, knew Ervin had a propensity for violence, had the opportunity to observe Ervin's response to the victim's arrival at the store, or could have intervened in time. (Id. at pp. 619, 621.)
The court did not decide whether Clark was a major participant in the crime, but it concluded that the evidence was insufficient to support a finding of reckless indifference to human life. The court explained, "[The] [d]efendant's culpability for [the victim's] murder resides in his role as planner and organizer, or as the one who set the crime in motion, rather than in his actions on the ground in the immediate events leading up to her murder. But also relevant to his culpability as planner, there is evidence supporting that [the] defendant planned the crime with an eye to minimizing the possibilities for violence. Such a factor does not, in itself, necessarily preclude a finding of reckless indifference to human life. But here there appears to be nothing in the plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery. Given [the] defendant's apparent efforts to minimize violence and the relative paucity of other evidence to support a finding of reckless indifference to human life, we conclude that insufficient evidence supports the robbery-murder and burglary-murder special circumstance findings ...." (Clark, supra, 63 Cal.4th at p. 623.)
2. Application of Tison-Enmund Standard
a. Major Participant
Under section 190.2, the actus reus is major participation in the underlying felony. (Banks, supra, 61 Cal.4th at p. 798.) In determining whether defendant was a major participant, the focus of the inquiry is "'whether [her] participation "in criminal activities known to carry a grave risk of death" [citation] was sufficiently significant to be considered "major [citations]."'" (Clark, supra, 63 Cal.4th at p. 611, quoting Banks, supra, at p. 803.) Although the list is not exclusive, in Banks the court identified the following factors as relevant to the determination whether a defendant was a major participant in the underlying crime: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, at p. 803, fn. omitted; accord, Clark, supra, at p. 611.)
1) Defendant's Role in Planned Robbery
The People argue the evidence is sufficient to support a reasonable inference that defendant was a major participant in the murders of Gary and Sandy but, as a matter of law, a mere getaway driver is not a major participant. (People v. Armstrong, supra, 6 Cal.5th at p. 756; Banks, supra, 61 Cal.4th at p. 807, citing Tison, supra, 481 U.S. at p. 149.) The undisputed evidence demonstrates that Wilson, who knew the victims and was familiar with their marijuana operation, masterminded the robbery operation and he contacted defendant the night before the murders because he needed a getaway driver. Notwithstanding the People's contrary argument, the fact that defendant and the other participants drove to the victims' house the night before their murders but then turned around does not elevate her participation beyond that of the getaway driver, nor does her car's position in the front of the house or the group's plan to load the marijuana into the trunk of her car. The People also argue that cell phone records demonstrating prior contact between Wilson and defendant are sufficient to support an inference that defendant was involved earlier in the planning stage, but this contention is both unpersuasive and analogous to an argument expressly rejected in Banks. (Banks, supra, 61 Cal.4th at pp. 806-807.) Evidence that defendant and Wilson spoke on the phone prior to her involvement as the getaway driver demonstrates some sort of relationship predating the night he contacted her to drive, but it is purely speculative to suggest that prior phone calls, the nature of which are unknown, somehow demonstrate she was engaged in planning the crime along with Wilson. (Ibid.)
We are not persuaded otherwise by the People's reliance on People v. Smith (2005) 135 Cal.App.4th 914, overruled on another ground as recognized in People v. Garcia (2008) 168 Cal.App.4th 261, 291-292. As an initial matter, that appellate decision preceded the California Supreme Court's binding decisions in Clark and Banks. Moreover, even assuming the case might be decided the same way postClark and Banks, it is factually distinguishable. In that case, the defendant stood just outside a motel room door while inside, the victim was stabbed, slashed, beaten with a clothing iron, and had her head slammed through the wall during a lengthy, loud altercation. (People v. Smith, supra, at pp. 927-928.)
Regarding weapons, defendant was aware that Reyes was armed with a gun because they returned to retrieve it from Wilson's truck before returning to the house, but the evidence does not demonstrate that she knew Johnson was armed with the knife used to kill the victims and she did not supply group members with any weapons in any event.
During oral argument, the People contended that defendant's awareness of the knife was evidenced by the presence of the sheath later recovered from her car. As the sheath was located between the center console and the passenger seat, and neither Reyes nor Butler saw a knife or was aware Johnson armed himself with one, we are not persuaded that the evidence suffices to support a reasonable inference that defendant knew Johnson had a knife. Regardless, defendant did not use a weapon, there is no evidence she supplied the weapon used, and mere knowledge that a coparticipant is armed does not weigh toward major participation. (Banks, supra, 61 Cal.4th at pp. 803-805.)
2) Defendant's Presence at Scene and Awareness of Risks Posed by Confederates
Like the defendants in Enmund and Banks, defendant remained in her car and, therefore, she was not in a position either to facilitate or to prevent the victims' deaths, and neither her action nor her inaction played any role in their deaths. The People point out that defendant had suggested grabbing Sandy to gain Gary's cooperation, but it is not reasonably inferable from this statement that defendant suggested Gary or Sandy be physically injured or killed. Based on the presence of the truck in the driveway, which Butler noticed, and the open front door, which defendant expressly commented on, we may infer her awareness that someone was home. However, as discussed, there is no evidence that defendant knew Johnson was armed with the knife he used to kill the victims or that he, or anyone else, planned to harm the victims. To the contrary, the evidence that the robbery plan did not involve harming or killing the victims was unrefuted. (In re Ramirez (2019) 32 Cal.App.5th 384, 404 (Ramirez).)
There is also no evidence that Johnson, or any other member of the group, had a history of violent conduct of which defendant was aware. The evidence introduced at trial indicates that Wilson brought defendant into the plan and no one knew Johnson well, if at all. Butler testified that Johnson was brought into the group by Jones, but that Jones knew Johnson's cousin rather than Johnson.
3) Postmurder Conduct
Finally, defendant's reaction upon learning that Johnson had killed the victims may only be described as cold and callous. She expressed no shock or horror according to Butler, and instead fulfilled her designated role by driving the group away from the crime scene. However, her mere reaction to the deaths after the fact does not elevate her role from getaway driver to a major participant. (Banks, supra, 61 Cal.4th at p. 807; Ramirez, supra, 32 Cal.App.5th at p. 404.) As the California Supreme Court explained, a participant who did not see the murders occur, had no reason to know the murders were going to occur and could not do anything to stop the murders or render assistance, and who drove to the crime scene, waited for his or her confederates to commit a planned crime and then drove them to safety afterward "is the quintessential 'minor actor'" (Banks, supra, at p. 807) "and, as a matter of law, cannot qualify as a major participant under section 190.2[, subdivision ](d)" (ibid.).
Defendant's involvement in this case cannot be meaningfully distinguished from that of the getaway drivers in Enmund and Banks. (Banks, supra, 61 Cal.4th at pp. 805-807.) Accordingly, the jury's finding that defendant was a major participant in the murders of Sandy and Gary must be reversed as unsupported by substantial evidence.
b. Reckless Indifference to Human Life
The specific mens rea imposed under section 190.2 is reckless indifference to human life (Banks, supra, 61 Cal.4th at p. 798), which "'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death"'" (id. at p. 807). "Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient ...." (Id. at p. 808; accord, Clark, supra, 63 Cal.4th at p. 618.)
There is significant overlap between the actus reus requirement of major participation and mens rea requirement of reckless indifference to human life and the factors we have addressed in evaluating defendant's conduct necessarily also inform our evaluation of defendant's mental state; that is, whether she knowingly created a "'grave risk of death.'" (Banks, supra, 61 Cal.4th at p. 808.) In Clark, the court considered the following factors in reaching the conclusion that the defendant did not act with reckless indifference to human life: knowledge of, use of and number of weapons; physical presence at the crime scene and ability to restrain the crime or provide aid; duration of the crime; knowledge of perpetrators' likelihood of killing; and effort to minimize risk of violence. (Clark, supra, 63 Cal.4th at pp. 618-622.)
In an issue of first impression, the California Supreme Court concluded in Clark that a defendant may raise his or her "apparent efforts to minimize the risks of violence in the commission of a felony ...." (Clark, supra, 63 Cal.4th at p. 622.) In Clark, the issue was relevant by virtue of the defendant's role as "the principal planner and instigator of the robbery." (Ibid.) Here, notwithstanding the People's contrary position during oral argument, there is no evidence defendant acted as other than the getaway driver. Therefore, this potentially mitigating factor is not relevant in this case.
1) Weapons Involvement
In Clark, where the victim was shot to death during an armed robbery, the court explained that "mere ... awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 618, citing Banks, supra, 61 Cal.4th at p. 809; accord, In re Taylor (2019) 34 Cal.App.5th 543, 557-558 (Taylor); Ramirez, supra, 32 Cal.App.5th at pp. 405-406.) However, bringing an arsenal of weapons into a prison and later guarding the victims with those weapons was viewed as a significant fact in Tison, as is a defendant's "use of a firearm," even in the absence of intent to kill or evidence identifying which confederate killed the victim. (Clark, supra, at p. 618.)
As we have discussed, Reyes and Butler were both armed with handguns, and the evidence demonstrates that defendant was aware Reyes had a gun. However, Reyes did nothing more than display his gun inside the house. The murders were committed suddenly by Johnson with a knife and without warning even to Reyes, who was the only member of the group inside the house with Johnson. The evidence does not demonstrate that defendant or anyone else knew Johnson was armed with a knife, let alone that he intended to use it.
The People mention the empty knife sheath located between the center console and front passenger seat, and the jury was shown a photograph of the knife recovered in the victims' house next to the sheath, from which the jury might have inferred that Johnson had the knife in the car with him. However, as previously addressed, this evidence does not suffice to show that defendant, Butler or Reyes saw the sheath or Johnson's knife, and Reyes stated he was unaware of the knife until he turned and saw Johnson using it.
It is not clear when Johnson armed himself with a knife. Reyes did not think Johnson grabbed a knife inside the house, but there is also no evidence anyone saw Johnson with the knife in the car or saw the sheath that was recovered. Butler testified that Johnson had a long kitchen knife with him when he returned to the car. However, a bloody knife was recovered later from inside the house, and officers did not find a knife in defendant's car or in the auto dismantling yard.
2) Presence at the Crime Scene
Next, as we have already discussed, defendant remained in the getaway car and was not present during the murders. She therefore lacked the opportunity to intervene in the murders or to aid the victims. After Johnson told those waiting in the car that he killed the victims, defendant's reaction, as recognized, was cold and callous: she expressed no concern over the unexpected murders and was instead concerned about Johnson leaving his DNA behind and getting blood in her car. The evidence does not suggest, however, that there was anything defendant could have done to aid the victims. Johnson told defendant, Butler and Reyes that the victims were dead and, as in Clark, law enforcement arrived before defendant drove away, placing her on notice that help had arrived. (Clark, supra, 63 Cal.4th at pp. 619-620.)
We note that during oral argument, the People contended Gary could have lived up to 10 minutes, approximately, and, therefore, there was an opportunity for defendant to have rendered aid. The People's argument is belied by the evidence: Gary had become incoherent by the end of his brief 911 call, law enforcement arrived at the scene prior to defendant's departure, and both Gary and Sandy were already deceased when law enforcement entered their residence.
The California Supreme Court has not held any one factor either sufficient or insufficient to support a finding of reckless indifference to human life, but, in Taylor, the Court of Appeal concluded that although the defendant, who planned the robbery and made the decisions, was a major participant, his disturbing postshooting behavior was not, standing alone, sufficient to "show he acted with reckless disregard to the risk of human life posed by the planned robbery." (Taylor, supra, 34 Cal.App.5th at p. 559.) In that case, the defendant and several other men participated in the attempted robbery of a liquor store employee as she was making a bank deposit. (Id. at pp. 547-548.) Out of the defendant's view, one of the participants shot the employee and she died approximately 30 minutes later. (Id. at p. 548.) The day after the attempted robbery, one of the participants asked the defendant what they should do. (Id. at p. 560.) He said not to tell anyone and, of the victim, stated, "'Fuck that old bitch.'" (Ibid.) The court concluded that the defendant's actions after the shooting, while abhorrent, were insufficient, standing alone, to constitute substantial evidence that he acted with reckless indifference to human life in participating in the attempted robbery. (Id. at p. 559.)
We conclude here that under these postmurder circumstances and in the absence of evidence that defendant directed the killings, encouraged the killings or knew the killings were going to occur, her comments, however reprehensible, fall short of demonstrating that she acted with reckless indifference to human life in participating in the robbery. Nor does consideration of defendant's suggestion that someone grab Sandy to secure Gary's cooperation alter the analysis. Defendant's suggestion in this regard clearly evidences her willingness to threaten or scare the victims into cooperating but it falls short of supporting a reasonable inference that she was suggesting or encouraging physical injury or death. There is no evidence Wilson's plan involved injuring or killing the victims; Reyes expected Gary to be home, but thought Gary would be cooperative; and Butler had been persuaded by Wilson that no one would be home. It bears repeating that "[a]wareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a 'grave risk of death' satisfies the constitutional minimum." (Banks, supra, 61 Cal.4th at p. 808, quoting Tison, supra, 481 U.S. at p. 157; accord, Clark, supra, 63 Cal.4th at p. 618.)
The People rely on People v. Gonzalez (2016) 246 Cal.App.4th 1358, People v. Medina (2016) 245 Cal.App.4th 778, and People v. Smith, supra, 135 Cal.App.4th 914 for the proposition that defendant's failure to aid the victims demonstrated reckless indifference to human life. As we previously observed, People v. Smith predates Banks and Clark, and People v. Gonzales and People v. Medina predate Clark. Regardless, in none of the three cases did the disposition rest entirely on the defendant's failure to aid the victim after the crime; rather, the cases involved additional evidence supporting a finding of reckless indifference to human life. (People v. Gonzalez, supra, at pp. 1385-1386; People v. Medina, supra, at pp. 791-793; People v. Smith, supra, at pp. 927-928.)
3) Duration of Felony
"The duration of the interaction between victims and perpetrators" is also a consideration. (Clark, supra, 63 Cal.4th at p. 620.) This is not a case in which the victims' deaths occurred "at the end of a prolonged period of restraint," giving the perpetrators time to consider their next steps and increasing the "'window of opportunity for violence ....'" (Ibid.) The plan was for members of the group to enter the residence, steal cash and marijuana, and move it to the back alley for loading, and the evidence shows that only minutes passed between the group's arrival at the victims' residence and their departure. Thus, in contrast with Tison, this case does not involve murders that occurred "at the end of a prolonged period of restraint of the victims by [the] defendant." (Ibid.; accord, Taylor, supra, 34 Cal.App.5th at p. 558.)
4) Johnson's Likelihood of Killing
Finally, "[a] defendant's knowledge of factors bearing on a cohort's likelihood of killing [is also] significant to the analysis of reckless indifference to human life. [A] [d]efendant's knowledge of such factors may be evident before the felony or may occur during the felony." (Clark, supra, 63 Cal.4th at p. 621.) In this case, there is no evidence that defendant knew Johnson prior to coming together under Wilson's plan and there is no evidence that, prior to entering the residence to commit the robbery, he gave any outward indication that he planned on, or was capable of, committing the horrific crimes he committed against the victims. (Ibid.; Banks, supra, 61 Cal.4th at pp. 807-808; Taylor, supra, 34 Cal.App.5th at p. 558; Ramirez, supra, 32 Cal.App.5th at p. 405 [mere knowledge of other participants' gang membership and delinquency history insufficient to support an inference of knowledge or expectation of deadly violence].) There is also no evidence that any of the other participants had a propensity for violence of which defendant was aware. (Clark, supra, at p. 621; Banks, supra, at pp. 807-808; Taylor, supra, at p. 558; Ramirez, supra, at p. 405.)
Accordingly, in addition to the absence of substantial evidence that defendant was a major participant, we conclude there is not substantial evidence that defendant acted with reckless indifference to human life. We reverse the jury's special circumstances findings and remand for resentencing.
II. Admission of Prior Prison Term Allegations
In a bifurcated proceeding, defendant admitted the prior conviction allegations. Defendant now claims, and the People concede, that prior to taking the admission, the trial court failed to advise defendant of her constitutional rights and, therefore, her plea was not knowing and voluntary. (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).)
"When a criminal defendant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary." (Cross, supra, 61 Cal.4th at p. 170, citing Boykin v. Alabama (1969) 395 U.S. 238, 243-244.) "As a prophylactic measure, the court must inform the defendant of three constitutional rights—the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers—and solicit a personal waiver of each." (Cross, supra, at p. 170, citing Boykin v. Alabama, supra, at pp. 243-244, People v. Howard (1992) 1 Cal.4th 1132, 1179 & In re Tahl (1969) 1 Cal.3d 122, 130-133.) "Proper advisement and waiver of these rights, conducted with 'the utmost solicitude of which courts are capable,' are necessary 'to make sure [the accused] has a full understanding of what the plea connotes and of its consequence.'" (Cross, supra, at p. 170, quoting Boykin v. Alabama, supra, at pp. 243-244.) "[T]he same requirements of advisement and waiver apply when a defendant admits the truth of a prior conviction allegation that subjects him to increased punishment." (Cross, supra, at p. 170, citing In re Yurko (1974) 10 Cal.3d 857, 863.) The error is not reversible per se, however (Cross, supra, at p. 171), and "a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances" (People v. Howard, supra, at p. 1175; accord, People v. Mosby (2004) 33 Cal.4th 353, 361-362 [discussing no advisement or waiver and incomplete advisement or waiver]).
In this case, the record is silent regarding an advisement of defendant's constitutional rights, precluding a finding that she knowingly and voluntary admitted the prior conviction allegations. (People v. Cross, supra, 61 Cal.4th at p. 170; People v. Howard, supra, 1 Cal.4th at pp. 1174-1175.) Accordingly, we accept the People's concession of error, reverse the trial court's findings on the prior conviction allegations and remand for further proceedings.
III. Senate Bill No. 1437
A. Background
Finally, effective January 1, 2019, Senate Bill No. 1437 was enacted "to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual." (Stats. 2018, ch. 1015, § 1, subd. (e).) The Legislature declared it was necessary 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." (Id., subd. (f).)
To that end, Senate Bill No. 1437 amended section 188, defining malice, and section 189, defining the degrees of murder, to address felony murder liability. Senate Bill No. 1437 also added section 1170.95 to the Penal Code, which provides, in part:
"A person convicted of felony murder or murder under a natural and probable consequences theory may 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 when all of the following conditions apply:
"(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.
"(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." (§ 1170.95, subd. (a).)
As explained in People v. Martinez (2019) 31 Cal.App.5th 719 (Martinez), "Pursuant to section 1170.95, subdivision (c), the petition shall include, among other things, a declaration by the petitioner stating he or she is eligible for relief based on all three aforementioned requirements of subdivision (a). A trial court that receives a petition under section 1170.95 '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.' (§ 1170.95, subd. (c).) If the petitioner has made such a 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 ... loppreviously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' (§ 1170.95, subd. (d)(1).) 'The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner.' (§ 1170.95, subd. (d)(2).) Significantly, if a hearing is held, '[t]he prosecutor and the 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.' (§ 1170.95, subd. (d)(3).) '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.' (§ 1170.95, subd. (d)(3).)" (Martinez, supra, 31 Cal.App.5th at pp. 723-724.)
B. Availability of Relief on Direct Appeal
Defendant did not kill Gary and Sandy, and the parties agree that the changes to felony murder effected by Senate Bill No. 1437 apply retroactively. They disagree on whether defendant is limited to utilizing the petition procedure under section 1170.95, however.
Several Courts of Appeal have considered whether the changes to the law effected by Senate Bill No. 1437 afford defendants relief on direct appeal and concluded that relief must be sought in the trial court in the first instance via the petition procedure set forth in section 1170.95. (Martinez, supra, 31 Cal.App.5th at p. 729; accord, People v. Anthony (2019) 32 Cal.App.5th 1102, 1157-1158 (Anthony) [following Martinez]; In re R.G. (2019) 35 Cal.App.5th 141, 151 [interpreting Sen. Bill No. 1437 to apply to juveniles, & following Martinez & Anthony]; accord, People v. Munoz (2019) 39 Cal.App.5th 738, 751-752; People v. Lopez (2019) 38 Cal.App.5th 1087, 1113; see People v. Carter (2019) 34 Cal.App.5th 831, 835 [analysis of issue not set forth in published portion of opinion, but concluding the defendants must file a petition in trial court raising Sen. Bill No. 1437 claims]; but see People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 418-419 [resolving claim on direct appeal where the statutory changes did not benefit the defendant].) We agree with these decisions.
Section 3 provides that "[n]o part of it is retroactive, unless expressly so declared." However, "new laws that reduce the punishment for a crime are presumptively to be applied to defendants whose judgments are not yet final." (People v. Conley (2016) 63 Cal.4th 646, 656 (Conley), citing In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) "The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, 'a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" (People v. Buycks (2018) 5 Cal.5th 857, 881-882, quoting Conley, supra, at p. 657.) "'The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses.'" (People v. Buycks, supra, at p. 882, quoting People v. Nasalga (1996) 12 Cal.4th 784, 792.)
Proposition 47, passed by voter initiative in 2014, "reduce[d] many common theft- and drug-related offenses from felonies to misdemeanors for offenders who do not have prior convictions for specified violent or serious offenses" (People v. DeHoyos (2018) 4 Cal.5th 594, 597 (DeHoyos)), and Proposition 36, passed by voter initiative in 2012, amended the Three Strikes law "to reduce the punishment prescribed for certain third strike defendants" (Conley, supra, 63 Cal.4th at p. 651). Both provided petition procedures by which defendants could seek relief in the trial court based on the changes to the law effected by the propositions. (§§ 1170.18, subd. (a) [Prop. 47], 1170.126, subd. (b) [Prop. 36].) The California Supreme Court considered whether defendants whose judgments were not yet final on appeal were entitled to relief under the propositions on direct appeal or were instead required to seek relief via the petition procedure provided for by the voters. (DeHoyos, supra, at p. 597 [Prop. 47]; Conley, supra, at p. 652 [Prop. 36].) In both instances, the California Supreme Court concluded that defendants who were serving their sentences but whose judgments were not final on appeal were required to seek resentencing through the statutory petition procedure provided for by the voters. (DeHoyos, supra, at p. 597; Conley, supra, at p. 652.)
As did Proposition 47 and Proposition 36, Senate Bill No. 1437 provides for a specific procedure by which a petitioner may seek relief from a conviction based on felony murder or murder under a natural and probable consequences theory. (§ 1170.95.) The Court of Appeal in Martinez extensively reviewed the DeHoyos and Conley decisions and concluded that the analytical framework set forth therein applies equally to Senate Bill No. 1437. (Martinez, supra, 31 Cal.App.5th at pp. 725-727; accord, Anthony, supra, 32 Cal.App.5th at pp. 1149-1153.)
The Martinez court explained, "Like Propositions 36 and 47, Senate Bill 1437 is not silent on the question of retroactivity. Rather, it provides retroactivity rules in section 1170.95. The petitioning procedure specified in that section applies to persons who have been convicted of felony murder or murder under a natural and probable consequences theory. It creates a special mechanism that allows those persons to file a petition in the sentencing court seeking vacatur of their conviction and resentencing. In doing so, section 1170.95 does not distinguish between persons whose sentences are final and those whose sentences are not. That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal.
"The remainder of the procedure outlined in section 1170.95 underscores the legislative intent to require those who seek retroactive relief to proceed by way of that statutorily specified procedure. The statute requires a petitioner to submit a declaration stating he or she is eligible for relief based on the criteria in section 1170.95, subdivision (a). (§ 1170.95, subd. (b)(1)(A).) Where the prosecution does not stipulate to vacating the conviction and resentencing the petitioner, it has the opportunity to present new and additional evidence to demonstrate the petitioner is not entitled to resentencing. (§ 1170.95, subd. (d)(3).) The petitioner, too, has the opportunity to present new or additional evidence on his or her behalf. (§ 1170.95, subd. (d)(3).) Providing the parties with the opportunity to go beyond the original record in the petition process, a step unavailable on direct appeal, is strong evidence the Legislature intended for persons seeking the ameliorative benefits of Senate Bill 1437 to proceed via the petitioning procedure. The provision permitting submission of additional evidence also means Senate Bill 1437 does not categorically provide a lesser punishment must apply in all cases, and it also means defendants convicted under the old law are not necessarily entitled to new trials. This, too, indicates the Legislature intended convicted persons to proceed via section 1170.95's resentencing process rather than avail themselves of Senate Bill 1437's ameliorative benefits on direct appeal." (Martinez, supra, 31 Cal.App.5th at pp. 727-728; accord, Anthony, supra, 32 Cal.App.5th at pp. 1152-1153.) We are unpersuaded by defendant's argument that Martinez, which in our view is well reasoned, was wrongly decided.
In her reply brief, defendant argues that if we follow Martinez, we render subdivision (f) of section 1170.95 meaningless. We disagree. That subdivision, as previously set forth, provides, "This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner." Martinez, however, confronted and rejected the same argument (Martinez, supra, 31 Cal.App.5th at pp. 728-729), as did the high court in DeHoyos and in Conley (DeHoyos, supra, 4 Cal.5th at p. 605; Conley, supra, 63 Cal.4th at pp. 661-662). In DeHoyos, the California Supreme Court explained that such language "'protects a person "from being forced to choose between filing a petition for a recall of sentence and pursuing other legal remedies to which they might be entitled (e.g., petition for habeas corpus)."' [Citation.] [The] subdivision ... itself does not create an entitlement to resentencing outside of the petition process, without regard to the substantive requirements the voters prescribed ...." (DeHoyos, supra, at p. 605.)
Accordingly, we conclude that defendant must seek relief from her first degree felony murder convictions in the trial court in the first instance via the specific petition procedure provided for by the Legislature vis-à-vis section 1170.95. (Martinez, supra, 31 Cal.App.5th at p. 729; accord, People v. Munoz, supra, 39 Cal.App.5th at pp. 751-752; People v. Lopez, supra, 38 Cal.App.5th at pp. 1113-1116; Anthony, supra, 32 Cal.App.5th at p. 1158; In re R.G., supra, 35 Cal.App.5th at p. 151.) We recognize that in determining whether substantial evidence supports the jury's special circumstances findings, we considered whether defendant was a major participant who acted with reckless indifference toward human life, but our review of Senate Bill No. 1437 in this context is one of statutory interpretation and we have concluded that the Legislature intended for defendants to seek relief via the petition process provided for under the law rather than on direct review. As a matter of general principle, we may not, under the guise of statutory interpretation, rewrite the law. (Switzer v. Wood (2019) 35 Cal.App.5th 116, 128-129; People v. Nettles (2015) 240 Cal.App.4th 402, 408.)
DISPOSITION
The jury's special circumstances findings under section 190.2, subdivision (a)(17)(A) and (G), are reversed as unsupported by substantial evidence, and the trial court's findings that defendant suffered three prior convictions are reversed for failure to advise defendant of her constitutional rights. This matter is remanded for further proceedings and for resentencing, after which the trial court shall issue an amended abstract of judgment and forward it to the appropriate authorities. Except as modified, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.