Opinion
C098995
04-08-2024
THE PEOPLE, Plaintiff and Respondent, v. KANE MICHAEL THOMPSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 16FE009089)
RENNER, J.
Defendant Kane Michael Thompson appeals the denial of his Penal Code section 1172.6 petition for resentencing at the prima facie stage. He argues the trial court prejudicially erred when it determined he was the actual killer and thus ineligible for relief. The People counter that the jury instructions and verdicts establish as a matter of law that defendant is the actual killer. As we shall explain, we cannot conclude as a matter of law that the jury determined defendant was the actual killer because there was more than one armed assailant during the robbery, and the jury instructions only required the jury to find defendant's actions caused the victim's death, not that he personally killed the victim. Accordingly, we must reverse and remand for further proceedings.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed his petition under former section 1170.95, we cite to the current section 1172.6 for consistency's sake throughout this opinion.
I. BACKGROUND
The People's September 30, 2016 information charged defendant with murder (§ 187, subd. (a)-count one) and second degree robbery (§ 211-count two). The information further alleged as special circumstances that defendant committed robbery murder (§ 190.2, subd. (a)(17)) in the commission of count one and that defendant had personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) in the commission of counts one and two. Defendant was the only person charged.
According to this court's prior appellate opinion, the People presented evidence that defendant and an unnamed individual robbed the victim, who was shot and died during the robbery. (People v. Thompson (Nov. 19, 2018, C085115) [nonpub. opn.] (Thompson).) Both defendant and the unnamed individual were armed; defendant admitted his gun accidentally went off. (Ibid.)
The "jury convicted defendant Kane Michael Thompson of first degree murder (count one) and second degree robbery (count two). The jury found true the special circumstance that the murder was committed during the commission of a robbery. ([]§ 190.2, subd. (a)(17)(A).) The jury found not true the allegations, with respect to both counts, that defendant personally and intentionally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) Based on his conviction for count one, the trial court sentenced defendant to the mandatory lesser sentence for special circumstance murder, life imprisonment without parole. (§ 190.2, subd. (a).)" (Thompson, supra, C085115, fn. omitted.) We upheld defendant's convictions on appeal but remanded the matter for correction of certain sentencing errors. (Ibid.)
On October 12, 2022, defendant filed a form petition for resentencing under section 1172.6. Counsel was appointed and briefing ensued. At the prima facie hearing, the parties disputed whether defendant's record of conviction conclusively established he was the actual killer and was thus ineligible for relief as a matter of law. Ultimately, the court found defendant had failed to make a prima facie showing he was eligible for relief because he was the actual killer; accordingly, the court denied his petition. Defendant timely appealed.
II. DISCUSSION
A. Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted "to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1(f).) Put simply, Senate Bill No. 1437 "narrowed the application of the felony-murder rule" and eliminated the natural and probable consequences theory as a means of murder prosecution for a killing performed by another person. (People v. Curiel (2023) 15 Cal.5th 433, 448, 449.)
Senate Bill No. 1437 also added former section 1170.95 (now section 1172.6), which allows "those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief." (People v. Gentile (2020) 10 Cal.5th 830, 843.) Section 1172.6, subdivisions (b) and (c) create a two-step process for evaluating a petitioner's eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960-962 (Lewis).) First, the trial court must determine whether the petition is facially sufficient under section 1172.6, subdivision (b). (Lewis, supra, at p. 960.) If the petition is facially sufficient, the court follows subdivision (c) of section 1172.6, appointing counsel (if requested) and following the briefing schedule set forth in the statute. (Lewis, supra, at p. 966.) Following the completion of this briefing, the court determines whether a petitioner has made a prima facie showing that he or she is entitled to relief. (Ibid.)
As our Supreme Court explained: "While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 117[2.6] relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if 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." '" (Lewis, supra, 11 Cal.5th at p. 971.)
We independently review the trial court's decision to deny a section 1172.6 petition for resentencing at the prima facie stage. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
B. Application
Defendant argues the trial court erred by engaging in prohibited factfinding at the prima facie stage. He posits the jury instructions did not require a determination that he was the actual killer, and the trial court erroneously relied upon his trial testimony to find he was the actual killer and thus ineligible for relief. We conclude reversal is required.
In reviewing the record of conviction, courts "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, supra, 11 Cal.5th at p. 972.) However, when "the record . . . makes clear that [the petitioner] was the actual killer and the only participant in the killing," the petitioner "is not entitled to any relief under section 1172.6." (People v. Delgadillo (2022) 14 Cal.5th 216, 233; see People v. Garcia, supra, 82 Cal.App.5th at p. 969 [where record of conviction "unequivocally establishes that defendant was the 'actual killer,'" defendant is not entitled to relief under section 1172.6 as a matter of law].)
The unavailability of section 1172.6 relief to actual killers has been uniformly upheld by courts of this state. (People v. Strong (2022) 13 Cal.5th 698, 710; see, e.g., People v. Garcia (2022) 82 Cal.App.5th 956, 972-973; People v. Harden, supra, 81 Cal.App.5th at pp. 59-60; People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [actual killer convicted of second degree murder ineligible for relief], abrogated on another point in Lewis, supra, 11 Cal.5th at pp. 961-962.)
Defendant posits the jury's determination that he did not personally and intentionally discharge a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) affords for the possibility that the jury did not find he was the actual killer when they found him guilty of first degree murder (§ 187, subd (a)) with a robbery-murder special circumstance (§ 190.2, subd. (a)(17)(A)).
Here, the trial court's jury instructions acknowledged there was evidence defendant did not commit the crime alone and told the jury to judge defendant's guilt independent of any belief that another, uncharged individual may also be guilty. (See CALCRIM No. 373.) The court also instructed the jury on direct aiding and abetting principals. (See CALCRIM Nos. 400 and 401.) Further, the felony-murder instruction given directed the jury that to find defendant guilty, it would have to find: "1. The defendant committed Robbery; [¶] 2. The defendant intended to commit Robbery; [¶] AND [¶] 3. While committing Robbery, the defendant caused the death of another person." (Italics added; See CALCRIM No. 540A.) The robbery-murder special circumstance instruction required the jury to find the same elements. (See CALCRIM No. 730.) Finally, the jury instructions explained: "An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence." (See CALCRIM No. 520.)
Reading these instructions together, we conclude that because the jury instructions allowed the jury to find defendant caused the victim's death without specifically determining that he personally killed the victim, the jury's verdicts do not as a matter of law establish his ineligibility for relief. (People v. Lopez (2022) 78 Cal.App.5th 1, 20; see also People v. Curiel, supra, 15 Cal.5th at pp. 465-468 [evaluating the jury's factual findings associated with its verdicts to determine eligibility for relief].) Moreover, because there were two armed assailants during the robbery (Thompson, supra, C085115), and the jury found not true the allegation that defendant personally and intentionally shot the victim causing his death, we agree that we cannot conclude as a matter of law that defendant was the actual killer and thus ineligible for relief. (See, e.g., People v. Flores (2022) 76 Cal.App.5th 974, 991-992 [defendant is not ineligible as a matter of law because his statement that he ran over victim did not preclude possibility that his accomplice who had shot the victim was the actual killer].) Accordingly, we must reverse the trial court's order denying defendant's petition at the prima facie stage and remand for an evidentiary hearing.
In so finding, we highlight that while a true finding on a felony-murder special circumstance may establish a defendant's ineligibility for resentencing as a matter of law (People v. Strong, supra, 13 Cal.5th at pp. 709-710), the jury instructions in this case did not include the language necessary to make that finding.
III. DISPOSITION
The trial court's postjudgment order denying defendant's section 1172.6 petition is reversed. The matter is remanded with directions to the trial court to issue an order to show cause and conduct further proceedings in accordance with section 1172.6, subdivision (d).
We concur: DUARTE, Acting P. J. BOULWARE EURIE, J.