Opinion
B324981
04-29-2024
THE PEOPLE, Plaintiff and Respondent, v. TYRONE TITTLE, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA126434 Eleanor J. Hunter, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Tyrone Tittle appeals from an order (1) denying his petition for resentencing under Penal Code section 1172.6and (2) declining to address whether Tittle was entitled to resentencing under section 1172.75. Tittle contends that he was denied effective assistance of counsel at his section 1172.6 hearing, because the court had earlier denied funding for his court-appointed counsel's work investigating the operability of the firearm Tittle's codefendant used in the attempted murder of which Tittle was convicted as a direct aider and abettor. In so doing, the court noted that such evidence was irrelevant to Tittle's section 1172.6 petition. According to Tittle, this effectively assured his counsel would not offer evidence or pursue arguments related to the operability of the firearm and Tittle's knowledge of its operability, thereby improperly and prejudicially limiting his counsel's ability to effectively represent him at the hearing. We disagree and affirm the court's ruling denying the section 1172.6 petition.
Subsequent unspecified statutory references are to the Penal Code. Tittle filed his petition under the predecessor to section 1172.6, which was originally codified as section 1170.95. (See Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) For the sake of consistency and to avoid confusion, we will refer only to the current statutory designation.
As to the section 1172.75 issue, before denying Tittle's motion, the trial court received notice from the California Department of Corrections and Rehabilitation (CDCR) identifying Tittle as an inmate entitled to relief under that section, triggering certain obligations for the trial court. Tittle himself did not have standing to move for such relief or request that the court fulfill its statutory obligations. Nor was arguing for such relief within the scope of his counsel's appointment at the section 1172.6 hearing. Thus, the trial court did not err in declining to consider Tittle's motion at that hearing, and we affirm this ruling as well.
FACTUAL BACKGROUND
A. Trial, Conviction, and Sentence
At trial, the prosecution presented evidence that, on January 1, 2013, Tittle drove himself and his codefendant, Kevin Jackson, to a home where a birthday party was taking place, and that both men were armed. Witnesses testified that Jackson discharged his firearm several times at the party, wounding one attendee in the leg. One witness testified that just before Jackson started shooting, Tittle said to him, "Spray everything." Another witness testified that she observed Tittle holding a rifle but did not see it fired. (People v. Tittle et al. (July 24, 2015, B253135) [nonpub. opn.] (Tittle).)
The prosecution also presented evidence that in response to a 911 call about the incident, police found and pursued a sports utility vehicle (SUV) matching the description of the vehicle at the shooting. The SUV crashed during this pursuit, and its occupants fled. Jackson and two others were detained near the scene of the crash. Officers searched the SUV after the crash and found a rifle and a submachine gun on the floor of the back seat. Tittle was arrested months later. (Tittle, supra, B253135.)
Tittle and Jackson were tried jointly. At trial, the prosecution's theory of the case was that Jackson was the shooter and that Tittle directly aided and abetted the crime by driving the car while armed. A jury found Tittle guilty of attempted murder (§§ 187, subd. (a), 664; count 1); shooting at an inhabited dwelling (§ 246; count 2); being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 4); and evading a police officer (Veh. Code, § 2800.2, subd. (a); count 5). The jury was unable to reach a verdict on gang enhancement allegations attached to counts 1, 2 and 4, and on personal use and gang-related firearms enhancements attached to counts 1 and 2. (Tittle, supra, B253135.)
Jackson was also convicted of willful, deliberate, and premeditated attempted murder, shooting at an inhabited dwelling, and possession of a firearm by a felon. In connection with the attempted murder charge, as to Jackson, the jury found true personal-use and personal-discharge firearm enhancements (§ 12022.53, subds. (b) &(c)). The jury was unable to reach a verdict on an additional allegation that Jackson personally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)). (Tittle, supra, B253135.)
On appeal, we affirmed the judgment of conviction but modified Tittle's sentence by eliminating certain enhancements. (Tittle, supra, B253135.) Following a grant of review by the Supreme Court and a transfer to this court for reconsideration, we ordered further sentencing modifications. On remand, the trial court resentenced Tittle to 14 years to life, plus a consecutive term of 16 years 4 months. This sentence included enhancements under section 667.5, subdivision (b) based on Tittle's prior convictions.
B. Tittle's Petition for Relief Under Section 1172.6
The Legislature enacted section 1172.6 as part of a bill seeking 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, § l, subd. (f); see People v. Gentile (2020) 10 Cal.5th 830, 842, superseded by § 1172.6, subd. (g) on other grounds.) The Legislature later expanded this same principle to apply to attempted murder convictions based on these doctrines as well. (§ 1172.6, subd. (a).)
Section 1172.6 sets forth a petitioning procedure as a means of providing retroactive relief to a defendant convicted of murder, attempted murder, or manslaughter before these changes to the law. (See Gentile, supra, 10 Cal.5th at pp. 839, 843; § 1172.6, subds. (a)-(c).) If the petitioner "makes a prima facie showing that the petitioner is entitled to relief," the matter proceeds to an evidentiary hearing. (§ 1172.6, subd. (c).) At the hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder" under a theory of malice permissible under current law. (Id., subd. (d)(3).)
In 2021, Tittle filed a petition for resentencing pursuant to section 1172.6. The court appointed counsel to represent Tittle in connection with the petition and issued an order to show cause why Tittle's petition should not be granted.
C. Tittle's Motion for Resentencing Under Senate Bill No. 483 and Section 1172.75
In February 2022, Tittle's appointed counsel filed a motion on Tittle's behalf seeking sentencing relief in addition to and distinct from that sought via his section 1172.6 petition. Specifically, the motion argued Senate Bill No. 483 and section 1172.75 required the court to resentence him, because his sentence included "enhancements for prison priors pursuant to [section] 667.5 that are now legally invalid." Senate Bill No. 483 and section 1172.75 "established [a] procedure to benefit state prisoners whose sentences are not currently valid due to [certain] changes in the law involving sentencing enhancements." (People v. Newell (2023) 93 Cal.App.5th 265, 267 (Newell).) The court took Tittle's section 1172.75 motion under submission, but did not state it would be expanding his counsel's appointment to cover such a motion.
Around May 2022, a different bench officer was assigned to Tittle's case.
On June 16, 2022, the CDCR provided notice to the trial court identifying Tittle as an inmate entitled to relief under section 1172.75.
On September 6, 2022, Tittle's counsel filed an amended Senate Bill No. 483 motion before the new bench officer. It does not appear that counsel was aware of CDCR's June 2022 notice when she submitted the amended section 1172.75 motion.
D. Denial of Reimbursement for Appointed Counsel's Work Regarding Firearm Operability and Ballistics
While Tittle's section 1172.6 petition and section 1172.75 motion were pending, Tittle's appointed counsel submitted a request for reimbursement for work she had performed in connection with Tittle's section 1172.6 petition. The billing entries supporting this request included work "on [the] gun operability issue" "on [a] [Kelly/Frye] motion for ballistics matching" and on a "subpoena for firearms testing from lab . . . since [firearm] not test[ed] . . . for operability." The court authorized payment of only a small portion of what was requested. In an email to the court, counsel inquired as to why reimbursement for the majority of her work had not been approved. The court responded, via email, that the requested reimbursement was in part for "approximately 25 hours for work done on a [Kelly/Frye] motion, firearms analysis, etc. [The court] found that this work had nothing to do with the [section 1172.6] petition that was before [the court] during this period of time." In an email response to the court, counsel noted, inter alia, that "the issues at the [section 1172.6] hearing are not necessarily the same as at the original trial, [that she had] an obligation to present additional evidence, where it exists, that may be relevant to whether [Tittle] was a major participant who acted with reckless indifference to human life[, and that] . . . the operability of the firearm, and [Tittle's] knowledge with respect to that operability, [are] directly related to the issues at the . . . hearing and [were] not fully explored at the original trial." In another email response, the court provided additional explanation of its reasoning but did not change its previous decision regarding counsel's reimbursement request. Specifically, the court explained that "[a]fter reviewing the record[,] it's clear to the court that there is no evidence [Tittle] ever fired a gun. The record (and jury instructions) show that the People's theory of [Tittle's] culpability . . . was an aider and abettor who had the specific intent to kill and was a major participant who acted with reckless indifference to human life." The court "disagree[d]" that" 'the operability of the firearm and [Tittle's] knowledge with respect to that operability "may" be relevant to whether [he] was a major participant who acted with reckless indifference to human life'" because "[t]he record shows that [Tittle] was prosecuted as an 'aider and abettor' who was a major participant in the crime by being the driver of the vehicle when it approached the crime scene, drove off, returned a few minutes later, when the front passenger gets out and starts shooting at the crowd immediately after the petitioner is heard saying 'spray everything.' The evidence showing [Tittle] holding a rifle during this incident was irrelevant to the People's theory and the jury conviction."
Frye v. United States (D.C. Cir. 1923) 293 F. 1013 and People v. Kelly (1976) 17 Cal.3d 24 stand for the proposition that "the admissibility of evidence produced by a new scientific technique requires a preliminary showing of the technique's general acceptance in the relevant scientific community." (People v. Venegas (1998) 18 Cal.4th 47, 53.)
Counsel later filed a petition for a writ of mandate asking this court to order payment of the disputed fees. This court summarily denied the petition.
E. Order Denying Section 1172.6 Petition and Section 1172.75 Motion
On September 12, 2022, the court held an evidentiary hearing on Tittle's section 1172.6 petition. At the outset of the hearing, counsel for both parties stated they were not offering any new evidence. Thereafter, both sides argued the merits of Tittle's petition based on the transcript of Tittle's trial, which was introduced into evidence.
The court denied Tittle's section 1172.6 petition, finding beyond a reasonable doubt that Tittle was guilty of attempted murder as a direct aider and abettor, a theory that would support an attempted murder conviction under current law.
The court also denied Tittle's section 1172.75 motion for resentencing, without prejudice, on the grounds that the motion "[was] not before [the] court and that there is no evidence that she (defense counsel) was appointed to assist [Tittle] with [a] motion under [Senate Bill No. 483/section 1172.75]." The court further noted that "there is no provision in the statute for an inmate to initiate resentencing."
Tittle filed a timely notice of appeal from the order denying both his section 1172.6 petition for resentencing and his section 1172.75 motion for resentencing.
DISCUSSION
A. The Court's Denial of Compensation for Certain Work of Appointed Counsel Did Not Deprive Tittle of Effective Assistance
Tittle argues that "defense counsel sought to have the firearm used by codefendant Jackson retested for operability, which could impact the evidence regarding [Tittle]'s mental state and intent, and to exclude on Kelly /Frye grounds ballistics evidence regarding the rifle and casings found in [Tittle]'s vehicle," but that the court effectively "ruled that the firearm evidence sought to be introduced . . . was irrelevant." According to Tittle, this "improperly limited the issues that could be litigated at the [section 1172.6 evidentiary] hearing and thereby denied appellant effective assistance of counsel." To prevail on this claim, Tittle must show, inter alia, that this limitation of the issues prejudiced him at the hearing. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland); People v. Bolin (1998) 18 Cal.4th 297, 333.) To succeed on a claim of prejudice, Tittle must demonstrate that, but for the court limiting counsel's ability to offer the evidence at issue, "the result of the proceeding would have been different." (Strickland, supra, at p. 694.)
Evidence regarding the operability of the firearm would only have been relevant at Tittle's section 1172.6 hearing to the extent there was also evidence to support that Tittle knew or believed the firearm was inoperable. This is because, without evidence of such knowledge, even if the firearm was inoperable, Tittle's conduct would still satisfy the current definition of malice in sections 188 and 189 and support the requisite mental state for murder liability addressed in section 1172.6. (People v. Farfan (2021) 71 Cal.App.5th 942, 947 [" '[t]he purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 [defining murder and malice] with respect to issues not previously determined' "]; see People v. Clark (2016) 63 Cal.4th 522, 611 [setting out factors for assessing whether defendant acted with reckless indifference to human life, including the defendant's knowledge of weapons and the use and number of weapons in the crime, such as evidence that there was only a single weapon, loaded with one bullet, and that the defendant did not believe the gun was loaded].) But "[Tittle] does not describe what such evidence [of his knowledge] would be"-nor does he proffer that such evidence even exists. (People v. Coley (2022) 77 Cal.App.5th 539, 549; see ibid. [rejecting argument that section 1172.6 petitioner "should have been allowed to present 'new evidence' at an evidentiary hearing, [because] he [did] not describe what such evidence would be and had made no showing that the trial court ever denied a request to present such new evidence"].) He has thus failed to establish "a reasonable probability that" the outcome of the section 1172.6 hearing would have been different, had the court not restricted the scope of the issues in the manner he contends it did. (Strickland, supra, 466 U.S. at p. 694.)
Certain portions of Tittle's briefing on appeal appear to argue that the court's email comments also prevented his counsel from offering evidence challenging the prosecution's ballistics evidence regarding the other firearm found in the car. We disagree that such evidence would support relief under section 1172.6, because the prosecution's theory of the case was that Tittle was a direct participant in the crime and acted with reckless disregard for human life in ways that do not rely on him having discharged a firearm-for example, by driving the car and instructing Jackson to "spray everything."
B. The Trial Court Was Not Required To Grant Tittle's Section 1172.75 Motion
Section 1172.75 renders "legally invalid" an enhancement for a prison prior pursuant to section 667.5, subdivision (b). (See § 1172.75, subd. (a).) Section 1172.75 provides a mechanism for resentencing inmates serving a sentence based on such enhancements. Namely, it directs the Secretary of the CDCR to identify inmates whose sentences included such enhancements. (§ 1172.75, subd. (b).) After the trial court receives notice from the CDCR, "the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).) This review and resentencing is to be completed "[b]y October 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the [affected] enhancement" (§ 1172.75, subd. (c)(1)) and "[b]y December 31, 2023, for all other individuals" (§ 1172.75, subd. (c)(2)). A trial court's receipt of such notice triggers a mandatory duty to conduct such a review and resentencing. (§ 1172.75, subd. (c.) [trial court "shall" do this]; see People v. Renteria (2023) 96 Cal.App.5th 1276, 1282 [in such a case, "the trial court [is] required to fully resentence"]; accord, Newell, supra, 93 Cal.App.5th at p. 268 ["[s]ection 1172.75 requires the sentencing court to resentence defendants whose prior sentences include enhancements that are no longer valid"].)
"[S]ection 1172.75 does not[, however,] authorize a defendant to seek resentencing on his or her own motion or petition." (People v. Cota (2023) 97 Cal.App.5th 318, 332 (Cota); People v. Escobedo (2023) 95 Cal.App.5th 440, 448 ["[s]ection 1172.75 invalidated appellants' prior prison term enhancements. But section 1172.75 does not authorize appellants to file a petition or a motion to strike the unauthorized enhancements"].) Thus, even though the CDCR had issued a notice vesting jurisdiction in the court to resentence Tittle under section 1172.75 by a certain date, the trial court was correct that Tittle's motion was improper, and that his counsel had not been appointed to advocate for this relief. The court's denial of Tittle's motion without prejudice left open the possibility that the court would, as the statute requires, resentence Tittle before the deadline set forth in section 1172.75. Accordingly, that ruling was not error. We assume that the court will conduct the further proceedings section 1172.75 requires in light of the CDCR's notice, if it has not done so already.
Although Tittle's section 1172.75 motion was not statutorily authorized, the court's denial thereof is nevertheless appealable. This is because a defendant may appeal from an order denying resentencing even if the defendant had no standing to bring a motion seeking such resentencing, so long as the trial court had jurisdiction to grant the requested relief. (People v. Loper (2015) 60 Cal.4th 1155, 1162 & 1165-1166.) Trial courts have jurisdiction to rule on requests for resentencing under Senate Bill No. 483 if, as occurred here, the CDCR has initiated the resentencing proceedings. (See Cota, supra, 97 Cal.App.5th at pp. 332-333.)
DISPOSITION
The order is affirmed.
We concur: CHANEY, J. BENDIX, J.