Opinion
F085085
11-07-2023
THE PEOPLE, Plaintiff and Respondent, v. JIMMY DOYLE ALLEN, Defendant and Appellant.
Larenda R. Delaini, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County Super. Ct. No. SC020751A . Colette M. Humphrey, Judge.
Larenda R. Delaini, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1981, defendant Jimmy Doyle Allen pled guilty to second degree murder and admitted he personally used a deadly and dangerous weapon, to wit, a knife (Pen. Code, §§ 187, 12022, subd. (b)) during the commission of the offense. (Undesignated statutory references are to the Penal Code.) In 2021, he petitioned for relief from his murder conviction under section 1172.6. The prosecutor opposed the petition on the grounds the weapon enhancement established defendant was the actual killer. Without proceeding to an evidentiary hearing, the superior court denied the petition for relief, noting "defendant admitted to personally using a knife in the commission of second degree murder, therefore, the only conclusion that's rational is that he is the actual killer, so he's not made a prima facie showing, so the petition is denied."
Defendant now appeals from the denial of his section 1172.6 petition for resentencing, asserting the record did not conclusively establish he was ineligible for relief. The People agree and concede remand is necessary for the court to issue an order to show cause and to hold an evidentiary hearing.
We agree the order denying defendant's section 1172.6 petition must be reversed and the matter remanded for the court to issue an order to show cause and to hold further proceedings.
FACTUAL AND PROCEDURAL HISTORY
In December 1979, defendant was charged with murder (§ 187; count 1) with the following allegations: he personally used a knife during the commission of the offense (§ 12022, subd. (b)); the murder was committed while defendant was engaged in or was an accomplice in the commission of a robbery; and the murder "was especially heinous, atrocious, or cruel, manifesting exceptional depravity." He was also charged with robbery (§ 211; count 2) with allegations he personally used a knife during the commission of the offense (§ 12022, subd. (b)), he committed the offense with the intent to inflict injury, and he inflicted great bodily injury (§ 12022.7).
In 1981, defendant pleaded guilty to second degree murder and admitted an enhancement allegation that he personally used a knife during the commission of the offense. The parties stipulated there was a factual basis for the plea; the prosecutor asserted the preliminary hearing transcript reflected the factual basis. Defendant was sentenced to 16 years to life.
In 2022, defendant filed a petition for resentencing pursuant to section 1172.6 (former § 1170.95). He averred a charging document had been filed against him that allowed the prosecution to proceed under a felony-murder theory, the natural and probable consequences doctrine, or other theory under which malice was imputed based solely on participation in the crime; at trial, he was convicted of murder, attempted murder, or manslaughter or accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; and he could not now be convicted of murder or attempted murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Sen. Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)). He also requested the appointment of counsel.
Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at that time, although prior changes had been implemented effective January 1, 2022. There is no dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the statute as section 1172.6.
The court appointed defendant counsel and the People filed a response to his petition. In their briefing, the People argued defendant was ineligible for relief as a matter of law because the record of conviction "clearly shows" that defendant "not only pled to second degree murder, § 187(A), but he admitted the PERSONAL use of a knife in the commission of the crime." They asserted, "[i]pso facto, [defendant] is the actual killer of the victim." The People noted, they did "not have an admissible source for the facts of this case," so would "not present the facts at this stage of the proceedings." Defendant filed a response to the People's opposition in which defendant submitted on his petition, wherein he "denied being the actual killer."
On September 20, 2022, the trial court held a hearing on defendant's petition during which it concluded defendant failed to establish a prima facie case for relief. Specifically, the court noted, "[T]he defendant admitted to personally using a knife in the commission of second degree murder, therefore, the only conclusion that's rational is that he is the actual killer, so he's not made a prima facie showing." Accordingly, it denied the petition.
DISCUSSION
I. Senate Bill 1437 and Senate Bill No. 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[s] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) It amends section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.)
Accordingly, section 188 now provides that, "[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, "All murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
The legislation also added section 1172.6 (former § 1170.95), which provides a procedure by which defendants whose cases are final can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, this section permitted those "convicted of felony murder or murder under a natural and probable consequences theory [to] 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 ...." (Stats. 2018, ch. 1015, § 4, subd. (a).) In Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure to defendants convicted of attempted murder or manslaughter under a now prohibited theory. The legislation also clarified some of the procedural requirements in the statute.
Pursuant to amended section 1172.6, upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).) "After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) If the petitioner has made such a showing that the petitioner is entitled to relief, the court "shall issue an order to show cause." (Ibid.) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (Ibid.)
The trial court may look at the record of conviction to determine whether a petitioner has made a prima facie case for section 1172.6 relief, but the prima facie inquiry under subdivision (c) is limited. (People v. Lewis (2021) 11 Cal.5th 952, 970971.) "'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.]" (Id. at p. 971.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Id. at p. 972.) "'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.]" (Id. at p. 971.) "'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."' [Citations.]" (Ibid.)
II. Analysis
Defendant contends, and the People agree, the court erred by denying his petition for resentencing at the prima facie stage. The parties agree the record before the court did not establish defendant was ineligible for relief as a matter of law. We agree.
Defendant made a prima facie showing for relief under section 1172.6. He alleged in his petition that a charging document was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder based on the natural and probable consequences doctrine, or other theory under which malice was imputed to a person based solely on that person's participation in a crime; he accepted a plea offer in lieu of a trial at which he could have been convicted of murder; and that he could not presently be convicted murder because of the changes to sections 188 and 189. (See §_1172.6, subd. (a)(1)-(3).) The court was required to accept those allegations as true unless the facts in the record of conviction refuted them. (See People v. Lewis, supra, 11 Cal.5th at p. 971.) And here, the trial court had a limited record before it that included the charging documents, the plea documents, and the oral plea colloquy. None of these documents, considered individually or as a whole, conclusively established defendant was ineligible for relief. Nevertheless, as discussed, the superior court relied on defendant's admission to the personal use of a knife enhancement (§ 12022, subd. (b)) to conclude defendant was the actual killer and, thus, ineligible for relief under section 1172.6.
Contrary to the court's conclusion and the People's argument below, without more, the section 12022, subdivision (b) enhancement does not establish defendant is ineligible for relief as a matter of law. In People v. Offley (2020) 48 Cal.App.5th 588, Offley was one of five defendants charged with taking part in a gang-related shooting during which one victim was killed and another was seriously injured. (Id. at p. 592.) A jury convicted him of second degree murder and found he had personally and intentionally discharged a firearm, proximately causing great bodily injury and death to the victim (§ 12022.53, subd. (d)). (Offley, at p. 593.) Thereafter, the trial court denied Offley's petition for relief pursuant to former section 1170.95 at the prima facie stage based on the true finding as to the allegation Offley had intentionally fired a weapon at the victim and caused great bodily injury and death (§ 12022.53, subd. (d)). (Offley, at p. 597.) The Offley court reversed the denial of the petition, holding the section 12022.53, subdivision (d) enhancement did not establish as a matter of law that Offley acted with malice aforethought. (48 Cal.App.5th at p. 597.) The Offley court reasoned, the enhancement does not require the prosecution to prove the defendant harbored a particular mental state as to the victim's injury or death, meaning it does not establish the defendant acted with malice aforethought. (Id. at p. 598.) And the Offley court could not rule out the possibility the jury relied on the natural and probable consequences doctrine in convicting the defendant in that case. (Id. at p. 599.)
As in People v. Offley, we cannot conclude defendant's admission to the personal use of a knife allegation (§ 12022, subd. (b)) on its own necessarily rendered him ineligible for relief. The record before us does not establish the theories under which the prosecution could have proceeded had this matter gone to trial. And it does not preclude the possibility that defendant could have been convicted under a now invalid theory. (See People v. Davenport (2021) 71 Cal.App.5th 476, 479, 484-485 [concluding language in information charging murder was generic and did not limit prosecution to particular theory, and defendant's admission to personal use of firearm enhancement also did not preclude possibility of prosecution under felony-murder theory]; see generally In re Ferrell (2023) 14 Cal.5th 593, 604 [§ 12022.53, subd. (d) finding was not dispositive of whether defendant harbored malice].)
Accordingly, the order denying the petition must be reversed and the matter remanded with directions for the trial court to issue an order to show cause and, to the extent necessary, to conduct an evidentiary hearing under subdivision (d) of section 1172.6. We express no opinion on the ultimate resolution of the petition.
DISPOSITION
The order denying defendant's petition for resentencing is reversed and the matter is remanded. The trial court is directed to issue an order to show cause and, to the extent necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
[*]Before Pena, Acting P. J., Meehan, J. and Snauffer, J.