Opinion
E076618
12-20-2021
THE PEOPLE, Plaintiff and Respondent, v. ROMAN EARL BARNES, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVA010870 Charles J. Umeda, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION 1
CODRINGTON, J.
I
INTRODUCTION
Defendant and appellant Roman Earl Barnes appeals from the trial court's order denying his petition for resentencing under Penal Code section 1170.95. Defendant argues that the trial court abused its discretion in denying his petition because he had made a prima facie showing that he was entitled to relief. He also asserts the court impermissibly engaged in factfinding at the prima facie stage without a hearing. He thus believes a remand is necessary for the trial court to issue an order to show cause and conduct an evidentiary hearing. We disagree and affirm the order.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background up until the denial of defendant's section 1170.95 petition is taken from this court's nonpublished opinion in defendant's second prior appeal, case No. E074137, which is part of the record on appeal in this case. (People v. Barnes (Aug. 27, 2020, E074137) [nonpub. opn.] (Barnes II).)
A.
Factual Background
On January 5, 1999, Mrs. Dresser was 85 years old. She lived alone in a house in Rialto, her home since 1944. In December, the month before, her house had been burglarized so she had installed a burglar alarm and bought a small watch dog.
On the evening of January 5, the fire department responded to an alarm at Mrs. Dresser's house. The firefighters arrived to find the house in flames. Some of the rooms were in disorder. The victim's charred body lay on the kitchen floor, her head and 2 face covered by a blanket. The forensic pathologist determined she had died from a blunt force trauma injury to the head. Her injuries were consistent with numerous blows from a brick. In the street near the victim's house, the police found a red plastic one-gallon gasoline can. The arson investigator determined the fire had been started with gasoline.
The police recovered the victim's property, including two VCRs and a laptop computer, from a trash can located at a nearby house occupied by defendant and his mother.
The police arrested defendant after midnight on January 7. They advised him of his Miranda rights, which he waived. In several recorded interviews, including a videotaped reenactment, defendant admitted that he had burglarized the victim's house in December. On that occasion, he had spent several hours in the house playing cat-and mouse with the victim, who was hard of hearing. He had been drinking and felt panicked and scared. He urinated and defecated in one of the bedrooms. When he left, he took some property with him. He admitted returning on January 5 for several hours.
Miranda v. Arizona (1966) 384 U.S. 436.
The jury viewed the videotaped reenactment. Defendant explained he initially entered the house on January 5 to return Mrs. Dresser's dog. Once inside, he latched the front door. He did not see anyone but he heard a woman in another room talking to a dog and giving it dry food. Defendant started walking down the hallway and heard a loud thump, "[l]ike somebody stomped their foot." He found the phone disconnected. Then he heard yelling and screaming. Next he located the woman, lying on the kitchen floor, 3 bleeding and moaning. When he thought she had died, he covered her with a blanket. He was scared because he had been in the house a few weeks before. So he grabbed a VCR and other items to make it seem like a burglary had occurred. He threw the items out the window and then left by the window. He also got a can of gasoline and sprinkled it inside while ransacking the house. Then he ignited the gasoline and departed.
B. Procedural Background
On May 19, 2000, defendant, who was 16 years old at the time the victim was killed and prosecuted as an adult, was convicted of first degree murder (§ 187, subd. (a)), first degree residential burglary (§ 459), and arson of an inhabited structure (§ 451, subd. (b)). As to the murder count, the jury found true the allegations that the murder was committed while defendant was engaged in the commission of first degree burglary (§ 190.2, subd. (a)(17)). Defendant was sentenced to an indeterminate term of life without the possibility of parole, plus a consecutive determinate term of eight years in state prison.
On January 15, 2002, we affirmed the convictions.
In 2018, after defendant's judgment of conviction became final, the Legislature enacted and the Governor signed Senate Bill No. 1437, effective January 1, 2019 (Senate Bill 1437). (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 amended the felony-murder rule and the natural and probable consequences doctrine as it relates to murder. Senate Bill 1437 also added section 1170.95, which allows those "convicted of felony murder or murder under a natural and probable consequences theory. . . [to] file a 4 petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . ." (§ 1170.95, subd. (a).)
On February 22, 2019, defendant in propria persona filed a petition for resentencing pursuant to section 1170.95.
On April 26, 2019, the People filed a motion to strike defendant's petition on the grounds that the amendments effectuated by Senate Bill 1437 were unconstitutional and violated the separation of powers between the judiciary and the Legislature.
On July 17, 2019, defendant's appointed counsel filed an opposition to the People's motion to strike the petition for resentencing. Defendant's counsel also requested the court make a finding that a prima facie showing had been made.
Following a hearing on September 27, 2019, the trial court agreed with defense counsel that defendant had made a prima facie showing for relief. However, the court ultimately struck defendant's petition for resentencing, finding Senate Bill 1437 unconstitutional, without reaching the merits of defendant's petition, and denied the petition.
On October 30, 2019, defendant timely appealed the order denying his section 1170.95 petition and finding Senate Bill 1437 unconstitutional.
On August 27, 2020, we reversed the trial court's order granting the People's motion to strike defendant's resentencing petition and remanded with directions to consider defendant's petition on its merits. (Barnes II, supra, E074137, at pp. 4, 20.) 5
On remand, the trial court set a new hearing date to determine whether it should issue an order to show cause.
Following briefing by the parties and numerous continuances due to the pandemic and issues with transporting defendant to court, the hearing was held on February 24, 2021. Relying on this court's prior opinion, the trial court denied the order to show cause, explaining as follows: "So based on those facts, it didn't appear, based on the evidence introduced at trial, of any other participants in this burglary/murder that took place. There were admissions by the defendant that he was involved in the setting of the fire, the burglary and that when he was present, he had heard that the victim was still alive or sounds of a person who was still alive in the house. And he set fire to the house before leaving. [¶] It would appear, based on the facts reviewed by the Court in this case, the defendant is not eligible or has not met the requirements at this prima facie hearing. [¶] . . . [¶] . . . And that evidence would show that he was either the actual killer, or a major participant in the murder that took place. And that based on the facts reviewed, that the Court will find that the defendant has not made a prima facie showing at this hearing. And the Court, at this time, will deny the defendant's request for an OSC hearing to determine his eligibility at this time." Defense counsel thereafter inquired, "So to be clear, the Court is making a finding that it believes that the defendant was the actual killer or major participant?" The court responded, "That is correct." Defendant timely appealed. 6
III
DISCUSSION
Defendant argues that the trial court erred in denying his section 1170.95 petition for resentencing because he made a prima facie showing he was entitled to relief. He also asserts the court improperly engaged in factfinding at the prima facie stage, and thus the matter should be remanded for the trial court to issue an order to show cause and conduct an evidentiary hearing.
A. Senate Bill 1437 and Section 1170.95
Effective January 1, 2019, the Legislature enacted Senate Bill 1437 (2017-2018 Reg. Sess.) which amended sections 188 and 189 to limit liability for felony murder and abrogate the natural and probable consequences doctrine as applied to murder. (Stats. 2018, ch. 1015.) The bill redefined murder under section 188 to require that the principal acted with malice aforethought. Now, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have intent to kill is not liable for felony murder unless he or she "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." (§ 189, subd. (e)(3).)
Senate Bill 1437 also enacted section 1170.95. To obtain relief pursuant to section 1170.95, an offender must file a petition in the sentencing court setting forth his eligibility under the section, including that he was prosecuted under a theory of felony 7 murder or murder under the natural and probable consequences doctrine, was convicted of first 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 or second degree murder, but 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, subds. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A).) If a petition fails to comply with subdivision (b)(1), "the court may deny the petition without prejudice to the filing of another petition . . . ." (§ 1170.95, subd. (b)(2).) "Where the petition complies with subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief. [Citation.] [¶] If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' [Citation.] . . . At the hearing stage, 'the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis).)
Prior to our Supreme Court's decision in Lewis, a number of courts "read section 1170.95, subdivision (c)'s two references to 'a prima facie showing' to require two distinct, sequential inquiries: one 'that petitioner "falls within the provisions" of the 8 statute,' and a second '"that he or she is entitled to relief."'" (Lewis, supra, 11 Cal.5th at p. 961.) The Lewis court rejected this interpretation of section 1170.95, subdivision (c), and concluded that subdivision (c) describes only a single prima facie showing. (Ibid.) The court held that "[c]onsidering subdivision (c)'s language in the context of section 1170.95 as a whole [citation], subdivision (c) clearly describes a single process." (Id. at p. 962.) Therefore, under the statute, once a petitioner files a facially sufficient petition laying out his or her eligibility under the section and requests counsel, he or she is entitled to appointment of counsel and to be heard on the subdivision (c) inquiry. (Id. at p. 970.)
In determining whether the petition has made a prima facie showing, after counsel has been appointed, the trial court may examine the record of conviction "to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) "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 1170.95 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 9 documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."'" (Ibid.)
As part of its review, the court may consult the record of conviction in the case, including any prior appellate opinion, subject to the caveat that "the probative value of an appellate opinion is case specific, and 'it is certainly correct that an appellate opinion might not supply all answers.'" (Lewis, supra, 11 Cal.5th at p. 972.) The "trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Ibid.) "In sum, the parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under [section 1170.95, ] subdivision (c)." (Ibid.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Standard of Review
In this case, the trial court denied defendant's petition at the prima facie stage under section 1170.95, subdivision (c). "A denial at that stage is appropriate only if the record of conviction demonstrates that 'the petitioner is ineligible for relief as a matter of law.' [Citations.] This is a purely legal conclusion, which we review de novo." (People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978; 10 accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142 (Galvan), review granted Oct. 14, 2020, S264284.)
C. Analysis
Defendant here filed a petition laying out his facial eligibility and the trial court correctly appointed counsel. The parties filed several rounds of briefing and the court did conduct a hearing. At the hearing, the trial court, relying on this court's prior opinion from defendant's direct appeal, concluded defendant was ineligible for relief as a matter of law because he was either an actual killer or a major participant.
Defendant contends he set forth a prima facie claim for relief and the trial court erred in denying his petition without issuing an order to show cause. We conclude the petition was properly denied at the prima facie stage because the record of conviction conclusively shows defendant was either an actual killer or a major participant and the jury's special circumstance finding establishes defendant is ineligible for resentencing as a matter of law.
Initially, we find the trial court erred by impermissibly engaging in "'factfinding involving the weighing of evidence or the exercise of discretion'" when the court concluded defendant was a major participant. (Lewis, supra, 11 Cal.5th at p. 972.) However, we find any error to be harmless. (Id. at pp. 972-974.) As previously explained, to be eligible for resentencing, defendant was required to show that he "could not be convicted of first or second degree murder because of changes to Section 188 or 189" made by Senate Bill 1437. (§ 1170.95, subd. (a)(3).) Under section 189, as 11 amended, a defendant can be convicted of felony murder if he was the actual killer; acted as a direct aider and abettor with the intent to kill; or was a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e); People v. Gentile (2020) 10 Cal.5th 830, 842.)
Here, defendant cannot show that he "could not be convicted of first or second degree murder because of changes to Section 188 or 189" made by Senate Bill 1437. (§ 1170.95, subd. (a)(3).) The record establishes that defendant was the actual killer or a major participant who acted with reckless indifference to human life. First, the record conclusively establishes that defendant was the only person charged for the offenses. Second, while the record of conviction shows defendant had made statements that another person was involved, there is no evidence to suggest any other person was involved in the crimes.
Furthermore, the jury here was instructed with former CALJIC No. 8.80.1. Thus, to find the special circumstance true, the jury had to find either that defendant was the actual killer, or that he aided and abetted murder with the intent to kill, or that he aided and abetted the underlying felonies while acting as a major participant with reckless indifference to human life.
The jury in this case found true the burglary-murder special circumstance pursuant to section 190.2, subdivision (a)(17), which imposed sentences of death or life without the possibility of parole for a murder committed during the commission, or attempted commission, of an arson or burglary. (See § 190.2, subd. (a)(17).) In so doing, the jury 12 necessarily found that defendant acted "with reckless indifference to human life and as a major participant" in aiding or abetting the commission of the underlying felony. (§ 190.2, subd. (d); People v. Jones (2020) 56 Cal.App.5th 474, 482-485 (Jones), review granted Jan. 27, 2021, S265854; People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419.) In other words, "[t]he language of the special circumstance tracks the language of Senate Bill 1437 and the new felony-murder statutes." (People v. Gutierrez-Salazar, at p. 419; Jones, at p. 482.) By finding this special circumstance, the jury found the facts necessary to sustain a felony-murder conviction under the amended law.
Senate Bill 1437's amendment to section 189, subdivision (e), effectively made the crime of felony murder subject to the same requirements as special circumstance felony murder under section 190.2, subdivision (a)(17). Thus, the changes Senate Bill 1437 made to section 189 would have no effect on defendant's conviction. "By finding a special circumstance allegation true, the jury makes precisely the same finding it must make in order to convict a defendant of felony murder under the new law." (Galvan, supra, 52 Cal.App.5th at p. 1141.) The jury's true finding of the burglary-murder special circumstance establishes that defendant is ineligible for resentencing as a matter of law. (See Jones, supra, 56 Cal.App.5th at p. 482.)
Any error by the trial court in making factual determinations without issuing an order to show cause was harmless because defendant cannot show it is reasonably probable that, absent error, his petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974.) The record of conviction 13 establishes defendant was categorically ineligible for relief because he was either the actual killer or based upon the jury's felony-murder special circumstance finding. (See Jones, supra, 56 Cal.App.5th at p. 482.) The court thus was not required to issue an order to show cause or hold an evidentiary hearing. The petition was properly denied.
IV
DISPOSITION
The trial court's order denying defendant's petition for resentencing is affirmed.
We concur: MILLER, Acting P. J. FIELDS, J. 14