Opinion
E076618
12-19-2022
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 and Charles C. Ragland, Assistant Attorneys General, Arlene A. Sevidal, Lynne G. McGinnis, 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NOT TO BE PUBLISHED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. Reversed and remanded with directions.
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 and Charles C. Ragland, Assistant Attorneys General, Arlene A. Sevidal, Lynne G. McGinnis, and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I
INTRODUCTION
In 2000, a jury convicted defendant and appellant Roman Earl Barnes of first degree murder (Pen. Code, § 187, subd. (a)) and found true the allegation that he committed the murder while engaged in the commission of first degree burglary (§ 190.2, subd. (a)(17)). The burglary murder special circumstance authorizes a sentence of life without the possibility of parole for "a major participant" in a felony murder who acted with "reckless indifference to human life." (§ 190.2, subds. (a)(17) &(d).)
All future statutory references are to the Penal Code.
In 2019, defendant filed a petition to vacate his murder conviction and for resentencing under section 1172.6 (formerly section 1170.95). The trial court summarily denied the petition, concluding defendant was the actual killer or a major participant in the murder.
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference unless otherwise indicated.
Defendant appealed that ruling, arguing, in part, the trial court impermissibly engaged in factfinding when it concluded defendant was the actual killer or major participant. In our original opinion, we concluded that the trial court impermissibly engaged in factfinding but found the error to be harmless because defendant's special circumstance finding rendered him ineligible for relief as a matter of law and therefore affirmed the summary denial of defendant's petition.
The California Supreme Court granted review of our opinion and deferred action pending its decisions in People v. Strong (2022) 13 Cal.5th 698 (Strong), and it has now transferred the matter back to us with directions to vacate our original opinion and reconsider defendant's appeal in light of that decision. In Strong, our Supreme Court held that a felony-murder special circumstance finding does not render a section 1172.6 petitioner ineligible for relief as a matter of law if it predates our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of "major participant" and "reckless indifference to human life." We vacated our original decision and provided the parties the opportunity to file a supplemental brief. Having reconsidered defendant's appeal in light of Strong, we reverse the trial court's order and remand the matter for further proceedings pursuant to section 1172.6.
II
Portions of the procedural background are 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.].)
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.
On January 1, 2019, Senate Bill No. 1437 became effective, which amended the felony-murder rule and the natural and probable consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 also added former section 1170.95 (now section 1172.6), which created a procedure for offenders previously convicted of murder to seek retroactive relief if they could no longer be convicted of murder under the new law. (Stats. 2018, ch. 1015, § 4.)
On February 22, 2019, defendant in propria persona filed a petition for resentencing pursuant to former 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 No. 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 No. 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 No. 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.
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.
III
DISCUSSION
In his supplemental brief, defendant contends a determination that he was the actual killer improperly results from impermissible factfinding at the prima facie stage. He further argues the true finding on the special-circumstance allegation does not preclude him from being eligible for resentencing because the finding predates Banks and Clark. The People concede that under Strong, the court's order denying defendant's petition for resentencing at the prima facie stage should be reversed and the matter remanded for further proceedings. Because his conviction predates our Supreme Court's decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, we concur that the trial court erred in denying defendant's petition at the prima facie stage and remand for further proceedings.
Since we are remanding the matter for further proceedings pursuant to section 1172.6 in light of Strong, we need not address defendant's first contention.
A. Legal Background
In 2015 and 2016, our Supreme Court decided Banks and Clark, respectively, which discuss when section 190.2 authorizes a special circumstance life without parole sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra, 61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those decisions held that participation in an armed robbery, on its own, is insufficient to support a finding the defendant acted with reckless indifference to human life. Instead, the factfinder must consider "the defendant's personal role in the crimes leading to the victim's death and weigh the defendant's individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime." (Banks, at p. 801, italics omitted.) "The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed," thereby "demonstrating reckless indifference to the significant risk of death his or her actions create." (Ibid., italics added.) Banks provided a non-exhaustive list of factors to consider when determining whether the defendant was a major participant in the underlying felony. (Banks, at p. 803.) And Clark offered a similar list for determining whether the defendant acted with reckless indifference to human life. (Clark, at pp. 619-623.)
As noted previously, effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "'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.'" (People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature accomplished this by amending sections 188 and 189. Effective January 1, 2022, Senate Bill No. 775 expanded the scope of those changes to encompass, among other things, murder convictions "under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2.)
Senate Bill No. 1437 also created a procedure for offenders previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief if they could no longer be convicted of murder under the new law. (§ 1172.6, subd. (a); Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis); Strong, supra, 13 Cal.5th at p. 708.) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189 made effective January 1, 2019 ...." (Strong, at p. 708.) "When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Ibid.)
In Lewis, supra, 11 Cal.5th 952, our Supreme Court explained the trial court's role when faced with a section 1172.6 petition: Petitioners who request counsel "are entitled to the appointment of counsel upon the filing of a facially sufficient petition ...." (Id. at p. 957.) "[O]nly after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether 'the petitioner makes a prima facie showing that he or she is entitled to relief.'" (Ibid., italics omitted; see id. at p. 966 ["a complying petition is filed; the court appoints counsel, if requested; the issue is briefed; and then the court makes [its] prima facie determination"].) The court's "prima facie inquiry . . . is limited.... '"[T]he 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."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Id. at p. 971.) Importantly, "[i]n 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.'" (Id. at p. 972.) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Ibid.)
If a petitioner has made a prima facie showing of entitlement to relief, "'the court shall issue an order to show cause.'" (Strong, supra, 13 Cal.5th at p. 708.) Once the court determines that a defendant has made a prima facie showing, it "must [then] hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill [No.] 1437. [Citation.] 'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.] '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.'" (Strong, at p. 709; accord, Lewis, supra, 11 Cal.5th at p. 960.) "Senate Bill [No.] 1437 relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life ....'" (Strong, at p. 710.)
In Senate Bill No. 775, the Legislature amended the language of section 1172.6, codifying Lewis, supra, 11 Cal.5th 952, expanding the scope of the petitioning process and clarifying some of the procedural requirements. (Stats. 2021, ch. 551, § 2.)
B. Standard of Review
In this case, the trial court denied defendant's petition at the prima facie stage under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, which we review de novo. (See id. at p. 961.)
C. Analysis
Our Supreme Court recently made clear that when, as here, a defendant's case "was tried before both Banks and Clark, the special circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6." (Strong, supra, 13 Cal.5th at p. 721.) "This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark." (Id. at p. 710.) The Strong court noted that the Banks and Clark cases "both substantially clarified the law governing findings under . . . section 190.2, subdivision (d)." (Strong, at p. 706.) The court explained that a pre-Banks and Clark special circumstance finding does not negate the showing that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 "because the finding alone does not establish that the petitioner is in a class of defendants who would still be viewed as liable for murder under the current understanding of the major participant and reckless indifference requirements." (Strong, at pp. 717-718.)
Noting the differences between pre- and post-Banks and Clark special circumstance requirements, the Supreme Court observed the changes may "have altered what evidence defense counsel would have sought to introduce[,] . . . might have fundamentally altered trial strategies," and may have affected what jury instructions were requested or given. (Strong, supra, 13 Cal.5th at p. 719.) "An after-the-fact court review of a pre-Banks and Clark record does not account for all these differences.... And as the Legislature has made explicit in a recent amendment to the predecessor to section 1172.6, a court determination that substantial evidence supports a homicide conviction is not a basis for denying resentencing after an evidentiary hearing. [Citation.] Nor, then, is it a basis for denying a petitioner the opportunity to have an evidentiary hearing in the first place." (Id. at p. 720.) Thus, neither "the jury's pre-Banks and Clark findings nor a court's later sufficiency of the evidence review amounts to the determination section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise adequate prima facie showing and deny issuance of an order to show cause." (Id. at p. 720.)
Here, the jury's felony-murder special circumstances findings were made before our high court decided Banks and Clark. And the trial court found defendant ineligible for relief partly based on the attendant special circumstance finding that the murder was committed in the commission of a residential burglary. As defendant contends and the People properly concede, under Strong, the finding does not categorically render defendant ineligible for resentencing. (Strong, supra, 13 Cal.5th at p. 720.) Furthermore, a defendant's prima facie case is not barred even if the trial evidence was sufficient to support the special circumstances findings after Banks and Clark. (Strong, at p. 710; Lewis, supra, 11 Cal.5th at p. 972.) We therefore vacate the trial court's order and remand the matter for further proceedings.
IV
DISPOSITION
The trial court's order denying defendant's section 1172.6 petition is reversed. The matter is remanded for further proceedings consistent with Strong, Lewis, and section 1172.6, namely issue an order to show cause under section 1172.6, subdivision (c), and to hold an evidentiary hearing on defendant's petition for resentencing pursuant to section 1172.6, subdivision (d).
We concur: MILLER Acting P. J. FIELDS J.