Opinion
B329997
07-30-2024
THE PEOPLE, Plaintiff and Respondent, v. PATRICK DWIGHT BIRDSONG, JR., Defendant and Appellant.
Adrian K. Panton, 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, Wyatt E. Bloomfield and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. SA072721 James R. Dabney, Judge.
Adrian K. Panton, 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, Wyatt E. Bloomfield and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
In 2011, a jury convicted Birdsong and three codefendants of murder (Pen. Code, § 187) and attempted murder (§§ 187, 664) in connection with a gang-related shooting. The instructions the trial court provided would have allowed the jury to convict Birdsong of attempted murder based on the natural and probable consequences doctrine. (People v. Birdsong (May 20, 2022, B312410) [nonpub. opn.] (Birdsong I).)
All subsequent statutory references are to the Penal Code.
Approximately 10 years later, the Legislature enacted amendments to the Penal Code that "eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder." (People v. Coley (2022) 77 Cal.App.5th 539, 543 (Coley); accord, People v. Arellano (July 11, 2024, S277962) Cal.5th [2024 WL 3366457 at *3].) The Legislature also enacted section 1172.6 (formerly section 1170.95), which, inter alia, permits a person convicted of "attempted murder under the natural and probable consequences doctrine" to file a petition challenging the conviction. (§ 1172.6, subd. (a).) If the petitioner establishes a prima facie case for relief, section 1172.6 requires the trial court to conduct an evidentiary hearing at which it must act as "an independent fact finder and determine, in the first instance, whether the petitioner" is guilty under a valid theory of murder. (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123 (Guiffreda).)
In 2020, Birdsong filed a section 1172.6 petition seeking to vacate his convictions for murder and attempted murder. The trial court denied the petition in its entirety. We, however, reversed the court's order as to the attempted murder count. (Birdsong I, supra, B312410.) ~(B312410 Opinion, p. 2)~
On remand, the court conducted a hearing concerning Birdsong's attempted murder conviction and again denied his petition.
Birdsong now asks us to reverse this second denial of his section 1172.6 petition. He contends the trial court applied the wrong legal standard at the hearing by reviewing the trial record for substantial evidence, rather than acting as an independent fact finder. He urges further that he suffered prejudice as a result of the court's error.
We conclude the record is ambiguous as to which standard the trial court applied in denying Birdsong's petition. We therefore conditionally affirm the court's order and remand the matter to permit the court either to (1) clarify that it found Birdsong guilty of attempted murder beyond a reasonable doubt, or (2) hold a new hearing where, acting as an independent fact finder, it must determine whether the prosecution has demonstrated Birdsong's guilt beyond a reasonable doubt.
FACTUAL SUMMARY AND PROCEDURAL HISTORY " 'Shortly before 9:00 p.m. on the evening of November 3, [2009,] Richard Juarez and Richard De la Cruz had been sitting on a bench in Virginia Avenue Park in Santa Monica, with companions Chloe McCarty and Ashleigh Rodriguez. De la Cruz belonged to the Santa Monica 13 gang; Juarez belonged to a gang in another territory, but was associated with De la Cruz and the Santa Monica 13 gang. One or two African-American men approached the group, one wearing a hooded gray sweatshirt over a red striped shirt, the other a black sweatshirt; one had a black beanie hat. One . . . of the men fired several shots, killing Juarez.
We summarize here only the facts and procedural history relevant to our resolution of this appeal. We draw much of our summary from our prior opinion in Birdsong I, supra, B312410.
" 'Witnesses heard about eight or more gunshots, and multiple muzzle flashes were visible on the dashboard video recorder of a police car parked nearby on Pico Boulevard. After the shooting stopped, two men were seen running from the park, south across Pico Boulevard toward 22nd Street, one wearing a black sweatshirt, the other wearing a gray zip-up, hooded sweatshirt. One was wearing a black beanie cap.
" 'A police officer who was parked nearby on Pico Boulevard heard the shots, saw the men running, and followed them in his car. When he turned onto 22nd Street he could no longer see the men he had followed, but saw a car parked with its headlights on. When the car pulled away as he shone his spotlight on it, the officer followed and stopped the car.
" 'After a backup officer arrived he detained the driver and passenger, [codefendants] Norman Lovan Cole and Sean Alex Mermer. About 10 minutes later a police dog pulled [Birdsong] from under a parked van in a residential backyard on 22nd Street, near where Cole and Mermer had been parked. The police later found [codefendant] Taaj Zakee Martin hiding under a tarp in a residential garage nearby on 21st Street. He was wearing a white T-shirt, jeans, red shoes, but no sweatshirt. The police found two abandoned handguns nearby, one with a silver barrel matching the description of the weapon used by one of the shooters. They also found a black beanie hat and a dark hooded sweatshirt in the corner of the yard, and a gray sweatshirt under a car parked on 21st Street. DNA testing linked the beanie cap and the black sweatshirt to Birdsong, with Mermer as a minor contributor to the DNA on the cap. Gunshot residue was found on Martin and Birdsong, indicat[ing] their recent contact with or close proximity to a gun that had been fired.
" 'A search of the car revealed a cellphone registered to Martin, with DNA connecting Martin to it. Another phone found in the car was registered to Mermer's mother, at an address in Lancaster. Birdsong's fingerprints were on the Mermer phone, and on the car's front and rear passenger doors.
" 'De la Cruz, Rodriguez, and McCarty were unable to identify any of the [defendants].'" (Birdsong I, supra, B312410, quoting People v. Martin et al. (July 30, 2014, B239366) [nonpub. opn.] (Martin).)
"All four defendants-Cole, Mermer, Martin, and Birdsong- were charged with murdering Juarez and attempting to murder De la Cruz, Rodriguez, and McCarty. [Citation.] The jury convicted all four defendants of the first degree murder of Juarez and of the attempted premeditated murder of De la Cruz. [Citation.] The jury concluded that Birdsong had not personally and intentionally discharged a firearm that caused Juarez's death, '[b]ut as to each of the four defendants[, the jury] found . . . to be true that a principal in the crime personally and intentionally discharged a firearm that caused Juarez's death, and that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further[,] or assist in criminal conduct by gang members.'" (Birdsong I, supra, B312410, fn. omitted, quoting from Martin, supra, B239366.)
In July 2014, "[w]e ordered the abstract of judgment corrected as to one of Birdsong's codefendants, but otherwise affirmed the defendants' convictions on their direct appeal. [Citation.]" (Birdsong I, supra, B312410.)
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.' [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
The bill accomplished this objective by, among other changes, amending section 188 to provide that "[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 added section 1172.6, which provides a procedure whereby "convicted murderers who could not be convicted under the law as amended" may petition to have their conviction vacated and be resentenced on any remaining counts. (Lewis, supra, 11 Cal.5th at p. 959.)
If a petitioner "makes a prima facie showing for relief, the court must issue an order to show cause and hold an evidentiary hearing. [Citation.]" (People v. Estrada (2024) 101 Cal.App.5th 328, 336.) At that 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 California law" as amended by Senate Bill No. 1437. (§ 1172.6, subd. (d)(3).) Notably, "[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." (Ibid.) Instead, the trial court must act as an "independent fact finder" at the evidentiary hearing. (People v. Garrison (2021) 73 Cal.App.5th 735, 745 (Garrison); accord, Guiffreda, supra, 87 Cal.App.5th at p. 123.) "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." (§ 1172.6, subd. (d)(3).)
In October 2020, Birdsong filed a petition in the trial court seeking section 1172.6 relief with respect to his convictions for murder and attempted murder. The court-which had presided over Birdsong's trial-denied the petition. (Birdsong I, supra, B312410.) It reasoned that the then-operative version of section 1172.6 did not apply to attempted murder, and that" 'as to the actual murder, [Birdsong] was either the actual killer or an aid[e]r or abettor in the actual killing and not-[the jury was not] instructed on felony murder or on the natural and probable consequences [doctrine] as to that count.'" (Birdsong I, supra, B312410.)
Birdsong appealed. During the pendency of his appeal, the Governor signed Senate Bill No. 775, which took effect January 1, 2022. Among other things, the bill amended section 1172.6 to include as eligible for resentencing persons convicted of "attempted murder under the natural and probable consequences doctrine." (Stats. 2021, ch. 551, § 2; § 1172.6, subd. (a).)
We affirmed the trial court's order denying Birdsong's petition with respect to his murder conviction. (Birdsong I, supra, B312410.) But we reversed the court's order as to Birdsong's conviction for the attempted murder of De la Cruz because the instructions provided to the jury "would have allowed [it] to reach its [verdict] based on attempted murder as a natural and probable consequence of Birdsong having aided and abetted someone else murdering a different person." (Birdsong I, supra, B312410.) We noted further that "we view this case as close," and that we could not "say based on the arguments before us that Birdsong is ineligible for [section 1172.6] relief as a matter of law." (Birdsong I, supra, B312410.)
We therefore remanded the matter to the trial court.
On remand, the court conducted a hearing concerning Birdsong's attempted murder conviction. Neither party introduced new evidence at the hearing, instead electing to rely exclusively on the transcripts of the trial. In addition, the prosecution framed its argument around the jury's findings at trial, rather than addressing the court as an independent fact finder:
"[Prosecutor]: [T]he Court of Appeal found this to be a close case. [¶] It's my belief and it's the People's position that had the jury been instructed on a theory of direct aiding and abetting rather than having been given a natural and probable consequences instruction as to Mr. Birdsong that the jury would have returned guilty verdicts based upon the evidence we do have that this was a retaliatory shooting in response to the killing of a Venice Shoreline gang member that happened earlier that day.
"[¶] . . . [¶]
" . . . The jury determined that both . . . Birdsong and Martin fired their weapons. [¶] The jury determined, at least based upon the verdicts, one of th[e] four [defendants] at the very least harbored an intent to kill ....
"[¶] . . . [¶]
"And it's the People's theory that the evidence supports . . . either that Mr. Birdsong was the actual perpetrator that he fired- or he attempted to kill Mr. De la Cruz by shooting at him, that he was an aider and abettor to Mr. Martin, who committed a direct and ineffectual act by attempting to shoot Mr. De la Cruz, or that they were both aiders and abettors in a joint effort to commit a retaliatory killing against who they believed to be Santa Monica 13 gang members."
The court likewise referenced the jury's findings in its oral ruling denying Birdsong's petition:
"I think the bottom line is-what the defense is arguing is that there wasn't enough evidence to prove the intent to kill, period.
"And I think the issue that-the issue before me really, is- centers [on] whether there was [a] sufficient showing of culpability for the intent to kill on the part of Mr. Birdsong based on mens rea.
"I think that's the focus of this as oppose[d] [to the actus reus] in the attempted murder, in light of the fact the jury acquitted two people present-merely present, that were not shot at shows that they were discerning as to what the conduct was leading to the murder of Juarez and the attempted murder of Mr. De la Cruz.
"I think what cannot be ignored is the context. If I were to focus solely [on] two people walking into a park, and there was a shooting that took place, then I think Mr. Birdsong's argument would have greater weight.
"[¶] . . . [¶]
"[Martin and Birdsong] drive into a Santa Monica 13 hangout, which was the park where the shootings were located at. They go into the park. They spot two-four people, two of which are-were identified in the record as being members [of] either Santa Monica 13 or an affiliated gang.
"[¶] . . . [¶]
"They go, and the context this take[s] place I think not object [sic] is there sufficient evidence to support a finding beyond a reasonable doubt, I find beyond a reasonable doubt, that [Birdsong] acted-he would be convicted under the current state of the law of [the attempted murder of] Mr. De la Cruz.
"So I'm going to deny the [section] 1172.6 petition in this matter."
The court memorialized its ruling in a written minute order stating: "The court found[ ] that there was sufficient evidence, beyond a reasonable doubt in this matter, to find the defendant guilty in this matter."
Birdsong timely appealed.
DISCUSSION
Birdsong contends the trial court applied the incorrect legal standard at the hearing on his petition following remand. We conclude the record is ambiguous on this point.
In this case, the court was required to hold an evidentiary hearing and determine, as an independent fact finder, whether the prosecution had proven Birdsong guilty beyond a reasonable doubt because the jury was instructed on the natural and probable consequences doctrine, which is no longer a valid basis for attempted murder. (See Coley, supra, 77 Cal.App.5th at p. 543.) The trial court may not, instead, determine only whether substantial evidence supports the conviction. (§ 1172.6, subd. (d)(3).)
The record here is ambiguous as to what standard the court applied. In its ruling, the court used conditional language alluding to what a jury "would" have done and found that "sufficient evidence" supports Birdsong's conviction. But the court also referenced the reasonable doubt standard: "I think not object [sic] is there sufficient evidence to support a finding beyond a reasonable doubt, I find beyond a reasonable doubt, that [Birdsong] acted-he would be convicted under the current state of the law."
We thus cannot determine from the record which standard the trial court applied. Therefore, we conclude that a remand is necessary to permit the court either to (1) clarify that it found Birdsong guilty of attempted murder beyond a reasonable doubt, or (2) hold a new hearing to determine as a fact finder whether the prosecution has demonstrated Birdsong's guilt beyond a reasonable doubt, in compliance with section 1172.6, subdivision (d)(3).
Neither of the Attorney General's arguments in opposition persuades us otherwise. Although we agree that appellate courts generally presume a trial court applied the correct legal standard, that presumption does not apply here because the record indicates the court may have applied the substantial evidence standard rather than determined anew whether Birdsong was guilty beyond a reasonable doubt. (See, e.g., People v. Jones (2017) 3 Cal.5th 583, 616 [" '[i]n the absence of evidence to the contrary, we presume that the court "knows and applies the correct statutory and case law," '" italics added].)
Nor are we persuaded that any error by the trial court in applying the substantial evidence standard is harmless. We noted in Birdsong's prior appeal that "we view this case as close" (Birdsong I, supra, B312410), and Birdsong correctly observes that the evidentiary analysis a court performs as an independent fact finder differs markedly from the analysis a court performs when reviewing a trial record for substantial evidence. (See People v. Clements (2022) 75 Cal.App.5th 276, 294-295.) Thus, it is reasonably probable that if the court applied the wrong standard, applying the correct standard might have resulted in a different outcome. (See People v. Vance (2023) 94 Cal.App.5th 706, 716 [applying state law harmless error standard to alleged error at section 1172.6 evidentiary hearing].)
Moreover, the cases on which the Attorney General relies for its harmless error argument-Garrison, supra, 73 Cal.App.5th 735 and People v. Garcia (2022) 82 Cal.App.5th 956-are distinguishable. Each case involved a defendant whose record of conviction for felony murder conclusively established he was the actual killer. The appellate courts in those cases concluded the defendants thus were ineligible for section 1172.6 relief as a matter of law, and that any error by the trial courts in applying the incorrect legal standard at the defendants' respective evidentiary hearings therefore was harmless. (Garrison, supra, at p. 745; Garcia, supra, at p. 971.)
Accordingly, we conditionally affirm the order denying Birdsong's petition and remand to permit the trial court either to (1) clarify that it found Birdsong guilty of attempted murder beyond a reasonable doubt, or (2) conduct a new hearing at which, pursuant to section 1172.6, subdivision (d)(3), it must act as an independent fact finder and find whether the prosecution has established Birdsong's guilt beyond a reasonable doubt.
DISPOSITION
The March 20, 2023 order is conditionally affirmed, and the matter is remanded to permit the court either to (1) clarify that it found Birdsong guilty of attempted murder beyond a reasonable doubt, or if that was not the standard it applied (2) vacate the order denying Birdsong's petition and conduct a new hearing in compliance with section 1172.6, subdivision (d)(3).
We concur: BENDIX, J. WEINGART, J.