Opinion
A166459
09-26-2023
THE PEOPLE, Plaintiff and Respondent, v. RITCHIE LEE BLAKE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. No. 7075)
Richman, Acting P.J.
Defendant Ritchie Lee Blake appeals from an order denying his petition for resentencing under former Penal Code section 1170.95, now section 1172.6. He argues the trial court erred in engaging in premature factfinding and concluding he was ineligible for relief without issuing an order to show cause and holding an evidentiary hearing. The People concede the error. Accepting the concession, we reverse the order and remand for further proceedings.
Undesignated statutory references are to the Penal Code.
The Legislature renumbered the provision as section 1172.6 without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) Unless otherwise noted, citations in this opinion are to the current version of the provision as codified in section 1172.6.
BACKGROUND
The Facts
As summarized in the opinion of Division One of our First District on defendant's direct appeal, People v. Blake (Oct. 14, 1975, No. 1. Crim. 13249) [nonpub. opn] (Blake), the evidence at trial was the following.
On January 10, 1973, Milton Dowd (Milton), Gaylord Dowd (Gaylord), Matthew James, and defendant went to the Club Hoopa in Humboldt County in James's car. Defendant brought a .22 caliber rifle with him. When they arrived, they saw James Marshall, a janitor of the club, outside burning trash. (Blake, supra, No. 1. Crim. 13249.)
Defendant and Gaylord got out of the vehicle and spoke to Marshall. Gaylord then went into the club and began removing liquor from the premises, without offering to pay for it. Marshall approached Gaylord, who pushed Marshall away. Gaylord put the liquor in James's car and took defendant's rifle from him. Defendant and Milton went into the club several times and took several bottles of liquor and cases of beer. (Blake, supra, No. 1. Crim. 13249.)
Gaylord handed the rifle to defendant and ordered Marshall to get into the back seat of the car. Gaylord entered the car and sat in the back seat. Defendant and Milton got into the front seat of the car and James drove to the Bald Hills area. The car was stopped on Marshall Road and all occupants got out of the car. (Blake, supra, No. 1. Crim. 13249.)
Milton, with Marshall's help, retrieved some of the beer from the trunk. They carried the beer down the road. Defendant walked behind Milton and Marshall, carrying the rifle. Gaylord was behind defendant. James moved the car a few feet so that the headlights would point in the direction of the road. Milton left the road to hide the beer in the brush. At about this time, Milton heard his brother, Gaylord, shout at him, and he also heard a shot. (Blake, supra, No. 1. Crim. 13249.)
Gaylord saw defendant raise his rifle, at which point Gaylord said to defendant, "Hey, my brother is out there." Gaylord turned and started back toward the car when he heard a shot. As Milton was running back toward the car, he saw Marshall fall to the ground and then saw defendant approach from a dark area to the side of the road. Defendant walked in the direction of Marshall and then Milton heard another shot. (Blake, supra, No. 1. Crim. 13249.)
James testified to the following: He saw defendant kneel and aim his rifle. James then heard Gaylord yell at his brother to come back to the car. James next heard two shots and saw Marshall fall to the ground. He saw defendant walk toward Marshall and shortly thereafter heard two more shots. Defendant returned to the car carrying a case of beer and his rifle. He stated he had killed Marshall to prevent him from going to the police. Defendant further stated he would "take the rap" for the killing. The four men then left town. (Blake, supra, No. 1. Crim. 13249.)
The Convictions and the Appeal
In 1974, a jury found defendant guilty of first degree murder (§ 187), kidnapping (§ 207), and first degree burglary (§ 459). The trial court sentenced him to life in prison without the possibility of parole as to the murder, and stayed execution of the sentence as to the remaining offenses (§ 654).
Shortly after sentencing, a section 1203.01 statement to the Department of Corrections was filed. In the statement, the district attorney described the crimes as follows: "On January 10th and 11th of 1973, Ritchie Blake, Gaylord Dowd, Milton Dowd, and Matthew James went to the Club Hoopa in Humboldt County. There they found Jerry Marshall, the cleanup man. The time was early morning. They proceeded to force Jerry Marshall to stand by as they looted the Club Hoopa. They then forced Jerry Marshall to accompany them to an isolated spot, seven miles away where Ritchie Blake shot and killed Marshall with a .22 rifle. Marshall was shot three times, including two shots, one a contact wound, in the head at close range." Below this summary, the district attorney named the three accomplices and explained they all had pleaded guilty to second degree burglary and were granted three years' probation and one year in county jail.
Section 1203.01 authorizes the district attorney to file with the clerk of the court "a brief statement of their views respecting the person convicted or sentenced and the crime committed, together with any reports the probation officer may have filed relative to the prisoner," which is then to be forwarded to "the Department of Corrections and Rehabilitation at the prison .... to which the person convicted is delivered."
Defendant appealed, and in 1975, Division One of this District affirmed the judgment. (Blake, supra, No. 1. Crim. 13249.)
The Petition for Resentencing
On February 15, 2022, defendant filed a petition for resentencing pursuant to former section 1170.95, enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). In his petition, defendant alleged he had been prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; he was convicted of murder; and he could not currently be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019. The trial court appointed counsel for defendant.
On August 4, the trial court heard argument on the petition. Defense counsel noted that the jury in defendant's trial had been instructed on felony murder. Counsel argued: "it does appear that . . . felony murder did play a role. At least that was a theory advanced by the prosecution, and so I would ask that the Court make a prima facie finding at this time."
The court then announced its decision: "Mr. Blake was indicted by the grand jury for a homicide that occurred up in the valley in Hoopa at what was then the Club Hoopa.
"That he and . . . [t]hree other individuals went to the Club Hoopa apparently to burglarize Club Hoopa after hours. There was a clean up person present at the Club Hoopa, and that person was abducted and taken away from the scene, and the testimony apparently-and this is based on the recitation by [the original prosecuting attorney]-the testimony was that Mr. Blake shot the victim three times with a .22 after having abducted him from the Club Hoopa and was assisted by the individuals that are also charged in the burglary.
"Those individuals were . . . Milton Do[w]d, Gaylord Do[w]d, and there was a Michael James. Milton and Gaylord both testified before the grand jury for indictment. There is evidence in the Court's file that they testified at trial over objection. They were accomplices in the burglary. There is also evidence in the Court's file that each of the codefendants was convicted of second degree burglary and no other charges, and each of them was placed on probation with one year in the county jail as a condition of that felony probation.
"So on the evidence that I have before the Court, it would reflect that under those theories that were forwarded by the People, and I would agree with [defense counsel] that certainly there was the element of felony murder in this particular case, but on the theory that was advanced by the prosecution-it was prosecuted as Mr. Blake being the actual killer. And under . . . [former section] 1170.95 the actual killer is not eligible for relief."
Accordingly, the court found defendant failed to make a prima facie showing of his eligibility for relief and denied his petition.
On September 19, defendant filed in this court a petition for writ of habeas corpus (case no. A166130), challenging the denial of his petition for resentencing. On September 30, this court ordered the trial court to treat the habeas petition as a timely notice of appeal, which the trial court did on October 20. The notice of appeal was lodged in this court on November 1, and the above-entitled case (no. A166459) was opened.
DISCUSSION
The Law
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, superseded by statute on other grounds as stated in People v. Wilson (2023) 14 Cal.5th 839, 869; see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature accomplished this by amending sections 188 and 189.
Section 188, which defines malice, now provides in part: "Except as stated in subdivision (e) of [s]ection 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); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e), now limits the circumstances under which a person may be convicted of felony murder: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [defining first degree murder] 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 [s]ection 190.2." (Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also created a procedure under former section 1170.95, now section 1172.6, for persons convicted of felony murder or murder under a natural and probable consequences theory to petition for retroactive relief. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 708; People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis); People v. Gentile, supra, 10 Cal.5th at p. 843.)
Upon receipt of the petition, the trial court must appoint defendant counsel if requested, take briefing from the parties, and then determine whether the petitioner made a prima facie showing he or she is entitled to relief. (§ 1172.6, subds. (b), (c); Lewis, supra, 11 Cal.5th at pp. 960-961 [interpreting the prima facie requirement as originally codified in former § 1170.95].) In performing this initial screening, the trial court may "rely on the record of conviction in determining whether that single prima facie showing is made." (Lewis, at p. 970.) If the record of conviction establishes that the petition lacks merit as a matter of law, the trial court may deny the petition without conducting further proceedings. (See id. at p. 971.) But if, accepting the facts asserted in the petition as true, the petitioner would be entitled to relief because he or she has met the requirements of section 1172.6, subdivision (b), then the trial court must issue an order to show cause. (§ 1172.6, subd. (c); Lewis, at p. 971.) The trial court" 'should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Lewis, 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.)
The trial court's determination that a petitioner is ineligible for relief as a matter of law is a legal conclusion, which we review de novo. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.)
The Trial Court Erred in Denying the Petition
We agree with the parties that the trial court erred by summarily denying defendant's petition, because its finding that he is ineligible for relief was based on an evaluation and weighing of the factual evidence, which is impermissible at the prima facie stage of a section 1172.6 proceeding.
As the People concede, the petition presented a prima facie showing of relief, and there is nothing in the record that conclusively refutes defendant's entitlement to relief as a matter of law. In his jury trial, the trial court instructed the jury on first degree felony murder under a theory of aiding and abetting. Specifically, the jury was told it could convict defendant of first degree murder if the victim was killed "by any one of several persons engaged in the perpetration of . . . the crime of burglary" and if defendant "either directly and actively commit[ted] the act constituting [burglary]," or "knowingly and with criminal intent aid[ed] and abet[ted]" in the commission of the burglary. Although the trial court also instructed the jury on premeditated first degree murder, there is nothing in the record to conclusively establish the jury necessarily found defendant guilty under that theory. Despite finding defendant guilty of first degree murder, the verdicts do not show which theory the jury relied on to base its finding. Thus, the record of conviction does not preclude defendant from relief, because it does not conclusively refute the petition's allegations and establish defendant was the actual killer, or aided and abetted with the intent to kill.
Accordingly, in finding defendant was the actual killer-rendering him ineligible for relief as a matter of law-the trial court necessarily engaged in improper factfinding, as the parties correctly observe. (Lewis, supra, 11 Cal.5th at p. 972.) In reaching its finding, the trial court relied on among other things the codefendants' trial testimony that defendant had shot the victim, as well as the original prosecutor's section 1203.01 statement recounting such testimony and the fact the codefendants were only convicted of second degree burglary. Such weighing of the facts is prohibited when the trial court is making its prima facie determination. (Lewis, supra, 11 Cal.5th at p. 972.)
Defendant argues the section 1203.01 statement is inadmissible hearsay. But defendant did not raise this evidentiary objection below, and so he has forfeited the right to challenge the evidence on that basis here. (See Evid. Code, § 353; People v. Stevens (2015) 62 Cal.4th 325, 333.) On remand, however, the trial court is directed to consider whether the section 1203.01 statement, or any other evidence presented, is admissible at defendant's evidentiary hearing. (See § 1172.6, subd. (d)(3) ["The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed"].)
In sum, defendant adequately alleged a prima facie claim for relief and the record does not rebut his allegations as a matter of law. The court was required to issue an order to show cause (§ 1172.6, subd. (c)), and to hold an evidentiary hearing (§ 1172.6, subd. (d)). In failing to do so, the court erred.
DISPOSITION
The August 4, 2022 order denying defendant's petition for resentencing is reversed, and the matter is remanded with directions for the trial court to issue an order to show cause under section 1172.6, subdivision (c), and to conduct further proceedings as required under section 1172.6, subdivision (d).
We concur: Markman, J., Markman, J. [*]
[*]Superior Court of Alameda County, Judge Michael Markman, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.