Opinion
B309405
03-22-2022
THE PEOPLE, Plaintiff and Respondent, v. IKE CARSTARPHEN et al., Defendants and Appellants.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant Ike Carstarphen. Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant Kenny Buckner. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda Lopez and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from a postjudgment order of the Superior Court of Los Angeles County No. NA040726-01, 04, Laura L. Laesecke, Judge. Reversed and remanded with directions.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant Ike Carstarphen.
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant Kenny Buckner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda Lopez and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Defendants Ike Carstarphen and Kenny Buckner appeal from an order denying their petitions for resentencing pursuant to Penal Code section 1170.95. We reverse with directions for the trial court to issue an order to show cause and to hold a hearing.
Further statutory references are to the Penal Code.
II. BACKGROUND
A. Conviction
As described in a prior opinion affirming defendants' convictions, on May 3, 1999, Buckner, Carstarphen, Darryl Clayton, and Trynun Patterson went to a music and jewelry store in Long Beach to commit a robbery. Buckner, Carstarphen, and Clayton entered the store first. The fourth accomplice, Patterson, then entered the store and grabbed and forced store employee Jenny Kim to the ground. Two of the individuals drew guns and took Gary Kim, the store owner, to a backroom. Gary Kim was shot once in the back of the head and died. The four men fled the scene. (People v. Buckner (Oct. 19, 2001, B143915) [nonpub. opn.] (Buckner); People v. Carstarphen (Oct. 26, 2001, B142069) [nonpub. opn.] (Carstarphen).)
We judicially notice defendants' criminal appeals. Both defendants cite the factual background from their respective appeals.
On July 15, 1999, the Los Angeles County District Attorney (District Attorney) charged Buckner and Carstarphen by information with: murder (§ 187, subd. (a); count 1), with a special circumstance allegation that the murder was committed while defendants were engaged in the crime of robbery (§ 190.2, subd. (a)(17)); second degree robbery (§ 211; counts 2, 3); and conspiracy to commit robbery (§ 182, subd. (a)(1); count 6). The District Attorney also alleged as to counts 1 through 3 that defendants personally used a firearm (§ 12022.5, subd. (a)(1)) and that a principal used a firearm (§ 12022, subd. (a)). Finally, the District Attorney charged Carstarphen with personal use of a gun (§ 12022.53, subd. (b)), discharge of a gun (§ 12022.53, subd. (c)), and discharge of a gun causing Gary Kim's death (§ 12022.53, subd. (d)).
Buckner was tried separately from his codefendants. (Buckner, supra, B143915.) At both trials, the court instructed the juries that defendants could be convicted of murder as aiders and abettors under a natural and probable consequences theory. The court also instructed the juries on felony murder.
The jury in Carstarphen's trial found him guilty of first degree murder and found true the special circumstance allegation that the murder was committed during a robbery. The jury also found Carstarphen guilty of two counts of second degree robbery and conspiracy to commit robbery. It could not reach a verdict on the allegations involving personal use and discharge of a gun (§ 12022.5, subd. (a)(1), § 12022.53, subd. (d)), and the trial court declared a mistrial on those allegations. (Carstarphen, supra, B142069.)
The trial court sentenced Carstarphen to life without the possibility of parole for murder, plus five years to be served consecutively for the robberies and conspiracy. The court also imposed certain sentencing enhancements. (Carstarphen, supra, B142069.) On October 26, 2001, a panel of this court affirmed Carstarphen's conviction, but modified his sentence by vacating an enhancement for a prior prison term. (Ibid.)
The abstract of judgment reflects that an enhancement for personal use of a firearm under section 12022.53, subdivision (b) was imposed on Carstarphen. Our prior opinion noted, however, that there was no verdict form or specific instruction given to the jury for this enhancement. Because Carstarphen did not challenge it on direct appeal, this court did not rule on whether the trial court erred by imposing the enhancement. (Carstarphen, supra, B142069.)
The jury found Buckner guilty of first degree murder and found true the special circumstance allegations that the murder was committed during a robbery and that a principal was armed with a gun. The jury also returned guilty verdicts on two counts of second degree robbery and conspiracy to commit robbery.
The trial court sentenced Buckner to life without the possibility of parole for murder, plus nine years to run concurrently for the robbery and conspiracy convictions. The court also imposed certain sentencing enhancements. (Buckner, supra, B143915.) On October 19, 2001, a panel of this court affirmed the conviction. (Ibid.)
B. Section 1170.95 Petitions
On February 19, 2019, Carstarphen filed a petition for resentencing pursuant to section 1170.95. Carstarphen declared that he was convicted of first degree murder under the felony murder rule or the natural and probable consequences doctrine and he could not now be convicted of first degree murder because of changes to sections 188 and 189. He also declared that he was not the actual killer; he did not intend to kill; and he was not a major participant in the felony and did not act with deliberate indifference to human life during the course of the felony. Defendant also requested the appointment of counsel. By July 17, 2019, defendant was represented by counsel.
The District Attorney opposed Carstarphen's petition, arguing, among other things, that Carstarphen either intended to kill or was a major participant in the underlying felony and acted with deliberate indifference; and that the record of conviction proved beyond a reasonable doubt that he acted with malice aforethought.
On May 20, 2019, Buckner filed a petition for resentencing pursuant to section 1170.95. Buckner declared that he was convicted of first degree felony murder and could not now be convicted of murder pursuant to changes made to sections 188 and 189. Like Carstarphen, he also declared that he was not the actual killer; he did not intend to kill; and he was not a major participant in the felony and did not act with reckless indifference to human life. The trial court appointed counsel to represent Buckner.
The District Attorney opposed Buckner's petition, arguing that Buckner either intended to kill or was a major participant acting with reckless indifference to human life in the underlying felonies.
On November 16, 2020, the trial court held a hearing at which defendants' counsels and the District Attorney argued whether the petitions should be denied as a matter of law. Following argument, the court denied both petitions, concluding that the special circumstances finding rendered defendants ineligible for relief as a matter of law. The court further found, after considering the facts in the record, that both defendants were major participants in the felony and acted with reckless disregard for human life. The court issued its ruling without having issued an order to show cause or setting the matter for a hearing pursuant to section 1170.95, subdivision (d)(3). Both defendants timely appealed.
III. DISCUSSION
Section 1170.95 "creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Where a petitioner files a section 1170.95 petition that contains all of the statutorily required information and requests counsel, the court must appoint counsel and order briefing. (Id. at p. 966.) The court then evaluates whether the petitioner made a prima facie showing that he is eligible for relief. (Id. at p. 960.) In making this evaluation, a court may rely on the record of conviction. (Id. at pp. 971-972.) "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.] . . . [T]he 'prima facie bar was intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972; People v. Drayton (2020) 47 Cal.App.5th 965, 980, abrogated in part on other grounds by Lewis, supra, 11 Cal.5th at p. 963.)
On October 5, 2021, the governor signed Senate Bill No. 775, which amended section 1170.95 effective January 1, 2022. The amendments do not affect the analysis necessary to resolve the instant appeals.
If the petitioner has made a prima facie showing, the trial court "shall issue an order to show cause." (§ 1170.95, subd. (c).) The trial court must then 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." (Id., subd. (d)(1).) "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. . . . 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." (Id., subd. (d)(3).) B. Special Circumstances
Carstarphen and Buckner contend the trial court erred by finding that the juries' special circumstance findings, made before People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) were decided, rendered them ineligible for section 1170.95 relief as a matter of law. This is a question of law that we review de novo. (Lewis, supra, 11 Cal.5th at p. 961.)
The Courts of Appeal are in disagreement regarding this issue, which is currently pending before the Supreme Court. (People v. Strong, review granted March 10, 2021, S266606.) In the absence of a decision by the Supreme Court, we see no reason to depart from our prior conclusion that the special circumstances findings do not prevent defendant from making a prima facie showing that he is entitled to relief. (People v. York (2020) 54 Cal.App.5th 250, 257-263, review granted Nov. 18, 2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835 (Smith).)
C. Prima Facie Showing
Carstarphen and Buckner also argue that the trial court erred by failing to find that they had made a prima facie showing of entitlement to section 1170.95 relief. This is a question of law that we review de novo. (Lewis, supra, 11 Cal.5th at p. 961.)
We agree with defendants. The juries for both defendants were instructed that they could convict defendants under either a felony murder or a natural and probable consequences theory. Both defendants declared that they were not the actual killer, did not intend to kill, and were not major participants in the felony and did not act with reckless disregard to human life. Moreover, our respective appellate opinions of defendants' direct appeals do not demonstrate that defendants were precluded from relief as a matter of law. (See Buckner, supra, B143915; Carstarphen, supra, B142069.) Defendants therefore met their prima facie burden to establish they were entitled to relief. (See People v. Offley (2020) 48 Cal.App.5th 588, 599.)
The Attorney General nonetheless contends that we should follow People v. Law (2020) 48 Cal.App.5th 811, review granted July 8, 2020, S262490 (Law), and People v. Murillo (2020) 54 Cal.App.5th 160, review granted November 18, 2020, S264978 (Murillo), which both held that a Court of Appeal should conduct a Banks/Clark analysis of the record at the prima facie stage to determine whether a defendant is ineligible for section 1170.95 relief. (Law, supra, 48 Cal.App.5th at p. 822; Murillo, supra, 54 Cal.App.5th at p. 169.) We adhere to our holding in Smith, supra, 49 Cal.App.5th at page 95, which rejected the Attorney General's argument.
Here, the trial court, at the prima facie stage, engaged in factfinding and weighing of evidence to determine that defendants were major participants in the robbery and acted with reckless indifference to human life. Such an inquiry cannot take place until an order to show cause issues and a hearing is held. The trial court therefore erred in denying defendants' petitions. (§ 1170.95, subd. (d)(3); People v. DeHuff (2021) 63 Cal.App.5th 428, 442.)
The trial court stated, among other things, that it had "read[] the transcripts and the arguments" and that, according to its "reading of the facts [Carstarphen] and . . . Buckner took the victim to the back." Additionally, when Buckner's counsel argued that his client was in the car when the shooting occurred, the trial court stated it "didn't put a lot of weight on that."
The trial court adjudicated both defendants' petitions at the same hearing. We note that although defendants' petitions involve overlapping facts, the court may reach a different result as to each.
IV. DISPOSITION
The order denying the section 1170.95 petitions is reversed. The matter is remanded with directions for the trial court to issue an order to show cause under section 1170.95, subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d)(3).
We concur: BAKER, Acting P. J., MOOR, J.