Opinion
E073841
03-20-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN CHANDLER, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB15518) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
In 1997, defendant and appellant Steven Chandler personally killed an 11-month old child left in his care. Defendant pleaded guilty to second degree murder (Pen. Code, § 187). He also pleaded guilty to two counts of corporal punishment upon a child (§ 273d) and admitted an allegation of great bodily injury as to one of the corporal punishment counts (§ 12022.7). The trial court sentenced defendant to an indeterminate term of 15 years to life for the murder, a consecutive term of two years on one of the corporal punishment convictions and a concurrent two-year term on the other. The trial court also imposed a consecutive term of three years on the great bodily injury enhancement. In total, the trial court sentenced defendant to a five-year determinate term to be followed by an indeterminate term of 15 years to life.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant appeals from a postjudgment order denying his petition for resentencing pursuant to section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437). Based on our independent review of the record, we affirm the order.
II
FACTUAL AND PROCEDURAL BACKGROUND
Since defendant pleaded guilty, the factual background is taken from an excerpt of the preliminary hearing transcript located in the People's informal response to defendant's resentencing petition and request for judicial notice filed in the superior court. --------
On August 10, 1997, defendant was giving a bath to the 11-month old child when the child was squirming and not staying still. In response, defendant hit the child two or three times in the buttocks and slapped the child three or four times in the face. After the bath, the child squirmed out of defendant's arms and fell on his face. Defendant picked up the crying child, shook him vigorously out of frustration, and then threw him onto a bed. The child fell off the bed and landed on a set of metal barbells. Defendant picked up the child, who was still crying, and threw him back on the bed. The momentum of defendant's conduct caused the child to fall off of the bed and onto the floor. Defendant then heard a cracking sound and the child stopped crying. After defendant picked up the child and placed him on the bed, the child stopped breathing. Defendant realized the child was dead and drove to a hospital with the child. On the way to the hospital, defendant was involved in a car accident which caused the child to fall off the truck seat onto the floor. The child was pronounced dead on August 10, 1997 at 2:50 p.m.
On May 5, 1999, defendant pleaded guilty to second degree murder (§ 187) and two counts of corporal punishment upon a child (§ 273d). He also admitted an allegation of great bodily injury as to one of the corporal punishment counts (§ 12022.7). In return, defendant was sentenced to a total determinate term of five years and an indeterminate term of 15 years to life in state prison.
On January 1, 2019, Senate Bill 1437 became effective (2017-2018 Reg. Sess.), 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 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 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 March 8, 2019, defendant filed a petition for resentencing pursuant to section 1170.95.
On May 15, 2019, the People filed a motion to strike defendant's petition for resentencing and request for judicial notice of the decision and records from this court in case No. E025539, the files and records in superior court case No. FSB15518, the Legislative Counsel Digest for Senate Bill 1437, the ballot statement for Proposition 7, and the ballot pamphlet for Proposition 115. The People argued Senate Bill 1437 is unconstitutional and that it unlawfully amended sections 188 and 189. On this same day, the People also filed an informal response to defendant's resentencing petition and request for judicial notice of defendant's appellate and trial records. The People contended that defendant had failed to set forth a prima facie case for relief as required by section 1170.95, and therefore, no order to show cause should issue and the petition should be denied.
On July 18, 2019, the trial court heard oral argument on defendant's petition for resentencing. Defense counsel submitted on the documents filed and noted that in reviewing the preliminary hearing transcript, it contained "a very lengthy detailed confession." Defense counsel also stated defendant "beat a small child to death" and that "[i]t looks like the new law doesn't really apply to him, a single-defendant case." Thereafter, without ruling on the constitutionality of Senate Bill 1437, and assuming the statute was constitutional, the trial court found that the "circumstances of this case do not qualify for it" and denied defendant's section 1170.95 petition for resentencing.
On October 2, 2019, defendant filed a notice of appeal from the trial court's denial of his section 1170.95 petition for resentencing.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
On September 30, 2018, the Governor signed Senate Bill 1437. "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending sections 188 and 189, as well as by adding section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)
Prior to Senate Bill 1437's enactment, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019) 35 Cal.App.5th 141, 144 (R.G.).) "This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed '"for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion." [Citations.]' [Citation.]" (R.G., at p. 144.) Aider and abettor liability under the doctrine was thus "vicarious in nature." (People v. Chiu, at p. 164.)
Senate Bill 1437 "redefined 'malice' in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer 'be imputed to a person based solely on [his or her] participation in a crime.' (§ 188, subd. (a)(3).)" (R.G., supra, 35 Cal.App.5th at p. 144.) "Senate Bill 1437 also amended section 189, which defines first and second degree murder, by, among other things, adding subdivision (e). Under that subdivision, a participant in enumerated crimes is liable under the felony-murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life." (People v. Munoz (2019) 39 Cal.App.5th 738, 749; § 189, subd. (e); Stats. 2018, ch. 1015, § 3; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099-1100; Martinez, supra, 31 Cal.App.5th at p. 723.) "Senate Bill 1437 thus ensures that murder liability is not imposed on a person who did not act with implied or express malice," or—when the felony murder doctrine is at issue—"was 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. Munoz, at pp. 749-750; Stats. 2018, ch. 1015, § 1, subds. (f), (g); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; Martinez, at p. 723.)
Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for an order vacating their convictions and allowing defendant to be resentenced. (Stats. 2018, ch. 1015, § 4; Martinez, supra, 31 Cal.App.5th at p. 723.) An offender may file a section 1170.95 petition if he or she was prosecuted under a felony murder or natural and probable consequences theory, but under amended sections 188 or 189, could not have been convicted of first or second degree murder. (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing that he or she is entitled to relief, the trial court must conduct a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1); Martinez, at pp. 723-724.) At such a hearing, both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) "[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3); Martinez, at pp. 723-724.)
In this case, defendant's record of conviction demonstrates he is not eligible for relief under the provisions of section 1170.95. Defendant's record of conviction shows that he was the actual killer of the 11-month-old child. Accordingly, defendant cannot make a prima facie showing he is entitled to relief under section 1170.95.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The order denying defendant's section 1170.95 petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.