Opinion
D079983
08-17-2023
THE PEOPLE, Plaintiff and Respondent, v. KEITH SHAWN COSBY, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel J. Hilton and Steve Oetting, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, (Super. Ct. No. CR84617) David M. Gill, Judge.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel J. Hilton and Steve Oetting, Deputy Attorneys General for Plaintiff and Respondent.
McCONNELL, P. J.
In 1988, a jury convicted Keith Shawn Cosby of two murders that occurred in the summer of 1985. Cosby was sentenced to 33 years to life in prison and a consecutive term of life without the possibility of parole. In 2019, Cosby filed a petition for resentencing under Senate Bill No. 1437, which amended 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." (Stats. 2018, ch. 1015, § 1, subd. (f).) The new law also provided a mechanism for resentencing of individuals whose convictions would not meet the new standard. (Pen. Code, § 1172.6.)
At the time Cosby filed his petition, section 1170.95 governed the resentencing of murder convictions. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6. (Stats. 2022, ch. 58, § 10.) We will refer to the statute in its renumbered form. In addition, subsequent undesignated statutory references are to the Penal Code.
After appointing counsel for Cosby, the trial court issued an order to show cause on the petition as it related to the second of the two murders, and summarily denied the petition as to the first murder. After an evidentiary hearing, the court denied the petition for resentencing for the second murder. On appeal from that order, Cosby argues the trial court erred by relying on its own memory of the murder trial to deny the petition, rather than considering the original trial testimony of witnesses that Cosby asserts shows he is entitled to relief under section 1172.6. Cosby alternatively argues that the court erred because its findings contradicted those of the jury and that he is entitled to resentencing on remand.
In response, the Attorney General concedes the trial court erred by relying on its memory and that reversal is required. The Attorney General asserts remand for additional proceedings is appropriate since the jury's verdict does not foreclose, as Cosby contends, a finding that Cosby intended to kill or was an actual participant in the killing who acted with reckless disregard for human life. We accept the Attorney General's concession that the trial court erred by failing to consider the record of conviction and agree that remand for the court to determine Cosby's resentencing eligibility is appropriate. Accordingly, the order is reversed and the matter is remanded for additional proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. AM/PM Murder
Shortly after 3:00 a.m. on June 1, 1985, a customer entered an AM/PM convenience store at the intersection of College and University Avenues in San Diego and discovered the body of the store clerk lying on the floor. The video from three security cameras in the store revealed that Cosby entered the store shortly before 3:00 a.m. and both Cosby and the clerk, Fred Harb, walked to the rear of the store. Cosby then twice returned to the cash register in front. One of those times, Cosby took a handgun from a drawer below the cash register, placed it in his waistband, and returned to the rear of the store.
The video also showed Cosby had cloth or material between his left thumb and fingers, in what appeared to be an effort to stop bleeding. $246.00 was taken from the AM/PM Mini Market and the cash register was left empty. Harb's body had lacerations on the head and defensive type lacerations on his wrist, suggesting his hands had been tied behind his back with a necktie found on the floor. Broken wine bottles and a knife were on the floor in the cooler area. Teeth marks on Harb's tongue and blood between his teeth suggested he had been choked. Harb had been shot once in the back, causing lung and aorta damage. Two other bullets recovered in the cooler area penetrated cases of beer.
B. Aztec Liquor Store Murder
The second murder took place on August 26, 1985. Around 10:45 p.m. that day, the owner of the Aztec Liquor Store on El Cajon Boulevard received a telephone call from the alarm company for the store, which was concerned because the alarm had not been set at 10:00 p.m. as was the normal practice. An employee went to the store to investigate and discovered the front door locked, but the rear door open. The employee also noticed a carton of soda out of place and a pool of blood. The employee went next door to a convenience store and called the police. When the police arrived, they found the body of the store clerk, Kenneth Muck, in a rear storage room lying in a pool of blood. Investigators at the scene also found two types of footprints in the blood.
Muck's standard practice for closing the store at 10:00 p.m. was to place the register money and receipts in an envelope and deposit it in the safe. Muck was not privy to the safe's combination. Before leaving, Muck would also empty the store's trash by going out the back door and placing it in a dumpster.
Earlier on the night of the killing, around 9:00 p.m., a neighbor had entered the liquor store and borrowed a plunger from Muck. Between 9:30 and 9:45 p.m., the neighbor returned the plunger, and noticed vehicles in the parking lot, including a dark, maroon-colored Buick Electra 225 that belonged to Terry Bemore. The vehicle was backed in at an angle facing the Aztec Liquor Store.
Another neighbor of the Aztec Liquor Store looked out his apartment window the night of the killing and saw a male, who was between five foot eleven and six foot one with a medium build (fitting Bemore's build), standing near a large American car. The neighbor told his roommate, who also looked out the window and saw two individuals standing by the rear door of the store.
An autopsy showed Muck had at least 27 stab wounds with punctures to the torso, neck, extremities, and buttocks. Bruises on his face and shoulders suggested he had been beaten. A series of eight small puncture wounds on the right side of his torso near his waist, that were different in character from other wounds, suggested that Muck was stabbed by two different knives. In addition, the pathologist who performed the autopsy testified that abrasions on Muck's hands were not typical defensive wounds that occur in a struggle. Muck was 55 years old, six foot one, weighed 188 pounds, and was known to be in good physical shape.
Late in the night of Muck's murder, Jackie Robertson and Patti Hill, whom Cosby was living with, were awakened by a loud metal pounding sound. The noise continued through the night, and between 7 and 8 a.m. the next morning, Robertson went down to a garage in their apartment building on Bates Street where the pounding was coming from. In the garage, Robertson found Cosby, Bemore, and Troy Patterson beating on a safe, attempting to open it with a sledgehammer. The dials and the handles were broken off, but the safe was unopened. Robertson borrowed a drill and spent 15 minutes drilling the safe, then gave up and left. The other men continued to drill the safe and eventually got it open. Robertson testified the men brought bags of money from the safe into his apartment.
Four or five weeks later, Hill called the San Diego Police Department Crime Prevention Detail and reported information suggesting Cosby's involvement in the Aztec Liquor Store robbery and murder. Cosby was then arrested on other unrelated charges.
C. Cosby's Incriminating Statements
In the months after the Aztec Liquor Store murder, Cosby told various people about his involvement in both the AM/PM and Aztec store crimes. Cosby frequently purchased cocaine from Lloyd Howard. Howard's girlfriend, Kim Strickler, testified that Cosby would pay for the cocaine with money and sometimes with merchandise. She told the jury that the evening of the AM/PM incident, Cosby told Howard he did not have any money but said he was going to get some. Later, Cosby came back to Howard's house with money and purchased cocaine.
On the night of the Aztec store murder, Strickler saw Cosby wearing a bloody shirt and washing himself off with a hose. A few weeks later, Cosby, Howard, and Strickler all drove to a house to obtain some cocaine for Cosby. Howard went into the house while Cosby and Strickler stayed in the car. Strickler testified that Cosby laughingly told her about his involvement in the AM/PM incident "like it was a joke." Cosby said that he got the cash out of the store's cash register and his friend, Harold Robinson, tied up the store clerk in the back. Cosby told Strickler he shot Harb.
Cosby also told Strickler he participated in the Aztec Liquor Store crimes. Cosby said that he and his friend, Bemore, drove to the Aztec Liquor Store in Bemore's Buick. Cosby said he was tying up Muck and that when Muck began to fight back, Bemore began stabbing him. Cosby warned Strickler that if she told anyone about his involvement in the crimes, he would say that she was also involved and threatened that he knew a hit man.
Howard testified that he overheard Cosby talking to a group of people near the Bates Street apartments about what had "happened at AM/PM."
According to Howard, Cosby said that "he had jumped over [a] counter." On another occasion, Cosby was talking about the Aztec store incident with Howard and Bemore. According to Howard, Cosby discussed his involvement in the AM/PM crimes with a grin on his face as though he enjoyed it. He compared the AM/PM incident to the Aztec store incident and said, "one of [the victims] was ... trying to fight back." Bemore then told Cosby to "shut his mouth" and said he was "talking too much."
While housed at the San Diego County Jail, Cosby met Howard's younger brother, Glenn McGee, who was also in custody. In jail, Cosby told McGee various details about his participation in both the AM/PM and Aztec store crimes. Cosby told McGee, that he "offed the dude" in the AM/PM. Cosby said, "The old mother fucker was trying to fight back. I just killed his ass." McGee said that Cosby told him Muck begged not to be killed, but that Cosby told Bemore, "Fuck that, kill him, man." According to McGee, Cosby also told Bemore that he had "offed" the last one and so he gave the knife to Bemore and told Bemore it was his turn. Cosby then hopped up on the counter and watched Bemore stab Muck. Cosby also told McGee that the police did not have anything on him and that he "could beat this shit if it wasn't for [Strickler]."
At trial, McGee recanted the statements, which he made to an investigator for the prosecution while he was in jail.
After Cosby was taken into custody, he waived his constitutional rights and agreed to be interviewed by San Diego Police Officers Ronald Jordan and Gilbert Padillo. At the start of the conversation, Jordan asked Cosby about the Aztec store murder and Cosby responded, "That's one, what about the other one?" Cosby told the officers that the night of the Aztec Liquor Store murder, he was driving around with Bemore and was going to get some cocaine from a Travelodge. Cosby said that Bemore then decided to rob the Aztec store. Cosby said that he stayed outside until Bemore called him in. Cosby claimed that he saw a man lying on his back inside the store and blood. He also told the police that while he was in the store he took some cigarettes and cognac.
Cosby also confessed that he and Bemore dragged the store safe to Bemore's car, then drove the safe to Jackie Robinson's apartment complex on Bates Street. Cosby admitted they drilled the safe until they were able to get the money out, which was about $1,200. Cosby said Patterson, who also lived on Bates Street, disposed of the bank bags the money had been in. He also said Patterson disposed of the knife used to kill Muck. Bemore and Patterson disposed of the safe by dumping it in a canyon.
D. Additional Evidence
Detective Brian Kennedy, a bloodstain pattern expert for the Sacramento Sheriff's Department, analyzed photographs of several of the bloodstains in the Aztec Liquor Store case. His testimony was that several of the bloodstain patterns on Muck's body and clothing, as well as stains surrounding him, were consistent with Muck having been held stationary by someone while bleeding was occurring.
E. Cosby's Defense
In his defense case, Cosby introduced the testimony of a neurologist and psychiatrist who told the jury Cosby had organic personality syndrome and temporal lobe damage to his brain, impairing his judgmental and behavioral functioning.
Cosby also introduced the testimony of Latonya Wadley, who Bemore stayed with for three or four days after Muck was murdered. Wadley told the jury that just after the Aztec store crimes, Bemore and Cosby both showed up at the apartment she shared with her husband, which was in the same apartment complex where Robinson, Hill, and Cosby were living. She testified Bemore and Cosby were using cocaine with her husband and arguing over the money from the safe. At some point, her husband and sister-in-law, who was also there, left the apartment in Bemore's Buick. Then Cosby and Howard left together.
Wadley stayed back, and was left alone with Bemore. She testified that during this time, Bemore admitted to killing Muck and told her he had stabbed him over 20 times. She said that Bemore was agitated and told her he wanted to kill Cosby because he knew too much, and because Cosby had cheated him out of his share of the take. Wadley testified that Bemore told her Cosby was in the car with him and had been in the store, but did not provide any other details about his involvement.
During closing argument, Cosby's counsel admitted Cosby was present at both crime scenes but asserted he lacked the specific intent to kill during the AM/PM incident, and that he was only guilty of theft or burglary in the Aztec store incident. Cosby's counsel also argued that Cosby's mental defect and heavy drug use prevented him from forming specific intent at all. F. Jury Verdicts &Sentencing
After the conclusion of evidence and closing statements, the jury convicted Cosby of burglary (count 1, § 459), robbery (count 2, § 211), and first degree murder (count 3, § 187) for the AM/PM incident. With respect to these crimes, the jury also found true allegations that: (1) Cosby was armed with and personally used a firearm in the commission of the crimes (§§ 12022, subd. (a), 12022.5), and (2) the special circumstance that Cosby committed the murder while engaged in the commission of a robbery (§ 190.2, former subd. (a)(17)(i)). The jury found not true the special circumstance allegation that the AM/PM murder involved the use of torture (§ 190.2, subd. (a)(18)).
With respect to the second murder at the Aztec Liquor Store, the jury convicted appellant of burglary (count 4, § 459), robbery (count 5, § 211), and first degree murder (count 6, § 187, subd. (a)). The jury found not true the multiple murder special circumstance allegation that Cosby was convicted of more than one offense of murder. (§ 190.2, subd. (a)(3).) The jury failed to reach a verdict on both the felony robbery special circumstance allegation (§ 190.2, former subd. (a)(17)(i)) and the torture murder special circumstance allegation (§ 190.2, subd. (a)(18)).
The trial court sentenced Cosby to a term of 33 years to life, consecutive to a term of life without the possibility of parole. This court affirmed the convictions on direct appeal. (People v. Cosby (Dec. 23, 1991, D009673 [nonpub. opn.].)
G. Resentencing Petition
After the passage of Senate Bill No. 1437, Cosby filed a petition for resentencing. The case was assigned to the same judge that had presided over the trial. The court denied the petition with respect to the AM/PM murder, finding Cosby had failed to state a prima facie case for relief. The court found Cosby had made a sufficient showing to obtain an evidentiary hearing with respect to the Aztec Liquor Store murder, and issued an order to show cause.
At the evidentiary hearing the parties both relied on the transcripts from Cosby's trial and legal argument. No new evidence was presented. Near the conclusion of the hearing, the court indicated that it's tentative decision was to deny the petition, but that it would take the matter under submission in order to review the trial testimony of Wadley, which Cosby's counsel urged was the most credible testimony at the trial and precluded a finding that Cosby acted with intent or was a major participant in the murder. However, just before the conclusion of the hearing-without explanation and over the objection of defense counsel-the court reversed course. The court, stating it was relying on its memory from the 1988 trial, found that Cosby had urged Bemore to kill, and thus was a major participant in the murder who acted with reckless indifference to human life. The court then denied the petition. The court concluded the hearing by finding Cosby also had the specific intent to kill Muck.
DISCUSSION
I
"Under the felony-murder doctrine as it existed at the time of [Cosby's] trial, 'when the defendant or an accomplice kill[ed] someone during the commission, or attempted commission, of an inherently dangerous felony,' the defendant could be found guilty of the crime of murder, without any showing of 'an intent to kill, or even implied malice, but merely an intent to commit the underlying felony.' [Citation.] Murders occurring during certain violent or serious felonies were of the first degree, while all others were of the second degree." (People v. Strong (2022) 13 Cal.5th 698, 704 (Strong).)
Long after Cosby's judgment became final, the Legislature approved Senate Bill No. 1437, which went into effect January 1, 2019. The legislation "significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.'" (Strong, supra, 13 Cal.5th at pp. 707-708 [quoting Stats. 2018, ch. 1015, § 1, subd. (f)].) "Penal Code section 189, as amended, now limits liability under a felony-murder theory principally to 'actual killer[s]' [citation] and those who, 'with the intent to kill,' aid or abet 'the actual killer in the commission of murder in the first degree' [citation]. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2'-that is, the statute defining the felony-murder special circumstance." (Id. at p. 708.)
Senate Bill No. 1437 also created a procedure, now codified in section 1172.6, which allows persons convicted of felony murder under the former murder laws to petition for retroactive relief under the amended murder laws. (Stats. 2018, ch. 1015, § 4.) A petitioner initiates the process by filing a declaration averring he or she is eligible for relief because: (1) a charging document was filed against the petitioner allowing the prosecution to proceed under a felony murder theory; (2) the petitioner was convicted of murder after a trial or accepted a plea offer at which the petitioner could have been convicted of murder; and (3) the petitioner could not presently be convicted of murder because of the changes to the state's murder laws that were implemented by Senate Bill No. 1437. (§ 1172.6, subds. (a)(1)-(3), (b)(1).) If the petitioner states a prima facie case for relief, the court must issue an order to show cause and, in most cases, set an evidentiary hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner on any remaining counts. (Id., subds. (c), (d)(1).)
If there is a prior finding by the court or jury "that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony" the statute directs "the court [to] vacate the petitioner's conviction and resentence the petitioner," bypassing the evidentiary hearing. (§ 1172.6, subd. (d)(2).)
At the evidentiary hearing, the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder under the amended murder laws. (§ 1172.6, subd. (d)(3).) What evidence may be considered by the court at the hearing is governed by section 1172.6, subdivision (d)(3). It states, "[t]he 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. The court may also consider the procedural history of the case recited in any prior appellate opinion." (Ibid.) The parties may also offer new evidence or evidence in addition to that which was considered at the murder trial. (Ibid.) A court's own recollection of the trial falls outside the evidence the court may consider under section 1172.6, subdivision (d)(3). (See People v. Mancilla (2021) 67 Cal.App.5th 854, 867, fn. 4 [noting reliance on memory is outside the scope of evidence permitted by the statute, but finding the error harmless where petitioner asked court to take judicial notice of appellate opinion court used to refresh its recollection of the facts].)
"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).)
II
Cosby contends his due process rights were violated by the trial court's reliance on its own memory from the murder trial, rather than reviewing the trial testimony he cited in support of the petition, as the basis for its finding that he was ineligible for relief under section 1172.6. In response to Cosby's argument, the Attorney General concedes the trial court erred by not reviewing the transcripts of the trial testimony it relied on. The Attorney General states that, "[a]s the court recognized here, it should at a minimum review the cited portions of the record in order to make a well-informed decision" and that "the matter should be remanded to allow the court an opportunity" to determine if the prosecution met its burden of proof.
As the parties both point out, the trial court stated that it would review Wadley's testimony before determining if resentencing was required and then issued its ruling without doing so. In addition, the court's reliance on its own memory to decide Cosby's petition ran afoul of the evidence it could properly consider under section 1172.6, subdivision (d)(3). Accordingly, we agree with the parties that the trial court's ruling, which it stated was based on memory of the trial that occurred in 1988, contravened Cosby's due process rights and requires reversal. On remand, the court is directed to review the parties' evidentiary submissions before determining whether Cosby is entitled to be resentenced in accordance with section 1172.6, subdivision (d)(3).
III
In an alternative argument, Cosby asserts reversal is required because the trial court's findings are contradicted by the jury's not true finding on the multiple murder special circumstance allegation. Specifically, Cosby argues the jury's not true finding on that allegation establishes that he did not intend to kill Muck. He also argues the finding establishes that the jury rejected McGee's version of the events, and accepted Cosby's story that he remained in the car during the murder, precluding the trial court from finding he was a major participant.
The Attorney General responds that the jury's acquittal of the multiple murder allegation does not foreclose the trial court from concluding Cosby intended to kill Muck. Rather, the jury might have found the allegation not true for other reasons, for instance if it misunderstood what constitutes a "case" or wrongly interpreted the law as requiring Cosby to have personally killed Muck. The Attorney General also argues the finding does not foreclose the court from denying Cosby's petition because there is no question the jury did not consider whether Cosby was a major participant in the murder who acted with reckless disregard for human life.
We agree with the Attorney General that Cosby's alternative argument does not support reversal, or as he asks in reply, for this court to direct resentencing. With respect to the multiple murder special circumstance allegation, the jury instruction required proof beyond a reasonable doubt of two elements: (1) that Cosby was "convicted of more than one offense of murder in the first or second degree;" and (2) that each murder "was committed by [Cosby] with the specific intent to kill." Given the jury's conclusion that Cosby was the killer in the AM/PM murder, Cosby argues that the jury could acquit him of this special circumstance allegation only if it found he did not harbor intent to kill with respect to his participation in the Aztec Liquor Store murder. This in turn, Cosby asserts, forecloses the trial court from making a contrary finding to support its denial of Cosby's petition.
However, "[a] negative finding on a special circumstance allegation does not entitle a petitioner to resentencing where the petitioner 'could be convicted under other, still valid theories of murder.'" (People v. Garcia (2023) 93 Cal.App.5th 416, 425.) Further, the "not true" finding by the jury as to the special circumstance does not prove, as a matter of law, that the jury affirmatively found Cosby did not harbor intent to kill Muck. "[A] jury verdict acquitting a defendant of a charged offense does not constitute a finding that the defendant is factually innocent of the offense or establish that any or all of the specific elements of the offense are not true." (In re Coley (2012) 55 Cal.4th 524, 554, italics omitted (Coley), citing United States v. Watts (1997) 519 U.S. 148, 155.) The not true finding on the special circumstance was a general verdict indicating reasonable doubt existed as to the special circumstance, but it does not affirmatively establish Cosby lacked intent to kill.
Unlike where there is a determination by the fact finder "that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony," the statute does not direct the court to bypass the evidentiary hearing for a prior finding that the petitioner lacked intent to kill. (§ 1172.6, subd. (d)(2).)
Additionally, even if the jury acquitted Cosby of the multiple murder allegation because it concluded he lacked the specific intent to kill Muck, the jury was not asked to determine whether Cosby was a major participant in the crime who acted with reckless disregard for human life. Contrary to Cosby's assertions on appeal, the jury's rejection of the multiple murder special circumstance allegation is not inconsistent with this alternate theory of liability. To support his position, Cosby argues that the finding establishes the jury adopted his version of events and concluded he was not in the liquor store at the time of the stabbing. This argument is not well-taken.
As the Attorney General points out, the acquittal does not demonstrate the jury's wholesale adoption of Cosby's testimony. (See Coley, supra, 55 Cal.4th at p. 554.) Cosby's assertion that the jury found he was not in the store is speculation. It is equally plausible the jury credited the testimony of Cosby's experts, and determined that his drug use or brain damage prevented him from forming the necessary intent to support a true finding on the multiple murder special circumstance allegation. The jury might also have determined that because Cosby was not the actual killer, the murder was not "committed by" him, as the instruction stated.
On remand, the trial court is free to consider whether Cosby harbored the intent to kill or whether he was a major participant in the killing who acted with reckless disregard for human life-as the theory is explained in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522-as a basis to deny Cosby's resentencing petition.
Cosby cites People v. Clayton (2021) 66 Cal.App.5th 145 (Clayton) in support of his argument that the jury's not true finding on the multiple murder special circumstance allegation constitutes a finding both that he lacked intent and that he was not a major participant who acted with reckless disregard for human life. Like this case, Clayton involved a robbery that resulted in the killing of one of the victims at the hands of the petitioner's co-conspirator. (Clayton, supra, 66 Cal.App.5th at pp. 149-150.) The trial court denied a petition under section 1172.6 without issuing an order to show cause, finding the petitioner had failed to state a prima facie case for relief. The Court of Appeal determined this was error because the jury had found a robbery murder special circumstance allegation not true, explicitly rejecting the prosecution's argument that the petitioner acted with malice or was a major participant, and qualifying the petitioner for relief under section 1172.6. The jury was "instructed that, if it found appellant was not the actual killer, it could not find the special-circumstance allegation true as to appellant unless it unanimously found, beyond a reasonable doubt, that appellant was an aider and abettor with intent to kill or a major participant in the underlying felony who acted with reckless indifference to human life." (Clayton, at p. 156.) Based on this instruction, the Court of Appeal also held that the not true finding was a jury finding that triggered the directive of section 1172.6, subdivision (d)(2) to bypass the evidentiary hearing stage and required the trial court to resentence the petitioner. (Clayton, supra, 66 Cal.App.5th at pp. 157-159.) Unlike the not true finding in Clayton, Cosby's jury could not reach a verdict on the felony murder special circumstance. As discussed, the multiple murder special circumstance allegation instruction at issue here did not require the jury to consider whether Cosby was a major participant who acted with reckless disregard for human life. Clayton does not support direct resentencing in this case.
DISPOSITION
The order denying Cosby's petition for resentencing as it relates to the murder of Kenneth Muck is reversed and the matter is remanded to the trial court for additional proceedings consistent with this opinion.
WE CONCUR: HUFFMAN, J. IRION, J.