Opinion
E073994
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT SAMUEL CRAIG, Defendant and Appellant.
Robert Samuel Craig, in pro. per.; and Aaron J. Schechter, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCR587882) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Robert Samuel Craig, in pro. per.; and Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
In 1992, defendant and appellant Robert Samuel Craig (Craig) and codefendant Darrell Kenneth Moore (Moore) (collectively defendants) took part in a robbery at a Sizzler restaurant during which a customer was shot and killed. (See People v. Craig (1995) 47 Cal.App.4th 626, 630-631 (Craig I).) In the first trial, the jury was unable to reach a verdict on the murder charge (Pen. Code, § 187, subd. (a)) as to both defendants, and on robbery (§ 211) and attempted robbery (§§ 664/211) charges as to Moore. However, the jury found Craig guilty of robbery and attempted robbery. The jury also found true that Craig personally used a firearm (§ 12022.5, subd. (a)) in the commission of the robbery and attempted robbery. In a bifurcated proceeding, the trial court found true that Craig had suffered one prior serious felony conviction (§ 667, subd. (a)) and one prior prison term (§ 667.5, subd. (b)). In a second trial, the second jury found both Craig and Moore guilty of first degree murder, and found Moore guilty of robbery and attempted robbery. (See Craig I, at pp. 631-632.)
Craig I was certified for partial publication. The California Supreme Court granted review of Craig I on January 4, 1996. However, the Supreme Court dismissed review of the case as improvidently granted and remanded the case to this court on July 31, 1996. (People v. Craig, S049733, Supreme Ct. Mins., July 31, 1996 .) We granted Craig's request to take judicial notice of Craig and Moore's appeal in case No. E013955.
All future statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced Craig to 25 years to life on the murder conviction, plus a total of six years for the prior serious felony conviction and prior prison term. The court stayed execution of sentence on the robbery and attempted robbery convictions and the related enhancements pursuant to section 654. (Craig I, supra, 47 Cal.App.4th at p. 632.)
Defendant Craig 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
The factual background is taken from the nonpublished portion of this court's partially published opinion from defendant's prior appeal in case No. E013955.
On September 8, 1992, at about 8:45 p.m., Moore and Craig robbed the Sizzler restaurant on East Highland Avenue in San Bernardino. They were assisted by Aaron Ross, a juvenile, and Eric Green, the getaway driver.
Craig entered the restaurant first, followed by Moore and Ross. Craig went to the restaurant office, where assistant manager Richard Howe and cashier Denise Baumann were counting the cash in Baumann's cash drawer. Craig held a gun on Howe and Baumann, and told Howe, "Open the safe, give me the money." As Howe was attempting to do so, Craig scooped the money out of Baumann's cash drawer and into his pocket.
Meanwhile, Moore took up a position in the public portion of the restaurant. He drew a gun and ordered everyone to get down on the floor.
One customer, Ronald Bartz, was seated in a booth with his wife Rosemarie Bartz, their adult daughter, and the daughter's friend. Mr. Bartz jumped up. Mrs. Bartz, seeing her husband get up, looked in the direction he was looking. She saw Moore pointing a gun at them. She was looking down the barrel of the gun. She screamed, "No, no." There was a noise, as if of breaking glass; some witnesses testified that Mr. Bartz threw a glass of iced tea or a bottle of something (perhaps ketchup) at Moore, but Mrs. Bartz denied this. At any rate, Mr. Bartz took two or three steps toward Moore. Moore fired three shots. One shot struck Mr. Bartz in the forehead, killing him.
Moore yelled, "Get the fuck out, I shot him." Craig backed slowly out of the office. He said, "Come on, man, come on," and he and Moore ran out of the restaurant.
On September 13, 1992, Moore was arrested. At that time, he had a mustache and goatee.
The evidence identifying Moore as the gunman who shot Mr. Bartz was substantial, but conflicting. Moore testified at trial, and denied participating in or being present at the crime. He claimed to have been home that night with his wife, his sister-in-law, and his sister-in-law's children.
At trial, Mrs. Bartz identified Moore as the man who shot her husband. Mrs. Bartz told police officers, however, that the gunman was clean-shaven. In a photo lineup, she was unable to identify Moore. At a live lineup, however, although Moore had a mustache and beard, she identified him as the man who shot her husband. At the first trial, Mrs. Bartz still maintained that the gunman was clean-shaven.
Other eyewitnesses likewise described the gunman as clean-shaven, or, at least, did not recall him having any facial hair. Other eyewitnesses had trouble identifying Moore from a photo lineup; however, most, but not all, identified him at the live lineup. A few remained unable to identify Moore as the gunman even at trial.
Co-participant Aaron Ross was permitted to plead guilty to voluntary manslaughter in exchange for his testimony; murder, robbery, and weapon use charges against him were dismissed. Ross identified Moore as the gunman, and testified that Moore planned the robbery.
The procedural background is taken from Craig I, supra, 47 Cal.App.4th at pages 631 to 633, footnotes omitted. --------
The initial information was filed on December 18, 1992. On August 9, 1993, an amended information was filed charging defendants with second degree robbery of Denise Baumann (§ 211), attempted second degree robbery of Richard Howe (§§ 211, 664), and murder of Ronald Bartz (§ 187, subd. (a)). As to Moore, it was alleged as a special circumstance that the murder took place during a robbery (§ 190.2, subd. (a)(17)). It was alleged in connection with each count that both defendants personally used a firearm (§ 12022.5, subd. (a)); that Moore had served three prior felony prison terms (§ 667.5, subd. (b)); and that Craig had been convicted of one prior serious felony (§ 667, subd. (a)) and had served one prior felony prison term (§ 667.5, subd. (b)).
On August 11, 1993, the first trial commenced. On September 9, 1993, a jury found Craig guilty of robbery and attempted robbery; it found true the personal firearm use allegation against Craig in connection with the robbery and attempted robbery counts. The jury was unable to reach a verdict on the murder charge against Craig. The jury, however, found not true the personal firearm use allegation against Craig in connection with the murder. At the prosecution's request, the trial court struck this allegation. The jury also was unable to reach a verdict on any of the charges against Moore. The trial court declared a mistrial on the unresolved counts and allegations.
On September 10, 1993, Craig waived a jury trial on the prior felony allegations, and the trial court found them true.
On October 7, 1993, the trial court sentenced Craig to a total prison term of 16 years eight months. On December 1, 1993, Craig filed a notice of appeal (case No. E013658).
The matter was set for retrial of the remaining undecided charges and allegations. On October 7, 1994, Craig entered a plea of double jeopardy. On November 15, 1993, Craig filed a motion to dismiss the murder charge, again claiming double jeopardy, but on December 3, 1993, the motion was denied. On December 29, 1993, Craig challenged the denial of his motion to dismiss by filing a petition for writ of mandate with this court (case No. E013762). On January 4, 1994, we denied the petition.
On January 5, 1994, the second trial commenced. Again, the trial court bifurcated trial of the prior felony allegations. On Friday, January 28, 1994, the jury returned a verdict as to Craig, finding him guilty of first degree murder. Initially, the jury reported that it was unable to reach a verdict as to Moore. The trial court, however, ordered the jury to continue further deliberations. On Monday, January 31, 1994, the jury found Moore guilty of first degree murder. The jury found true the robbery-murder special circumstance allegation against Moore. It also found Moore guilty of robbery and attempted robbery, and found true the personal firearm use allegations against Moore in connection with all counts.
On January 26, 1994, Moore waived a jury trial on the prior felony allegations, and on February 1, 1994, the trial court found these allegations true.
On February 4, 1994, Craig moved to set aside the verdict on double jeopardy grounds, but the motion was denied. The trial court then vacated the sentence imposed on Craig following the first trial and resentenced Craig to 25 years to life on the murder conviction, plus a total of six years (consisting of five years on the prior serious felony allegation, plus one year on the prior felony prison term allegation), to be served consecutively. The court stayed execution of sentence on the robbery and attempted robbery convictions and the related enhancements pursuant to section 654.
On February 8, 1994, Craig filed a timely notice of appeal (case No. E013955).
On March 2, 1994, in light of the fact that the trial court had vacated the sentence initially imposed on Craig, we dismissed Craig's appeal in case No. E013658 as moot.
On March 14, 1994, the trial court sentenced Moore to life without parole on the murder conviction, plus a total of eight years (consisting of five years on the personal firearm use finding, and one year on each of the three prior felony prison term findings), to be served consecutively. The court stayed execution of sentence on the robbery and attempted robbery convictions and the related enhancements, pursuant to section 654 and In re Culbreth (1976) 17 Cal.3d 330.
On March 28, 1994, Moore filed a timely notice of appeal (case No. E014198).
On April 11, 1994, we consolidated Craig's appeal, case No. E013955, and Moore's appeal, case No. E014198.
This court affirmed Craig's and Moore's convictions on September 29, 1995.
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 5, 2019, Craig filed a petition for resentencing pursuant to section 1170.95.
On June 10, 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. E013955, among other documents. 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, contending 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. In support, the People attached this court's partially published opinion from Craig's prior appeal in case No. E013955.
On July 8, 2019, Craig filed opposition to the People's motion to strike the petition for resentencing, asserting Senate Bill 1437 is constitutional and that the petition set forth a prima facie case for relief under section 1170.95.
On July 8, 2019, the trial court issued a written tentative decision and found good cause to continue the hearing and decision on Craig's petition to allow the parties to further brief the issues. In its written tentative decision, the court concluded that Craig was "an armed major participant in an inherently dangerous felony, and [was] acting with conscious disregard of human life." The court, therefore, found Craig ineligible for relief under section 1170.95 and denied Craig's petition for resentencing. The court also found Senate Bill 1437 unconstitutional and granted the People's motion to strike Craig's petition.
On October 25, 2019, the trial court heard oral argument on Craig's petition for resentencing. Following argument, the court found that Craig was a major participant and that "his actions of confronting patrons and employees inside of the restaurant, along with Mr. Moore, with a firearm, threatening them with a firearm, and demanding money at gunpoint, does constitute a conscious disregard for human life."
On October 28, 2019, Craig filed a notice of appeal.
On November 6, 2019, the trial court issued a written decision on Craig's section 1170.95 petition for resentencing. The court's final ruling conformed with its July 8, 2019 tentative decision. The court denied Craig's section 1170.95 petition, concluding Craig had failed to make a prima facie showing he qualified for relief under section 1170.95. The court also found Senate Bill 1437 unconstitutional and granted the People's motion to strike Craig's petition for resentencing.
On December 23, 2019, Craig filed a timely amended notice of appeal from the trial court's denial of his section 1170.95 petition for resentencing.
III
DISCUSSION
After Craig 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 Craig an opportunity to file a personal supplemental brief, and he has done so. Craig asks this court to review the record on appeal to determine his eligibility under section 1170.95, notes that he had no part in the planning of the robbery, and that he never pulled a gun on any of the customers.
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 Penal Code sections 188 and 189, as well as by adding Penal Code 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, review granted Nov. 13, 2019, S258175; 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, Craig's record of conviction demonstrates he is not eligible for relief under the provisions of section 1170.95. Craig's record of conviction shows that he was a major participant in the murder and that he acted with reckless indifference to human life when he participated in the armed robbery. (See Tison v. Arizona (1987) 481 U.S. 137; People v. Banks (2015) 61 Cal.4th 788, 797-800, 807 ["[r]eckless indifference to human life 'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death."' [Citation.]"] Italics omitted.) Craig was at the scene of the robbery with Moore. Craig was armed with a firearm when he entered the restaurant. Once Craig entered the restaurant, he went to the back and pointed the gun at the restaurant employees. Meanwhile, Moore remained in the public portion of the restaurant and drew a gun at the customers. Craig knew that Moore had a firearm and was willing to use it to escape. Neither Craig nor Moore abandoned the crime. Instead, they both escaped with the fruits of the robbery after Moore shot a customer. Evidence of these facts was sufficient to support the trial court's finding that Craig was a major participant and that "his actions of confronting patrons and employees inside of the restaurant, along with Mr. Moore, with a firearm, threatening them with a firearm, and demanding money at gunpoint, does constitute a conscious disregard for human life." (See People v. Banks, at p. 807.) Accordingly, Craig 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 Craig's section 1170.95 petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.