Opinion
B327718
01-31-2024
THE PEOPLE, Plaintiff and Respondent, v. DANNY JEROME YOUNG, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. A525703 Victor D. Martinez, Judge. Reversed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
Danny Jerome Young appeals from the denial of his resentencing petition under Penal Code section 1172.6, formerly numbered section 1170.95. The resentencing court summarily denied the petition without appointing counsel, finding it was duplicative of a previous petition the resentencing court had also denied. We hold, and the Attorney General concedes, this was error. A defendant may file a second resentencing petition if, as here, subsequent legal authority has undercut the basis of a previous denial. The resentencing court denied Young's first petition at the prima facie stage without appointing counsel and in reliance on testimony Young gave in a civil trial, none of which is proper under legal authority issued subsequent to the denial. Accordingly, we reverse the denial of Young's second petition and remand for further proceedings.
Unspecified statutory citations are to the Penal Code.
We grant the Attorney General's request to take judicial notice of the record from Young's direct appeal from his conviction, Case No. 43187.
In 1982, a jury convicted Young of murder, kidnapping for ransom, and two counts of attempted kidnapping. The jury found true that the victim of the kidnapping for ransom charge suffered bodily injury and death. By stipulation of counsel, the trial court struck the kidnapping-related special allegations as to the murder count.
The trial court sentenced Young to 15 years to life for murder, life without the possibility of parole for kidnapping for ransom, and 11 years 4 months on the attempted kidnapping counts, all to be served consecutively.
In January 2020, Young filed a petition for resentencing under former section 1170.95. On February 6, 2020, the resentencing court summarily denied the petition without appointing counsel for Young. The resentencing court relied on testimony Young had given in a civil case in which, according to the resentencing court's written order, Young admitted to "lur[ing] the victim into his bedroom and demand[ing] his phone number 'because I knew at the time I was going to kill him,'" and then "strang[ling] the victim with an electrical cord." Based on this testimony, the resentencing court concluded Young was the actual killer and had intent to kill, thus precluding relief under former section 1170.95. It does not appear from the record that Young appealed from the denial of his 2020 petition.
In 2022, Young filed a second resentencing petition, now under section 1172.6. Young requested appointment of counsel, citing People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
The resentencing court denied the second petition as a "duplicate petition" of the first, with "no new grounds" alleged. The court again did not appoint counsel.
Young timely appealed.
DISCUSSION
Young argues, and the Attorney General concedes, that the resentencing court erred in summarily denying his petition under section 1172.6. The parties request the matter be remanded for the resentencing court to appoint counsel for Young and conduct a prima facie inquiry under section 1172.6, subdivision (c). For the reasons set forth below, we agree.
In 2018, the Legislature amended the Penal Code to provide that the element of malice required for a murder conviction "shall not be imputed to a person based solely on his or her participation in a crime," except as set forth under section 189, subdivision (e), the felony murder statute. (§ 188, subd. (a)(3).) The Legislature also amended section 189 to limit the reach of the felony murder statute; now, to be convicted of murder based on a killing committed in the perpetration or attempted perpetration of specified crimes, the defendant must be the actual killer, have aided and abetted the actual killer with intent to kill, or have been a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e).)
The Legislature enacted former section 1170.95, now numbered section 1172.6, which provides a mechanism for defendants to seek retroactive resentencing if they could no longer be convicted of murder, attempted murder, or manslaughter under the amended Penal Code. (See People v. Lee (2023) 95 Cal.App.5th 1164, 1173 (Lee).) Relief is potentially available to, inter alia, people "convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a).)
"If a petitioner makes a prima facie showing of relief under section 1172.6-that is, a showing that the petitioner was convicted of murder, attempted murder, or manslaughter under a theory no longer valid under the amended Penal Code-the resentencing court must issue an order to show cause for an evidentiary hearing. (§ 1172.6, subd. (c); People v. Hurtado (2023) 89 Cal.App.5th 887, 891.) At that hearing, the prosecution must prove beyond a reasonable doubt that the petitioner remains guilty of murder or attempted murder despite the amendments to sections 188 and 189. (§ 1172.6, subd. (d)(3).)" (Lee, supra, 95 Cal.App.5th at p. 1174.) "If, however, the record of conviction or the court's own documents indicate the petitioner is ineligible for resentencing as a matter of law, the resentencing court may deny the petition without issuing an order to show cause." (Ibid.)
There is no bar to successive resentencing petitions under section 1172.6 or former section 1170.95 when "the subsequent petition rest[s] on new legal authority which challenged the basis for the [resentencing] court's summary denial of the previous petition." (People v. Farfan (2021) 71 Cal.App.5th 942, 946-947.)
Here, Young's second petition cited Lewis, which contained at least two holdings undercutting the denial of Young's first petition. First, Lewis held that a petitioner under former section 1170.95 is entitled to appointment of counsel upon the filing of a facially sufficient petition, and "only after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether 'the petitioner makes a prima facie showing that he or she is entitled to relief.' [Citation.]" (Lewis, supra, 11 Cal.5th at p. 957.) Second, although Lewis held it was proper for the resentencing court to rely on "the record of conviction" when determining whether a petitioner has made a prima facie showing, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Id. at p. 972.)
The resentencing court denied Young's first petition without appointing counsel. The court also engaged in factfinding at the prima facie stage involving the weighing of evidence by considering Young's testimony from a civil trial. The denial of Young's first petition therefore cannot stand under Lewis, and the resentencing court erred in relying on that denial to also deny Young's second petition.
We set aside the question whether a resentencing court at the prima facie stage may rely on evidence outside the record of conviction.
As the Attorney General points out, this error was not harmless because the record does not conclusively establish that Young is ineligible for resentencing. Young's jury received a conspiracy instruction stating, "Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the objective of the conspiracy even though it was not intended as a part of the original plan and even though he was not present at the time of the commission of such act." This instruction may have led the jury to impute malice to Young based on his participation in a conspiracy to commit kidnapping.
Further, during closing argument the prosecutor emphasized that the People "never intended to prove to you that it was Danny Young who actually put his hands around this child's neck and killed this child." Rather, "the evidence has shown . . . that there was more than one person involved in this," and "legally Danny Jerome Young is responsible for the fact that one of the other individuals that was involved in this kidnapping murdered this child ...."
Given these instructions and argument, it is conceivable the jury convicted Young of murder not based on his own actions or mental state but based on the acts of a fellow conspirator in the kidnapping. The resentencing court's error in denying the petition in reliance on the denial of the first petition was not harmless.
DISPOSITION
The order denying Young's 2022 resentencing petition is reversed. On remand, the resentencing court shall appoint counsel for Young and conduct further proceedings as set forth under Penal Code section 1172.6, subdivision (c).
We concur: ROTHSCHILD, P. J., WEINGART, J.