Opinion
C092798
11-22-2022
THE PEOPLE, Plaintiff and Respondent, v. MARQUEL DIXON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 10F00253)
OPINION ON TRANSFER
DUARTE, J.
This case returns to us on transfer with directions from our Supreme Court.
While defendant Marquel Dixon was serving a life sentence for killing Perrell Marquis Waters, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 1-4) (Senate Bill No. 1437). This bill amended the law governing murder liability under the felony murder and natural and probable consequences theories and provided a new procedure under Penal Code section 1172.6 for eligible defendants to petition for recall and resentencing.
Further undesignated statutory references are to the Penal Code. Effective June 20, 2022, section 1170.95 was renumbered as section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new numbering.
Defendant appealed from a postjudgment order denying his section 1172.6 resentencing petition after the trial court found the jury's true finding on a robberymurder special circumstance allegation precluded relief. In an unpublished decision, we affirmed the court's order. (People v. Dixon (Oct. 13, 2021, C092798) [nonpub. opn.].)
Defendant petitioned our Supreme Court for review; that court has now directed us to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698. Having done so, we agree with the parties that the trial court's order denying the petition must be reversed and the matter remanded for further proceedings consistent with this opinion.
BACKGROUND
The facts underlying defendant's crimes, set forth in our unpublished opinion People v. Scott (Dec. 10, 2013, C068544) [nonpub. opn.] (Scott) affirming Dixon's convictions, were as follows:
On our own motion, we take judicial notice of this prior decision. (Evid. Code, § 452, subd. (d).) We provide this summary of facts from the prior opinion in defendant's direct appeal solely for context and do not rely on these facts for our analysis or disposition here. (See § 1172.6, subd. (d)(3).)
In 2009, there was significant internecine conflict between various subsets of the Bloods street gang in Sacramento. Marcus Scott and Ronald Grant were active members of one subset, the Fourth Avenue Bloods, and the victim, Waters, was a member of a different subset, the Elm Street Bloods. Jumal Gray was a Bloods gang member, but his subset was unknown. It was not clear whether defendant was a gang member at the time. (Scott, supra, C068544.)
In November 2009, Scott and Grant were each involved in shootings, for which they believed the Elm Street Bloods, including Waters, were responsible. Scott wanted to retaliate and threatened to kill Waters. (Scott, supra, C068544.)
The next month, Grant, Gray, Scott, and defendant met up and decided to commit a robbery. The group went to the Woodbridge Apartments to carry out the robbery. Both Scott and Grant were armed. Gray stayed in the car to act as the getaway driver while defendant, Grant, and Scott got out and walked behind the apartments. A short time later, Gray heard gunshots and defendant came running back to the car before the shots stopped; defendant got into the car and Scott and Grant soon followed. (Scott, supra, C068544.)
Waters had been sitting in his car at the apartment complex when his neighbor saw two shooters open fire. The neighbor saw a third man run away when the shooting started. Waters was struck several times and later died at the hospital from his gunshot wounds. (Scott, supra, C068544.)
Defendant, Scott, Grant, and Gray were charged with the murder and attempted robbery of Waters (§ 187, subd. (a), count one; §§ 664, 211, count two). A jury found defendant guilty of first degree murder with a robbery-murder special circumstance (§ 190.2, subd. (a)(17)(A)), and attempted robbery (§§ 664/211). The jury also found true various firearm and gang enhancements. (§§ 12022.53, subd. (d), 186.22, subd. (b)(1).) (Scott, supra, C068544.)
Gray pleaded to attempted robbery and voluntary manslaughter for the benefit of a gang. (Scott, supra, C068544.)
The trial court sentenced defendant to life without parole for the murder, plus 25 years to life in prison for the firearm enhancement. Defendant appealed, primarily arguing that there was insufficient evidence he aided or abetted Scott and Grant or conspired with them as to attempted robbery necessitating reversal of his murder conviction, and that insufficient evidence supported the robbery-murder special circumstance because he was not a major participant and did not act with reckless indifference to human life. (Scott, supra, C068544.) We rejected both claims, but remanded for resentencing because the trial court was unaware of its sentencing discretion to impose a lesser penalty of 25 years to life in prison, and so the court could consider relevant juvenile sentencing factors. (Scott, supra, C068544.) On remand, the court resentenced defendant to 25 years to life on the murder count plus an additional 25 years to life for the firearm enhancement for a total of 50 years to life in prison.
Defendant appealed from the resentencing, arguing his sentence constituted cruel and unusual punishment. (People v. Dixon, supra, C077755). We determined the issue was moot, but remanded the matter to allow defendant an opportunity to request a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, to make a record of youth-related mitigating factors for consideration at a future youth offender parole hearing. (Dixon, C077755.)
In April 2019, defendant filed a petition for resentencing under section 1172.6, alleging that he could not now be convicted of murder because of changes Senate Bill No. 1437 made to sections 188 and 189. Defendant's form petition alleged as relevant here that: (1) he was not the actual killer; (2) he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in committing first degree murder; and (3) he was not a major participant or did not act with reckless indifference to human life during the course of the crime. He requested appointed counsel.
The People moved to dismiss the petition, arguing defendant had failed to make a prima facie showing that he was eligible for resentencing under section 1172.6. Defendant's appointed counsel opposed.
After considering the parties' briefing but before holding a hearing, the trial court denied the petition, finding defendant had failed to make the requisite prima facie showing. In so ruling, the court found that defendant was precluded from relief as a matter of law given the jury's true finding on the robbery-murder special circumstance, which necessarily meant that the jury found defendant either was the actual killer, aided and abetted the actual killer with the intent to kill, or was a major participant who acted with reckless indifference to human life. Because nothing in the record showed defendant had successfully challenged the special circumstance finding, the jury's true finding remained valid thus precluding relief under section 1172.6. Defendant appealed and his notice of appeal was deemed timely filed under the constructive filing doctrine. As described above, we initially affirmed the order denying defendant's petition.
DISCUSSION
In supplemental briefing after transfer, the parties agree that under Strong the jury's true finding on the robbery-murder special circumstance, which was made before our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 clarified what it means to be a major participant who acts with reckless indifference to human life, does not preclude defendant as a matter of law from relief under section 1172.6. We agree and will reverse and remand for further proceedings under section 1172.6.
Senate Bill No. 1437 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).) Senate Bill No. 1437 achieves these goals by amending section 188 to require that a principal act with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a person can be liable for felony murder only if: (1) the "person was the actual killer"; (2) the person, with an intent to kill, was an aider or abettor in the commission of murder in the first degree; or (3) the "person was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)
As pertinent here, Senate Bill No. 1437 also added what is now section 1172.6, which permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if, among other things, the petitioner could not be convicted of first or second degree murder due to the change in the law. (§ 1172.6, subd. (a).) Upon submission of a facially sufficient petition that requests counsel, the court shall appoint counsel and provide the parties an opportunity to submit briefs. (§ 1172.6, subds. (b)(3), (c).) Following briefing, the court must hold a hearing to determine whether the petitioner has made a prima facie case for relief. (§ 1172.6, subd. (c).) If a sufficient prima facie showing is made, the court must issue an order to show cause. (§1172.6, subds. (c), (d).)
Section 190.2, subdivision (d) provides that, for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery, an aider and abettor must have been a "major participant" and have acted "with reckless indifference to human life." (§ 190.2, subd. (d); Tapia v. Superior Court (1991) 53 Cal.3d 282, 298.) Thus, on its face, a special circumstance finding satisfies the requirements for accomplice murder liability even after Senate Bill No. 1437. (§ 189, subd. (e).)
Since the time of defendant's convictions, however, the Supreme Court has refined the analysis as to who qualifies as a major participant acting with reckless indifference to human life in Banks and Clark. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, abrogated on other grounds in People v. Lewis, supra, 11 Cal.5th at p. 963.) After we rejected defendant's claims in our previous opinion, our Supreme Court decided Strong, which concluded: "Findings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437. This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark." (People v. Strong, supra, 13 Cal.5th at p. 710.) Here, the trial court concluded that the jury's pre-Banks and Clark findings precluded defendant from establishing a prima facie case. The trial court's conclusion does not survive Strong.
DISPOSITION
The trial court's order denying defendant's section 1172.6 petition is reversed with directions to conduct further proceedings consistent with this opinion and current law.
We concur: Robie, Acting P. J. Mauro, J.