Opinion
B333284
10-29-2024
THE PEOPLE, Plaintiff and Respondent, v. CHARLES C. DONNELL, Defendant and Appellant.
Jennifer Peabody, 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, Steven E. Mercer and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. A136432-01 Martin L. Herscovitz, Judge. Reversed and remanded with directions.
Jennifer Peabody, 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, Steven E. Mercer and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
STRATTON, P. J.
In 1978 appellant Charles Curtis Donnell was convicted of the first degree murder of Betty Alexander. He was sentenced to state prison for the term prescribed by law. On October 6, 2022, Donnell filed a petition for resentencing under Penal Code section 1170.95, now renumbered section 1172.6. The trial court found that Donnell had not presented a prima facie case for relief and denied the petition. We disagree and reverse.
PROCEDURAL HISTORY
Donnell was tried twice. At his first trial, he defended on the ground of diminished capacity. The result was a hung jury. In his second trial, Donnell unsuccessfully sought permission to add the defense of not guilty by reason of insanity. After the jury returned a verdict of guilty, judgment was entered and an appeal followed.
The Court of Appeal affirmed his conviction. (People v. Donnell (June 25, 1979, 32989) [nonpub opn.].) We found that "it was the theory of the People that, after an argument with a girl, defendant and a companion poured gasoline over her and set fire to it, causing her death. The defense was diminished capacity, allegedly induced by use of phencyclidine (PCP)." (Ibid.) "[T]he request was supported only by proffered psychiatric evidence that defendant was under the influence of PCP at the time of the crime; but it did not show that defendant had any evidence that such usage had resulted in any disease or defect of the mind. The proffered evidence went no further than possibly to support the defense of diminished capacity-a defense fully litigated at both trials and rejected by the jury in the second trial.... [¶] Under questioning by a police officer, defendant had made a confession of guilt and the confession was introduced against him. It is here claimed that the confession should have been excluded because it was obtained by the use of lies by the officer to the effect that the other man had confessed and implicated defendant." (Ibid.) We rejected this contention and affirmed the conviction in full.
Donnell was tried alone.
Donnell's petition for resentencing was facially sufficient under the statute. He requested appointment of counsel and counsel was appointed.
On January 20, 2023, the People filed an opposition to Donnell's petition.
Pages 2, 4, 6 and 8 of this opposition are missing from the Clerk's Transcript. The People filed another opposition on June 30, 2023. This one is complete and is discussed in the text, post.
On June 8, 2023, Donnell filed his reply to the opposition, requesting a hearing to determine whether he had made a prima facie case for relief. Donnell alleged the trial court was required to accept the allegations of the petition as true for purposes of determining whether he had made a prima facie case. Donnell took issue with the People's position that his conviction for first degree murder made him ineligible for relief and pointed out that the jury had been instructed with CALJIC No. 8.11 and CALJIC No. 3.00. The latter instruction defined a principal as an aider and abettor who was liable as a principal "for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged." Donnell closed by requesting the issuance of an order to show cause.
On June 30, 2023, the People again filed an opposition to Donnell's petition. The People admitted that the jury was instructed on the natural and probable consequences doctrine as a theory of liability for Donnell's actions. Nevertheless, the People contended that Donnell was "convicted of first-degree murder. The only legal theory for first-degree murder on which the jury was instructed was for willful, deliberate and premeditated murder (CALJIC [No.] 8.20)." The People noted that Donnell was the only defendant in this case. They closed by noting that Donnell's "conviction was based on his having committed this crime with actual malice which precludes him from being resentenced pursuant to [section] 1172.6 as a matter of law."
The trial court denied the petition. It found that "[t]here were two defendants in the case, where the defendant and Miss Cohart were convicted of pouring gasoline on the victim and setting her on fire. The court did give the 1976 version of CALJIC [No.] 3.00, that did include language of natural and probable consequence. [¶] This case did not deal with [the] felony murder rule at all. There were no instructions on that. But the defendant was convicted of first degree murder. With these instructions, the only way that the jury could have come with that conclusion, is if they followed the version of CALJIC [No.] 8.20 that was given to the jury, and that instruction said in the third paragraph, 'if you find that the killings [sic] proceeded and accompanied by a clear deliberate intent on behalf of the defendant to kill as a result of deliberation and premeditation,' and then I would put DOT, DOT, DOT [sic], it is murder of the first degree. [¶] Therefore under this instruction, the only way the jury can convict Mr. Donnell of murder at all was based upon premeditation, deliberation and with express[] malice to kill. So. [¶] Since the record of conviction shows that the defendant had express[] malice or intent to kill, he has not made a prima facie case, and the petition is denied."
DISCUSSION
I. Applicable Caselaw
"Whether the court conducted a proper inquiry under [former] section 1170.95, subdivision (c) is a question of statutory interpretation, which we review de novo." (People v. Harrison (2021) 73 Cal.App.5th 429, 437, citing People v. Lewis (2021) 11 Cal. 5th 952, 961 (Lewis).)
Former section 1170.95 is now section 1172.6. Subdivision (c) of section 1172.6 addresses prima facie cases for relief: "After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (§ 1172.6, subd. (c).)
The prima facie inquiry under subdivision (c) of section 1172.6 is limited. (Lewis, supra, 11 Cal.5th at p. 971.) The prima facie bar is set very low. (Id. at p. 972.) As with petitions for writs of habeas corpus, the court accepts the petitioner's allegations as true and makes a preliminary assessment whether the petitioner is entitled to relief if the allegations were proven. (Id. at p. 971.) The court should not reject the petitioner's factual allegations without first conducting an evidentiary hearing. (Ibid.) The court may deny the petition only if the petitioner is ineligible for resentencing as a matter of law. (People v. Flores (2022) 76 Cal.App.5th 974, 987 (Flores), citing Lewis, at p. 966.) Where the record does not "conclusively negate the possibility" that the jury convicted a petitioner by imputing malice, an evidentiary hearing is required. (People v. Langi (2022) 73 Cal.App.5th 972, 984 (Langi).)
II. Donnell Could Have Been Convicted as an Aider and Abettor for the Natural and Probable Consequences of His Acts
"Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) eliminated natural and probable consequences liability for murder as it applies to aiding and abetting and limited the scope of the felony-murder rule. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 2, 3.)" (Lewis, supra, 11 Cal.5th at p. 957.) The amendments wrought by Senate Bill No. 1437 eliminated natural and probable consequences liability for both first and second degree murder. (People v. Gentile (2020) 10 Cal.5th 830, 848, 849 (Gentile), superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) Senate Bill No. 1437 took effect on January 1, 2019.
It is undisputed that the jury in this case was instructed on Donnell's liability as an aider and abettor based on the natural and probable consequences doctrine.
Donnell was found guilty of first degree murder. Under CALJIC No. 3.00, it is possible the jury concluded he had aided and abetted the murder and was liable as a principal due solely to the natural and probable consequences of his actions. The People's contentions to the contrary are without merit.
The People contend Donnell "confessed to an officer that after an argument with the victim, he and his cohort poured gasoline on her and set fire to her, causing her death" and that the record "contained appellant's admission to an officer that he was the actual killer." The People state that the "record of conviction conclusively establishes that appellant was 'the actual killer' who personally poured gasoline and lit the victim on fire, which killed her.... Because appellant was the actual killer, he was ineligible for resentencing as a matter of law."
Respondent is mistaken. The only basis in the record for this assertion is our prior opinion that "defendant had made a confession of guilt and the confession was introduced against him." But Donnell may have confessed guilt by admitting he had aided and abetted the murder, i.e., that the victim's death was the natural and probable consequence of his actions. In any event, section 1172.6, subdivision (c)(3) authorizes courts to consider only the procedural history of the case recited in a prior appellate opinion. A number of appellate courts have held that "by allowing consideration of' "the procedural history"' in a prior appellate opinion, the Legislature intended to prohibit consideration of 'the factual summar[y]' in a prior appellate opinion." (People v. Bratton (2023) 95 Cal.App.5th 1100, 1113.) This constraint applies both at the prima facie determination stage under section 1172.6, subdivision (c), and the evidentiary hearing stage under section 172.6, subdivision (d). (Flores, supra, 76 Cal.App.5th at p. 988 [if facts stated in appellate opinions "may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage"].) The trial court's reliance on the factual summary in the appellate opinion was improper.
The trial court was wrong when it concluded that "the only way the jury can convict Mr. Donnell of murder at all was based upon premeditation, deliberation and with express[] malice to kill." At the time of the trial, the jury could have convicted him of first degree murder as an aider and abettor on the theory that the victim's death was the natural and probable consequence of his actions. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy) [natural and probable consequences doctrine may support liability for murder]; see also People v. Chiu (2014) 59 Cal.4th 155, 166-167 [abrogating the natural and probable consequences doctrine as a basis for first degree murder], superseded by Senate Bill No. 1437 as stated in Gentile, supra, 10 Cal.5th at p. 849.)
The People also contend that Donnell was the actual killer because his defense was diminished capacity and because he sought to add the defense of not guilty by reason of insanity. However, a person charged on an aiding and abetting theory may defend on the grounds of diminished capacity. (People v. Vasquez (1972) 29 Cal.App.3d 81, 87-88; see People v. Mendoza (1998) 18 Cal.4th 1114, 1132 [voluntary intoxication an available defense to aiding and abetting].) And a guilty plea based on a defendant's alleged insanity may also be asserted by an aider and abettor. (McCoy, supra, 25 Cal.4th at p. 1117 [mens rea of aider and abettor is independent of mens rea of direct perpetrator].)
We must accept the allegations of the petition as true at this stage and determine whether the petitioner is entitled to relief if the allegations were proven. (Lewis, supra, 11 Cal.5th at p. 971.) Because the record does not conclusively negate the possibility that the jury convicted Donnell as an aider and abettor under the natural and probable consequences doctrine, an evidentiary hearing is required. (Langi, supra, 73 Cal.App.5th at p. 984.)
DISPOSITION
The order denying the petition for resentencing is reversed. The case is remanded with directions to conduct an evidentiary hearing under section 1172.6, subdivision (d) to determine Donnell's eligibility for resentencing.
We concur: GRIMES, J. VIRAMONTES, J.