Opinion
C092275
06-07-2023
THE PEOPLE, Plaintiff and Respondent, v. DESMOND EADDY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 15F02249)
Duarte, Acting P. J.
On August 31, 2016, a jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)) with a robbery-murder special circumstance (§ 190.2, subd. (a)(17)) and first degree robbery (§ 211). The jury also found true the allegations that defendant personally used a firearm (§ 12022.53, subd. (b)) in both the robbery and the murder. We upheld these convictions in 2018 but remanded for resentencing on the firearm enhancement in light of legislative changes. (People v. Eaddy (June 12, 2018, C083233) [nonpub. opn.].) On remand, defendant was sentenced to life in prison without the possibility of parole plus 10 years.
Further undesignated statutory references are to the Penal Code.
On August 21, 2019, defendant filed a form petition seeking resentencing under former section 1170.95 (now section 1172.6). The trial court appointed counsel, and the parties submitted briefing. Thereafter, the court reviewed the record for the underlying conviction and concluded the jury's determinations vis-a-vis the robbery-murder special circumstance precluded defendant from establishing his eligibility for relief. Accordingly, the trial court denied defendant's petition on June 9, 2020.
Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Defendant filed his petition under former section 1170.95, but we will cite to the current section 1172.6 throughout this opinion.
Defendant timely appealed. Defendant's counsel filed a no issues brief under People v. Wende (1979) 25 Cal.3d 436 requesting that this court conduct an independent review of the entire record for arguable issues on appeal. We treated defendant's request for judicial notice of the appellate record in his prior appeal as a request to incorporate that record by reference and granted it. Thereafter, on February 26, 2021, this court, on its own motion, dismissed defendant's appeal as abandoned.
Defendant petitioned our Supreme Court for review; that court recently directed us to vacate our prior decision and reconsider the matter in light of People v. Delgadillo (2022) 14 Cal.5th 216. On March 29, 2023, this court sent a letter notifying defendant that: (1) his counsel filed an appellate brief stating his review of the record did not identify any arguable issues; (2) as a case arising from an order denying postconviction relief, defendant was not constitutionally entitled to counsel or to an independent review of the record; and (3) in accordance with the procedures set forth in Delgadillo, defendant had 30 days to file a supplemental brief or letter raising any argument he wanted this court to consider.
On April 19, 2023, defendant filed a supplemental brief challenging the jury's robbery-murder special circumstance finding and asking this court to vacate that special circumstance and order "any other appropriate relief in the interests of justice." On May 3, 2023, we granted defendant permission to file an amendment to his supplemental brief, which appears to petition for a writ for habeas corpus, making similar arguments to his brief. We have considered these documents and will affirm the trial court's order.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which became effective on January 1, 2019, was enacted "to amend 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 legislation accomplished this by amending sections 188 and 189 and adding former section 1170.95 to the Penal Code.
Section 188, which defines malice, now provides in part: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Section 189, subdivision (e) now limits the circumstances under which a person may be convicted of felony murder: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
Senate Bill No. 1437 also added former section 1170.95 (now section 1172.6), which allows "those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief ...." (People v. Gentile (2020) 10 Cal.5th 830, 843.) Section 1172.6, subdivisions (b) and (c) create a two-step process for evaluating a petitioner's eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960-962.) First, the trial court must determine whether the petition is facially sufficient under section 1172.6, subdivision (b). (Lewis, at p. 960.) If the petition is facially sufficient, the court follows subdivision (c), appointing counsel (if requested) and following the briefing schedule set forth in the statute. (Lewis, at p. 966.) Following the completion of this briefing, the court determines whether petitioners have made a prima facie showing that they are entitled to relief. (Ibid.)
As our Supreme Court explained, "[w]hile the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 117[2.6] relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (People v. Lewis, supra, 11 Cal.5th at p. 971.)
We understand defendant's briefing to argue that because his jury was instructed on the natural and probable consequences doctrine and the prosecutor argued that theory at trial, he could not now be convicted of murder. Similarly, he contends the prosecutor admitted during argument that defendant had not intended to commit murder. However, as we shall explain, the trial court was correct in determining defendant was ineligible for relief as a matter of law, because the jury instructions and attendant determinations vis-avis the robbery-murder special circumstance established that defendant could still be convicted of murder under the amended law.
Here, the trial court instructed defendant's jury on felony murder as well as the natural and probable consequences theory of murder. The jury was also instructed that in order to find the robbery-murder special circumstance allegation (§ 190.2, subd. (a)(17)) true, it would have to find defendant was the actual killer or that he "acted with either the intent to kill or with reckless indifference to human life and was a major participant in the" underlying felony. The jury found the robbery-murder special circumstance true. These findings mirror the current requirements for felony murder (§ 189, subd. (e)(2-3)), thus preventing defendant from establishing that he cannot now be convicted of murder. Defendant does not argue otherwise.
Nor is defendant aided by our high court's ruling in People v. Strong (2022) 13 Cal.5th 698, as the jury's robbery-murder special circumstance finding postdated People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. (Strong, at p. 710 ["findings made after Banks and Clark ordinarily establish a defendant's ineligibility for resentencing under Senate Bill 1437 and thus preclude the defendant from making a prima facie case for relief"].) Finally, we upheld the robbery-murder special circumstance against a claim of insufficiency (applying Banks and Clark) in defendant's original appeal. (People v. Eaddy, supra, C083233.) To the extent that he purports to challenge the sufficiency of that evidence again on this appeal from a postjudgment order, the issue has already been decided.
Nor do defendant's remaining attacks on the special circumstance finding and the evidence presented at his original trial authorize this court to vacate the special circumstance finding as requested. Only the propriety of the trial court's section 1172.6 determination is properly before us. (See People v. Strong, supra, 13 Cal.5th at pp. 713714 [resentencing under 1172.6 involves "prospective relief from a murder conviction that was presumptively valid at the time," not the correction of "errors in past factfinding"].) Defendant has not shown the trial court erred in finding the jury's previous determination that he "was either the actual killer, acted with intent to kill, or was a major participant in a robbery who acted with reckless indifference to human life" precluded his ability to show he could not now be convicted of murder. Accordingly, this appeal fails.
To the extent defendant purports to seek relief by way of habeas corpus, our denial of relief on appeal is without prejudice to his right to file a petition for writ of habeas corpus in the superior court in the first instance. (See In re Steele (2004) 32 Cal.4th 682, 692; In re Hillery (1962) 202 Cal.App.2d 293, 294.)
DISPOSITION
The trial court's order denying defendant's section 1172.6 petition is affirmed.
We concur: Boulware Eurie, J. Mesiwala, J.