Opinion
B299699
03-03-2020
THE PEOPLE, Plaintiff and Respondent, v. RODERICK ENGLISH, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA109433) APPEAL from an order of the Superior Court of Los Angeles County, Michael V. Jesic, Judge. Reversed and remanded, with instructions. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
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The jury found defendant and appellant Roderick English guilty of murder (Pen. Code, § 187, subd. (a)), and attempted second degree robbery (§§ 211/664), under a felony murder theory of liability. The jury found the alleged felony murder special circumstance not true. English was sentenced to 25 years to life in prison. He timely appealed. We stayed his sentence for attempted robbery pursuant to section 654 and affirmed the judgment as modified. (People v. English (Nov. 10, 1998, B121117) [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise indicated. --------
On September 30, 2018, the Governor signed Senate Bill No. 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.)
English petitioned to be resentenced under section 1170.95. His petition included his declaration, which stated that he was eligible for relief because (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder, (2) he was convicted of second degree murder following a trial, and (3) he could not be convicted of first or second degree murder because of changes to Section 189 made effective January 1, 2019. (§ 1170.95, subds. (b)(1)(A)-(C).) English further declared that (1) he was not the actual killer, (2) he did not, with intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree, and (3) he was not a major participant in the felony and did not act with reckless indifference to human life during the course of the crime or felony. He attached the abstract of judgment, our prior opinion, and witness testimony to the petition.
The People opposed the petition on the ground that Senate Bill No. 1437 was unconstitutional. The People also filed a response to the petition, requesting a hearing, and arguing that (1) English was the actual killer, as could be shown through evidence not presented to the jury at trial, and (2) that English intended to kill or was a major participant in the underlying felony and acted with reckless disregard for human life. The response conceded that the jury found the felony murder special circumstance not true.
English filed a reply arguing that Senate Bill No. 1437 was constitutional, the People's request for a hearing violated double jeopardy, and there was insufficient evidence to support a finding of major participation with reckless indifference to human life.
The People filed a supplemental response arguing that English was a major participant who acted with reckless indifference to human life.
At the hearing on the motion for resentencing, English testified regarding his role in the crime. He stated that he did not stab the victim and did not know his co-defendant had stabbed the victim until after they left the scene of the crime.
Defense counsel asserted that the trial court was bound to the jury's not true finding on the felony murder special circumstance and must resentence English.
The People countered that "[t]he jury found defendant guilty of first degree murder. And that is because the jury found the defendant to have been a major participant in acting with reckless indifference to human life." English was a major participant in the robbery: He watched the victim, planned the robbery, brought his co-defendant to the scene, engaged in a ruse to get himself and his co-defendant into the victim's hotel room, struck and choked the victim, and generally controlled the situation. English also exhibited reckless indifference to human life. He targeted a vulnerable victim and took him by surprise. It could be inferred that he knew his co-defendant was armed. English brought his co-defendant along to ensure that he could overpower the victim if the victim resisted.
Defense counsel responded that the crime was a "spur-of-the-moment plan." It seemed unlikely that English knew his co-defendant was armed—there would be no need for a weapon in a two-against-one fight. English did not know that the victim had been stabbed, and English was in another room when it happened. English did not know that the robbery would involve violence.
The trial court found English was a major participant and denied his 1170.95 motion for resentencing. This appeal timely followed.
We agree with the parties that the trial court's order must be reversed. The jury was properly instructed regarding the felony murder special circumstance (CALJIC No. 8.80.1), and found the allegation not true. Section 1170.95, subdivision (d)(2) requires "[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner." We therefore remand the matter to the trial court to vacate English's murder conviction and resentence him. The maximum punishment for attempted second degree robbery is substantially less time than English has already spent in prison. (§§ 213/664.) Upon resentencing, English must be given credit for all time served.
DISPOSITION
The order denying English's petition to vacate his murder conviction and for resentencing is reversed. The matter is remanded to the trial court with directions to grant the petition, vacate English's murder conviction, and resentence him on the remaining count.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.