Opinion
B305286
08-04-2021
THE PEOPLE, Plaintiff and Respondent, v. RONALD FORT, Defendant and Appellant.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael Katz, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PA001143, Hayden Zacky, Judge. Reversed.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael Katz, Deputy Attorneys General for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Ronald Fort appeals from an order denying his petition to vacate his murder conviction and be resentenced under Penal Code section 1170.95. We agree with him and the Attorney General that he made a prima facie showing that he is entitled to relief and that the court erred in denying his petition prior to issuing an order to show cause and holding an evidentiary hearing. Because we cannot conclude that the error is harmless, we reverse.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL SUMMARY
A. The Murder of Richard Davis
In September 1989, Richard Davis advertised for sale his 1973 Datsun 240Z. Kent Parrish and Fort devised a plan to steal the car by posing as buyers, locking Davis out of the car during an ostensible test drive, and driving away. The plan went awry when, as Fort began to drive the car away, Davis jumped into the back of the car through the unlocked hatchback door. As Fort sped away, Parrish shot Davis in the back multiple times with a handgun, killing him.
On October 5, 1989, Parrish was driving the stolen 240Z when police officers conducted a traffic stop of him. One officer noticed that someone had tampered with the car's vehicle identification number plate. This led to a brief investigation and Parrish's arrest.
In an interview with a detective, Parrish explained that Davis had jumped into the back of the vehicle and grabbed both Parrish and Fort and tried to grab the car keys. Davis then grabbed the gun in Parrish's hand and the gun went off “accidentally.” A search of Parrish's residence produced the nine millimeter semiautomatic handgun used to kill Davis.
B. Fort's Police Interview
On October 6, 1989, police arrested Fort, who, after waiving his Miranda rights, described the incident in a tape recorded interview as follows.
Miranda v. Arizona (1966) 384 U.S. 436.
Parrish called Fort and described a plan to steal the advertised 240Z. According to Fort, he would pose as the buyer and the seller would begin a test drive as the driver. Fort would then ask to drive the car and, when the seller got out of the car to move to the passenger seat, Fort would lock him out of the car and drive away. Bringing or using a firearm was not part of the plan.
Parrish arranged to meet with the seller, Davis, and, on the evening of September 17, 1989, Parrish and Fort went to Davis's house. Parrish brought a nine-millimeter gun with him.
Fort rode with Davis in the 240Z for a test drive. After Fort and the victim drove around the block, Fort asked to drive. When Davis got out of the car, Fort tried unsuccessfully to lock the door. They returned to Davis's home.
Outside Davis's home, Davis asked Fort, “What do you want to do about the car?” Fort said he liked it and asked to speak privately with Parrish.
Parrish asked Fort if he still wanted to get the car. Fort said he did not care and was scared. Parrish asked if he was getting cold feet. Fort said he was not, but that he was scared and did not know what to do. Parrish asked Fort, “Do you want to shoot him?” Fort responded, “No, I don't want to do it, ” then added, “[y]ou do it. I'm not touching the gun. You do it.” Parrish said, “Well, let's just see.” At some point during this conversation, Parrish handed the gun to Fort, and Fort gave it back to Parrish.
They revised their plan. They would ask for another test drive with Fort driving. Parrish would get in the passenger seat and lock the doors, leaving Davis outside; they would then “just drive off, no problems.”
Fort asked Davis for the keys to the car and got in the driver's seat. Parrish got into the passenger seat, locked the doors, and said, “Let's go.” When Fort backed up, Davis opened the hatchback and jumped into the back of the car.
As Fort drove away, Parrish shot Davis four times-twice in front of Davis's house, a third time after Fort had “moved up about a good 10, 12 feet, ” and a fourth time at the end of the block, about four houses away from Davis's house. Parrish told Fort to make sure Davis was not moving. Fort replied that Davis was still moving. He told Parrish that he was scared and did not know where to go.
Fort pulled the car to the side of a road. Parrish tried to pull Davis out of the car and told Fort to help. Fort then pulled Davis out of the car and left him in the street. When they returned to the car, Fort looked back and thought he saw Davis's head moving.
Fort drove to where Parrish had parked his car. Parrish left the gun on the front seat of Davis's car and told Fort to drive the car to Parrish's house. When Fort arrived at Parrish's house, he told Parrish he did not want anything to do with the car.
Fort and Parrish went to Fort's house, and Fort told his wife what happened. The next day, Fort helped Parrish take out the seats in the stolen 240Z and remove the tires.
Apparently in response to a news story about the murder, the person who owned the gun Parrish used to shoot Davis confronted them about the shooting. Fort told him, “I didn't do it. I was just there, and I drove the car, but I did not do it.”
C. The Trial
Fort and Parrish were tried together before separate juries on charges of first degree murder and robbery. At the outset of the trial, the prosecutor informed the court that he was proceeding under both felony murder and premeditation theories of murder.
Fort was not charged with a special circumstance and the jury was not asked to determine whether he was a major participant in the robbery of Davis or acted with reckless indifference to human life.
During closing arguments, the prosecutor relied on the felony murder theory and the natural and probable consequences doctrine, as well as a theory of premeditation and deliberation. The jury was instructed on each of these theories. The jurors were also instructed, pursuant to the prosecution's request, that they were not required to agree on the theory of murder and that “it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant committed the crime of murder in the first degree as that offense is defined.”
Fort's counsel argued that Fort and Parrish had planned to steal Davis's car by trick, without the use of force, and that Parrish had shot Davis accidentally during a struggle inside the car. Fort, counsel argued, had “no idea that [Parrish was] going to use that gun.” Fort's counsel addressed Fort's tape-recorded statements concerning his colloquy with Parrish during which Parrish asked Fort, “Do you want to shoot him?” and Fort responded, “No, I don't want to do it. You do it. I'm not touching the gun. You do it.” Counsel argued that the jury could reasonably infer from these statements that Fort “is basically saying [to Parrish, ] if you want to shoot you're on your own, that he is no part of the plan.” The statements indicate, counsel urged, that Fort “wants no part of the plan to use force” and that he rejected that plan.
During deliberations, the jury asked the court: “If... Fort was an aider and abbeter [sic] of a potential [g]rand [t]heft [a]uto that becomes a [r]obbery, is he an aider and abetter [sic] of that [r]obbery.” The court responded by referring the jurors to other instructions, including CALJIC No. 3.02, the instruction on natural and probable consequences.
CALJIC No. 3.02, as given in this case, provided: “One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any criminal act that he knowingly and intentionally aided and abetted. You must determine whether the defendant is guilty of... the crime originally contemplated, and, if so, whether the crimes charged in count[s] [1] and [2] were a natural and probable consequence of such originally contemplated crime.”
The jury convicted Fort of first degree murder and robbery. The jury further found that a principal was armed with a firearm during the commission of the crimes. The record does not reveal the theory or theories of murder the jurors relied on.
The court sentenced Fort to 25 years to life in prison on the murder count plus one year on the firearm enhancement. The court further sentenced Fort to five years on the robbery count and stayed that sentenced under section 654.
In February 1993, we affirmed Fort's convictions in an unpublished opinion. (People v. Parrish et al. (Feb. 25, 1993, B057183).)
We have granted the People's unopposed request to take judicial notice of the appellate record in Fort's direct appeal from the judgment of his convictions (People v. Parrish et al., supra, B057183), which includes our opinion.
D. Fort's Petition for Resentencing
In January 2019, Fort filed a petition for resentencing under section 1170.95. He alleged: (1) “A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine”; (2) “At trial, I was convicted of [first] or [second] degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine”; and (3) “I could not now be convicted of [first] or [second] degree murder because of changes made to... [sections] 188 and 189, effective January 1, 2019.” Fort further alleged that he “was not the actual killer, ” that he “did not, with the intent to kill, ” aid or abet the actual killer in the commission of murder, and that 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.”
The court appointed counsel for Fort and directed the public defender and the District Attorney's office to make “an effort to resurrect the record and court file” and provide the records to the court so that it could determine whether “a prima facie case for relief has been established.”
On September 27, 2019, the People filed a response to the petition. Among other arguments, the People argued that Fort was not entitled to relief because he was a major participant in a robbery and acted with reckless indifference to human life within the meaning of section 189, subdivision (e)(3). The People supported the response with a transcript of Fort's October 1989 police interview and citations to the reporter's transcript of Fort's October 1990 trial.
On January 10, 2020, Fort, through his counsel, filed a reply in which he argued that he had made a prima facie showing that he was entitled to relief. Among other arguments, Fort asserted that “he was not a major participant who acted with reckless indifference to human life during an underlying felony.” Fort relied in part upon the reporter's transcript of Fort's trial and jury instructions used in the trial.
The court did not hold a hearing on the petition.
On January 21, 2020, the court issued an order denying the petition on the ground that Fort had failed to make a prima facie showing that he is entitled to relief. Although the court agreed with Fort “that it is impossible to know if he was convicted [of] murder based on a felony murder or a natural and probable consequence[s] theory of murder, ” it denied the petition because it found “beyond a reasonable doubt that [Fort] was a major participant who acted with reckless indifference to human life.”
The court reached its conclusion by applying factors our Supreme Court has identified for determining whether a defendant is a major participant who acts with reckless indifference to human life to facts in this case. (See People v. Clark (2016) 63 Cal.4th 522, 618−622 (Clark); People v. Banks (2015) 61 Cal.4th 788, 803 (Banks).) Specifically, the court found:
(1) Fort “was a major participant in the planning and commission of the robbery/carjacking. After discussing shooting the victim, he lured the victim into the car.”
(2) Although Fort “did not provide the firearm, he knew of its presence and discussed shooting the victim prior to the murder, saying[, ] ‘I'm not touching the gun. You do it,' to [Parrish].”
(3) “Once their initial plan fell apart, [Fort] and [Parrish] devised another way to accomplish their goal and get the car. [Parrish] stated, ‘Do you want to shoot him?' And, [Fort] responded: ‘No, I don't want to do it. You do it. I'm not touching the gun. You do it.' By his own admission, [Fort] told [Parrish] to ‘do it,' meaning to shoot the victim. This statement alone clearly demonstrates, at a minimum, a reckless indifference to human life, if not direct aiding and abetting.”
(4) Fort was in a position to facilitate or to prevent Davis's death because he “could have refused to participate further in the taking of the car, after he discussed plans to shoot the victim with [Parrish]. He could have withdrawn from the plan, but refused saying, he was not getting ‘cold feet.' ”
(5) Fort played a role in Davis's death because he “continued with his plan to take the car. After [Parrish] shot the victim, [Fort] said[, ] ‘[H]e's still moving,' which resulted in additional shots being fired into the victim. Additionally, [Fort] assisted [Parrish] in discarding the mortally wounded victim into the street, abandoning him and leaving him to die.”
(6) After lethal force was used, Fort “continued to drive as [Parrish] pumped four shots into the victim[']s back. [Fort] helped [Parrish] pull the victim from the car and dumped his body into the street, leaving the victim for dead. As he drove away, [Fort] said he looked back and saw the victim's head still moving. [Fort] also assisted in removing the bloody seats from the car and changing its tires.”
Fort timely appealed.
DISCUSSION
A. Senate Bill No. 1437
In 2018, the Legislature enacted Senate Bill No. 1437 (Reg. Sess. 2017−2018) (Senate Bill No. 1437), which amended section 188 to provide that “[e]xcept 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.” (Stats. 2018, ch. 1015, § 2, p. 6675.) The amendment effectively “eliminates natural and probable consequences liability for first and second degree murder.” (People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile).)
In addition, Senate Bill No. 1437 enacted section 189, subdivision (e), which restricted felony murder liability to cases in which the defendant was the actual killer, acted with the intent to kill, or was a major participant in the underlying felony and acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3, p. 6675; see Gentile, supra, 10 Cal.5th at pp. 842−843.)
Senate Bill No. 1437 also enacted section 1170.95, which allows a person “convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition... to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95, subd. (a).) To be eligible for relief, the petitioner must show that he or she “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective” by the enactment of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).)
If a petitioner files a facially sufficient petition, the trial court shall appoint counsel, if requested, and determine whether the petitioner has made a prima facie case for relief under section 1170.95, subdivision (c). (People v. Lewis (July 27, 2021, S260598) ___ Cal.5th ___ [2021 WL 3137434, p. *4] (Lewis).) In making this decision, the court should accept the petitioner's allegations as true and “should not make credibility determinations or engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.' ” (Id. at p. ___ [2021 WL 3137434, p. *12].) The court may, however, consider the record of the petitioner's conviction and, “ ‘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.”' ” (Id. at p. ___ [2021 WL 3137434, p.*10].)
“If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause [(OSC)].” (§ 1170.95, subd. (c).) In that event, the court must hold a hearing within 60 days to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d)(1).) At this third and final stage of the proceeding, the prosecution has the burden of proving “beyond a reasonable doubt[ ] that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
The Supreme Court is currently considering the question: “Can the People meet their burden of establishing a petitioner's ineligibility for resentencing under... section 1170.95, subdivision (d)(3) by presenting substantial evidence of the petitioner's liability for murder under... sections 188 and 189 as amended by Senate Bill No. 1437 (Stats. 2018, ch. 1015), or must the People prove every element of liability for murder under the amended statutes beyond a reasonable doubt?” (Supreme Ct. Minutes, Jan. 13, 2021, p. 27.)
B. Analysis
Fort contends, and the Attorney General agrees, that the court erred in concluding that he had failed to make the prima facie showing that he is entitled to relief under section 1170.95, subdivision (c).
“Whether a petitioner has made the requisite prima facie showing [under section 1170.95] is a predominantly legal question, ” which we review de novo. (People v. Garcia (2020) 57 Cal.App.5th 100, 110, review granted Feb. 10, 2021, S265692; accord, People v. Duchine (2021) 60 Cal.App.5th 798, 811; People v. Drayton (2020) 47 Cal.App.5th 965, 981.)
Here, Fort filed a facially sufficient petition alleging the essential facts required for relief under section 1170.95, subdivision (a). The court appointed counsel for Fort and received a response from the People and a reply from Fort. Based on its review of the record provided by the parties and its consideration of the factors identified in Banks and Clark, the court found “beyond a reasonable doubt, ” that Fort “was a major participant who acted with reckless indifference to human life.” Fort contends that the court was not permitted to make such findings at this stage of the proceedings because the judge engaged in weighing of the evidence, which is only permitted at the OSC stage. The Attorney General agrees, as do we.
The court's finding that Fort was a major participant who acted with reckless disregard for human life is based on its evaluation of the evidence from the trial and its drawing of inferences favorable to the prosecution, which, under Lewis, supra, ___ Cal.5th at p. ___ , our Supreme Court has recently prohibited at this early stage of the proceedings. For example, the court relied on Fort's statements to police that, when Parrish asked Fort, “Do you want to shoot him?” Fort replied, “No, I don't want to do it, ” “[y]ou do it. I'm not touching the gun. You do it.” The court interpreted these statements as an admission by Fort that he told Parrish “to ‘do it,' meaning to shoot the victim.” The court's interpretation, though reasonable, is not the only plausible interpretation of the evidence. As Fort's counsel argued at trial, the statements are also consistent with an inference that Fort was telling Parrish, in essence, “if you want to shoot you're on your own, ” and that Fort wanted no part of a plan to use force, let alone a gun, against Davis.
A court's erroneous determination that the petitioner has failed to make a prima facie showing is subject to review for harmless error under the Watson standard. (People v. Daniel (2020) 57 Cal.App.5th 666, 676, review granted Feb. 24, 2021, S266336.) Under this standard, we will reverse the court's order only if there is a reasonable probability that, absent the error, the appellant would have obtained a more favorable result. (Watson, supra, 46 Cal.2d at p. 836.) Based on our review of the record, we agree with Fort and the Attorney General that if the court had issued an OSC and held a further hearing at which it considered the entire record, there is a reasonable probability that a court would determine that Fort is entitled to relief under section 1170.95. We therefore reverse the order denying Fort's petition for resentencing.
People v. Watson (1956) 46 Cal.2d 818 (Watson).
We reject Fort's argument that the trial court's determination as to whether he made the requisite prima facie showing implicates federal constitutional rights and, therefore, we must apply the harmless error standard under Chapman v. California (1967) 386 U.S. 18. The availability of relief under section 1170.95 is a legislative act of lenity that does not implicate federal constitutional rights. (People v. Falcon (2020) 57 Cal.App.5th 272, 279, review granted Jan. 27, 2021, S266041; People v. Howard (2020) 50 Cal.App.5th 727, 735.)
Fort has been released from prison and is on parole. We requested the parties brief the question whether that status precludes relief under section 1170.95. We agree with Fort and the Attorney General that Fort's status as a parolee does not preclude him from seeking relief under the statute.
DISPOSITION
The order denying Fort's petition for resentencing under section 1170.95 is reversed. Upon remand, the superior court shall issue an order to show cause pursuant to section 1170.95, subdivision (c) and hold a hearing under section 1170.95, subdivision (d) to determine whether to vacate Fort's murder conviction and recall his sentence and resentence him.
We concur: BENDIX, J., CRANDALL, J. [*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.