From Casetext: Smarter Legal Research

People v. Foster

California Court of Appeals, Fourth District, Second Division
Aug 30, 2023
No. E079725 (Cal. Ct. App. Aug. 30, 2023)

Opinion

E079725

08-30-2023

THE PEOPLE, Plaintiff and Respondent, v. MARVIN ELWIN FOSTER, Defendant and Appellant.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FWV01095. Bridgid M. McCann, Judge. Reversed and remanded with directions.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CODRINGTON ACTING P. J.

I.

INTRODUCTION

In 1994, defendant and appellant Marvin Elwin Foster was convicted of first degree murder (Pen. Code, § 187) and five other felonies during an attempted robbery of a jewelry store in which the store owner was shot and killed. The jury, however, found the burglary-attempted-robbery-murder special circumstance allegations "not true" as to defendant.

All future statutory references are to the Penal Code.

In 2019, defendant filed a petition to vacate his murder conviction and for resentencing under section 1172.6 (formerly section 1170.95). The trial court rejected defendant's argument that the jury's not true special circumstance findings mandated relief. And, following an evidentiary hearing, the court denied defendant's petition based on its independent determination that defendant was a major participant in the underlying felonies who had acted with reckless indifference to human life. On appeal, defendant argues the trial court erred in denying his petition for resentencing because the jury's not true findings on the special circumstance allegations required the court to grant the resentencing petition under section 1172.6, subdivision (d)(2). Alternatively, defendant contends the trial court erred in denying him relief because there was insufficient evidence to prove he was a major participant who had acted with reckless indifference to human life.

Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference unless otherwise indicated.

The People agree that contrary to the trial court's determination, the jury's not true findings on the special circumstance allegations required the court to grant defendant relief. We also agree. Accordingly, we reverse the trial court's order denying defendant's resentencing petition and remand with directions to grant the petition, vacate the murder conviction, and resentence him on the remaining counts.

Because we agree with the parties the court erred in denying defendant's petition, we need not decide defendant's remaining contention.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The factual background is taken from defendant's trial transcripts (Case No. E014156), which were introduced at defendant's evidentiary hearing and are part of the current record on appeal, and will be referred to as "TRT."

On May 11, 1993, Donna Smith was working at Diamond Expressions Jewelry Store located in Upland with the store's owner, Victor Angona. The store contains a two-way mirror separating the display area from the office area. There is also a back room containing a safe.

Meanwhile, on this same day, defendant, driving a stolen gold Chevy Blazer, and his passengers/codefendants George Wiley and 16-year-old Eddie H. went to the Diamond Expressions Jewelry Store, intending to conduct an armed robbery. Around 10:00 a.m., both Smith and Angona were in the back office area of the store when Wiley, armed with a concealed .38- caliber handgun and falsely dressed as a postal worker, entered the store first. Angona, who was on the phone, handed it to Smith and said he would help the customer. Within about 30 seconds of Wiley's entry into the store, Eddie, who was unarmed, and defendant entered the store. Defendant was holding a .38-caliber handgun. Smith told the person she was talking on the phone, '"It's going down, call 911.'" She dove under a desk and hit the silent alarm button. She then heard voices and gunshots. Angona drew his own handgun after observing defendant was armed, and gunfire ensued.

Defendant claimed that Angona pulled out his gun, pointed it at him (defendant) and stated, '"Don't move or else I'm going to shoot your partner.'" Defendant explained that although he had his gun, he pulled out his gun when he saw Angona's gun, and that he intended to quit after Angona threatened to shoot Wiley. Angona, however, pointed his gun at defendant, stated '"You're dead,'" and pulled the trigger. Defendant heard two clicking noises coming from Angona's gun but the gun misfired or jammed. Defendant asserted that he did not want anyone to be killed and did not want to see Angona or Wiley killed. After Angona's gun misfired, Wiley attempted to take Angona's gun from him, and during the tussle, Wiley pulled out his gun and shot Angona. Angona staggered into the back office and said, "'I'm dead, you've killed me.'" Angona dropped to the floor and died from a gunshot wound that traveled through his chest and abdomen.

Angona's .22 caliber handgun was found on the floor of the back office. Expert testimony showed that this handgun was malfunctioning. It would not fire and only clicked when the trigger was pulled.

Defendant pressed his gun to the back of Smith's head, and he and Wiley dragged her into a back room and demanded to know the location of the safe. Eddie arrived on the scene, and the three of them tried to handcuff Smith before abruptly fleeing the store. Smith got up, ran outside, and saw a Bronco or Chevy Blazer speeding away. Defendant was driving. Shortly after the attempted robbery, a person who was driving near the vicinity of the jewelry store saw the Blazer abruptly pull over, and defendant, Wiley, and Eddie jump out, get into a Cadillac registered to Wiley that was parked nearby, and speed off.

Police officers soon stopped the Cadillac, and in a subsequent field lineup, Smith identified defendant and Wiley as the suspects. The .38-caliber handguns that defendant and Wiley had were found in the Cadillac. One of the handguns, a two-inch "Tiger" revolver, had one expended shell casing, and the other, a four-inch Smith and Wesson, had three expended casings. The shorter gun was excluded as the murder weapon, but the other handgun could not be excluded.

After their arrests, defendant and Eddie admitted they went to the jewelry store with the intent to rob it and that they knew the Chevy Blazer was a stolen vehicle. Defendant also admitted he was armed and that he had his gun out, but claimed that he had possessed the shorter handgun, the one excluded as the murder weapon. Defendant claimed he had been commanded to rob the jewelry store by a man named "Keevin," to whom he owed $2,500 in drug money, and who had threatened to kill him or a member of his family if he did not pay up. He explained that "Keevin" had supplied him with the stolen Chevy Blazer he drove to the store, the gun he brandished in the robbery, a pair of handcuffs, and some pillowcases. Defendant stated that "Keevin" told defendant to recruit Wiley to serve as a decoy in the robbery. Defendant did not know why Wiley was dressed as a postal worker that morning, albeit he knew Wiley was not a postal employee. He also claimed that he did not know Wiley was armed until Angona drew his gun.

Defendant denied telling the detective that Wiley had furnished him with the gun, that he knew Wiley had a gun or that he was afraid of Wiley. He also denied telling the detective that the robbery was mainly Wiley's idea or that the plan was for Wiley to take all the stolen jewelry and sell it, then divide the money between them.

Later, while Wiley and defendant were in their holding cells, they engaged in a conversation that was taped recorded. Defendant told Wiley that he should not have shot Angona. Wiley responded that it was in self-defense. To which, defendant replied, '"No, not when you're doing no robbery.'"

B. Procedural History

A jury found defendant guilty of first degree murder (§ 187, subd. (a); count 1); burglary (§ 459; count 2); two counts of attempted robbery (§§ 211, 664; counts 3 & 4); false imprisonment by violence (§ 236; count 5); driving a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 6); and being a felon in possession of a firearm (§ 12021, subd. (a); count 6). (People v. Foster et al. (July 27, 1995, E014156) [nonpub. opn.].) The jury found not true the felony-murder special circumstance allegations that the murder had occurred during the commission of a burglary and attempted robbery. The jury found true that defendant was armed with and personally used a firearm in the commission of the murder and counts 2 through 5 (§§ 12022, subd. (a)(1), 12022.5, subd. (a)). Defendant was sentenced to an indeterminate term of 25 years to life for the murder, plus a determinate term of nine years, four month. On direct appeal, this court affirmed defendant's convictions, but struck a firearm use enhancement and ordered one of his lesser sentences stayed.

On October 2, 2019, defendant in pro. per. filed a petition to vacate his first degree murder conviction and for resentencing pursuant to section 1172.6.

Following the appointment of counsel, briefing by the parties, and an evidentiary hearing in which the parties relied on the record of conviction, the trial court denied defendant's petition. The court found defendant was a major participant to the underlying felonies and had acted with reckless disregard to human life. Defendant timely appealed.

III.

DISCUSSION

Defendant argues the trial court erred in denying his petition for resentencing because the jury's not true findings on the special circumstance allegations required the court to grant the resentencing petition under section 1172.6, subdivision (d)(2). The People agree, as do we.

A. Legal Background

Section 1172.6, subdivision (a), provides, in relevant part, "A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory . . . may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts . . . ." The Legislature enacted this statute 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); see People v. Gentile (2020) 10 Cal.5th 830, 846-847.) The Legislature accomplished this by amending sections 188 and 189.

Section 188, which defines malice, now provides in part: "Except as stated in subdivision (e) of [s]ection 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); Stats. 2018, ch. 1015, § 2.)

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 [s]ection 190.2." (Stats. 2018, ch. 1015, § 3.)

Thus, to be eligible for relief under section 1172.6, defendant must have been convicted of felony murder or murder under a natural and probable consequences theory. (§ 1172.6, subd. (a); People v. Gentile, supra, 10 Cal.5th at pp. 842, 853.) The Legislature also created a procedure for offenders previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief if they could no longer be convicted of murder under the new law. (§ 1172.6, subd. (a); People v. Gentile, supra, at p. 843; People v. Lewis (2021) 11 Cal.5th 952, 959; People v. Strong (2022) 13 Cal.5th 698, 708.) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189 made effective January 1, 2019 . . . ." (Id. at p. 708, fn. omitted.) "When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Ibid.)

Petitioners who request counsel "are entitled to the appointment of counsel upon the filing of a facially sufficient petition . . . ." (People v. Lewis, supra, 11 Cal.5th at p. 957.) "[O]nly after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether 'the petitioner makes a prima facie showing that he or she is entitled to relief" (Ibid., italics omitted; see id. at p. 966.) The court's "prima facie inquiry ... is limited. . . . '"[T]he 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.'" (Id. at p. 971.) A trial court's failure to follow the procedures enacted in section 1172.6 is analyzed for prejudice under the state law standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Lewis, supra, at pp. 973-974.) Under this standard, we ask whether it is reasonably probable defendant would have obtained a more favorable outcome if proper procedures had been followed. (Id. at p. 974.)

If a petitioner has made a prima facie showing of entitlement to relief, '"the court shall issue an order to show cause.'" (People v. Strong, supra, 13 Cal.5th at p. 708.) Once the court determines that a defendant has made a prima facie showing, it "must [then] hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill [No.] 1437. [Citation.] 'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Id. at p. 709; accord, People v. Lewis, supra, 11 Cal.5th at p. 960; § 1172.6, subd. (d)(3).)

The admission of evidence at the evidentiary hearing "shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed." (§ 1172.6, subd. (d)(3).) The court also may consider the procedural history of the case recited in any prior appellate opinion, and the prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. (§ 1172.6, subd. (d)(3).) Moreover, as pertinent here, section 1172.6, subdivision (d)(2) provides that, "[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." (§ 1172.6, subd. (d)(2).)

B. Analysis

People v. Harrison (2021) 73 Cal.App.5th 429 (Harrison) and People v. Clayton (2021) 66 Cal.App.5th 145 (Clayton) held that a jury's "not true" finding on a felonymurder special circumstance allegation constituted '"a prior finding by a . . . jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the [underlying] felony,' thus triggering the [trial] court's duty to vacate the murder conviction and resentence the petitioner under section [1172.6], subdivision (d)(2)." (Clayton, supra, at pp. 150, 154-159; Harrison, supra, at p. 433.)

Defendant and the People do not dispute that the jury found "not true" the felonymurder special circumstance allegations in defendant's case that the murder was committed during the commission of a burglary and/or attempted robbery. They also acknowledge that Clayton and Harrison stand for the proposition that a jury's not true finding on such allegations entitles the petitioner to section 1172.6 relief as a matter of law. (See Clayton, supra, 66 Cal.App.5th at pp. 149, 154-159; Harrison, supra, 73 Cal.App.5th at p. 433.) Persuaded by the reasoning of these cases, we agree with the parties that the trial court erred in concluding Clayton does not apply to this case.

Clayton held that the jury's acquittal of the defendant on a robbery-murder special circumstance allegation constituted a prior finding under section 1172.6, subdivision (d)(2) that made relief mandatory on the resentencing petition. (Clayton, supra, 66 Cal.App.5th at pp. 150, 154-155.) The majority explained that the acquittal on that allegation "means the jury found the evidence insufficient to prove beyond a reasonable doubt that the petitioner was an aider and abettor with the intent to kill or a major participant in the robbery who acted with reckless indifference to human life. In that case, the prosecution cannot sustain its burden of proving ineligibility under [section 1172.6,] subdivision (d)(3) without invalidating the jury's finding." (Clayton, supra, at p. 155.)

Harrison reached the same conclusion, observing that "nothing in section [1172.6], subdivision (d)(2) allows a court considering a resentencing petition to disregard a prior court or jury finding [even] if the court considers it factually or legally erroneous. Giving a resentencing court that power would defeat the purpose behind making prior findings conclusive, since there would be little need to give conclusive effect to findings with which the resentencing court agreed. Only when a finding is debatable would subdivision (d)(2) become relevant, so that provision must prevent trial courts from reexamining the merits of or reasoning underlying prior court or jury determinations." (Harrison, supra, 73 Cal.App.5th at p. 443.)

The Harrison court concluded that the not-true finding was the type of prior finding contemplated by section 1172.6, subdivision (d)(2). The court explained: "[T]he Legislature simply intended to prevent the prosecution in a resentencing hearing from trying to re-prove a theory that a fact finder had already rejected, which is consistent with the Legislature's purpose of using section [1172.6], subdivision (d) to 'streamline' the process of reducing prison crowding. [Citation.]" (Harrison, supra, 73 Cal.App.5th at p. 440.) Thus, "[b]ecause juries seldom, if ever, determine actual innocence, it is more natural to interpret [section 1172.6], subdivision (d)(2)'s reference to 'prior finding[s] by a court or jury' as applying to the acquittals that juries commonly render." (Ibid.)

IV.

DISPOSITION

The trial court's order denying defendant's section 1172.6 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 defendant's murder conviction and resentence him on the remaining counts.

We concur: RAPHAEL J. MENETREZ J.


Summaries of

People v. Foster

California Court of Appeals, Fourth District, Second Division
Aug 30, 2023
No. E079725 (Cal. Ct. App. Aug. 30, 2023)
Case details for

People v. Foster

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARVIN ELWIN FOSTER, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Aug 30, 2023

Citations

No. E079725 (Cal. Ct. App. Aug. 30, 2023)