Opinion
B321799
09-26-2023
THE PEOPLE, Plaintiff and Respondent, v. CHARLES HALL, Defendant and Appellant.
Barbara A. Smith, 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, Scott A. Taryle and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. A452611 Joseph R. Porras, Judge. Affirmed.
Barbara A. Smith, 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, Scott A. Taryle and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Charles Hall appeals from the trial court's order denying his second petition for resentencing under Penal Code former section 1170.95 (now section 1172.6). For the reasons set forth below, we affirm the order.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). In the discussion section of this opinion, we refer to the statute by its current designation, section 1172.6. Undesignated statutory references are to the Penal Code.
BACKGROUND
I. Trial and Direct Appeal
In February 1983, a jury found Hall guilty of one count each of murder, robbery, and burglary. As reflected on the verdict form for the murder count, the jury found the murder was in the first degree. The theory of first degree murder presented to the jury was felony murder. The jury also found true the special circumstance allegations that the murder was committed while Hall was engaged in the commission of robbery and burglary within the meaning of section 190.2, subdivision (a)(17). The trial court sentenced Hall to life in prison without the possibility of parole.
The facts and circumstances of the offenses are not material to our resolution of this appeal, so we do not include them here. We note simply that the record before us indicates Hall did not commit these offenses alone (although he was tried alone), and his jury did not make a finding that Hall actually killed the victim.
The jury instructions the trial court gave Hall's jury on the felony-murder special circumstance allegations are pertinent to Hall's eligibility for resentencing relief. Using CALJIC No. 8.80, requested by the prosecution, the trial court instructed the jury, in pertinent part: "If defendant, Hall, was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of the murder in the first degree before you are permitted to find the alleged special circumstance of that first degree murder to be true as to defendant, Hall." Using an instruction proposed by Hall's defense counsel, the court also instructed the jury, "Before you may find the special circumstances allegation true, you must be satisfied beyond a reasonable doubt that Charles Hall's conduct at the time the crimes were being committed intended to aid and abet the killing of [the victim]."
Hall appealed from the judgment of his convictions, and Division Seven of this appellate district affirmed the judgment in a published opinion. (People v. Hall (1984) 157 Cal.App.3d 538.) As pertinent to the present appeal, Division Seven concluded that Hall's special jury instruction, as quoted above, "made clear that intent to kill or aid in a killing, not merely a robbery or burglary, was required in order to find the special circumstances" that the jury found to be true. (Id. at p. 546.)
II. Hall's First Petition for Resentencing
In 2018, the Legislature enacted Senate Bill No. 1437 "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." (Sen. Bill No. 1437 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) & 189, subd. (e).) Senate Bill No. 1437 amended sections 188 (defining malice) and 189 (felony murder) and added section 1170.95, now renumbered section 1172.6, which established a procedure for vacating murder convictions and resentencing defendants who could no longer be convicted of murder in light of the amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.)
Section 189, subdivision (e), added by Senate Bill No. 1437, states: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [including robbery and burglary] 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."
In early 2019, Hall, as a self-represented litigant, filed a petition for resentencing under former section 1170.95, now section 1172.6. Using a preprinted form, he checked boxes stating, in pertinent part, that he was convicted of first degree felony murder and could not now be convicted of that crime because of changes to section 189, effective January 1, 2019, for the following reasons: (1) he was not the actual killer; and (2) he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony. He expressly indicated on the form that he was not checking the box which states he "did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree." He requested appointment of counsel.
The trial court did not appoint counsel for Hall or issue an order to show cause. On March 11, 2019, after reviewing the petition and an opposition by the Los Angeles County District Attorney's Office, the court denied the petition, finding Hall was a major participant in the underlying felony and acted with reckless indifference to human life. The court also denied Hall's request for reconsideration.
Hall appealed from the March 11, 2019 order denying his petition for resentencing, and we affirmed. In our unpublished opinion, we concluded Hall was ineligible for relief as a matter of law because in finding the special circumstance allegations to be true, the jury necessarily found Hall directly aided and abetted the first degree murder of the victim, based on the jury instructions given. (People v. Hall (Nov. 25, 2020, B297868) [nonpub. opn.].)
The California Supreme Court granted Hall's petition for review of our November 25, 2020 decision and held the matter pending its decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis). The Supreme Court dismissed review after Lewis was decided.
III. Hall's Second Petition for Resentencing
Effective January 1, 2022, Senate Bill No. 775 amended former section 1170.95, subdivision (a) to expand its coverage to, among others, individuals convicted of felony murder on a "theory under which malice is imputed to a person based solely on that person's participation in a crime." (Stats. 2021, ch. 551, § 2.)
On May 4, 2022, Hall, as a self-represented litigant, filed his second petition for resentencing under former section 1170.95, now section 1172.6. This is the petition at issue in the present appeal. Using a revised preprinted form, Hall checked all the boxes for a facially sufficient petition and requested appointment of counsel.
The trial court did not appoint counsel for Hall or issue an order to show cause. On May 5, 2022, the court issued a minute order denying the second petition for resentencing. Therein, the court noted the denial of the first petition for resentencing and the request for reconsideration in 2019, and the affirmance of the denial by this court. The order included no other statement of the reasons for the denial of the petition.
DISCUSSION
I. Section 1172.6 and Other Applicable Law
When a defendant files a facially sufficient petition under section 1172.6, the trial court must appoint counsel to represent the petitioner, allow briefing from both sides, and hold a hearing to determine whether the petitioner has made a prima facie showing for relief. (§ 1172.6, subds. (b)-(c).) As our Supreme Court explained: "While 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 [1172.6] 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."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] '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." '" (Lewis, supra, 11 Cal.5th at p. 971.)
We review any error at this stage of the proceedings under the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, which requires a defendant to" 'demonstrate there is a reasonable probability that in the absence of the error he [or she] . . . would have obtained a more favorable result.'" (Lewis, supra, 11 Cal.5th at p. 974.) "More specifically, a [defendant] 'whose [section 1172.6] petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing." '" (Ibid.)
II. Analysis
Hall contends the trial court committed reversible error in declining to appoint counsel and hold a prima facie hearing before denying his facially sufficient second petition for resentencing on the ground it was procedurally barred as a successive petition. He argues he brought his second petition under law enacted after the denial of his first petition-Senate Bill No. 775-which allows resentencing relief for defendants whose murder convictions rest on a "theory under which malice is imputed to a person based solely on that person's participation in a crime." (See § 1172.6, subd. (a).) We need not determine whether the trial court erred in declining to appoint counsel and hold a prima facie hearing because any error was harmless for the reasons set forth below.
Hall's record of conviction definitively demonstrates that his jury found he intentionally aided and abetted the killing of the victim. Using an instruction proposed by Hall's counsel, the trial court instructed the jury it could find the felony murder special circumstance allegations to be true only if it found Hall intentionally aided and abetted the killing of the victim: "Before you may find the special circumstances allegation true, you must be satisfied beyond a reasonable doubt that Charles Hall's conduct at the time the crimes were being committed was intended to aid and abet the killing of [the victim]." As Division Seven stated in its opinion in Hall's direct appeal, this special jury instruction, requested by Hall's trial counsel, "made clear that intent to kill or aid in a killing, not merely a robbery or burglary, was required in order to find the special circumstances" that the jury found to be true. (People v. Hall, supra, 157 Cal.App.3d at p. 546.) Because the jury necessarily found Hall acted with intent to kill when he aided and abetted the first degree felony murder, he is ineligible for relief under section 1172.6 as a matter of law.
In arguing he could have been convicted of felony murder under a theory of imputed malice, Hall notes that the trial court instructed his jury with CALJIC No. 3.00, which then stated in pertinent part that a principal who aids and abets a crime is "equally guilty" as a principal who directly and actively commits the act constituting the crime. The court also instructed the jury with CALJIC No. 3.01, which stated in pertinent part: "A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime." According to Hall, these instructions "declare that an aider and abettor is equally as guilty as the perpetrator of the murder, so long as the aider and abettor has knowledge of that culprit's purpose, without any requirement that the aider and abettor have any intent to have any intent [sic]." Hall's argument ignores his own special jury instruction, which required the jury to find he intentionally aided and abetted the killing of the victim during commission of the first degree felony murder in order to find the special circumstance allegations to be true-which the jury did.
CALJIC No. 3.00, as given to Hall's jury, included a reference to the natural and probable consequences doctrine. In his briefing in this appeal, Hall does not mention this language in CALJIC No. 3.00 or argue he was convicted of murder under the natural and probable consequences doctrine.
Hall also relies on People v. Langi (2022) 73 Cal.App.5th 972, a case that is inapplicable here. There, the Court of Appeal reversed an order denying a petition for resentencing under former section 1170.95. The appellate court concluded: "Because the record of conviction does not conclusively negate the possibility that the jury found appellant guilty of second degree murder by imputing to him the implied malice of the actual killer, without finding that he personally acted 'with knowledge of the danger to, and with conscious disregard for, human life' [citation], an evidentiary hearing is required." (Langi, at p. 984.) We reiterate that here, unlike in Langi, the record of conviction demonstrates the jury found Hall acted with intent to kill when he committed first degree felony murder.
To the extent the trial court erred in declining to appoint counsel and hold a prima facie hearing on Hall's second petition for resentencing, any error was harmless. The jury instructions and verdicts-which the court may consider at the prima facie stage-demonstrate conclusively, without resort to impermissible factfinding, that Hall is ineligible for relief as a matter of law.
DISPOSITION
The May 5, 2022 order denying the petition for resentencing is affirmed.
We concur: ROTHSCHILD, P. J. BENDIX, J.