Opinion
E072738
11-17-2022
THE PEOPLE, Plaintiff and Respondent, v. RONALD WESLEY HANDWERK, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland and Julie L. Garland, Assistant Attorneys General, Christopher P. Beesley, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF065236 John D. Molloy, Judge. Reversed and remanded with directions.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland and Julie L. Garland, Assistant Attorneys General, Christopher P. Beesley, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
Defendant and appellant Ronald Wesley Handwerk filed a petition for resentencing pursuant to Penal Code section 1170.95, which the trial court denied. Defendant appealed, arguing that his petition was improperly denied since he made a prima facie showing that the provisions of section 1170.95 applied to him. By opinion filed August 20, 2020, we affirmed.
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, without substantive change. (See People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2 (Strong).) This opinion will use the statutory designation in effect at the time defendant filed his petition where appropriate and the new statutory designation for events occurring after the change in the law. All further statutory references will be to the Penal Code unless otherwise indicated.
On September 28, 2022, the California Supreme Court transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Strong, supra, 13 Cal.5th 698 and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). On September 29, 2022, we ordered our decision vacated and set a briefing schedule.
Defendant now contends that the trial court erred in basing its denial of his petition on a felony-murder special circumstance finding. He points out that the jury's true finding on the special circumstance allegation was rendered prior to the decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Defendant maintains he made the requisite prima facie showing, and the matter should be remanded with directions to issue an order to show cause (OSC). The People concede that the matter should be remanded for further proceedings. We reverse and remand the matter for a new prima facie hearing.
PROCEDURAL BACKGROUND
In 2012, a jury convicted defendant of first degree murder. (§ 187, subd. (a), count 1.) The jury also returned a true finding on the special circumstance allegation that he committed the murder while engaged in the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) The trial court sentenced defendant to life without the possibility of parole. (People v. Dunson (Feb. 26, 2015, E056565) [nonpub. opn.] at p. 2.)
By order filed on September 16, 2019, we granted defendant's request to take judicial notice of this court's 2015 opinion affirming his judgment of conviction.
In 2015, defendant appealed, and this court affirmed his conviction. (People v. Dunson, supra, E056565.)
On January 4, 2019, defendant filed a petition for resentencing pursuant to section 1170.95.
The trial court held a hearing on March 15, 2019. The court summarily denied the petition, noting that the jury specifically found the felony-murder special-circumstance allegation true.
DISCUSSION
Defendant argues that the trial court erred in denying his petition, and the matter should be remanded with directions to issue an OSC. The People concede the matter should be remanded for further proceedings. We reverse the court's denial and remand the matter for a new prima facie hearing.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) "significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.'" (Strong, supra, 13 Cal.5th at pp. 707-708.) "Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2'-that is, the statute defining the felony-murder special circumstance." (Id. at p. 708.) "Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. [Citations.] Under newly enacted section 1172.6, the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citations], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 [citation]." (Ibid., 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." (Strong, supra, 13 Cal.5th at p. 708.)
"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 . . . relief, the prima facie inquiry . . . 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.'" (Lewis, supra, 11 Cal.5th at p. 971.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Ibid.)
Where a defendant's "case was tried before both Banks and Clark, . . . special circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6." (Strong, supra, 13 Cal.5th at p. 721.) A court "err[s] in concluding otherwise." (Ibid.) If a defendant has made a prima facie showing of entitlement to relief," 'the court shall issue an order to show cause.'" (Id. at p. 708.) "[T]he court 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 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.)
"[E]ffective January 1, 2022, the Legislature limited use of prior appellate opinions, allowing trial judges to [only] 'consider the procedural history of the case recited.' [Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing." (People v. Clements (2022) 75 Cal.App.5th 276, 292.)
Here, the jury rendered the special murder circumstance finding before both Banks and Clark were decided. With respect to that finding, "no judge or jury has ever found the currently required degree of culpability ...." (Strong, supra, 13 Cal.5th at p. 718, italics added.) Thus, as we originally determined, the special murder circumstance finding did not, alone, render defendant ineligible for relief. Therefore, the court below erred in denying defendant's petition on that basis.
However, we also determined, in reliance on this court's prior opinion, that any error was harmless since the record of conviction disclosed sufficient evidence to support a finding that defendant was a major participant who acted with reckless indifference to human life under Banks and Clark. "Neither the jury's pre-Banks and Clark findings nor a court's later sufficiency of the evidence review amounts to the determination section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise adequate prima facie showing and deny issuance of an order to show cause." (Strong, supra, 13 Cal.5th at p. 720.)
Since the felony-murder special-circumstance finding here was made before Banks and Clark, that finding alone does not render defendant ineligible for resentencing. Moreover, this court's previous review for sufficiency of the evidence was also inadequate to support denial of resentencing at the prima facie stage. Therefore, as the People concede, we must reverse the trial court's order summarily denying defendant's petition and remand the matter for a new prima facie hearing.
Defendant extensively discusses this court's prior opinion in this appeal and notes that we found he stated a prima facie case for relief. To the extent he relies upon that finding to argue that we should now remand with directions for an OSC hearing, we have vacated our prior opinion, pursuant to the Supreme Court's order. Thus, we remand the matter for the trial court to hold a new prima facie hearing.
DISPOSITION
The order denying defendant's petition is reversed. The matter is remanded with directions to hold a new prima facie hearing. We express no opinion on whether defendant is entitled to relief following the hearing.
We concur: MILLER Acting P. J. RAPHAEL J.