Opinion
B321788
07-17-2023
THE PEOPLE, Plaintiff and Respondent, v. TRAVYON HARBOR, Defendant and Appellant.
Travyon Harbor, in pro. per.; Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. NA065766 Richard M. Goul, Judge.
Travyon Harbor, in pro. per.; Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ADAMS, J.
Travyon Harbor appeals from an order denying his petition for resentencing under Penal Code section 1172.6. His appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Harbor filed a supplemental brief asking us to consider whether he should have been resentenced and whether he was entitled to postconviction discovery. We consider and reject those contentions and affirm the order denying his section 1172.6 petition.
All further undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
Delgadillo, supra, 14 Cal.5th at pages 221 to 222, held that there is no right to independent review from an order denying section 1172.6 relief per People v. Wende (1979) 25 Cal.3d 436, and set forth a procedural framework to follow when appellate counsel determines no arguable issue exists. Consistent with that framework, we gave Harbor notice of his right to file a supplemental brief, and he filed a supplemental brief, thereby requiring that we evaluate the issues he raises.
FACTUAL AND PROCEDURAL BACKGROUND
I. The underlying crime
We take our statement of the evidence underlying Harbor's crime from the Court of Appeal opinion affirming his judgment of conviction. (People v. Harbor (Nov. 20, 2007, B187911) [nonpub. opn.].) "Dwayne Saulsberry testified that, on July 26, 2002, at about 6:00 p.m., he drove Kieanii K. and her brother [to their] home ... in Wilmington. Saulsberry and Kieanii's uncle, Timothy Fox, got into an argument. Kieanii told Saulsberry to leave. As he was returning to his car, Saulsberry heard Fox whistle. Then, just as Saulsberry started to drive away, a vehicle 'came charging at' him. To avoid a head-on collision, Saulsberry swerved. The oncoming vehicle sideswiped Saulsberry's car. Saulsberry heard gunfire, six or seven rounds fired in rapid succession, as he kept driving away. He reached the end of the block and turned onto Watson Avenue. Saulsberry did not see who was shooting at him.
We have taken judicial notice of the files and records in People v. Harbor, supra, B187911. In reviewing a section 1172.6 petition, a trial court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); see also People v. Clements (2022) 75 Cal.App.5th 276, 292.) However, the role of an appellate opinion is limited, and the trial court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (Clements, at p. 292.)
"When the police subsequently searched Saulsberry's car, they found 11 rounds of .32-caliber ammunition. Saulsberry claimed the ammunition was old and that he did not know it was in his car. He denied having had a gun with him on the day of the shooting.
"Kieanii told police [fn. omitted] that during the argument between Fox and Saulsberry, Fox 'was basically belittling him because of his handicap.' (Saulsberry was missing his right leg and he had suffered some kind of permanent injury to his left arm.) Saulsberry pulled a gun from his pocket, showed it to Fox and said, 'I'm not a punk. I can take care of myself.' Kieanii told Saulsberry, 'Look, you better get out of here. They are gonna shoot you.' According to Kieanii, Saulsberry 'went back to his car, threw the gun on the floorboard, got into his car, and ... started to take off. And then she saw [defendant Harbor] come from a parked car, shoot at [Saulsberry, who] collided into a car that was coming up the street, and then ... [Harbor] began to shoot as [Saulsberry] kept going west until he got to Watson.' Kieanii did not see anyone except Harbor fire a gun during this incident.
"Regina Smith testified she lived with her boyfriend, Willie Harbor, who was defendant Harbor's uncle, ... across the street and west of Kieanii's house. At the time of the shooting, Smith was sitting in her Volkswagen Rabbit in front of the Harbor house smoking PCP. Smith told police she saw Saulsberry run to his car and start to drive away. A blue Cadillac appeared and collided with Saulsberry, who kept driving down East Cruces. Then Harbor, who was standing in the driveway of the Harbor house, started shooting at Saulsberry: '[T]hen the car went towards Watson on Cruces and [Harbor kept] shooting at the car....' When Saulsberry reached Watson Avenue, he turned left and Smith heard more gunshots. Later, after the ambulance came, Smith went into the house and saw Harbor trying to climb through the back window. When she asked what he was doing Harbor said, 'I got to get out of here.' Smith did not see anyone besides Harbor shooting a gun during the incident.
"Walfred Marroquin and his wife, Rosa Garcia, lived ... across Watson Avenue from, and west of, both Kieanii's house and the Harbor house. When the shooting occurred, Marroquin and Garcia were just returning home. Garcia got out of the car and went to open the driveway gate. Then she fell to the ground. Marroquin ran over and saw she was bleeding from the head. Garcia never regained consciousness and she died two days later. It turned out she was six weeks' pregnant. Detective Goodman attended the autopsy and saw a bullet entry wound in the side of Garcia's head.
"Leticia Huerta lived ... a couple of houses west of Kieanii's house. Huerta heard the gunshots and, when the shooting was over, she looked out her bedroom window. She saw Fox shaking hands with Harbor on the sidewalk across the street. Huerta told police she heard a single shot, a pause, and then rapid gunfire.
"Huerta's husband, Rigoberto Martinez, looked out the living room window when the shooting stopped. He saw Harbor by the sidewalk across the street, crouched behind a white Cherokee which was parked in front of [a house near Kieanni's house], behind Smith's car. Harbor appeared to be putting a gun into his waistband. Martinez then saw Fox and Harbor shaking hands in a congratulatory way.
"Five .40-caliber bullet casings were found spread out in front of 1405 East Cruces Street.. Detective Goodman testified this physical evidence was consistent with Martinez's statement about where he had seen Harbor when the shooting stopped.
"Detective Goodman testified it appeared gunfire had hit the front of a Buick Regal, which was parked very close to where Garcia had been standing when she was shot.
"2. Defense evidence.
"Harbor's uncle, Willie, testified he was inside the house when he heard shooting. He went outside when it stopped and saw Smith sitting in her car, smoking cocaine. Smith said to him, 'It's another drive-by shooting.' Willie did not see Harbor or anyone with a gun.
"Harbor's cousin, Tim Fox, testified he had been at Kieanii's house that afternoon. He denied having seen Saulsberry there. Fox testified he was in the yard when he heard shooting and he got on the ground to avoid being hit. When he got up, he saw Smith in her parked car and went over to check on her. Fox did not see Harbor; nor did he see anyone with a gun. He denied having told police a car drove up, that the driver spoke to Fox and a man named Shane, but Fox ignored the driver because he didn't know him.
"3. Rebuttal evidence.
"Detective Goodman testified he interviewed Fox, who said he was in front of Kieanii's house, talking to someone named Shane, when a man drove up and said,' "What's up, homey?"' or,' "Hey, what's up?"' Fox did not know the man, so he ignored him. The man drove away and a few seconds later Fox heard five or six gunshots."
II. Verdict and sentence
A jury found Harbor guilty of the second degree murder of Garcia (§ 187, subd. (a); count 1) with true findings on personal gun use allegations, including that he personally and intentionally discharged a gun causing death (§ 12022.53, subds. (b), (c) &(d)) and of the attempted willful, deliberate and premeditated murder of Saulsberry (§§ 664, subd. (a), 187, subd. (a); count 2) with true findings on personal gun use allegations (§ 12022.53, subds. (b) &(c)).
On October 27, 2005, the trial court sentenced Harbor to a lengthy indeterminate term, plus a determinate five years. The trial court struck a section 667.5, subdivision (b), enhancement.
This Division affirmed Harbor's judgment of conviction but remanded to the trial court for resentencing. (People v. Harbor, supra, B187911.) On remand, the trial court resentenced Harbor to 90 years to life plus five years.
III. Harbor's section 1172.6 petition for resentencing
In 2021, Harbor petitioned for "re-call and re-sentencing" under section 1172.6. Although Harbor made the requisite allegations to state a prima facie case for relief, his argument focused on the alleged suppression of exculpatory evidence at his trial. The trial court appointed counsel to represent Harbor. The People opposed the petition on the ground that Harbor was the actual killer and, as such, ineligible for resentencing. The trial court agreed with the People and accordingly denied the petition on June 30, 2022. However, the trial court struck "nunc pro tunc" a section 667.5 enhancement. The trial court also denied a petition for writ of mandate for postconviction discovery Harbor had filed.
This appeal followed. Court-appointed appellate counsel filed an opening brief that raised no issues and asked this court to independently review the record under Delgadillo, supra, 14 Cal.5th 216. We directed appellant's counsel to send Harbor the record and a copy of the opening brief, and we advised that within 30 days of the date of the notice, Harbor could submit a supplemental brief or letter stating any grounds for an appeal, or contentions, or arguments he wished this court to consider. Harbor has submitted a supplemental brief in which he argues that he should have been resentenced under section 1172.75 and he was entitled to postconviction discovery.
Effective June 30, 2022, section 1171.1 was renumbered section 1172.75 with no substantive changes in text. (Stats. 2022, ch. 58, § 12.)
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) added section 1172.6 to limit accomplice liability for, among other crimes, murder and, as the bill was later amended, attempted murder. (See generally People v. Vizcarra (2022) 84 Cal.App.5th 377, 388 [Sen. Bill No. 775 broadened pool of petitioners eligible for resentencing].) Section 1172.6, subdivision (a), thus provides that a "person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter" may petition to have that person's conviction vacated and for resentencing. (See generally People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842-843.)
Senate Bill No. 1437 also created a procedure, codified at section 1172.6, for a person convicted of murder or attempted murder under the former law to be resentenced if the person could no longer be convicted of those crimes under the amended law. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A petitioner commences that procedure by filing a petition containing a declaration that, among other things, the petitioner could not presently be convicted of murder under the current law. (People v. Strong (2022) 13 Cal.5th 698, 708.) If the trial court receives a petition that establishes a prima facie case for relief, it must appoint counsel for the petitioner, if requested. The trial court also must issue an order to show cause and hold an evidentiary hearing at which the prosecutor has the burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. (Ibid.; § 1172.6, subds. (b)(3), (c), &(d)(1), (3).) If the trial court finds beyond a reasonable doubt that the petitioner is guilty of murder or attempted murder notwithstanding the amendments to the law, the petitioner is ineligible for relief under section 1172.6. (Strong, at pp. 708-709.)
Here, Harbor was not convicted under a theory of murder or attempted murder made invalid by Senate Bill No. 1437. That is, his jury was not instructed on felony-murder, the natural and probable consequences doctrine, any theory of aiding and abetting, or any other theory under which malice could be imputed to him. Instead, Harbor was prosecuted and convicted of his crimes as the actual killer and actual attempted killer. The trial court therefore properly denied Harbor's section 1172.6 petition.
As for the issues Harbor raises in his supplemental brief, he first asserts that he was entitled to relief under section 1172.75. The section declared legally invalid any sentence enhancement imposed before January 1, 2020 under section 667.5 (commonly called one-year priors), except ones imposed for a prior conviction for a sexually violent offense. (§ 1172.75, subd. (a).) However, section 1172.75 does not provide "resentencing relief initiated by any individual defendant's petition or motion." (People v. Burgess (2022) 86 Cal.App.5th 375, 384; accord People v. King (2022) 77 Cal.App.5th 629, 640 [freestanding motion challenging incarcerated defendant's sentence is procedurally improper].) Instead, the Secretary of the California Department of Corrections and Rehabilitation and each county's correctional administrator must identify affected defendants and provide their information to the sentencing court, which then conducts any appropriate resentencing proceeding. (§ 1172.75, subds. (b) &(c).) Therefore, this issue is not properly before us on review of an order denying a section 1172.6 petition. In any event, our review of the record shows that the sentencing court in 2005 struck the section 667.5, subdivision (b), enhancement, and the trial court at the hearing on Harbor's section 1172.6 petition again struck it.
Second, Harbor contends in his supplemental brief that he was entitled to recordings the police made during its investigation into the crimes because the evidence was exculpatory. Harbor has raised, and the trial court has considered, this issue multiple times. In October 2015, the trial court denied his petition for writ of habeas corpus for postconviction discovery. In May 2019, the trial court denied a motion for postconviction discovery/Brady material. In November 2019, the trial court denied a petition for writ of error coram nobis and motion for postconviction discovery. On appeal, this Division affirmed the order denying the petition and dismissed the appeal insofar as Harbor purported to appeal the order denying postconviction discovery. (People v. Harbor (July 1, 2021, B302806) [nonpub. opn.].) And on June 30, 2022, the trial court denied Harbor's writ of mandate for postconviction discovery. To the extent Harbor intended to appeal from the order denying that writ, such an order is not appealable. (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064.) Also, whether Harbor was entitled to postconviction discovery is not cognizable in section 1172.6 proceedings. (See People v. Strong, supra, 13 Cal.5th at p. 713 [resentencing proceedings under the statute involve "prospective relief from a murder conviction that was presumptively valid at the time," not the correction of "errors in past factfinding"].)
DISPOSITION
The order denying Travyon Harbor's Penal Code section 1172.6 petition is affirmed.
We concur: LAVIN, Acting P. J., EGERTON, J.