Opinion
No. A158218
06-29-2020
THE PEOPLE, Defendant and Respondent, v. MARVIN HARRIS, Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 50254904)
Appellant Marvin Harris's counsel requests this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Harris was informed of his right to file, and has filed, a supplemental brief, which he has identified as such and also has fashioned as a petition for a writ of habeas corpus. Upon our independent review of the record under Wende and Anders, we conclude there are no arguable appellate issues requiring further briefing and affirm. To the extent Harris intends his supplemental brief as a petition for a writ of habeas corpus, we deny it without prejudice, as we will discuss.
BACKGROUND
I.
Harris's Petition
Harris, representing himself, submitted a petition to the Contra Costa County Superior Court that was filed in April 2019. In his caption, he indicated he was requesting re-sentencing under Penal Code section 1170.95, subdivision (a). Section 1170.95, subdivision (a) states:
All statutory references are to the Penal Code unless indicated.
"A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.
"(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019."
In his verified petition, Harris stated that he was the petitioner, was presently incarcerated in state prison and had served a district attorney and two judges with his petition. He also filed an affidavit in support of his petition, in which he stated that he had served his petition, notified the prosecution of his demands for a hearing and for resentencing, and complied with the requirements "as set forth by the statutes of California new Penal Code section 1170.95[, subdivisions (a)] (1)[,] (2)[,] (3)[,] (b) and (c)."
Based on his exceedingly thin contentions and affidavit, Harris wrote, "Therefore, I am entitled to be re-sentenced pursuant to section 1170.95[, subdivision] (d)(2)."
Section 1170.95, subdivision (d)(2) states: "The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing. If 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." --------
II.
The Prosecution's Opposition
The court ordered the prosecution to respond and appointed counsel to represent Harris. The prosecution filed an opposition and asked the court to take judicial notice of the underlying docket in Harris's criminal case. Harris's conviction occurred when he was tried a second time for the relevant crimes, after this court had reversed his conviction in a previous trial. (People v. Harris (1987) 192 Cal.App.3d 943.) The prosecution summarized the underlying facts from our court's opinion in People v. Harris, A044184, 1990 Cal. App. LEXIS 741, issued on July 11, 1990 (which was depublished by our Supreme Court on October 11, 1990, in People v. Harris, S016987, 1990 Cal. LEXIS 4575), as follows:
In January 1981, the victim's car was taken from a San Pablo, California, parking lot moments after the victim was seen standing by it. Two young males who had purchased Payday candy bars at a nearby store were seen in the area. The car left the parking lot at a high speed, driven by a young male who appeared to be hitting something and keeping it down. Police were notified that the victim was missing after she did not return to her husband for dinner.
The next day, Harris, 20 years old at the time, was stopped in Southern California driving the victim's car, which he both claimed belonged to his aunt and had been given to him by a woman who was not his aunt. He was carrying religious medals belonging to the victim and a Payday candy bar. He had with him a coat that was smeared with blood and wore pants that were splattered with blood, in both cases of the victim's type; the pants also were splattered with Pine-Sol. A blood-stained glove was found in the car.
Returned to Northern California, Harris was placed in a prisoners' holding cell that included Keith Crummie, a member of a group or gang to which Harris also belonged. Harris told Crummie that he had stolen a Lincoln from " '[s]ome white lady,' " forced her into the car, driven to a shoreline area, forced the woman to orally copulate him, taken some money from her, beaten her with a brick, slit her throat and poured Pine-Sol down it, thrown the brick into the water and driven the car to Los Angeles. Harris's statements were heard by two other prisoners, who later recounted that Harris said he had killed a woman and disposed of her body in water so that it would not be found.
The day after Harris was placed in this holding cell, the victim's body, a broken bottle of Pine-Sol covered with her hair and blood, and her open purse, empty of cash, were found at a shoreline area. The victim had died from head injuries, possibly caused by a broken glass bottle. Brick fragments were found in the body's head wounds, wounds on the neck were consistent with glass from the Pine-Sol bottle and the body's clothing had Pine-Sol, vomit, and blood on it.
Although Harris had testified at his first trial and implicated Crummie and Stanley Woodard, Harris's friend, in the crime, he refused to testify at the second trial despite his own counsel's and the trial court's efforts to persuade him to take the stand. The court did not allow his previous testimony to be admitted. The defense presented evidence that Harris had below normal intelligence and was a follower rather than a leader. There was further evidence tending to confirm the implication that another person or persons had been involved in the crimes. Two witnesses had seen Woodard driving the victim's car with Harris and a woman about the victim's age in the car, and street rumors connected both Woodard and Crummie to the crime. The blood-stained glove found in the victim's car appeared to be a match to a glove, which later disappeared, seen in Woodard's home.
The court instructed the jury on both premeditated murder and felony murder as prerequisites for first degree murder and further instructed that a killing occurring in the course of a kidnapping for robbery was first degree murder. The jury found Harris guilty of first degree murder, found true the robbery and kidnapping special circumstances allegations, and found him guilty of kidnapping for the purpose of robbery. The court sentenced Harris to life without the possibility of parole.
The prosecution recited the three subparts of section 1170.95, subdivision (a) that we have quoted supra. It argued that Harris's petition should be denied because he did not make the required prima facie showing under that statute, since he failed to show he "could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (See § 1170.95, subd. (a)(3).)
III.
Harris's Reply Brief
Although counsel had been appointed for him, Harris filed his own reply, contending that his counsel refused to file what Harris referred to as "a petition." He argued that his sentence of life without the possibility of parole was improper under section 190.2, which required among other things that, if he was not the actual killer, he have acted with "reckless indifference to human life and as a major participant" in the robbery or kidnapping with which he was charged. (§ 190.2, subds. (a) (17), (d).) He based this argument on People v. Clark (2016) 63 Cal.4th 522, 611 and People v. Banks (2015) 61 Cal.4th 788, 803, contending these cases clarified that, "before a person could be found to be a 'major participant in the felony' who acted with 'reckless indifference to human life' in the killing, the person had to do more than merely participate in a dangerous felony." For the first time regarding his petition, Harris made certain factual contentions, but he did not support any of them with citations to the petition record. He also attached an unauthenticated document fashioned as a portion of an appellant's reply brief written on his behalf, which caption page contains the same case number as People v. Harris, supra, 192 Cal.App.3d 943, but which contains no date or indication that it was filed with a court.
IV.
The Court's Denial of Harris's Petition
Without holding a hearing, the court issued a 10-page order denying Harris's petition. The court took judicial notice of part of the docket of Harris's underlying criminal case that was submitted by the prosecution (the information, abstract of judgment, court minute orders, jury instructions and verdict forms) as well as this court's depublished 1990 opinion affirming the trial court judgment. The court did not consider police reports and probation reports.
The court, after also summarizing facts from our previous depublished 1990 opinion, found that the jury had been instructed, regarding both the special circumstance in the commission of a robbery allegation and the special circumstance in the commission of a kidnapping allegation, that it had to be proven that Harris " 'intended to kill a human being or intended to aid another in the killing of a human being' " for either allegation to be found true. The jury found these special circumstance allegations to be true. Further, the court noted that this court, in affirming the judgment, ruled that the felony murder instruction given to the jury, while in error, was harmless because " 'the only effect of the erroneous . . . instruction was to force the People to prove a kidnapping, in addition to the robbery' " to establish first degree felony murder liability. The court also reviewed Senate Bill No. 1437, signed into law in 2018, which amended California's felony murder laws, established the petition procedure employed by Harris and enacted the provisions of section 190.2 that we have discussed.
Upon considering this record and changes in our felony murder laws, the court summarily denied Harris's petition. It concluded that Harris had not met his burden of showing that he was entitled to relief under all four of the requirements set forth in section 1170.95, subdivision (a). In particular, he did not make "a showing that he could not be convicted of first degree murder under the new law." The court explained, "In its verdicts, the jury expressly found true the special circumstances allegations that Harris committed the murder during the commission of a robbery and a kidnapping. Based on the instructions given to the jury, the jury could find these allegations true only if they found unanimously beyond a reasonable doubt that Harris intended to kill the victim or to aid and abet another in killing the victim. Based on the jury's findings, Harris could be convicted today under the new Penal Code [section] 189[, subdivision] (e)(2), which makes a 'participant in the perpetration . . . of a felony listed in subdivision (a) in which a death occurs [] liable for murder [] if . . . [t]he person . . . with the intent to kill, aided, abetted . . . or [assisted] the actual killer in the commission of murder in the first degree.' "
Harris filed a timely notice of appeal.
DISCUSSION
We have conducted an independent review under Wende and Anders, and conclude there are no arguable appellate issues requiring further briefing. The trial court's analysis of the deficiencies of Harris's petition is supported by the record and the law. Under the circumstances, which include that Harris made no showing, let alone a prima facie showing, that he could not be convicted of first degree murder under the new laws established by Senate Bill No. 1437, the trial court properly could and did summarily deny his petition. (See § 1170.95, subd. (c) ["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," italics added]; People v. Offley (2020) 48 Cal.App.5th 588, 596-597 [court required to hold a hearing only if defendant makes a prima facie showing under section 1170.95 and is not ineligible for relief as a matter of law].)
To the extent Harris intends his supplemental brief to also constitute a separate petition for a writ of habeas corpus, it is not verified regardless of his characterization of it as verified, or properly filed. It is denied without prejudice to his filing a petition in the superior court or a proper, verified petition in this court utilizing Judicial Council form HC-001, Petition for Writ of Habeas Corpus, unless Harris demonstrates good cause for not using that form. (Cal. Rules of Court, rule 8.380(a).) For the sake of judicial efficiency, we note that " ' "[i]t has long been the law in California that, while a Court of Appeal may have original jurisdiction in a habeas corpus proceeding, it has the discretion to deny a petition without prejudice if it has not been first presented to the trial court." [Citation.] " 'Generally speaking, habeas corpus proceedings involving a factual situation should be tried in superior court rather than in an appellate court, except where only questions of law are involved." ' " (In re Brigham (2016) 3 Cal.App.5th 318, 325.)
DISPOSITION
The ruling appealed from is affirmed. To the extent Harris intends his supplemental brief to also constitute a separate petition for a writ of habeas corpus, his unverified petition is denied without prejudice to his filing one in the superior court or in this court.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.