Opinion
B324571
12-07-2023
THE PEOPLE, Plaintiff and Respondent, v. HOWARD DERRICK HOLT, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. LA009696, Shellie L. Samuels, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BENDIX, J.
Howard Derrick Holt appeals from the denial of his petition for resentencing under Penal Code former section 1170.95, since renumbered section 1172.6. Holt's appointed appellate counsel filed a brief identifying no issues. We address the arguments raised in Holt's supplemental briefing and affirm.
Unspecified statutory citations are to the Penal Code.
BACKGROUND
As summarized in our opinion in Holt's direct appeal from his conviction, Holt and a confederate, Claude E. Davis, perpetrated a series of armed robberies, primarily of restaurants, between November 1991 and January 1992. (People v. Holt et al. (Jan. 30, 1997, B080297) [nonpub. opn.].) During the robbery of the Grecian Village Restaurant, Davis's weapon discharged, killing Vartan Mouradian. During another robbery, Holt exchanged fire with two police officers, one of whom was wounded. During another robbery, Davis clubbed a security guard repeatedly with a pipe.
Courts may not rely on factual summaries from appellate opinions when determining a defendant's eligibility for resentencing under section 1172.6. (People v. Lee (2023) 95 Cal.App.5th 1164, 1183 (Lee).) We provide the information solely as context for the issues in the case, and do not rely on our prior factual summary to resolve this appeal.
In 1993, Holt was convicted of the first degree murder of Mouradian, three counts of premeditated attempted murder of the police officers and security guard, two counts of assault with a firearm upon a peace officer, two counts of assault with a semiautomatic rifle upon a peace officer, 35 counts of robbery, and six counts of attempted robbery. The jury found true numerous enhancements and the special circumstance that the murder was committed during the commission of a robbery. Holt was sentenced to life without possibility of parole, two consecutive life terms with possibility of parole, and a determinate term of 68 years.
On July 25, 2022, Holt filed a petition under former section 1170.95 seeking resentencing on his convictions for murder and attempted murder. The resentencing court appointed counsel, issued an order to show cause, and held an evidentiary hearing. Holt requested the hearing proceed without him present, stating that he was receiving medical treatment that "would be greatly compromised" if he attended the hearing.
The resentencing court denied Holt's petition as to the attempted murders of the police officers, finding Holt was the actual shooter and therefore ineligible for relief. The court denied the petition as to the murder charge, finding Holt was a major participant in the robbery and acted with reckless indifference to human life. The court, however, granted the petition as to the attempted murder of the security guard, finding no evidence that Holt aided and abetted Davis in attacking the guard.
Holt timely appealed. His appointed appellate counsel filed a brief identifying no issues. We invited Holt to file his own supplemental brief, which he did. Upon review of the brief and consultation with appellate counsel, we discovered that appellate counsel had provided Holt with the reporter's and clerk's transcripts from his resentencing proceeding, but had not provided him with the transcripts from his original trial, leading Holt mistakenly to believe that the resentencing court also did not have those original transcripts when it ruled on his petition. We directed appellate counsel to ensure Holt received copies of the transcripts from his original trial, and invited Holt to file a second brief once he received those documents. Appellate counsel filed a declaration stating she had arranged for Holt to receive the transcripts, and Holt thereafter filed a second supplemental brief.
DISCUSSION
"Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) amended sections 188 and 189 of the Penal Code to 'eliminate[ ] natural and probable consequences liability for murder as it applies to aiding and abetting, and [to] limit[ ] the scope of the felony-murder rule.' [Citation.]" (Lee, supra, 95 Cal.App.5th at p. 1173.) The bill also added former section 1170.95, now numbered section 1172.6, "which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis (2021) 11 Cal.5th 952, 957.)
As discussed, appellate counsel has filed a brief identifying no issues. Because this is an appeal from a denial of postconviction relief under former section 1170.95, we are not required to conduct an independent review of the record, as we might be in a direct appeal from a criminal conviction. (People v. Delgadillo (2022) 14 Cal.5th 216, 221-222; see People v. Wende (1979) 25 Cal.3d 436.) When a defendant files a supplemental brief, however, we are "required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Delgadillo, at p. 232.) We therefore address the arguments raised in Holt's two supplemental briefs.
Holt disputes the resentencing court's finding that he acted with reckless difference to human life during the robbery at the Grecian Village Restaurant. Under the amended section 189, reckless indifference to human life is a required element of felony murder when the defendant is neither the actual shooter nor aided or abetted the murder with intent to kill. (See § 189, subd. (e).) Holt argues the evidence shows he had no intention of killing anyone, and could not have intervened to prevent the killing by his confederate because he was in another room of the restaurant at the time, and his confederate's weapon discharged accidentally.
The defendant must also be a "major participant in the underlying felony." (§ 189, subd. (e)(3).) Although Holt maintains he is innocent of the Grecian Village robbery, he does not dispute the evidence supports the resentencing court's finding that he was a major participant.
Although" '[the] defendant's proximity to the crime and opportunity to stop the killing'" are among the factors to be considered in evaluating whether a defendant acted with reckless indifference to human life, there are many other factors, among them," 'defendant's knowledge of weapons used in the crime, and their actual use and number; . . . [the] defendant's . . . opportunity to . . . aid [the victim or victims]; the duration of the crime; [the] defendant's knowledge of [the actual killer's propensity to kill; and [the] defendant's efforts to minimize the possibility of violence during the crime.' [Citations.]" (In re Taylor (2019) 34 Cal.App.5th 543, 553; see People v. Clark (2016) 63 Cal.4th 522, 618-623 (Clark).) Holt does not discuss these factors or how the evidence fails to support a finding of reckless indifference based on them. Therefore, even assuming arguendo the evidence would support his contention the shooting was accidental and he had no opportunity to intervene, he fails to show the trial court erred in applying the other reckless indifference factors to find he remained culpable of murder under current law.
Holt correctly notes that proof of reckless indifference requires a showing "beyond those risks inherent in any armed robbery" (Clark, supra, 63 Cal.4th at p. 623), and argues nothing in the conduct of the Grecian Village robbery presented an enhanced risk. Holt does not dispute the robbery consisted of over a dozen victims, all of whom Holt and his confederate had to control through threat of deadly violence. Far from a run-of-the-mill armed robbery in which a single perpetrator threatens a single victim, here the multiple victims and multiple armed perpetrators significantly escalated the risk of something going awry, which in fact it did with tragic consequences. For all these reasons, Holt fails to show error in the resentencing court's finding of reckless indifference to human life.
Holt contends the resentencing court did not have his full record of conviction before it, referring specifically to transcripts of the preliminary hearing and the "Murder Book," which he claims contain exonerating evidence. The record indicates the resentencing court had before it the record from Holt's direct appeal from his conviction. To the extent Holt believes there are additional documents the resentencing court should have considered, he does not explain what evidence those documents would contain and how that evidence would entitle him to relief. At most, he contends he could have provided the court with a diagram of the Grecian Village Restaurant to prove that he was not in the same room where the killing took place, and could therefore not have intervened to prevent the killing. As discussed above, however, even assuming arguendo Holt's characterization of the evidence were correct, it is nonetheless inadequate to show error on the part of the resentencing court.
Holt argues the resentencing court improperly relied on the opinion from the direct appeal from his conviction. He cites nothing in the record indicating the resentencing court did so, nor can we find any such indication. Indeed, the resentencing court specifically referred to reading the trial transcripts.
Holt contends the resentencing court spoke with "disdain" and "vitriol" and was not fair and impartial. Holt does not cite particular comments of the resentencing court to support his claim. We have reviewed the transcript of the evidentiary hearing and discern no impropriety. The court arguably indicated it was appalled by Holt's crimes, but Holt cites no authority this indicates a lack of impartiality.
Holt disputes his convictions for attempted murder of the two police officers, arguing the evidence shows one of the officers was in fact shot by the other, and to the extent Holt fired, it was in self-defense in response to excessive force. These arguments are beyond the scope of a section 1172.6 proceeding, which addresses solely whether a defendant was convicted under a nowinvalid theory of murder or attempted murder, not whether the defendant was innocent of the charges in the first place.
Holt argues the evidentiary hearing would have gone better for him had he been present, because he could have challenged the court's purported bias and assisted counsel in marshalling evidence. Holt expressly requested that the hearing proceed without him, and he cannot now complain of the purported consequences of that choice.
In a similar vein, Holt argues both his resentencing counsel and appellate counsel provided ineffective assistance by not marshalling better evidence or challenging the purportedly biased resentencing court. To prevail on a claim of ineffective assistance of counsel, defendant must establish counsel's representation fell below professional standards of reasonableness and must affirmatively establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Hart (1999) 20 Cal.4th 546, 623-624.) If the defendant's showing is insufficient as to one component of this claim, we need not address the other. (Strickland, at p. 697.) Here, we have rejected all of Holt's claims of error, and a fortiori, he has failed to show prejudice. Although he complains his attorneys were insufficiently communicative with him, and that at times he had to take affirmative steps to contact them or the court, he does not explain how this ultimately prejudiced him.
DISPOSITION
The order is affirmed.
We concur: ROTHSCHILD, P. J., WEINGART, J.