Opinion
A160479
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND HOUSTON, Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 142789)
Defendant Raymond Houston appeals from the superior court's denial of his March 2020 petition for resentencing, brought under Penal Code section 1170.95, which became effective in 2019 as part of the Legislature's changes in our criminal laws regarding liability for felony murder and murder under a natural and probable consequences theory. Houston argues the trial court committed reversible error by denying his petition based on an improper factual assessment without first appointing counsel or ordering further briefing. We conclude that any error by the court was harmless because a prior opinion by this court affirming Houston's conviction makes clear he is not eligible for resentencing under section 1170.95 as a matter of law. Therefore, we affirm the superior court's denial of Houston's petition.
All statutory references are to the Penal Code.
BACKGROUND
As discussed by this court in People v. Houston (2005) 130 Cal.App.4th 279 (Houston I), a jury convicted Houston in 2003 of the second degree murder of his estranged wife, Lucille Hudson, and found true the allegation that he personally and intentionally discharged a firearm proximately causing great bodily injury and death within the meaning of section 12022.53, subdivision (d). (Houston I, at p. 294; Stats. 2002, ch. 126, § 4 [former section 12022.53 in effect at the time of Houston's sentencing]). Houston was sentenced to 40 years to life in state prison. (Houston I, at p. 294.) This court affirmed Houston's judgment of conviction in Houston I.
In his petition, Houston checked boxes on a pre-printed form to indicate under penalty of perjury that he was convicted at trial of "1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine"; was not the actual killer and did not act with the intent to kill, to aid, abet or otherwise assist the actual killer, and 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 further indicated that there had been a prior determination by a court or jury that he was not a major participant and/or did not act with reckless indifference to human life under section 190.2, subdivision (d). Therefore, he contended, he was entitled to resentencing under section 1170.95.
The superior court, relying on appellate court opinions under review then and now by our Supreme Court (see People v. Verdugo (2020) 44 Cal.App.5th 320 (Verdugo), review granted Mar. 18, 2020, S260493; People v. Lewis (2020) 43 Cal.App.5th 1128 (Lewis), review granted Mar. 18, 2020, S260598), denied Houston's petition a few days later for failure to make a prima facie showing without appointing counsel for Houston or ordering briefing of the issue. The court took judicial notice of the docket in Houston's criminal case, which included the information, verdict form and jury instructions, and reviewed our opinion in Houston I. The court concluded that Houston was not entitled to relief because there was "no support in the record or the petition for [his] claims that he was prosecuted under anything but a theory of malice murder or that there was a finding by judge or jury within the meaning of section 1170.95, subdivision (d)(2)."
Houston filed a timely notice of appeal from the superior court's denial of his petition.
DISCUSSION
Section 1170.95 was adopted as part of Senate Bill No. 1437, which was enacted "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." (2018 Stats., ch. 1015, § 1(f)); People v. Martinez (2019) 31 Cal.App.5th 719, 722-723.) Section 1170.95 permits a person convicted of murder under the felony murder rule or the natural and probable consequences doctrine to petition the superior court to have their murder conviction vacated and to be resentenced. (§ 1170.95, subds. (a), (e); 2018 Stats., ch. 1015, § 4; Martinez, at pp. 723-724.)
As recently explained by our colleagues in Division One of this court in People v. Cooper (2020) 54 Cal.App.5th 106 (Cooper), review granted November 10, 2020, S264684, "The defendant initiates the process by filing a petition in the sentencing court that must include three pieces of information. (§ 1170.95, subd. (b).) First, the petition must include '[a] declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a).' (§ 1170.95, subd. (b)(1)(A).) Those requirements are (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) '[t]he 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'; and (3) '[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' (§ 1170.95, subd. (a).) Second, the petition must include '[t]he superior court case number and year of the petitioner's conviction.' (§ 1170.95, subd. (b)(1)(B).) And finally, the petition must state '[w]hether the petitioner requests the appointment of counsel.' (§ 1170.95, subd. (b)(1)(C).)" (Cooper, at p. 114.)
Most relevant to this appeal is section 1170.95, subdivision (c), which, as we will further discuss, twice refers to the need for a defendant to make a prima facie showing of eligibility for resentencing under section 1170.95. It provides that, upon a defendant's filing of a sufficient petition, "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. 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.)
If the court determines a prima facie showing has been made, it "shall" issue an order to show cause, conduct a hearing and determine whether to vacate the murder conviction, recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d).)
Houston argues that under section 1170.95, subdivision (c), the superior court, upon receiving Houston's petition statements made under penalty of perjury, that he met the criteria for resentencing under section 1170.95, subdivision (a), was required to appoint him counsel and ordering briefing before determining whether he had made a prima facie showing that he qualified for resentencing under section 1170.95, subdivision (c). He notes that appellate courts differ on whether, given the references in section 1170.95, subdivision (c) to a "prima facie showing" in both the first and last sentences of the subdivision, a superior court is permitted to determine if such a showing has been made before appointing a defendant counsel and ordering briefing of the issue. He notes that the two cases relied on by the superior court in its order denying his petition, Verdugo and Lewis, both of which are under review by our Supreme Court, answer this question in the affirmative, but argues these cases were wrongly decided. Instead, Houston relies on Cooper, which also is under review by our Supreme Court. The Cooper court disagreed with Verdugo and Lewis and concluded that the first sentence of subdivision (c) is intended as a topic sentence only, and that, once a defendant files a facially sufficient petition, a superior court can make only one determination whether he or she has made a prima facie showing of eligibility for resentencing, after appointment of counsel and further briefing. (Cooper, supra, 54 Cal.App.5th at pp. 118-123.)
We need not decide where we stand in this debate between the appellate courts, however, because, assuming for the sake of argument that the superior court erred in denying Houston's petition before appointing counsel and ordering further briefing, the error was harmless.
Houston perfunctorily argues that the failure to appoint him counsel requires reversal without regard for harmless error analysis because it deprived him of counsel at a critical stage of the proceedings. Houston's argument was rejected in Cooper, which in turn relied on an opinion by our colleagues in Division Three of this court, People v. Edwards (2020) 48 Cal.App.5th 666, 674-675, review granted July 8, 2020, S262481 [any court error in denying a section 1170.95 petition without appointing the defendant counsel was harmless because review of the court file showed that as a matter of law defendant was not eligible for relief under section 1170.95].) The same panel that decided Cooper subsequently explained its reasoning for conducting this harmless error analysis in People v. Daniel (2020) 57 Cal.App.5th 666 (Daniel), review granted February 24, 2021, S266336, again addressing the same argument as Houston makes here:
We cite Daniel, Cooper and Edwards here as persuasive authority under California Rules of Court, rule 8.1115(e)(1).
"A 'critical stage' is 'a step of a criminal proceeding . . . that [holds] significant consequences for the accused.' (Bell v. Cone (2002) 535 U.S. 685, 696.) 'Sentencing is a critical stage in the criminal process within the meaning of the Sixth Amendment,' and '[a] defendant is entitled under state and federal law to the assistance of counsel when a sentence is vacated on appeal and remanded for a new sentencing hearing.' (People v. Rouse (2016) 245 Cal.App.4th 292, 297.) On the other hand, legislation 'intended to give inmates serving otherwise final sentences the benefit of ameliorative changes to applicable sentencing laws,' including Senate Bill No. 1437, does not implicate the Sixth Amendment. (People v. Perez (2018) 4 Cal.5th 1055, 1063-1064; see People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.)
"Even though 'neither the federal nor the state Constitution mandates an unconditional right to counsel to pursue a collateral attack on a judgment of conviction,' California decisions recognize that ' "if a postconviction petition by an incarcerated defendant 'attacking the validity of a judgment states a prima facie case leading to [the] issuance of an order to show cause, the appointment of counsel is demanded by due process concerns.' " ' (People v. Fryhaat (2019) 35 Cal.App.5th 969, 980-981 [hearing on motion under section 1473.7 to vacate conviction]; People v. Rouse, supra, 245 Cal.App.4th at pp. 298-300 [resentencing hearing under Proposition 47].) 'That right is a limited one, however, and only kicks in once the defendant makes a prima facie showing of entitlement [to] postconviction relief.' (People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review granted Oct. 14, 2020, S264278.)
"At best, these authorities support an argument that structural error may occur when, after an order to show cause issues, a defendant is denied counsel at a hearing under section 1170.95, subdivision (d). Here, however, the petition was denied before any such order was issued. Though under Cooper, Daniel had a statutory right to counsel upon filing a facially sufficient petition, the violation of that right was not a structural error—and thus not reversible per se—because it was not ' "analogous to" . . . "the total deprivation of the right to counsel at trial." ' ([People v. ]Lightsey [2012] 54 Cal.4th [668], 699; see People v. Shiga (2016) 6 Cal.App.5th 22, 45.) Rather, the failure to appoint counsel upon the filing of a facially sufficient petition under section 1170.95 is susceptible to review for prejudice. (Cf. Lightsey, at p. 699.) And harmlessness is established if the record 'conclusively demonstrate[s] that [the petitioner] was ineligible for relief as a matter of law.' (Cooper, supra, 54 Cal.App.5th at p. 123)" (Daniel, supra, 57 Cal.App.5th at p. 675.)
The Daniel court went on to hold that the state standard for error applied: "In Cooper, we did not decide whether the federal or state constitutional standard for assessing prejudice applies. (See Cooper, supra, 54 Cal.App.5th at p. 123) Now being satisfied that a petitioner's right to counsel under section 1170.95[, subd.] (c) is not protected by the federal Constitution, we hold that a defendant like Daniel whose 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.' (Cooper, at p. 123, citing People v. Watson (1956) 46 Cal.2d 818, 836; see, e.g., People v. Hill (2013) 219 Cal.App.4th 646, 652.)" (Daniel, supra, 57 Cal.App.5th at p. 676.)
We agree with Cooper, Edwards and Daniel that a superior court's erroneous denial of a section 1170.95 petition before appointing counsel for a defendant (which, again, we assume here for the sake of argument without deciding the issue) because the defendant was not eligible for resentencing under that statute is subject to harmless error analysis. Further, we conclude that any error here was harmless because Houston I makes abundantly clear that Houston was not charged, tried or convicted under any legal theory or factual circumstances that involved the felony murder rule or the natural and probable consequences doctrine. Rather, he was prosecuted and convicted of alone murdering his wife by twice shooting her in his bedroom, moving her body to another location and concealing what he had done.
We take judicial notice of Houston I under Evidence Code section 451, subdivision (a), which provides that courts shall take judicial notice of, among other things, the decisional law of this state.
Specifically, Houston was charged in May 2002 with murdering Lucille sometime between November 20, 2001, and November 25, 2001, in violation of section 187, and it was alleged that he used a firearm in violation of sections 12022.53, subdivisions (c) and (d), 1203.06, subdivision (a)(1) and 12022.5, subdivision (a)(1). (Houston I, supra, 130 Cal.App.4th at p. 285.) The prosecution presented evidence at trial that Lucille's friends reported her missing on November 23, 2001. (Id. at p. 283.) Houston told police that Lucille had stayed with him a few nights before, that he had left her at his house the next morning and went to work, that she had not met him later that day as planned, including to have papers notarized as part of their transfer of the house to Lucille, and that he had not heard from her since and had no idea where she could have gone. (Id. at pp. 283-284.)
We refer to Ms. Houston by her first name for clarity's sake and mean no disrespect by doing so.
On November 25, 2001, Lucille's body, clad in underwear only, was found under a blue tarp in her car, which was parked about a 15-minute walk from the house. (Houston I, supra, 130 Cal.App.4th at p. 284.) An autopsy indicated she was killed by gunshots to her head and abdomen. (Ibid.) A bullet was recovered from her brain, but the other bullet, which had struck her abdomen and passed through her body, was not found in her car. (Ibid.)
During a search of the house, a police investigator noticed a recently plastered area of a wall in Houston's bedroom, that was about 39 inches off the ground and behind a coat rack. Inside the wall, police found a .380-caliber bullet that had on it traces of Lucille's DNA. (Houston I, supra, 130 Cal.App.4th at p. 284.) Police also discovered that a bullet had passed through a box spring in Houston's bedroom, entering at about 37 inches and exiting at about 39 inches above the ground when the box spring was placed on edge. (Id. at pp. 284-285.) In their search of the house, police also found numerous unidentifiable fingerprints, cleaning supplies, a container of joint compound and an absence of any blood evidence. (Id. at p. 285.)
The prosecution presented this and other evidence at trial to prove that Houston murdered Lucille. The other evidence included that Houston had previously acted violently toward Lucille; had had affairs with other women; did not join in efforts to find Lucille; abruptly volunteered to police that a blue tarp was missing from his backyard while discussing her disappearance; misled a work dispatcher about his whereabouts when told the police were looking for him while Lucille was missing, for fear he would be arrested; and had owned a .380-caliber gun. (Houston I, supra, 130 Cal.App.4th at pp. 286-288.) The prosecution also presented evidence that Houston and Lucille had quarreled about the disposition of the house, including on the night before Lucille's disappearance. (Id. at pp. 286-287.)
At trial, Houston testified and presented other evidence to support his contentions that he did not kill Lucille, that they had continued to have a relationship until her disappearance, that she had stayed with him the night before she disappeared and that she had been asleep at the house when he left for work the next morning. (Houston I, supra, 130 Cal.App.4th at pp. 289-292.) He further contended that at the time of her disappearance Lucille had a drug-dealing lover, whom Houston only vaguely described. (Id. at p. 290.)
In closing argument, the prosecution argued Houston, " 'set . . . off' " by Lucille's efforts to take his house from him, killed her at the house. The prosecution contended " 'that the crime scene was covered up and the defendant is the only one with a motive to cover up the crime scene, that evidence alone is sufficient to prove to you beyond a reasonable doubt that this defendant killed his wife.' " (Houston I, supra, 130 Cal.App.4th at p. 292.) Defense counsel contended that Lucille was killed at the house by her drug-dealing lover after Houston left for work the morning of her disappearance. (Id. at pp. 292-293.)
In short, Houston I makes clear that Houston was tried and convicted of murder for personally shooting Lucille to death, that felony murder and the natural and probable consequences doctrine were not in any way implicated in the charges against him, his trial or his conviction, and that he is not eligible for resentencing under section 1170.95 as a matter of law. Therefore, any error by the superior court regarding its evaluation of his petition was harmless, whether evaluated under the federal or state standard for error. (See Chapman v. California (1967) 386 U.S. 18, 24 [federal]; People v. Watson (1956) 46 Cal.2d 818, 836 [state].)
DISPOSITION
The order appealed from is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.