Opinion
B307138
06-22-2021
THE PEOPLE, Plaintiff and Respondent, v. ERNEST TYRONE HOWARD, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda Lopez and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. A645692, Laura R. Walton, Judge. Reversed.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda Lopez and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, Acting P. J.
Ernest Tyrone Howard pleaded guilty to second degree murder and is serving a 15-year-to-life sentence. He petitioned for resentencing pursuant to Penal Code section 1170.95. The trial court denied Howard's petition at the prima facie stage.
All statutory citations are to the Penal Code.
The record of conviction does not establish as a matter of law that Howard was ineligible for resentencing. Therefore, as both parties agree, we remand the case to the trial court to issue an order to show cause and hold a section 1170.95, subdivision (d) hearing. (People v. Offley (2020) 48 Cal.App.5th 588, 597 [“If a defendant's petition survives both stages of review under section 1170.95, subdivision (c), the trial court must issue an order to show cause and hold a hearing to determine whether to grant the petition and resentence the defendant.”].)
BACKGROUND
An autopsy conducted in December 1987 showed that Kenneth Day died as a result of a gunshot wound to his head.
1. Charges
In 1988, the People charged Howard with murder, second degree robbery, and grand theft auto. In connection with each crime, the People alleged that a principal was armed with a firearm.
2. Plea
Howard pleaded guilty to second degree murder and admitted that a principal was armed with a firearm. His counsel stipulated to a factual basis for the plea. No factual basis was described on the record during the plea colloquy.
On the People's motion, the court dismissed the remaining counts. The court subsequently rejected Howard's request to withdraw his plea. The court sentenced Howard to prison for 15 years to life for the second degree murder and stayed the one year sentence on the firearm enhancement.
3. Petition for resentencing
On March 15, 2019, Howard filed a petition for resentencing pursuant to section 1170.95. Howard alleged that he pleaded guilty to first or second degree murder because he believed he could have been convicted of first or second degree murder at trial pursuant to the felony-murder rule or the natural and probable consequences doctrine. Howard alleged that he could not now be convicted of murder because of changes to the Penal Code. At Howard's request, the court appointed counsel for him.
4. People's opposition to Howard's petition
In opposition to Howard's petition, the People argued Howard failed to make a prima facie showing that he falls within the provisions of section 1170.95 because (1) he could still be convicted as an aider and abettor; and (2) he could still be convicted as a major participant who acted with reckless indifference to human life.
The People attached several documents to their opposition. An undated police report indicated that one of Howard's confederates, Demetrius Daniel, told officers that on the day of the murder, Freddy Eaves, Howard, and Daniel ate dinner at Daniel's house and then left Daniel's house with the intention of “do[ing] some (JACKS), robberies.” Daniel drove, Eaves sat in the passenger seat, and Howard sat in the rear of the vehicle. Prior to the robbery and shooting, Howard told Eaves, “Get it.” Daniel did not further describe the “it.”
Daniel reported that, as Day put water in his vehicle's radiator, Eaves “got out of the car [Daniel was driving] at the insistence of [Howard].” Within seconds, Daniel heard a gunshot. Eaves drove Day's car and later met up with Daniel and Howard. The three of them later attempted to remove the tires and wheels from Day's car.
In another interview on December 21, 1987, Daniel similarly reported he, Eaves, and Howard “decided that they were going to do some (Jacks), robberies.” Eaves shot Day. Daniel stated that he did not know Eaves would shoot anybody. “Daniel stated that they had done Jacks before and that no one had ever been hurt.”
Officers interviewed Howard on February 18, 1988. Howard admitted going with Daniel and Eaves to commit robberies. “Howard stated that the Subjects Eaves and Daniel expressed interest in the car and they asked him (Howard) what was up. Howard stated that he didn't respond[ ] in any way towards the car or [its] driver, but subject Daniel made a U-Turn and they followed the car to the area of Alondra and Long Beach.” Howard knew that Eaves had a gun. Later, Howard took items from the car including a television, phone, and VCR.
When officers asked Howard if Howard asked Eaves why Eaves shot Day, Howard responded that Eaves said Day “had some type of handgun with him at the time of the shooting.”
5. Howard's reply
With the assistance of counsel, Howard filed a reply brief. Among other things, counsel argued Howard was not a major participant who acted in reckless indifference to human life. Counsel also argued that once a petitioner seeking resentencing under section 1170.95 has established a prima facie case of eligibility, the trial court must order a hearing.
6. The trial court denies Howard's petition
The trial court set a hearing pursuant to section 1170.95, subdivision (a), the subdivision describing the requirements for a petitioner's prima facie case. At that hearing, the trial court concluded Howard “had a major role.” The court further found “that Mr. Howard has already received a break when he pled to-to second degree murder for 15 years to life rather than facing trial for felony murder.” The prosecutor asked whether the court was also finding that Howard was a major participant acting with reckless indifference. The court answered affirmatively.
The trial court gave the following reasons for its conclusion, some of which are not supported by the record: “From reading the police reports as well [as] the preliminary hearing transcript, the defendant met with two juveniles.... [¶] at his residence, planned to go out and do some robberies... with two juveniles.” Howard admitted knowing a confederate had a weapon. Howard pointed the confederates “in the direction of this victim.” Howard selected the victim and “the juveniles listen[ed].” One of the confederates exited the car and fired his gun. “Mr. Howard, although a young adult, was the adult in this situation grooming two minors on how to carjack.”
For example, the record does not support the trial court's statement that Howard was teaching his confederates how to carjack or that Howard was more experienced than his confederates.
The trial court further explained “nothing is predictable when you choose to have juveniles as your crime partners.” “I can assume that they were less experienced, if experienced at all, by the nature of their age. I'm assum[ing] from the facts that they were less experienced because it was Mr. Howard's mission to teach them to go get it and how to carjack people. [¶] So he [Howard] was vastly aware of the participants' lack of experience. He was, in this effort, the actual teacher of how to carjack someone of their car.” Howard was “close enough and present enough, maybe not when the actual victim was shot, but he remained in the car. The shots occurred within seconds.”
The trial court also noted that Howard did not attempt to help the victim and showed no remorse.
DISCUSSION
Howard argues that because he was not ineligible for resentencing as a matter of law, the trial court should have issued an order to show cause and held a section 1170.95, subdivision (d)(3) hearing. The Attorney General agrees: Although the “facts strongly support the court's finding [that Howard was a major participant who acted with reckless indifference to human life], the court may not actually weigh the facts without issuing an order to show cause and holding a section 1170.95, subdivision (d)(3) hearing.” We also conclude that the trial court should have set such a hearing and we remand the case for the trial court to issue an order to show cause and hold a section 1170.95, subdivision (d)(3) hearing.
Our conclusion thus moots Howard's additional arguments that denial of a hearing violated his state and federal rights to due process and was prejudicial.
A. Legal Background
Prior to the recent changes to the murder law, “when a person aided and abetted a nonhomicide crime that then resulted in a murder, the natural and probable consequences doctrine allowed him or her to be convicted of murder without personally possessing malice aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 845.) “Among other things, Senate Bill 1437 modified the requirement of malice aforethought for purposes of murder. Now, except for felony murder, ‘in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' [Citation.]” (Gentile, at p. 846.) “By its terms, section 188(a)(3) [currently] permits a second degree murder conviction only if the prosecution can prove the defendant acted with the accompanying mental state of mind of malice aforethought. The prosecution cannot ‘impute[ ] [malice] to a person based solely on his or her participation in a crime.' [Citation.]” (Gentile, at p. 846, first & fourth bracketed insertions added.)
Senate Bill 1437 also restricted the circumstances under which a defendant may be convicted of felony murder. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 246.) “Before Senate Bill 1437, .... [t]he felony-murder rule made ‘a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state.' [Citation.] First degree felony murder was ‘a killing during the course of a felony specified in [Penal Code] section 189, such as rape, burglary, or robbery.' [Citation.]” (People v. Johns (2020) 50 Cal.App.5th 46, 57-58.) Under the new law, a person may be convicted of felony murder only if the person was either the actual killer or was a major participant in the underlying felony and acted with reckless indifference to human life. (Johns, at p. 59.)
The exceptions are inapplicable to this case. They apply only when the victim was a peace officer killed while in the course of his or her duties and where the defendant knew or reasonably should have known the victim was a peace officer. (§ 189, subd. (f).)
Senate Bill No. 1437, through new section 1170.95, permits retroactive relief to a petitioner convicted on a no longer valid theory of murder. (People v. Hernandez (2021) 60 Cal.App.5th 94, 100.) Under section 1170.95, subdivision (c), if the petitioner makes a prima facie showing that he falls within the provisions of the statute and is entitled to relief, then the trial court “shall issue an order to show cause.” (§ 1170.95, subds. (b) & (c).)
We recently explained the requirements for a petitioner to establish a prima facie case for resentencing under section 1170.95. (People v. Nguyen (2020) 53 Cal.App.5th 1154 (Nguyen).) “Under section 1170.95, subdivision (a), ‘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.' ” (Nguyen, at p. 1164.)
“In determining whether a petitioner has made a prima facie showing that he or she is entitled to relief, the ‘trial court should not evaluate the credibility of the petition's assertions, but it need not credit factual assertions that are untrue as a matter of law-for example, a petitioner's assertion that a particular conviction is eligible for relief where the crime is not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in habeas corpus, if the record “contain[s] facts refuting the allegations made in the petition... the court is justified in making a credibility determination adverse to the petitioner.” [Citation.] However, this authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, [subdivision] (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion....' [Citation.]” (Nguyen, supra, 53 Cal.App.5th at pp 1165-1166, third bracketed insertion added.) We explained that a petitioner fails to establish a prima facie showing if the petition is untrue as a matter of law. (Nguyen, at pp. 1165-1166.)
Other cases describe the same process. (People v. Swanson (2020) 57 Cal.App.5th 604, 612, review granted Feb. 17, 2021, S266262 [“The contents of the record of conviction defeat a prima facie showing when the record shows as a matter of law that the petitioner is not eligible for relief.”]; People v. Duchine (2021) 60 Cal.App.5th 798, 815 [“absent a record of conviction that conclusively establishes that the petitioner engaged in the requisite acts and had the requisite intent, ” the petitioner has established a prima facie case]; People v. Drayton (2020) 47 Cal.App.5th 965, 982 [reversing the trial court's order finding no prima facie case because the trial court engaged in factfinding that was not supported as a matter of law by the record of conviction]; but see People v. Garcia (2020) 57 Cal.App.5th 100, 116 , review granted Feb. 10, 2021, S265692 [“The trial court should not accept the petitioner's assertions as true and issue an order to show cause if substantial evidence in the record supports a murder conviction under current law.”].)
B. The Record of Conviction Does Not Demonstrate as a Matter of Law Howard Is Ineligible for Resentencing
Howard admitted that he committed a second degree murder and that a principal used a firearm. Howard did not admit that he acted with malice aforethought. The record shows that Howard could have pleaded guilty to second degree murder to avoid a first degree felony murder conviction. (See People v. Johns, supra, 50 Cal.App.5th at pp. 57-58 [under prior law, first degree felony murder included a murder occurring during the course of a robbery].)
Although the record supports the conclusion that Howard was a major participant who acted with reckless indifference to human life, it does not establish that conclusion as a matter of law. Howard did not plead to a special circumstance indicating that he was a major participant who acted with reckless indifference to human life, and the plea colloquy contains no description of his role in the murder.
Because the record does not show as a matter of law that Howard was ineligible for resentencing, we must remand the case to the trial court to issue an order to show cause and hold a section 1170.95, subdivision (d)(3) hearing. (People v. Aleo (2021) 64 Cal.App.5th 865, 874 [case must be remanded for a section 1170.95, subdivision (d) hearing where record does not establish as a matter of law that petitioner was a major participant who acted with reckless indifference to human life].) The parties may offer new evidence at the section 1170.95, subdivision (d) hearing. (People v. Hernandez, supra, 60 Cal.App.5th at p. 103.) We express no opinion on how the trial court should rule at that section 1170.95, subdivision (d) hearing.
DISPOSITION
The order denying Ernest Tyrone Howard's petition for resentencing is reversed. Upon remand, the trial court shall issue an order to show cause pursuant to Penal Code section 1170.95, subdivision (c) and conduct a hearing pursuant to Penal Code section 1170.95, subdivision (d).
We concur: CHANEY, J. FEDERMAN, J.[*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.