Opinion
A160287
03-12-2021
THE PEOPLE, Plaintiff and Respondent, v. MARRIN HUGHES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 159734A)
Defendant appeals from an order denying his petition for resentencing under Penal Code section 1170.95. The trial court denied his petition on the ground he was ineligible for relief because he was not convicted of murder under a felony-murder or "aider and abettor natural and probable consequences theory." Defendant contends that although he made a prima facie case for resentencing in his petition, and he specifically requested court-appointed counsel, the trial court erred in refusing to assume the truth of the petition's factual allegations and in refusing to appoint counsel. While we agree with defendant that the trial court should have appointed counsel, we do not agree that it amounts to structural error. Rather, the trial court's error was harmless. We thus affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2008, an information was filed charging defendant and his codefendant, Louis Sanders, with two counts of murder. (Pen. Code, § 187.) Additionally, each was charged with possession of a firearm by a felon, (former § 12021, subd. (a)(1)), as well as allegations of being armed with a firearm (§ 12022, subd. (a)(1)), and with personal and intentional discharge of a firearm causing great bodily injury and death (§§ 12022.7, subd. (a), 12022.53, subds. (b), (c), (d)). The information further alleged a multiple murder special circumstance as to both. Lastly, the information alleged one serious prior felony conviction against defendant and two against Sanders. A. Trial , Conviction , and Prior Appeal
All statutory references are to the Penal Code.
As set forth in our nonpublished opinion in an earlier appeal, People v. Hughes (Mar. 13, 2013, A131963) (Hughes I), evidence was presented at trial that in 2007, Jabari Harris, working with three associates, regularly sold drugs in the vicinity of 45th Avenue and Bancroft Avenue in Oakland. Because Harris wanted to monopolize the sale of drugs in this area, he regularly confronted other would-be sellers.
At some point, defendant and Sanders began selling drugs in the area claimed by Harris. During the month prior to the killings, defendant was attempting to sell drugs in the area, and he and Harris "exchanged words." In the same period, Harris also confronted Sanders.
On September 11, 2007, three witnesses saw Sanders argue with and then shoot Harris once in the head, killing him. However, one witness, 13-year-old S.C., observed defendant shoot and kill Luis Coria, an associate of Harris.
S.C. lived with his mother and sisters in a second-floor apartment on Bancroft Avenue. He thought of Harris as a big brother, saw him every day, and spent time with him. S.C. was familiar with defendant and Sanders, having seen them in the neighborhood every day for "months" before the killings. Defendant and Sanders had visited S.C.'s apartment and were free to come and go. Defendant's brother was dating S.C.'s mother at the time.
On the day of the killings, S.C. arrived home from school, stopping to talk with Sanders and two others on the corner across the street from his apartment. As they spoke, Sanders walked to the side of a building and returned with a gun. Shortly thereafter, S.C. went home. After Harris arrived in his car, he and S.C. walked to the store together. Once they returned to the apartment, Harris told S.C. to go inside. S.C. complied. Soon after, Sanders walked into the apartment and "told everybody to stay in the house and don't come outside," then pulled a gun from his waistband, and left.
S.C. went out onto the balcony two minutes later and observed Sanders and Harris arguing in front of the apartment, just outside the gate to a fence alongside the sidewalk. Coria was a few feet away on the sidewalk.
After Harris and Sanders had argued for a few minutes, Harris answered his cell phone turning away from Sanders. At that moment, from six feet away, Sanders pulled out his gun and shot Harris. Harris fell and Sanders immediately began rummaging through his pockets. Simultaneously, S.C. saw defendant appear from the side of the apartment building, inside the fence. With a gun in hand, defendant moved toward the open gate, in the general direction of Coria. As Coria was running away, defendant shot him twice in the back. Once Coria fell, defendant moved closer to him, fired more shots, and ran off.
On February 7, 2011, the jury convicted defendant on all counts and found true all allegations, including the special circumstance allegation. He was sentenced to life imprisonment without the possibility of parole.
Like defendant, the jury convicted Sanders on all counts and found true all allegations, as well as the special circumstance allegation. He, too, received a sentence of life imprisonment without possibility of parole.
We affirmed the judgment in March 2013, and that same year, the Supreme Court denied review. (Hughes I, supra, A131963, review denied June 12, 2013, S209687.) B. Resentencing Petition
In November 2019, defendant filed a petition in the trial court for resentencing pursuant to section 1170.95, which as discussed ante, allows for the resentencing of defendants who were convicted of murder under a felony-murder or natural and probable consequences theory. As relevant here, defendant checked the boxes on the form petition alleging: "A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine"; "At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine"; "I request that this court appoint counsel for me during this re-sentencing process"; "I was not the actual killer"; "I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree"; and "I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony."
Defendant also checked the box indicating that the murder was not of a peace officer, which has no bearing in this matter.
In November 2019, without appointing counsel or holding a hearing, the court denied the petition by written order stating: "The Petition is denied because relief under Penal Code section 1170.95 is unavailable because Petitioner was not convicted of murder under a felony-murder or aider and abettor natural and probable consequences theory." Evidently, the court reviewed defendant's record of conviction, including our prior opinion, since the court went on to explain: "A review of the instructions provided to the jury reveals an absence of any instructions regarding felony-murder or aider and abettor natural and probable consequences theories of murder. Rather, Petitioner was convicted as the actual killer of Coria, and as to Harris, murder on a direct aiding and abetting theory. As provided in Petitioner's direct appeal, there was sufficient evidence that Petitioner shot and killed Coria aided and abetted in the death of Harris. 'While we agree there is no direct evidence of their knowledge, there was sufficient circumstantial evidence to allow the jury to conclude beyond a reasonable doubt that defendants were acting according to a preexisting plan to cooperate in the killing of Harris and Coria.' ([Hughes I, supra, A131963], emphasis in the original.) The appellate court also rejected challenges to accomplice liability jury instructions, noting that the jury found the special circumstance to be true, thereby necessarily finding that both Sanders and Petitioner had the specific intent to kill. 'The jury could not have found the defendants were aware of each other's intent to kill Sanders and Coria and chose to aid each other without also finding the necessary premeditation.' ([Hughes I, supra, A131963].)"
Referring again to our prior opinion, the court stated: "The First District Court of Appeal further noted: [¶] [']While recognizing the jury necessarily found he acted with intent to kill under the special circumstances instruction, [Petitioner] argues this was insufficient because the jury was not required by that instruction to find he formed the intent to kill before the fatal wounds were inflicted. While the argument is plausible in theory, it is untenable on the evidence at trial. Harris was killed before Coria. [Petitioner] could not have formed the intent to kill Harris only after seeing him shot in the head. In order to conclude [Petitioner] acted with awareness of Sanders's intent and with the intent to kill, the jury necessarily found [Petitioner] formed that intent prior to the killing of Harris.['] [¶] ([Hughes I, supra, A131963], footnote omitted.)"
II. DISCUSSION
Defendant contends he made a prima facie case for relief under section 1170.95, subdivision (c) by checking the proper boxes, described above, on his petition form, and therefore, the court erred in refusing to assume the factual allegations were true. These factual allegations should have been sufficient to trigger the trial court's duty to appoint counsel. Instead, according to defendant, the trial court "jumped the gun, deciding whether to appoint counsel by looking at the record of conviction—and ignoring [defendant's] statutory right to present additional evidence—to see if [defendant] would prevail on the merits." A. Section 1170.95
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019 (Senate Bill 1437), revised the felony-murder rule in California "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." (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended the definition of malice in section 188, revised the definition of the degrees of murder to address felony-murder liability in section 189, and added section 1170.95, "which provides the procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions." (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)
Section 1170.95, subdivision (a) states that a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court for resentencing "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."
Subdivision (b) of section 1170.95 requires the petitioner to submit a declaration that avers eligibility for relief under the statute (based on the requirements of § 1170.95, subd. (a)) and states the superior court case number, the year of conviction, and whether the petitioner requests appointment of counsel. (§ 1170.95, subd. (b).)
At issue here is subdivision (c), which dictates how the court must handle the petition. Section 1170.95, subdivision (c) reads: "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." The remainder of section 1170.95 provides, among other things, that a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner as needed should be held within 60 days after issuance of the order to show cause; and the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95, subds. (d)-(g).) B. The Trial Court Erred in Failing to Appoint Counsel , But Any Error Was Harmless
As mentioned, defendant contends he made a prima facie case for relief under section 1170.95, subdivision (c) by checking the appropriate boxes on his petition form, and thus the court was obligated to appoint counsel and could not rely on evidence outside of the petition to summarily deny it.
While this issue is pending before our Supreme Court, various Courts of Appeal have rejected this argument, concluding the court can find the petitioner failed to make a prima facie case and summarily deny the petition, without appointment of counsel, not only if there is a deficiency on the face of the petition, but also where the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (See, e.g. People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-1138, review granted Mar. 18, 2020, S260598; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410; People v. Verdugo (2020) 44 Cal.App.5th 320, 328-330, review granted Mar. 18, 2020, S260493; People v. Edwards (2020) 48 Cal.App.5th 666, 673-675, review granted July 8, 2020, S262481; People v. Tarkington (2020) 49 Cal.App.5th 892, 899, review granted, Aug. 12, 2020, S263219.)
However, we took a different view of section 1170.95, subdivision (c) in People v. Cooper (2020) 54 Cal.App.5th 106 (Cooper), review granted November 10, 2020, S264684. There, the trial court denied a resentencing petition without appointing counsel, concluding the petitioner was ineligible for resentencing as a matter of law based on the transcript of the preliminary hearing. (Cooper, at p. 108.) We held this was error after determining the first sentence of section 1170.95, subdivision (c) is a topic sentence summarizing the trial court's task before issuing an order to show cause, with the later sentences detailing the procedure. (Cooper, at p. 118.) On that basis, subdivision (c) does not describe two prima facie reviews with the right to counsel attaching only at the second one, but a single prima facie review requiring appointment of counsel upon request unless the petition is insufficient on its face. (Cooper, at pp. 118-123.) Cooper further ruled the trial court improperly relied on the preliminary hearing transcript to conclude the petitioner was ineligible for relief, because the transcript did not reflect a jury's factual finding or a defendant's admission, and the petitioner was not compelled to address the factual basis for his plea or facts at the preliminary hearing before counsel was appointed. (Id. at pp. 123-126.)
While defendant relies on Cooper in support of his claim that the trial court erred by summarily denying his facially sufficient petition without appointing counsel, the Attorney General takes a contrary position, maintaining Cooper was wrongly decided and specifying several reasons why our analysis is "faulty." However, we need not address the Attorney General's assessment of our analysis in Cooper, because as later explained in People v. Daniel (2020) 57 Cal.App.5th 666 (Daniel), review granted February 24, 2021, S266336, any error in summarily denying the defendant's petition, without appointing counsel, was harmless error.
Daniel was decided by the same panel of justices who decided Cooper.
In Daniel, the trial court had erred by failing to appoint counsel for the petitioner before denying a resentencing petition. This court, nonetheless, rejected the argument the error was structural, instead concluding the failure to appoint counsel violated a mere statutory right, not a right protected by the federal Constitution, "and thus [was] not reversible per se—because it was not ' "analogous to" . . . "the total deprivation of the right to counsel at trial." ' " (Daniel, supra, 57 Cal.App.5th at pp. 674-675, review granted.) "Rather, the failure to appoint counsel upon the filing of a facially sufficient petition under section 1170.95 is susceptible to review for prejudice. [Citation.] And harmlessness is established if the record 'conclusively demonstrate[s] that [the petitioner] was ineligible for relief as a matter of law.' " (Id. at p. 675.) As such, this court ruled, a defendant "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.' " (Id. at p. 676.) Because the jury in Daniel was not instructed on felony murder or murder under the natural and probable consequences doctrine, the petitioner was ineligible for resentencing relief as a matter of law and the error in not appointing counsel was harmless. (Id. at p. 677.)
Here too, the record of conviction demonstrates, and defendant does not dispute, that the jury was not instructed on felony murder or natural and probable consequences murder. Even though the issue of whether a trial court may consider the record of conviction to summarily deny a section 1170.95 petition is pending before the California Supreme Court, as in Daniel, supra, 57 Cal.App.5th at pages 676-677, review granted, we follow the cases interpreting section 1170.95, subdivision (c) that permit the trial court to consider the record of conviction, including jury instructions. (See People v. Edwards, supra, 48 Cal.App.5th at p. 674, review granted [trial court can consider jury instructions in determining if prima facie showing has been made].) Accordingly, because defendant was not convicted of murder based on any theory of liability affected by Senate Bill 1437, he is ineligible for resentencing as a matter of law.
That defendant was not entitled to resentencing relief is further bolstered by another facet of the conviction record. As noted in our prior opinion in the direct appeal, defendant was the actual killer of Coria and "there was sufficient circumstantial evidence to allow the jury to conclude beyond a reasonable doubt that defendants were acting according to a preexisting plan to cooperate in the killing of Harris and Coria." (Hughes I, supra, A131963; see People v. Lewis, supra, 43 Cal.App.5th at pp. 1137-1138, review granted [trial court may consider record of conviction, including prior opinion in petitioner's direct appeal].) In short, there is no reasonable probability defendant's petition would have been granted if the trial court had appointed counsel, and any error in summarily denying the petition after reviewing the record of conviction without appointing counsel, was harmless.
III. DISPOSITION
Accordingly, the order denying defendant's petition for resentencing is affirmed.
MARGULIES, ACTING P. J. WE CONCUR: BANKE, J. SANCHEZ, J.