Opinion
E074665
10-01-2020
THE PEOPLE, Plaintiff and Respondent, v. KATHEY LYNN JAMES, Defendant and Appellant.
Kathey Lynn James, in pro. per.; and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CR66667) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Kathey Lynn James, in pro. per.; and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Kathey Lynn James appeals from a postjudgment order denying her petition for resentencing pursuant to Penal Code section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437). We affirm the order.
II
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from this court's partially published opinion in defendant's prior appeal, case No. E019765. (People v. James (1998) 62 Cal.App.4th 244 (James I).)
On December 26, 1995, while defendant was manufacturing methamphetamine, one of the volatile chemicals she was using in the process caught on fire. A conflagration followed in which her home was destroyed and three of her four minor children were killed. Defendant escaped through the window of the front bathroom. Her oldest son also escaped through a window. (James I, supra, 62 Cal.App.4th at pp. 250-257.)
A jury found defendant guilty on three counts of second degree murder (Pen. Code, § 187, subd. (a)), one count of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), and one count of conspiracy to manufacture methamphetamine (Pen. Code, § 182). The jury expressly based each of the murder verdicts on both implied malice and second degree felony murder. Defendant was sentenced to 45 years to life in prison. (James I, supra, 62 Cal.App.4th at p. 250.)
All future statutory references are to the Penal Code unless otherwise stated.
Defendant subsequently appealed. On March 12, 1998, in the published portion of the opinion, we held that: (1) manufacturing methamphetamine is inherently dangerous to human life and can serve as an underlying felony for the charge of second degree felony murder; (2) instruction on methamphetamine manufacturing as an inherently dangerous felony did not violate defendant's constitutional rights; (3) holding that manufacturing methamphetamine is an inherently dangerous felony could be applied retroactively; and (4) there is substantial evidence defendant acted with implied malice. (James I, supra, 62 Cal.App.4th 244.)
On January 1, 2019, Senate Bill 1437 became effective (2017-2018 Reg. Sess.), which amended the felony-murder rule and the natural and probable consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 also added section 1170.95, which allows those "convicted of felony murder or murder under a natural and probable consequences theory . . . [to] 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 . . . ." (§ 1170.95, subd. (a).)
On January 11, 2019, defendant filed a petition for resentencing pursuant to section 1170.95.
On February 19, 2019, the People filed a response to defendant's petition based on the unconstitutionality of Senate Bill 1437 and resulting statutes.
On January 31, 2020, the trial court heard oral argument on defendant's petition for resentencing. The prosecutor requested the court dismiss the petition, arguing that defendant was convicted of three counts of murder under an implied malice theory, and not based on natural and probable consequences or felony murder and that defendant "was the actual killer." The trial court dismissed the petition "over the objection of the defense."
On February 5, 2020, defendant timely appealed from the trial court's dismissal of her section 1170.95 petition for resentencing.
III
DISCUSSION
After defendant appealed, upon her request, this court appointed counsel to represent her on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and she has done so. In her over 100-page supplemental brief, defendant rehashes the arguments made in her first appeal, claiming the trial court prejudicially erred in instructing the jury in several respects, her due process rights were violated when the felony-murder rule was applied to the charge of manufacturing methamphetamine, and her due process rights were violated due to a lack of notice manufacturing methamphetamine is an inherently dangerous felony. Defendant also contends that the trial court erred in dismissing her section 1170.95 petition (1) without issuing an order to show cause because she made a prima facie case for relief; (2) the court could not rely on this court's prior opinion to establish the facts of this case and prove her ineligibility beyond a reasonable doubt; (3) the court could not adopt the jury's prior factual findings in dismissing her petition; (4) the court erred by failing to make its own factual findings and should have utilized the standard under section 1181 for new trials; and (5) her appointed counsel was ineffective for being nonresponsive at the section 1170.95 hearing, failing to brief the merits of the petition or respond to the People's brief, failing to object at the section 1170.95 hearing, and failing to request and obtain a statement of reasons from the court. For the reasons explained, we reject defendant's arguments.
On September 30, 2018, the Governor signed Senate Bill 1437. "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)
Prior to Senate Bill 1437's enactment, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019) 35 Cal.App.5th 141, 144 (R.G.).) "This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed '"for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion." [Citations.]' [Citation.]" (R.G., at p. 144.) Aider and abettor liability under the doctrine was thus "vicarious in nature." (People v. Chiu, at p. 164.)
Senate Bill 1437 "redefined 'malice' in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer 'be imputed to a person based solely on [his or her] participation in a crime.' (§ 188, subd. (a)(3).)" (R.G., supra, 35 Cal.App.5th at p. 144; accord, People v. Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), review granted Mar. 18, 2020, S260493.) "Senate Bill 1437 also amended section 189, which defines first and second degree murder, by, among other things, adding subdivision (e). Under that subdivision, a participant in enumerated crimes is liable under the felony-murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life." (People v. Munoz (2019) 39 Cal.App.5th 738, 749; § 189, subd. (e); Stats. 2018, ch. 1015, § 3; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099-1100, review granted Nov. 13, 2019, S258175; Martinez, supra, 31 Cal.App.5th at p. 723; People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted Mar. 18, 2020, S260598.) "Senate Bill 1437 thus ensures that murder liability is not imposed on a person who did not act with implied or express malice," or—when the felony-murder doctrine is at issue—"was 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." (People v. Munoz, at pp. 749-750; Stats. 2018, ch. 1015, § 1, subds. (f), (g); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; Martinez, at p. 723.)
Under California Rules of Court, rule 8.1115, we may rely on appellate cases while review is pending as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for an order vacating their convictions and allowing defendant to be resentenced. (Stats. 2018, ch. 1015, § 4; Martinez, supra, 31 Cal.App.5th at p. 723.) An offender may file a section 1170.95 petition if he or she was prosecuted under a felony murder or natural and probable consequences theory, but under amended sections 188 or 189, could not have been convicted of first or second degree murder. (§ 1170.95, subd. (a).)
Section 1170.95, subdivision (c), sets forth the trial court's obligations upon the submission of a complete 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. . . . 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." Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) At such a hearing, both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) "[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th at pp. 723-724.)
In this case, defendant's record of conviction demonstrates that she is not eligible for relief under the provisions of section 1170.95. Defendant's record of conviction shows that she was prosecuted under an implied malice theory and second degree felony murder. "'[I]mplied malice has both a physical and a mental component, the physical component being the performance of "'an act, the natural consequences of which are dangerous to life,'" and the mental component being the requirement that the defendant "'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.'" [Citations.]' [Citations.]"'" (James I, supra, 62 Cal.App.4th at p. 271.) Under the second degree felony-murder doctrine, "a homicide is second degree murder if it is committed in the perpetration or attempted perpetration of any felony that is inherently dangerous to human life." (Id. at p. 258.)
Here, defendant's record of conviction demonstrates that there was substantial evidence to support the jury's finding she acted with implied malice. In defendant's direct appeal, we concluded "there was sufficient evidence that defendant performed an act, the natural consequences of which were dangerous to life, with the knowledge that her act endangered the life of others, and with conscious disregard for human life, to support the jury's finding that she acted with implied malice." (James I, supra, 62 Cal.App.4th at p. 280.) Defendant's record of conviction shows that she was the actual killer when she committed the offense of manufacturing methamphetamine, an inherently dangerous felony. (See James I, supra, 62 Cal.App.4th 244.) Accordingly, defendant cannot make a prima facie showing she is entitled to relief under section 1170.95.
The initial prima facie review is "to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Verdugo, supra, 44 Cal.App.5th at p. 329.) At this stage of review, the trial court may rely upon the petitioner's record of conviction, including the charging documents, jury instructions, verdict forms, and appellate decision, to conclusively establish ineligibility for relief. (See Verdugo, at p. 333; Lewis, supra, 43 Cal.App.5th at pp. 1137-1138.)
Lewis and Verdugo rejected the argument that a trial court is limited to the allegations in the petition when determining whether the petitioner has stated a prima facie claim for relief under section 1170.95. In Lewis, the defendant argued "that the court could look no further than his petition in evaluating his prima facie showing and the court therefore erred when it considered [the] opinion in his direct appeal." (Lewis, supra, 43 Cal.App.5th at p. 1137.) In Verdugo, the defendant argued "the superior court lacked jurisdiction to deny his section 1170.95 petition on the merits" based on its review of the record of conviction "without first appointing counsel and allowing the prosecutor and appointed counsel to brief the issue of his entitlement to relief." (Verdugo, supra, 44 Cal.App.5th at p. 323.) Analogizing to the well-established and similar resentencing procedures under Propositions 36 and 47, the Lewis and Verdugo courts rejected these arguments, concluding a trial court may consider the record of the petitioner's conviction, including documents in the court's own file and the appellate opinion resolving the defendant's direct appeal. (Lewis, at pp. 1137-1138; Verdugo, at pp. 329-330.) We find Lewis and Verdugo to be persuasive authority, and therefore reject defendant's contentions that the trial court erred in relying on the prior appellate decision in finding her ineligible for relief under section 1170.95.
For the foregoing reasons, we also reject defendant's ineffective assistance of counsel claims. Defendant cannot make a prima facie showing she is entitled to relief under section 1170.95. As such, even if we find counsel was ineffective for the reasons defendant contends, defendant cannot establish prejudice. "'To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant.'" (People v. Johnson (2015) 60 Cal.4th 966, 979-980.)
As to defendant's claims relating to jury instructions and her underlying criminal trial, these issues have already been resolved in defendant's first appeal and we may not address them here. Under the doctrine of the law of the case, "'[W]here an appellate court states a rule of law necessary to its decision, such rule "'must be adhered to'" in any "'subsequent appeal'" in the same case, even where the former decision appears to be "'erroneous.'"' [Citation.] Thus, the law-of-the-case doctrine 'prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.' [Citation.]" (People v. Boyer (2006) 38 Cal.4th 412, 441, superseded by statute on another ground.) "The principal reason for the doctrine is judicial economy." (People v. Stanley (1995) 10 Cal.4th 764, 786 (Stanley).)
"The doctrine is a rule of procedure, not of jurisdiction. [Citations.] 'A court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal.'" (In re Saldana (1997) 57 Cal.App.4th 620, 625.) However, "[i]n the absence of exceptional circumstances of hardship and injustice the need for attributing finality to considered judicial determinations compels adherence to the previous decision." (People v. Durbin (1966) 64 Cal.2d 474, 477; accord People v. Whitt (1990) 51 Cal.3d 620, 638.)
Our Supreme Court has articulated this exception as follows: "Because the rule [the law of the case doctrine] is merely one of procedure and does not go to the jurisdiction of the court [citations], the doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a 'manifest misapplication of existing principles resulting in substantial injustice' [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation]." (Stanley, supra, 10 Cal.4th at p. 787.)
Here, in defendant's first appeal this court held that (1) manufacturing methamphetamine is inherently dangerous to human life and can serve as an underlying felony for the charge of second degree felony murder because the nature of the crime means that it cannot be committed without a substantial risk that someone will be killed; (2) instruction on methamphetamine manufacturing as an inherently dangerous felony did not violate defendant's constitutional rights; (3) holding that manufacturing methamphetamine is an inherently dangerous felony could be applied retroactively; and (4) there is substantial evidence to support the jury's finding defendant acted with implied malice because there was sufficient evidence she performed an act, the natural consequences of which were dangerous to human life, with the knowledge that her act endangered the life of others, and with conscious disregard for human life. (James I, supra, 62 Cal.App.4th 244.) This holding is a "'"principle or rule of law necessary to the decision,"'" (Stanley, supra, 10 Cal.4th at p. 786) in that appeal, and therefore the law of the case doctrine precludes defendant's instant challenge to the same issues unless grounds exist for ignoring the doctrine. We do not find such grounds exist here. Although Senate Bill 1437 is an intervening change in the law, it does not affect the outcome of defendant's earlier appeal or her current appeal. Therefore, Senate Bill 1437 does not justify making an exception to the operation of the law of the case doctrine.
IV
DISPOSITION
The order dismissing defendant's section 1170.95 petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: RAPHAEL
J. MENETREZ
J.