Opinion
B296822
05-04-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY D. JEFFERSON, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Amanda V. Lopez and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA042241) APPEAL from an order of the Superior Court of Los Angeles County, Robert Perry, Judge. Reversed and remanded, with instructions. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Amanda V. Lopez and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Anthony D. Jefferson appeals from a postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437). As relevant here, the statute and Senate bill provide for vacation of a defendant's murder conviction and resentencing if the defendant was convicted of felony murder and the defendant (1) was not the actual killer, (2) did not act with the intent to kill, and (3) was not a major participant who acted with reckless indifference to human life. (§ 189, subd. (e)(3).)
All further statutory references are to the Penal Code unless otherwise indicated.
Jefferson contends the trial court erred by summarily denying his petition without appointing counsel to represent him, and by denying the petition on the basis that section 1170.95 and Senate Bill 1437 violate the California Constitution by amending section 190, which may not be amended or repealed unless by vote of the People.
The People agree that section 1170.95 and Senate Bill 1437 do not unconstitutionally amend section 190, but argue that the trial court's ruling should be affirmed because the jury found true the special circumstance that the murder was committed during the commission of a robbery (§ 190.2 (a)(17)), a finding which we affirmed on direct appeal in 1996.
We reverse and remand to the trial court. We agree with the parties that section 1170.95 and Senate Bill 1437 do not unconstitutionally amend section 190. We further conclude that Jefferson made a prima facie showing that he falls within the provisions of section 1170.95, and is therefore entitled to appointment of counsel and the opportunity to file a reply brief in support of his petition.
FACTS AND PROCEDURAL HISTORY
Murder Conviction
In 1994, Jefferson was convicted of first degree murder (§ 187, subd. (a) [count 1]) under a felony murder theory of liability. The jury found true the special circumstance that the murder was committed during the commission of a robbery pursuant to section 190.2, subdivision (a)(17). Jefferson was additionally convicted of two counts of kidnapping (§ 209; [counts 2 & 3]), two counts of burglary (§ 459; [counts 4 & 5]), one count of residential robbery (§ 211; [count 7]), and three counts of rape (§§ 261, subd. (a)(2), 264.1, 289; [counts 8-10]). He was sentenced to life in state prison without the possibility of parole, plus nine years.
Jefferson's offenses, carried out with his co-defendants David Shawn Smith and Reginald Ray York, as recited in our unpublished opinion, People v. York et al. (Jan. 16, 1996, B088372) (York), are described in the trial court's ruling, post.
Appeal
Jefferson appealed, contending, as pertinent here, that there was insufficient evidence that he acted with "reckless indifference to human life" as required to support the jury's robbery murder special circumstance finding, and that the trial court gave an erroneous instruction regarding "reckless indifference." (York, supra, B088372, at pp. 12-13.) This court concluded that the jury's robbery-murder special circumstance finding was supported because substantial evidence was presented to demonstrate that Jefferson acted with "reckless indifference to human life," i.e. that he had a "subjective appreciation or knowledge . . . [that his] acts involved a grave risk that such acts could result in the death of an innocent human being." (Id. at p. 12.) We also held that there was no error in the instruction given to the jury regarding reckless indifference (CALJIC No. 8.80.1). (Id. at p. 13.) Section 1170.95 Petitions for Resentencing
Petition(s)
On February 19 and 22, 2019, Jefferson filed petitions for resentencing under section 1170.95 that included a declaration stating he met all of the statutory requirements and was eligible for relief. Jefferson declared that he was not a "major participant" in the murder and did not act with "reckless indifference." He argued, as he did on appeal, that the jury was presented with erroneous instructions with respect to the definition of reckless indifference. Included in his attachments to the petition were the jury's verdicts, including its true finding on the section 190.2, subdivision (a)(17) special circumstance, and the abstract of judgment reflecting Jefferson's conviction of first degree murder with a sentence of life without the possibility of parole. Jefferson requested that counsel be appointed to him pursuant to section 1170.95, subdivision (c).
Opposition
The People opposed the petitions on the basis that Jefferson was ineligible for resentencing because the jury found true the special circumstance under section 190.2, subdivision (a)(17), which required it to find beyond a reasonable doubt that Jefferson was a major participant in the underlying felony and acted with reckless indifference to human life. The People contended that these were the same findings required to convict him of murder under recently amended section 189, subdivision (e)(3); therefore, Jefferson could be convicted under section 189 as amended by Senate Bill 1437 and could not make a prima facie showing of eligibility for resentencing. The People also argued that section 1170.95 was unconstitutional because it violated the separation of powers doctrine of the California Constitution as to the judiciary and the executive branch, the rights of crime victims to finality, and the right of the People to due process. Finally, the People contended that section 1170.95 unconstitutionally amended Propositions 7 and 115.
Trial Court's Ruling
The trial court denied the petition(s) on February 28, 2019. The trial court's written ruling discussed the reasons for denial as follows:
The trial court's ruling states that it is a denial of Jefferson's January 9, 2019 petition. Jefferson executed the declarations of his eligibility for relief in both the February 19 and 22, 2019 petitions on January 9, 2019. That these are the relevant petitions is not at issue.
"On April 25, 1991, Otis Ervin robbed an armored car of $500,000. Six weeks later, Petitioner Anthony Jefferson joined with Reginald York and David Smith in an attempt to rob the robber Ervin of his ill-gotten gains. The intended robbery spiraled into a major crime spree which included rape in concert, rape by a foreign object in concert, burglaries, residential robberies, kidnappings and murder. Petitioner was convicted by jury and was sentenced to life without parole plus 9 years. His conviction was affirmed by the Court of Appeal in 1996 in an unpublished opinion. (People v. Reginald Ray York, et al., (January 16, 1996), ___ Cal.App.3d ___ [nonpub. opn.]) Co-defendants York and Smith were also convicted and sentenced to life without parole.
"The Court of Appeal opinion described the crimes committed by Petitioner and his co-conspirators.
"In this case, substantial evidence of reckless indifference to human life exists. York and Jefferson kidnapped the Howard sisters at gunpoint from the parking lot where they worked. They handcuffed the two sisters and threatened repeatedly to kill them. They informed the sisters that they knew where they and their family lived and had been observing the family. They were joined by Smith and drove the sisters around for hours. They burglarized Reginald Ervin's apartment.
"At the Perry residence, they held the entire Perry household, including four small children, at gunpoint, while they ransacked the house. They kicked, slapped and beat Reginald Ervin. They threatened to torture and kill the family. They raped Yolanda, while continuing to hold her family at gunpoint.
"It is apparent defendants knew that their acts involved a grave risk of the death of an innocent human being. They held two young women at gunpoint and in handcuffs for hours, they held a family, including young children, at gunpoint while they ransacked the residence and raped a sister. They threatened to torture and kill the young women and the family. When Reginald Ervin attempted to break free to get a gun to protect his family, defendants shot and killed him. (People v. Reginald Ray York, el al., Id., pp. 12, 13.)
"In this petition for re-sentencing, Jefferson claims he was not the actual killer and he did not act with the intent to kill. He also claims he was not a major participant in the felony and did not act with reckless indifference to human life in this matter. The Court of Appeal found otherwise.
"The jury was instructed that in order to find the felony-murder special circumstance to be true, it must find that defendants were major participants in the underlying felonies and acted with reckless indifference to human life. (CALJIC No. 8.80.1.) 'Reckless indifference to human life' refers to a mental state which includes subjective appreciation or knowledge by a defendant that the defendant's acts involved a grave risk that such acts could result in the death of an innocent human being.
"(People v. Reginald Ray York, et al., Id.)
"The Court also observed that 'substantial evidence of reckless indifference to human life' existed for each of the defendants and it was 'apparent defendants knew that their acts involved a grave risk of the death of a human being.' (Id.)
"Jefferson was a major participant in the events and acted with obvious reckless indifference to human life during the course of the many major crimes, including murder, committed in this case. He is not eligible for sentencing relief pursuant to Penal Code § 1170.95. See Penal Code §§ 189(e)(3) and 1170.95.
"As a second and independent ground for denying Jefferson's petition for resentencing, the court finds SB 1437 and Penal Code § 1170.95 violate the California Constitution because the Legislature unconstitutionally amended Penal Code § 190 which was passed by referendum in 1978 by Proposition 7 and may not be amended or repealed unless by vote of the People.
"The petition for resentencing is denied."
DISCUSSION
On appeal, Jefferson argues that section 1170.95 and Senate Bill 1437 do not unconstitutionally amend section 190, and that he is entitled to appointment of counsel because he made a prima facie showing that he falls within the provisions of section 1170.95. We agree with Jefferson on both issues.
Constitutionality
The trial court denied Jefferson's petition because Senate Bill 1437 unconstitutionally amended section 190, which was passed by referendum in 1978 through Proposition 7 and cannot be amended or repealed except by the people's vote. The People concede, and we agree, that this was error. Three of our sister courts have held that Senate Bill 1437 does not directly modify or amend the statutory changes effected by Proposition 7 or amend the voter's intent in passing Proposition 7. (People v. Bucio (Apr. 27, 2020, B299688) ___ Cal.App.5th ___ [2020 WL 1983347, p. 2]; People v. Solis (2020) 46 Cal.App.5th 762, 774-780; People v. Cruz (2020) 46 Cal.App.5th 740,753-759; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 280-284; People v. Lamoureux (2019) 42 Cal.App.5th 241, 250-251.) We agree with the results reached in these cases and, as the parties are also in agreement that Senate Bill 1437 does not unconstitutionally amend section 190, we do not address the issue further here.
Merits and Appointment of Counsel
The trial court alternatively denied the petition on the basis that Jefferson failed to make a prima facie showing of eligibility because the facts as described in our prior opinion were sufficient to establish that he was a major participant in the robbery and acted with reckless indifference to human life. The People argue that the jury's robbery murder special circumstance finding precludes Jefferson from eligibility for relief as a matter of law. As we will discuss, neither the special circumstance finding, nor the facts taken from our prior opinion compel the conclusion that Jefferson does not fall within the provisions of section 1170.95 in this case. We therefore reverse the trial court's order and remand the matter for appointment of counsel and briefing.
Legal Principles
Through section 1170.95, Senate Bill 1437 created a petitioning process by which a defendant convicted of murder under a felony murder theory of liability could petition to have his conviction vacated and be resentenced if the petitioner (1) was not the actual killer, (2) did not act with the intent to kill, and (3) was not a major participant in the underlying felony who acted with reckless indifference to human life. (§§ 1170.95, subd. (a)(3), 189, subd. (e)(3).)
Section 1170.95 initially requires a petitioner to make a prima facie showing that he or she falls within the provisions of the statute as set forth in subdivision (a). (§ 1170.95, subd. (c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review granted Mar. 18, 2020, S260493 (Verdugo).) The trial court reviews the petition to determine whether the petitioner is ineligible for resentencing as a matter of law. (People v. Torres (2020) 46 Cal.App.5th 1168, 1177 (Torres); Verdugo, supra, at p. 329.) In doing so, the trial court may review and consider documents in the record of conviction, including prior appellate court opinions. (Verdugo, supra, at p. 333.) If it is clear that the petitioner cannot establish eligibility as a matter of law, the trial court may deny the petition. (Id. at p. 330.) If, however, a determination of eligibility requires an assessment of the evidence concerning the commission of the petitioner's offense, the trial court must appoint counsel and permit the filing of the submissions contemplated by section 1170.95. (Id. at p. 332; Lewis, supra, 43 Cal.App.5th at p. 1140.)
Subdivision (a) provides: "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.
For example, if the jury was not instructed on a natural and probable consequences or felony murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law because relief is restricted to persons convicted under one of those two theories. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1138-1139, review granted Mar. 18, 2020, S260598 (Lewis) [appellate court opinion holding that jury convicted defendant of murder as a direct aider and abettor barred defendant from relief as a matter of law].)
Analysis
In this case, the issue is whether Jefferson made a prima facie showing that he falls within section 1170.95's provisions, such that he could be not convicted of murder today in light of changes made to section 189, effective January 1, 2019 (§ 1170.95, subd. (a)(3)), and is therefore entitled to counsel. More specifically, the question is whether the trial court properly concluded as a matter of law that the record on appeal precludes Jefferson from showing that he was not a major participant in the robbery who acted with reckless indifference to human life. We conclude that Jefferson met his initial burden to show eligibility, and he is entitled to appointment of counsel and an opportunity to reply to the People's opposition.
The Jury's Special Circumstance Finding Does Not Preclude Eligibility
The People urge us to affirm the trial court's denial of Jefferson's petition on the basis of the jury's robbery murder special circumstance finding (§ 190.2, subd. (a)(17)) that we affirmed in 1996. The jury's true finding was predicated on its determination that Jefferson was both a "major participant" in the robbery and acted with "reckless indifference to human life." The language of section 189, subdivision (e)(3), as amended by Senate Bill 1437, tracks the language of the special circumstance provision. Section 189, subdivision (e) now provides that "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [(in this case, robbery)] in which a death occurs is liable for murder only if one of the following is proven: [¶] . . . [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
The People's argument has facial appeal: the plain language of the requirements underlying the jury's robbery murder special circumstance finding in Jefferson's case (i.e. "major participant" and "reckless indifference to human life") is identical to the language setting forth the requirements for murder liability under amended section 189. A difficulty arises, however, because the jury's special circumstance finding was made prior to issuance of our Supreme Court's opinions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which construed the meanings of "major participant" and "reckless indifference to human life" "in a significantly different, and narrower manner than courts had previously." (Torres, supra, 46 Cal.App.5th at p. 1179.) As a consequence, the factual issues that the jury was asked to resolve in 1996 are not the same factual issues that the trial court now faces. It is inappropriate to "treat[] [the 1996] findings as if they resolved key disputed facts" when the jury did not have the same questions before them. (Id. at p. 1180.) As we recently held, courts may not "defer to the jury's pre-Banks and Clark factual findings that [the petitioner] was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time" when determining the petitioner's eligibility for resentencing as a matter of law. (Id. at p. 1179.)
Indeed, section 1170.95 only specifically references special circumstance findings in subdivision (d)(2), which states, "If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner." There is no corresponding provision indicating that a jury's prior special circumstance true finding, or a court of appeal's affirmation thereof, operates as an automatic statutory bar to eligibility. The absence of such a provision makes sense. Determining whether a petitioner was a "major participant" who acted with "reckless indifference" as those terms are currently used in section 189 requires more than deference to a jury's determination made prior to Banks and Clark: it requires an analysis of the facts involved.
Moreover, the potential remedies outlined in section 1170.95 indicate that the Legislature anticipated there would be special circumstance findings that would not preclude eligibility as a matter of law, and that those findings would be inconsistent with vacation of the corresponding murder conviction. Section 1170.95, subdivision (d)(3) provides, "If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (Italics added.) The statute creates a mechanism for the court to resolve the question of whether a murder conviction—not a special circumstance—is sufficiently supported. If the conviction cannot stand, the special circumstance will be vacated as well.
In this case, the jury's special circumstance finding was affirmed in 1996, approximately two decades before Banks and Clark were decided. No court has affirmed the special circumstance finding post-Banks and Clark. The trial court did not deny Jefferson's petition on this basis, and we cannot independently affirm the trial court's ruling on this ground, as the People urge.
We do not address whether a jury's post-Banks and Clark special circumstance finding or a court's affirmance of a special circumstance finding following Banks and Clark may be dispositive as a matter of law, as neither question is before us in the present case. --------
The Trial Court Erred in Summarily Denying the Petition Based on Its Evaluation of Facts Recited in the Record of Conviction
Where the record of conviction does not resolve a petitioner's eligibility as a matter of law, section 1170.95 sets forth a procedure by which trial courts are to develop and evaluate the facts of an individual case to determine whether a prior murder conviction may be upheld under amended section 189. The procedure includes appointment of counsel for the petitioner, the filing of a response to the petition by the prosecutor, and an opportunity for petitioner to file a reply to make a prima facie showing that he is entitled to relief. (§ 1170.95, subd. (c).) "[T]he petitioner may rely on the record of conviction or offer new or additional evidence to meet [his] burden[ ]." (§ 1170.95, subd. (d)(3).) If the petitioner makes a prima facie showing of entitlement to relief based upon that briefing, the trial court must issue an order to show cause. (§ 1170.95, subd. (c).) At the hearing on the order to show cause "the 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).) Trial courts must follow this procedure and are therefore required to appoint counsel and consider briefing when the record of conviction does not establish ineligibility as a matter of law.
Here, without appointing counsel to petitioner and permitting counsel to make a filing, the trial court reviewed our prior appellate opinion and considered the facts as described in our discussion of the sufficiency of the evidence supporting the special circumstance. The trial court made a determination that those facts were sufficient to establish that Jefferson was a major participant in the underlying felony and acted with reckless indifference to human life.
Although the facts that the trial court relied upon may ultimately provide a valid basis for denying Jefferson's petition, they do not compel that result. At this stage, the petition may only be denied if Jefferson is ineligible for relief as a matter of law. By ruling prior to the appointment of counsel, the trial court deprived Jefferson of the opportunity to develop a factual record beyond the record of conviction with the aid of counsel. Where, as here, the record of conviction does not preclude relief as a matter of law, a petitioner must be given the opportunity (with the assistance of counsel, if requested) to bring to the court's attention additional relevant evidence. Only after giving the petitioner the opportunity to file a reply, in which he or she may develop a factual record beyond the record of conviction, is a trial court in a position to evaluate whether there has been a prima facie showing of entitlement to relief. Section 1170.95 makes clear that counsel is to assist petitioners at this stage, if requested.
Jefferson has made a prima facie showing that he falls within the provisions of section 1170.95 and that the existing record of conviction does not bar relief as a matter of law. Because neither of the trial court's reasons for denying Jefferson's petition is valid, and it does not appear that Jefferson is otherwise ineligible for relief as a matter of law as the People argue, we reverse and remand the matter to the trial court to appoint counsel and permit Jefferson to reply to the People's opposition.
DISPOSITION
The trial court's order denying Jefferson's resentencing petition is reversed and the matter remanded for the trial court to appoint counsel and conduct further proceedings in accordance with the terms of section 1170.95.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.