Opinion
B305418
11-30-2021
THE PEOPLE, Plaintiff and Respondent, v. ARLECIA KELLY et al., Defendants and Appellants.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Arlecia Kelly. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Richardson. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. BA061462 Lisa B. Lench, Judge.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Arlecia Kelly.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Richardson.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
LAVIN, J.
INTRODUCTION
In 1994, defendants Arlecia Kelly, Anthony Dwayne Richardson, and two codefendants were convicted of murder, torture, and mayhem and sentenced to state prison. Kelly pled guilty; Richardson was found guilty after a court trial. In 2019, after the Legislature amended the law of accomplice liability for felony murder, they each petitioned for recall and resentencing under Penal Code section 1170.95. The trial court appointed counsel, received briefing and held a contested hearing, then denied the petitions. On appeal, Richardson contends the court erred by relying on the opinion in his prior appeal. Kelly contends the court erred by relying on her preliminary hearing transcript and engaging in factfinding at the prima facie review stage.
As to Richardson, we conclude, based on the court's verdict explicitly finding him guilty of murder under a malice theory, that he is ineligible for relief as a matter of law. We therefore affirm the order denying Richardson's petition. On the other hand, we agree with Kelly that the court engaged in impermissible factfinding and that she established a prima facie case for relief. We therefore reverse the order denying Kelly's petition and remand with directions to issue an order to show cause.
On December 15, 2020, the People requested judicial notice- apparently as to both defendants-of the appellate record from Richardson's direct appeal, including this court's opinion in People v. Richardson and Ward (Aug. 19, 1997, B097593 [nonpub. opn.]) and the reporter's transcripts. Kelly opposed the request on a number of grounds, including that the reporter's transcript of her change of plea was not before the trial court and is not part of the record on appeal; Richardson did not oppose the People's request. As to Richardson, we take judicial notice of the appellate opinion but otherwise deny the People's request because it is largely duplicative of the records of which we already took judicial notice at Richardson's request and therefore unnecessary. As to Kelly, we deny the People's request because the records are unnecessary to our analysis. On September 3, 2020, Richardson requested judicial notice of the clerk's transcript from the underlying trial proceedings and attached nearly 470 pages to his request. We granted Richardson's request on September 23, 2020.
Because the facts underlying the charges are not necessary for our resolution of these appeals, we do not address them.
By information filed in December 1992, Kelly, Richardson, and two additional codefendants were each charged with one count of murder (Pen. Code, § 187, subd. (a); count 1) committed by torture (§ 190.2, subd. (a)(18)) and during the commission of a robbery (§ 190.2, subd. (a)(17)); one count of robbery (§ 211; count 2); one count of aggravated mayhem (§ 205; count 3); and one count of torture (§ 206; count 4). As to all counts, the information also alleged that a principal was armed with a firearm (§ 12022, subd. (a)(1)).
All undesignated statutory references are to the Penal Code.
Kelly pled guilty to second degree murder (count 1), second degree robbery (count 2), aggravated mayhem (count 3), and torture (count 4). The court sentenced her to three consecutive life terms for counts 1, 3, and 4 and a concurrent term of five years for count 2. She did not appeal.
Meanwhile, after a court trial, Richardson was found guilty of counts 1, 3, and 4 but not guilty of count 2. As to count 1, the court found true the special circumstance that the murder was intentional and involved the infliction of torture-but found not true the special circumstance that the murder was committed during a robbery. The court found the firearm allegation true as to each count.
Richardson was sentenced to an aggregate term of 26 years to life-25 years to life for count 1 plus one year for the firearm enhancement. The court stayed counts 3 and 4 under section 654. On appeal, a different panel of this court affirmed by unpublished opinion. (People v. Richardson and Ward, supra, B097593.)
In 2019, Kelly and Richardson filed separate petitions for recall and resentencing under section 1170.95. Richardson filed a declaration asserting that a complaint or information was filed against him that allowed the prosecution to proceed under a theory of felony murder; he was convicted of murder under a theory of felony murder; he did not commit the actual killing; and he could not now be convicted of murder under a felony murder theory because of changes to sections 188 and 189. He requested the appointment of counsel.
Kelly's petition declared that a complaint was filed against her that allowed the prosecution to proceed under a theory of felony murder; she pled guilty and was convicted of second degree murder; she could not now be convicted of second degree murder because of changes to sections 188 and 189; she was not the actual killer; she did not, with the intent to kill, aid or abet the actual killer; she was not a major participant in the felony and/or did not act with reckless indifference to human life during the course of the crime; and the victim was not a peace officer. Kelly, who was already represented by counsel, did not request the appointment of counsel.
The court appointed counsel to represent Richardson. The prosecution opposed both petitions, and Kelly filed a reply brief.
After a hearing, the court denied both petitions. The court denied Richardson's petition because he was not prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine. The court denied Kelly's petition as follows:
She was not being prosecuted under the second degree murder theory. She was being prosecuted under [a] felony murder theory, and initially, there were special circumstances allegations alleged-and I am assuming from the preliminary hearing transcript because I don't have the actual charging document-that they were applicable to her too. That's what was found after the preliminary hearing.
So I think it raises an interesting issue with respect to the fact that she was not present when the actual shooting occurred. But I respectfully disagree with you, [defense counsel], as to her participation in this case. I don't think this is analogous to Banks and Clark. I think this is a situation where she very clearly she helped plan the robbery and participated in the torture and called Mr. Thomas over for reinforcement. And I agree with you [that] it would have been a difficult choice, but [she] could have done something to prevent the murder from occurring, because it appears to me inferentially she was aware of what was going on.
So I do find she was a major participant. I do find she acted with reckless indifference to human life. I find, as a backup, that she is responsible under [a] second degree murder theory of implied malice. So I'm finding that the petitioner failed to make a prima facie case, and I'm denying the petition.
The court's subsequent minute order of the proceedings states: "The court finds that [Kelly] was a major participant who acted with reckless indifference to human life. The court believes that the defendant could be convicted of 1st degree murder. Additionally, the court finds that the defendant could be convicted of 2nd degree murder. As such, the defendant has failed to make a prima facie case for relief pursuant to Penal Code section 1170.95. The petition is denied."
Richardson and Kelly each filed a timely notice of appeal.
DISCUSSION
Kelly contends that the court below erroneously weighed the evidence at the prima facie stage of proceedings. We agree. Richardson argues that the court improperly relied on facts from the opinion in his direct appeal. We decline to reach that issue because the record establishes Richardson is ineligible for relief as a matter of law.
1. The Law of Murder and Senate Bill No. 1437
Murder is "the unlawful killing of a human being … with malice aforethought." (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) Express malice is the intent to kill, whereas implied malice exists "where the defendant … acted with conscious disregard that the natural and probable consequences of [his or her] act or actions were dangerous to human life. [Citation.]" (People v. Gonzalez (2018) 5 Cal.5th 186, 197.) Although malice is an element of murder, when Richardson and Kelly were convicted, the law allowed defendants who did not act with malice to be liable for murder under certain circumstances.
"First, under the natural and probable consequence[s] doctrine, a defendant who aids and abets a confederate in committing a crime (the target offense) is liable for other crimes committed by the confederate if those further crimes were natural and probable consequences of the target offense. [Citation.] Thus, under prior law, if the direct perpetrator of the target offense committed murder, and the murder was a natural and probable consequence of the target offense, then an aider and abettor of the target offense would be liable for the murder even if the aider and abettor did not act with malice. (People v. Gentile (2020) 10 Cal.5th 830, 845 ['until recently, 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. Eynon (2021) 68 Cal.App.5th 967, 973 (Eynon).)
Second, under prior California law, every accomplice to an enumerated felony could be convicted of first degree murder if a death occurred during the commission of that felony-regardless of whether the accused killed or intended to kill. (See People v. Dillon (1983) 34 Cal.3d 441, 462-472.)
Senate Bill No. 1437 (S.B. 1437) 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." (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) It accomplished this" 'by amending sections 188 and 189 to restrict the scope of first degree felony murder and to eliminate murder liability based on the natural and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2- 3.)' [Citation.]
"Amended section 188 provides that, except for first degree 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.' (§ 188, subd. (a)(3).) The requirement that the principal act with malice eliminates all murder liability under the natural and probable consequences doctrine. [Citation.]
"Amended section 189 limits the first degree felony-murder rule by imposing new requirements for its application. The statute provides that, unless the victim is a peace officer killed in the line of duty, a defendant cannot be liable for first degree felony murder unless the defendant was the actual killer, acted with intent to kill, or was a major participant in the underlying felony and acted with reckless indifference to human life. [Citations.]" (Eynon, supra, 68 Cal.App.5th at pp. 973-974.)
In addition to changing the law of murder prospectively, S.B. 1437 gave people who had been convicted under one of the now-invalid theories of murder the opportunity to petition for resentencing under newly-enacted section 1170.95. (Stats. 2018, ch. 1015, § 4.) Section 1170.95, subdivision (a)(3), describes who may petition for resentencing under the statute. Subdivision (b) explains what information the petition must contain, where the petitioner must file it, who the petitioner must serve, and what the court should do if it's incomplete. Subdivision (c)-the section at issue here-describes the process the court uses to determine whether the petitioner is entitled to an evidentiary hearing: Appoint counsel, if requested; wait for the prosecutor's required response and the petitioner's optional reply; if the petitioner makes a prima facie showing that he or she is entitled to relief, issue an order to show cause. (Lewis, supra, 11 Cal.5th at p. 966.)
"While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited." (Lewis, supra, 11 Cal.5th at p. 971.) The court may deny a petition at this stage only if the petitioner is ineligible for relief as a matter of law. A petitioner is ineligible for relief as matter of law if the record of conviction shows that he or she could not have been convicted under any theory of liability affected by S.B. 1437- such as where malice aforethought was the only theory presented to the jury.
"In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Lewis, supra, 11 Cal.5th at p. 972.) Instead, the record should be consulted at the prima facie stage only to determine" 'readily ascertainable facts, '" such as the crime of conviction and findings on enhancements. (People v. Duchine (2021) 60 Cal.App.5th 798, 815 (Duchine); Lewis, at p. 972.)" '[T]he prima facie bar was intentionally and correctly set very low.'" (Lewis, at p. 972.)
If the petitioner establishes a prima facie entitlement to relief, the court must issue an order to show cause. Subdivisions (d)-(g) describe the procedures for holding an evidentiary hearing, the type of evidence that may be admitted, the burden of proof, and the requirements for resentencing an eligible petitioner.
We independently review the trial court's determination that Kelly's and Richardson's respective records of conviction refuted their allegations that they are eligible for relief under section 1170.95. (See Eynon, supra, 68 Cal.App.5th at p. 975.)
3. The record of conviction does not establish Kelly's ineligibility as a matter of law.
The People argue that the facts presented at the preliminary hearing establish Kelly's ineligibility for relief as a matter of law. We disagree. Here, the court erred by improperly weighing the facts without issuing an order to show cause. Accordingly, we need not decide whether those facts established Kelly was ineligible for relief.
The People do not argue that by pleading guilty to murder and admitting the elements of that crime, Kelly necessarily admitted acting with malice aforethought. (See Eynon, supra, 68 Cal.App.5th at pp. 977-978 [rejecting that argument]; People v. Rivera (2021) 62 Cal.App.5th 217, 233-239 [same]; People v. Cooper (2020) 54 Cal.App.5th 106, 123-124 [same].)
In this case, the court did not have the benefit of subsequent case law when it denied Kelly's 1170.95 petition. Those cases clearly establish the court may not weigh facts without issuing an order to show cause and holding a hearing under section 1170.95, subdivision (d). (See, e.g., People v. Drayton (2020) 47 Cal.App.5th 965, 982 (Drayton), abrogated on other grounds by Lewis, supra, 11 Cal.5th at p. 963 [where petitioner was neither the actual killer nor convicted on the theory that he had the intent to kill the victim, trial court should not have engaged in factfinding without first issuing an order to show cause and allowing the parties to present evidence at a hearing]; Duchine, supra, 60 Cal.App.5th at p. 816 [court may consider record of conviction at prima facie stage but may not evaluate the evidence, make credibility findings adverse to the petitioner, engage in factfinding, or exercise discretion].) As we discuss below, the court improperly weighed the evidence.
After acknowledging Kelly was prosecuted under a felony murder theory and "was not present when the actual shooting occurred," the court concluded Kelly was ineligible for section 1170.95 relief because she was a major participant in the underlying felony who acted with reckless indifference to human life. The court reached this conclusion based on its view that Kelly "helped plan the robbery and participated in the torture and called Mr. Thomas over for reinforcement." In addition, the court opined that Kelly "could have done something to prevent the murder from occurring, because it appears to me inferentially she was aware of what was going on." This was error.
The "Banks test, which governs the inquiry whether the defendant was a major participant in a felony[, ] necessarily requires the weighing of facts and drawing inferences. [Citation.] The question whether [the petitioner] acted with reckless indifference is a similarly multifaceted inquiry. [Citation.]" (Drayton, supra, 47 Cal.App.5th at p. 982.) Courts cannot answer those questions without engaging in some degree of factfinding- at least where there is no true finding or explicit admission. Here, the court's conclusions about what Kelly did, how she participated, and what "inferentially she was aware of" all involved "the weighing of evidence, drawing of inferences, and assessment of credibility that should be left to the factfinding hearing process contemplated by section 1170.95, subdivision (d). [Citation.]" (Duchine, supra, 60 Cal.App.5th at p. 816.)
In sum, Kelly made a prima facie showing of eligibility for relief under section 1170.95, subdivision (c). She filed a petition stating she was charged with murder under a theory of felony murder, pled guilty to second degree murder, and could not be convicted of murder under present law because she was not the actual killer, a direct aider and abettor, or a major participant who acted with reckless indifference to human life, as described in section 190.2, subdivision (d). There were no facts before the court that, as a matter of law, conclusively refuted Kelly's assertions. As such, the court erred in denying Kelly's petition without issuing an order to show cause and holding an evidentiary hearing under section 1170.95, subdivision (d).
4. The court properly denied Richardson's petition.
Richardson argues that the court erred by denying his petition based on the opinion in his direct appeal. We need not resolve that issue, however, because the record of conviction establishes that Richardson is ineligible for relief as a matter of law.
At the end of Richardson's trial, the court, which acted as the trier of fact, ruled as follows:
In terms of count 1. Charge is murder. Defendants will be found guilty. The court will find that murder to be a murder in the first degree, not based upon a felony murder, and I will explain momentarily.
There is evidence, and the court credits the evidence-this is set forth, frankly, in the last part of the D.A.'s argument. There was an agreement, the court believes, at some point during the torture, to kill this fella, and I think that all three people, frankly, took part, and certainly these two defendants [Ward and Richardson] did. They knew he was going to be killed. One defendant obtained the gun, and then they took steps to see that the murder was accomplished by helping Micah Thomas wrap him up, take him down to the high school. So that was willful, deliberate, premeditated on the part of these defendants, in the court's opinion, beyond a reasonable doubt. The murder will be a first degree murder.
The arming allegations, 12022(a)[(1)], will be found true. A principal armed, that being Micah Thomas. The court will further find the special circumstance true, that the murder was intentional and did involve the infliction of torture. The court feels and thought about this for quite a bit, and I don't think you can separate the two. He was killed. No one[ ] really knows why. I couldn't tell you exactly why this fellow was killed. Due to his race, his intoxicated condition, the fact that the female got mad at him. I don't really know why.
I think, however, the evidence points more strongly to this: that there is an inexplicable connection between his torture and his death. I think they made such a mess of this fellow in such a pitiful way over so many hours [that] they couldn't get-let him go. It is like, what the heck are you going to do with him now? The thing got out of hand. The fella is there at this point, just barely asking. The female states get this quote unquote "shit" out of here, and that is how they have treated that fellow.
What are they going to do? He doesn't walk or talk, so they got to kill them. Yes, he was killed because he was tortured to such a degree, but was still barely alive. They had nothing to do. So yes, tortured for some minutes, and about a quarter of a mile certainly involved torture. That will be found true as to both defendants.
The second special circumstance, that the murder was committed while these defendants were engaged in a crime of robbery, that will be found not true.
(Italics added.)
In sum, the court found Richardson guilty of first degree murder based on premeditation and deliberation, which requires intent to kill. It explained in detail that it believed Richardson made "an agreement … at some point during the torture to kill this fella … ." The court also found true the torture special circumstance, which requires intent to kill. (People v. Davenport (1985) 41 Cal.3d 247, 271.) That the court's verdict was based on malice aforethought rather than felony murder or the natural and probable consequences doctrine is supported by the court's other holdings: The court found the felony-murder special circumstance not true and specifically stated that it was not convicting Richardson based on felony murder.
Because the trier of fact in this case held that Richardson acted with malice, he is ineligible for relief under section 1170.95 as a matter of law.
DISPOSITION
The order denying Richardson's section 1170.95 petition is affirmed.
The order denying Kelly's section 1170.95 petition is reversed and the matter is remanded with directions to issue an order to show cause and proceed with a hearing at which the parties may present evidence and the court acts as the trier of fact. (§ 1170.95, subds. (c)-(d).)
WE CONCUR: EDMON, P. J., EGERTON, J.