Opinion
B304463
01-26-2021
THE PEOPLE, Plaintiff and Respondent, v. LEONARD NIXON, Defendant and Appellant.
Doris M. LeRoy, 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, Senior Assistant Attorney General, and Idan Ivri and Nancy Lii Ladner, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. A648471-03) APPEAL from an order of the Superior Court of Los Angeles County, Allen J. Webster, Judge. Reversed with directions. Doris M. LeRoy, 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, Senior Assistant Attorney General, and Idan Ivri and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1991 a jury found Leonard Nixon guilty of, among other crimes, first degree murder for killing a two-and-a-half-year-old boy in 1988. The jury found true allegations that Nixon committed murder by means of a destructive device within the meaning of Penal Code section 190.2, subdivision (a)(6), and that he did so while engaged in the commission of the crime of arson, within the meaning of section 190.2, subdivision (a)(17).
Statutory references are to the Penal Code.
In 2019 Nixon filed a petition under section 1170.95, which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. The prosecutor requested an extension of time to submit an informal response to the petition to give him time to obtain the clerk's transcript, reporter's transcript, and opinion in Nixon's direct appeal, as well as other relevant documentation. The prosecutor apparently was unable to find those records, however, because he ultimately filed a response to the petition without the benefit of any documents from Nixon's trial or the opinion affirming his conviction. Instead, the prosecutor attached the opinion in the direct appeal of Nixon's co-defendant (who was tried and appealed his conviction separately) and Nixon's probation report.
The superior court denied the petition, ruling that Nixon failed to make a prima facie showing he was eligible for relief under section 1170.95 and that he could still be convicted of murder under amended sections 188 and 189. After Nixon filed his notice of appeal from the superior court's order, the Attorney General located the record of conviction in Nixon's case, including the clerk's transcript, the reporter's transcript, and the opinion in Nixon's direct appeal.
Nixon contends the superior court erred by relying on the record of conviction of Nixon's co-defendant. He has a point; the superior court based its ruling on the wrong record of conviction. The record of Nixon's conviction was not available when the superior court ruled on his petition. But it is now. Therefore, we reverse the order denying Nixon's petition and direct the superior court to rule on Nixon's petition in the first instance based on the right record of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Nixon of Murder, and This Court Affirms
Nixon, Deshawn Snead, and Sekou Thompson were tried separately for the 1988 killing. A jury found Nixon guilty of first degree murder, arson causing great bodily injury, arson of an inhabited structure, and explosion causing death. The jury found true allegations that Nixon committed the murder by means of a destructive device, within the meaning of section 190.2, subdivision (a)(6), and while engaged in the commission of the crime of arson, within the meaning of section 190.2, subdivision (a)(17). The trial court sentenced Nixon to two terms of life in prison without the possibility of parole. A division of this court affirmed Nixon's conviction in 1994. (People v. Nixon (July 8, 1994, B067902) [nonpub. opn.].)
B. The Legislature Enacts Senate Bill No. 1437 and Establishes the Section 1170 .95 Petition Procedure
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder by amending sections 188 and 189. As discussed, new section 188, subdivision (a)(3), provides: "Except as stated in subdivision (e) of Section 189, 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." New section 189, subdivision (e), provides that, with respect to a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs (that is, those crimes that provide the basis for first degree felony murder), an individual is liable for murder "only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (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."
Senate Bill No. 1437, through new section 1170.95, also authorized an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if the individual could not have been convicted of murder under changes Senate Bill No. 1437 made to the definition of murder. (People v. Gentile (2020) 10 Cal.5th 830, 842; People v. Rodriguez (2020) 58 Cal.App.5th 227, 236-237 (Rodriguez).) The petition must include a declaration by the petitioner that he or she is eligible for relief under section 1170.95, the superior court case number and year of the petitioner's conviction, and a statement whether the petitioner wants the court to appoint counsel. (§ 1170.95, subd. (b)(1); see Rodriguez, at p. 237; People v. Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted Mar. 18, 2020, S260493 (Verdugo).)
If the petition contains all required information, and the court determines the petition is facially sufficient, section 1170.95, subdivision (c), prescribes a two-step procedure for determining whether to issue an order to show cause: "'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 . . . and the petitioner may file and serve a reply . . . . 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.'" (Verdugo, supra, 44 Cal.App.5th at p. 327.) If the court issues an order to show cause, 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); see Rodriguez, supra, 58 Cal.App.5th at p. 237; Verdugo, at p. 327.) At the hearing the prosecution has the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (Rodriguez, at p. 237; see § 1170.95, subd. (d)(3).) The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence. (Rodriguez, at p. 237; see People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899 (Tarkington), review granted Aug. 12, 2020, S263219; People v. Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481.)
C. Nixon Files a Petition Under Section 1170 .95
On July 22, 2019 Nixon filed a petition under section 1170.95. He alleged, among other things, that he was convicted of felony murder on a theory on which he could not be convicted after the amendments to sections 188 and 189 and (referring to an attached "'Supporting Facts'") that he was not the actual killer, was not a major participant in the felony, and did not act with reckless indifference to human life. Nixon also asked the court to appoint counsel for him.
The prosecutor asked for an extension of time to file an informal response to the petition, stating: "In order to properly respond to the Petition for Resentencing it is necessary to secure copies of the District Attorney's file, the Court of Appeal[ ] records and opinion(s), Court and Reporter's Transcripts, Attorney General records and any additional documentation as may become relevant to this proceeding. Frequently, obtaining and reviewing these documents takes a considerable amount of time." But apparently unable to obtain any such documentation, and without asking for a further extension, the prosecutor filed an informal response to Nixon's petition on December 13, 2019. Based on this court's published opinion in Snead's direct appeal and information in Nixon's probation report, the prosecutor argued Nixon was ineligible for relief under section 1170.95 because the evidence at Snead's trial showed Nixon was the actual killer, had the specific intent to kill, or was a major participant who acted with reckless indifference to human life. (See People v. Snead (1993) 20 Cal.App.4th 1088 (Snead), disapproved in People v. Letner and Tobin (2010) 50 Cal.4th 99, 181.)
Section 1170.95, subdivision (c), requires the prosecutor to file and serve "a response within 60 days of service of the petition . . . ." The response described by the statute, however, is a formal response following the superior court's "preliminary review of statutory eligibility for resentencing." (See Verdugo, supra, 44 Cal.App.5th at p. 329; see also Tarkington, supra, 49 Cal.App.5th at pp. 897-898 [describing the "prebriefing 'first prima facie review'" as a "'preliminary review of statutory eligibility for resentencing'"].) Section 1170.95 does not establish a deadline for a prosecutor's informal response, and the record does not indicate the superior court set one.
On December 16, 2019 the superior court considered the petition. In its order denying the petition the superior court summarized the facts of the case as recounted in the court's opinion in Snead, supra, 20 Cal.App.4th at pp. 1091-1092 and Nixon's probation report, which identified the "DA File" as the source of its "relevant circumstances of the offense." The superior court found Nixon "failed to make a prima facie showing that he is eligible for resentencing because he was either the actual killer who burned the child victim to death, or was an aider and abettor who acted with an intent to kill, or was a major participant who acted with reckless indifference to human life when he made two firebombs and then threw them into a bedroom at night. Were [Nixon] to be retried today, . . . he could still be convicted of murder."
Nixon timely appealed. The People filed with their respondent's brief a motion to augment the record on appeal. The People, having located Nixon's record of conviction, submitted with their motion copies of the clerk's transcript, the reporter's transcript, and the opinion in Nixon's direct appeal.
DISCUSSION
Nixon argues the superior court erred in relying on documents outside Nixon's record of conviction to rule Nixon was ineligible for resentencing under section 1170.95. At the December 16, 2019 hearing on the petition, the superior court appeared to conduct "a preliminary review of statutory eligibility for resentencing" under section 1170.95, which is "[t]he midpoint between section 1170.95, subdivision (b)(2)'s initial finding the petition is facially sufficient and subdivision (c)'s second prima facie showing the petitioner is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at p. 329.) At this stage, the court's role "is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Ibid.; see Tarkington, supra, 49 Cal.App.5th at p. 898.) In so doing, the court may rely on "documents in the court file or otherwise part of the record of conviction that are readily ascertainable," including "the complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment." (Verdugo, at pp. 329-330; see Tarkington, at p. 899 & fn. 5 [the record of conviction includes an opinion from the petitioner's direct appeal and the petitioner's trial record].) "Based on a threshold review of these documents, the court can dismiss any petition filed by an individual who . . . is ineligible for relief as a matter of law because he or she was convicted on a ground that remains valid notwithstanding [Senate Bill No.] 1437's amendments to sections 188 and 189." (Verdugo, at p. 330.)
"[I]f the petitioner's ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction," the court "must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties' briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at p. 330.) The superior court did not direct the prosecutor to file a formal response or appoint counsel for Nixon. We presume the court made only "a preliminary review of statutory eligibility for resentencing." (Id. at p. 329.)
The Supreme Court granted review in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598 to decide whether the superior court can consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under section 1170.95.
The superior court did not have access to Nixon's record of conviction at the time the court ruled Nixon was ineligible for relief under section 1170.95. But the record of conviction is available now. So that the parties and the superior can have a full opportunity to review Nixon's record of conviction, we reverse the court's order denying Nixon's petition and direct the superior court to consider his petition in light of his (and not someone else's) record of conviction. It is appropriate for the superior court to rule on Nixon's petition with the right record of conviction in the first instance. (See § 1170.95, subds. (a), (c).)
Citing People v. Sledge (2017) 7 Cal.App.5th 1089, the People argue the superior court properly relied on Nixon's probation report as reliable hearsay. In Sledge the court held a probation report that "relied in part on information obtained from the official court records in defendant's [prior] juvenile case" was admissible in a Proposition 36 proceeding. (Id. at p. 1097.) We do not address this issue, but note that Nixon's probation report does not appear to have such an indicium of reliability. --------
DISPOSITION
The order is reversed with directions for the superior court to consider Nixon's petition in light of his record of conviction. The People's motion to augment the record is denied without prejudice as moot.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.