Opinion
A160316
02-25-2021
THE PEOPLE, Plaintiff and Respondent, v. RYAN ODOM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR211543) MEMORANDUM OPINION
This appeal is appropriately resolved by memorandum opinion in accordance with California Standards of Judicial Administration, section 8.1.
Defendant was convicted of torture and first degree murder with the special circumstances of kidnapping with intent to kill and intentional murder involving the infliction of torture. (Pen. Code, §§ 187, 190.2, subds. (a)(17), (18).) The victim was "beaten, hog-tied, and shot in the head because defendant . . . believed he stole a PlayStation from her." (People v. Odom (2016) 244 Cal.App.4th 237, 240 (Odom). Defendant participated in the beating of the victim, and another individual shot him. (Id. at pp. 243-245.) We affirmed defendant's conviction. (Id. at pp. 257-258.)
All further references are to the Penal Code unless otherwise indicated.
We grant defendant's request for judicial notice of our prior opinion. (Evid. Code, §§ 452, subd. (d), 459.) We deny defendant's request for judicial notice of two letters from the Judicial Council, one to the bill's author and one to the former governor, regarding its position on Senate Bill 1437. The court in People v. Tarkington (2020) 49 Cal.App.5th 892, rev. granted Aug. 12, 2020, S263219, concluded the same two letters "are not cognizable legislative history" and "are not proper subjects of judicial notice." (Id. at pp. 904-907, fn. 12.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which altered liability for murder under the theories of felony murder and the natural and probable consequences doctrine. The bill also established a procedure, under newly enacted section 1170.95, for eligible defendants to petition for resentencing.
Defendant filed three petitions for resentencing under that section, all of which were denied. This appeal is from the order denying her two most recent petitions, in which she alleged she was convicted of murder under the felony murder doctrine or the natural and probable consequences doctrine and could no longer be convicted of murder due to Senate Bill 1437's changes to the law. Defendant checked the boxes on the form petition indicating she "was not the actual killer" and she "did not, with the intent to kill, aid, abet, counsel, command, induce, request, or assist the actual killer in the commission of murder in the first degree." She also requested counsel be appointed.
The trial court denied the petitions without appointing counsel based on her record of conviction, stating the petitions "do not state a prima facie basis for relief." The court concluded "[c]ontrary to the allegations in her . . . petition, [defendant] was not prosecuted under a felony-murder theory, nor was her jury so instructed, in connection with the torture murder allegations. She was convicted of first degree murder and torture, and both special circumstances were found to be true. The torture special circumstances finding . . . required the jury to find, beyond a reasonable doubt, that [defendant] intended to kill the victim. The record of conviction in this case, including the Court of Appeal's conclusion that 'the evidence that the defendant decided [the victim] should be killed is overwhelming' [citation], and that the jury found true the [Penal Code] § 190.2 (a)(18) special circumstance (intentional murder involving the infliction of torture) means that [defendant] is collaterally estopped from relitigating the issues that were necessary to those decisions."
On appeal, defendant challenges the summary denial of her resentencing petitions without appointment of counsel to represent her. We conclude the trial court's denial of the petition without appointing counsel was harmless, and affirm.
DISCUSSION
"Senate Bill 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).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds the aforementioned 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).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
In People v. Cooper (2020) 54 Cal.App.5th 106 (rev. granted Nov. 10, 2020, S264684), this division concluded "a petitioner is entitled to counsel upon the filing of a facially sufficient petition for relief that requests counsel be appointed." (Id. at p. 123.) The failure to appoint counsel at that juncture, however, does not violate a federal Constitutional right, and is therefore subject to harmless error analysis. (People v. Daniel (2020) 57 Cal.App.5th 666, 674-676 (Daniel), rev. granted Feb. 24, 2021, S266336.)
We are aware other appellate courts have reached a contrary conclusion, and the issue is before the California Supreme Court in Cooper and other cases. (See, e.g., People v. Lewis (2020) 43 Cal.App.5th 1128, rev. granted March 18, 2020, S260598; People v. Tarkington, supra, 49 Cal.App.5th 892.) While the Attorney General asserts Cooper was wrongly decided, we need not revisit the issue, given our disposition.
Defendant does not dispute the trial court's conclusion that she is ineligible for resentencing under section 1170.95 in light of the jury's finding true the torture special circumstances finding, since it required the jury to find, beyond a reasonable doubt, that defendant intended to kill the victim. (Odom, supra, 244 Cal.App.4th at pp. 240, 249.)
Instead, relying on Cooper, she asserts allowing the trial court to "consider the 'record of conviction,' including the appellate opinion, in determining whether a petitioner has established a prima facie case . . . is unfair to an unrepresented section 1170.95 petitioner." This is so, she asserts, because "[t]here is a risk that propositions are more likely to look 'indisputable' if there is no counsel tasked with disputing them."
Cooper, however, did not conclude a trial court's consideration of the record of conviction, including the appellate court opinion, constitutes impermissible factfinding. Rather, Cooper considered whether the court erred in relying on the transcript of the preliminary hearing to conclude the defendant was "ineligible for relief as a matter of law." (Cooper, supra, 54 Cal.App.5th at p. 123.) As the court explained, at a preliminary hearing " ' "the magistrate is not a trier of fact," ' and a ruling holding a defendant to answer is in no way equivalent to a jury's factual finding or a defendant's admission." (Id. at p. 124, italics omitted.) Thus, Cooper concluded the trial court had engaged in factfinding because it relied on the preliminary hearing transcript to determine the defendant's murder conviction rested on a valid theory. (Id. at p. 108.)
The vast majority of appellate courts, including this court, have concluded that in determining whether a defendant has made a prima facie showing of entitlement to resentencing, courts may consider the record of conviction, which includes any prior appellate court opinions. (Daniel, supra, 57 Cal.App.5th at pp. 676-677; see People v. Garcia (2020) 57 Cal.App.5th 100, 111, rev. granted Feb. 10, 2021, S265692 [canvassing cases so holding].) The trial court appropriately did so here, relying on the record of conviction and the appellate opinion to determine the jury found true the special circumstances of intentional murder involving torture and kidnapping with intent to kill.
Thus, the record of conviction demonstrates defendant is ineligible for relief under section 1170.95 as a matter of law, and she has failed to meet her 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.' " (Daniel, supra, 57 Cal.App.5th at p. 676.) Thus, any error in failing to appoint counsel was harmless.
DISPOSITION
The order denying defendant's resentencing petitions under section 1170.95 is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.