Opinion
G057750
12-03-2020
THE PEOPLE, Plaintiff and Respondent, v. HAROLD LEE PHILLIPS, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Robin Urbanski, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB053188-3) OPINION Appeal from a postjudgment order of the Superior Court of San Bernardino County, Brian S. McCarville, Judge. Reversed and remanded. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2008, a jury convicted Harold Lee Phillips of second degree murder and related offenses in a gang shooting. In January 2019, Phillips filed a petition for resentencing under Penal Code section 1170.95, enacted as part of Senate Bill No. 1437 (Sen. Bill 1437), effective January 1, 2019. Section 1170.95 allows a person convicted of felony murder or murder under a natural and probable consequences theory to petition the trial court to vacate the judgment if he or she could not have been convicted of murder because of Sen. Bill 1437's changes to the definition of the crime. The trial court summarily denied Phillips' resentencing petition, concluding he was ineligible for section 1170.95 relief as a matter of law.
All further undesignated statutory references are to the Penal Code.
In this appeal, Phillips contends the trial court erroneously denied his resentencing petition based on a mistaken understanding of what happened in his trial. The Attorney General agrees with Phillips' claim of error and concedes reversal of the order and remand is required, with instructions to the trial court to appoint counsel and order briefing on whether Phillips is entitled to resentencing under section 1170.95. Accordingly, we reverse the order denying the resentencing petition and remand with instructions.
I
RESENTENCING PETITIONS UNDER SECTION 1170.95
"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).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
"The legislation accomplished this in part by amending section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought, and that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' (Stats. 2018, ch. 1015, § 2, p. 6675; In re R.G. (2019) 35 Cal.App.5th 141, 144.) As a result, the natural and probable consequences doctrine can no longer be used to support a murder conviction. ([People v.] Lopez [(2019)] 38 Cal.App.5th [1087,] 1103 & fn. 9; Stats. 2018, ch. 1015, § 1(f), fn. omitted.)" (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted March 18, 2020, S260598.) Similarly, Sen. Bill 1437 amended section 189 by adding a requirement to the felony murder rule that a defendant who was not the actual killer or a direct aider and abettor must have been a major participant in the underlying felony and acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3.)
Sen. Bill 1437 also added section 1170.95, creating a procedure for defendants already convicted of murder under the old law to seek resentencing in the trial court if they believe they could not be convicted of that crime, given the above amendments to sections 188 and 189. (Sen. Bill 1437, Stats., ch. 1015, § 4.) A petition for resentencing under section 1170.95 must include a declaration from the petitioner setting forth certain prescribed facts which, if found true, entitle the petitioner to relief under the statute. The petitioner must allege (1) that an accusatory pleading was filed against the petitioner allowing the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) that he was convicted of first or second degree murder following a trial or an accepted plea; and (3) that he could not be convicted of murder "because of changes to Section[s] 188 or 189" made by Sen. Bill 1437. (§ 1170.95, subds. (a), (b)(1)(A); Lewis, supra, 43 Cal.App.5th at p. 1135.) If a petition is facially lacking any of the above information, the trial court may deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)
Subdivision (c) of section 1170.95 sets forth the procedure which follows the filing of a resentencing 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." (§ 1170.95, subd. (c).) "If the court issues an order to show cause, it shall hold a hearing to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d).)" (Lewis, supra, 43 Cal.App.5th at p. 1136.)
Recent case law interpreting section 1170.95 has held a trial court may dismiss a petition summarily, before appointing counsel, if the court determines the petitioner is ineligible for relief as a matter of law, based on information in the court file. In Lewis, supra, 43 Cal.App.5th 1128, the appellate court held the trial court properly denied a section 1170.95 petition without a hearing and before appointment of counsel after determining in an "initial screening" petitioner was ineligible for statutory relief. The Lewis court approved the trial court's decision to look beyond the petition and consider "the record of defendant's conviction, including our prior opinion [in his direct appeal], in evaluating the sufficiency of the petition." (Lewis, supra, 43 Cal.App.5th at p. 1137; accord, People v. Verdugo (2020) 44 Cal.App.5th 320, 328-333, 336, review granted March 18, 2020, S260493 [affirming summary denial of resentencing petition where prior opinion in direct appeal confirmed jury found petitioner acted with express malice in aiding and abetting premeditated murder; accordingly there was "no possibility" jury found petitioner guilty based on natural and probable consequences doctrine]; see People v. Cornelius (2020) 44 Cal.App.5th 54, 57-58, review granted March 18, 2020, S260410 [affirming summary denial of § 1170.95 petition where court file reflected jury's implied finding petitioner was actual killer].)
II
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, Phillips participated in a gang-related shooting in which members of his gang killed an 11-year-old girl and wounded her 14-year-old sister. In 2008, a jury convicted Phillips of one count of second degree murder (§ 187), two counts of attempted murder (§§ 664/187), and one count of negligent discharge of a firearm (§ 246.3). The jury found Phillips not guilty of conspiracy to commit murder. The jury found true criminal street gang enhancements and various vicarious firearm-use allegations. The trial court sentenced Phillips to state prison for an aggregate term of nine years and four months, plus a consecutive term of 85 years to life.
In January 2019, Phillips filed a petition for resentencing under section 1170.95 and requested appointment of counsel. The trial court held a hearing on the petition with only the prosecutor present. The court did not appoint counsel for Phillips and orally denied the petition based on the court's personal recollection, as "the trial judge in this particular case," that Phillips was "one of the shooters." In other words, the court believed Phillips was the actual killer and thus ineligible for relief under section 1170.95.
In a subsequent written memorandum of decision, the court denied the section 1170.95 petition, citing two grounds for finding Phillips ineligible for relief as a matter of law. First, the court noted "the court file reflects that [Phillips] was the actual killer and was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences. There are no jury instructions for aiding and abetting, felony murder, or natural and probable consequences." Second, the court stated our 2010 opinion affirming Phillips' conviction "reflects that [Phillips] was the actual killer and was convicted of murder on a theory of being the direct perpetrator and not on a theory of felony murder of any degree, or a theory of natural and probable consequences."
III
DISCUSSION
Phillips and the Attorney General agree the trial court was wholly mistaken about what occurred at trial. We quote from the respondent's brief, where the Attorney General succinctly summarizes the trial court's errors: "While the trial court here concluded that the underlying facts and this court's prior opinion supported the notion that [Phillips] was the actual killer [citation], there is no prior verdict or finding by the jury or admission by [Phillips] to that effect, and this court's prior opinion on direct appeal simply indicates that appellant was convicted of second degree murder, but does not specify the theory of liability. [Citation.] Indeed, while the trial court stated that [Phillips] was the actual killer, the jury only found true vicarious arming enhancements—that a principal, and not [Phillips] personally and intentionally discharged a firearm causing great bodily injury and death. [Citation.] And although the trial court indicated [Phillips's] jury was not instructed on principles of natural and probable consequences or aiding and abetting, the record reveals the jury was instructed on both concepts. [Citations.]" (Italics added.)
The Attorney General further concedes Phillips made a prima facie showing he "falls within the provisions" of section 1170.95, thereby satisfying the "first-step" inquiry into the sufficiency of the resentencing petition which obligates the trial court to appoint counsel and order full briefing on whether Phillips is eligible for relief under section 1170.95. The Attorney General emphasizes he does not concede Phillips "is actually eligible for relief." That issue remains to be determined through the procedures set forth in subdivisions (c) and (d) of section 1170.95.
Along with the parties, we conclude the trial court erred in summarily denying Phillips's resentencing petition under section 1170.95. That error warrants reversal of the order and remand for further proceedings consistent with the statute.
IV
DISPOSITION
The order denying Phillips's petition for resentencing under section 1170.95 is reversed. The matter is remanded for further proceedings consistent with the above discussion.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.