Opinion
S278631
04-12-2023
PEOPLE v. POWELL (NIKITA)
C094553 Third Appellate District.
Petition for review denied
The petition for review is denied.
Concurring Statement
Groban, Justice
In 1998, petitioner Nikita Powell pled guilty to first degree murder during the commission of a robbery for her role in a killing committed by her then-boyfriend, James Thomas. In exchange, she was sentenced to 25 years to life.
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting and limit felony murder liability to "major participant[s] in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); see Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)
Subsequent section numbers refer to the Penal Code unless otherwise specified.
Petitioner thereafter filed a section 1170.95 petition for resentencing, alleging that she could not now be convicted of murder under the law as amended by Senate Bill 1437. The trial court found that defendant made a prima facie showing for relief (see former § 1170.95, subd. (c)). At the subsequent hearing (former § 1170.95, subd. (d)), petitioner's sister and aunt testified that the actual killer, Thomas, physically abused petitioner and forced her to engage in prostitution during their relationship. An expert on intimate partner violence testified generally about how intimate partner battery may impact a victim and, more specifically, how a domestic violence victim, like petitioner, might suggest robbing someone to make her abuser happy and avoid being beaten herself.
After petitioner's section 1170.95 petition was resolved by the trial court, section 1170.95 was renumbered as section 1172.6 without any substantive change. (Stats. 2022, ch. 58, § 10 [effective June 30, 2022].) We refer to section 1170.95 for consistency with the trial court's ruling.
The trial court denied petitioner's resentencing petition by written order, concluding beyond a reasonable doubt that she could still be convicted of first degree felony murder because she was a major participant in the underlying robbery who acted with reckless indifference to human life. (§ 189, subd. (e); see People v. Banks(2015) 61 Cal.4th 788; People v. Clark(2016) 63 Cal.4th 522.) The trial court underscored, with extensive citations to the record, that petitioner planned the robbery, she helped Thomas obtain the murder weapon, she was present for the killing, and she did not intervene or render aid to help the victim. The trial court also considered evidence offered by petitioner "in support of a theory that she was a victim of intimate partner violence." The trial court acknowledged petitioner's prior declaration attesting to the fact that Thomas beat "her 'at least twice a week' and that on the night of the murder, Thomas punched and choked her until she could not breathe." The trial court observed that petitioner's aunt and sister "relayed their knowledge of witnessing Thomas violently beating, kicking, and dragging [petitioner] on a regular basis, as well as knowing that Thomas may have been forcing [petitioner] into prostitution on an almost daily basis." The trial court acknowledged that though this evidence was offered in petitioner's defense to "support [] a theory that she was a victim of intimate partner violence . . . [,] it also demonstrate[d] that she knew or reasonably should have known of the danger the armed Thomas posed to the unwitting victim." The trial court found that petitioner's "familiarity with Thomas's violence against her does not establish, by itself, reckless indifference but it is a factual circumstance that this court has considered in weighing the fourth Clark factor ["Defendant's Knowledge of Cohort's Likelihood of Killing" (Clark, at p. 621)] and finding beyond a reasonable doubt that she knew Thomas was likely to use lethal force." The Court of Appeal affirmed the trial court's ruling, applying the highly deferential substantial evidence standard of review. (People v. Powell (Jan. 17, 2023, C094553) [nonpub. opn.].)
Petitioner contends our review is necessary because the People did not present substantial evidence to show she acted with reckless indifference to human life and the trial court erred by ignoring the evidence of intimate partner violence. She further contends that the evidence of Thomas's frequent abuse should have been considered to mitigate her culpability, and not as evidence to affirmatively support a finding that she acted with "reckless indifference to human life." A reviewing court's role "is not to reweigh the evidence" (People v. Thomas (2023) 14 Cal.5th 327, 379) and I therefore join my colleagues in voting to deny review. I write separately to highlight that our denial of review should not prevent consideration of petitioner's abuse by Thomas as a potential mitigating circumstance in other contexts, including:
1. a potential referral for recall and resentencing by the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, or the district attorney (see § 1172.1, subd. (a)(1), (4) [when a defendant is referred for recall and resentencing, "[t]he court shall consider if the defendant . . . was a victim of intimate partner violence or human trafficking prior to or at the time of the commission of the offense"]);
2. at a future parole suitability hearing (see Cal. Code Regs., tit. 15, § 2281, subd. (d)(5) [listing whether "the prisoner suffered from Battered Woman Syndrome" at the time of the offense as a fact tending to show suitability for parole]); or
3. pursuant to a commutation recommendation (see § 4801, subd. (a) ["The Board of Parole Hearings may report to the Governor, from time to time, the names of any and all persons imprisoned in any state prison who, in its judgment, ought to have a commutation of sentence or be pardoned and set at liberty on account of good conduct, or unusual term of sentence, or any other cause, including evidence of intimate partner battering and its effects"]).
I Concur:
LIU, J.
Concurring Statement
Evans, Justice
Then 21-year-old defendant Nikita Powell pleaded guilty to first degree murder committed during a 1997 robbery in which her boyfriend shot and killed their robbery victim. Prior to the crime, Powell had endured brutal violence - chokings, regular beatings, sex trafficking, threats to her life, and financial abuse - at the hands of her boyfriend, who was more than 20 years her senior. After testifying against her abuser at his trial, the trial court sentenced Powell to 25 years to life.
Since Powell's conviction in 1998, the Legislature has made significant advances regarding the consideration of intimate partner violence evidence in assessing an intimate partner violence victim's culpability in committing an offense and determining the appropriate level of punishment. (See, e.g., Pen. Code, § 1170, subd. (b)(6)(C) [directing courts to impose the lower term where the defendant was a victim of intimate partner violence]; Pen. Code, § 1170, subd. (d)(8)(C) [providing that a court may resentence an individual to a lesser term based on their experience as a victim of intimate partner violence]; Pen. Code, § 1172.1, subd. (a)(4) [directing courts, in evaluating whether to recall a sentence, to consider whether intimate partner violence was a "contributing factor" in the defendant's commission of the offense].) These measures reflect the general recognition that experiencing intimate partner violence can often diminish one's culpability in committing an offense or is otherwise a mitigating circumstance warranting mercy.
In enacting Senate Bill No. 1437 (Reg. Sess. 2017-2018; Senate Bill 1437) in 2018, the Legislature received materials that addressed how victims of intimate partner violence are often unjustly convicted of crimes committed by their abusers. (See, e.g., Fátima Avellán, Survived and Punished, letter to Sen. Nancy Skinner, Apr. 16, 2018, p. 1 ["A legal doctrine that holds a person responsible for the violent actions of another will disproportionately impact victims of intimate partner violence. Because this legal doctrine has been used to punish survivors for the violent acts of their abusive partners, survivors are often subjected to life and life without parole sentences as a consequence of being trapped in conditions of intimate partner violence"]; Cal. Chapter of Nat. Assn. of Social Workers, Women's Council, letter to Sen. Nancy Skinner, Apr. 16, 2018, p. 1 ["a number of women [are] serving life sentences as a result of actions taken by a husband or boy friend [sic]. Some, who were survivors of domestic violence by their male partner, explained their presence at the scene of the crime was at the instance of the abusing partners. Others, [sic] reported that they were unaware that the person they were with, [sic] had brought a deadly weapon to the scene. Many were quite young at the time of the crime"]; Maureen Washburn, Center on Juvenile and Crim. Justice, letter to Sen. Nancy Skinner, Apr. 6, 2018, p. 1 ["approximately 70 percent of women charged with homicide were accomplices, not the actual perpetrators of the act that led to death. These women are often in coercive relationships with the perpetrators"].) Individuals and organizations supporting Senate Bill 1437 specifically highlighted that murder liability should not be imputed onto victims of intimate partner violence, such as Powell, based on the actions of their abusers - and they understood Senate Bill 1437 as serving, in part, to correct that issue.
It is against this backdrop that Powell petitioned in 2019 for resentencing relief pursuant to Senate Bill 1437. (Pen. Code, § 1172.6.) At an evidentiary hearing on her petition for resentencing, Powell presented extensive evidence regarding the intimate partner violence she experienced at the hands of her cohort - the actual killer - as well as expert testimony regarding the effects of intimate partner violence. As to how intimate partner violence factored into her participation in the offense, an expert testified that "a person who has been involved in a cycle of domestic violence may no longer be able to perceive a situation as 'pretty dangerous, or potentially lethal,'" that "a victim of domestic violence might rob someone in order to appease their abuser to prevent further abuse," and that "[t]he domestic violence victim may not even appreciate the risks associated with using a loaded firearm to commit that robbery." (People v. Powell (Jan. 17, 2023, C094553) [nonpub. opn.].)
In denying her petition for resentencing relief, the trial court found beyond a reasonable doubt that Powell was a major participant in the underlying robbery who acted with reckless indifference for human life. In evaluating the Clark factors for determining reckless indifference to human life (People v. Clark (2016) 63 Cal.4th 522, 617 (Clark)), the trial court concluded the evidence of Powell experiencing intimate partner violence - specifically, her knowing "first-hand" of her cohort's propensity for violence - supported a finding of reckless indifference to human life. (See Clark, at p. 621 ["A defendant's knowledge of factors bearing on a cohort's likelihood of killing are significant to the analysis of reckless indifference to human life"].) The court made no express findings regarding the expert's testimony that intimate partner violence could have diminished Powell's ability to perceive the situation as lethally dangerous. There is also no indication the trial court accounted for Powell's youthful age or the fact that she was a victim of human trafficking.
I disagree that intimate partner violence evidence should be used to show that a victim of intimate partner violence knew of their cohort's propensity to use lethal violence based on their personal experience of being abused. (See Clark, supra, 63 Cal.4th at p. 621.) In this case, the trial court's only direct evaluation of the intimate partner violence evidence appears to be a conclusion that because Powell suffered near-lethal harm at the hands of her cohort, she knew of the likelihood that he would kill their robbery victim. Notably, the trial court's consideration of the intimate partner violence evidence in this manner contradicted the expert's testimony as to the effects of intimate partner violence on victims. The trial court's treatment of intimate partner violence evidence - which, again, is generally understood as a mitigating circumstance - to increase an intimate partner violence victim's culpability is not an anomaly. (See, e.g., In re Harper (2022) 76 Cal.App.5th 450, 461 [highlighting that "petitioner had personal experience with [his cohort's] violent tendencies, having been the victim of [his] beatings" in evaluating the Clark factors].) As the Court of Appeal here noted, Evidence Code section 1107, relating to the admissibility of expert testimony on intimate partner violence, does not expressly contain any such guardrails precluding consideration of intimate partner violence evidence in this manner.
Because it is unclear how much weight the instant trial court gave to its consideration of the intimate partner violence evidence in supporting its finding of reckless indifference, and given the deferential standard of review on appeal, I do not vote to grant review. However, there are several mechanisms - such as a recall of sentence (Pen. Code, § 1172.1, subd. (a)(4)) and parole suitability consideration (Cal. Code Regs., tit. 15, § 2281, subd. (d)(5) [listing "Battered Woman Syndrome" as a circumstance indicating suitability for parole]) - that may serve to give just consideration to Powell's experience as a victim of intimate partner violence, as well as her youthful age and her experience as a victim of human trafficking. In any event, there remains a need for additional guidance on this issue - if not from the courts, from the Legislature.
I Concur:
LIU, J.