Opinion
E077461
08-23-2022
THE PEOPLE, Plaintiff and Appellant, v. RANDY ROLLINS, Defendant and Respondent
Jason Anderson, District Attorney, and Kevin N. Christensen, Deputy District Attorney, for Plaintiff and Appellant. The Law Offices of Aaron J. Schechter and Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Respondent
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FVI1200836 John M. Tomberlin, Judge. Affirmed.
Jason Anderson, District Attorney, and Kevin N. Christensen, Deputy District Attorney, for Plaintiff and Appellant.
The Law Offices of Aaron J. Schechter and Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Respondent
OPINION
RAPHAEL J.
A jury convicted defendant and respondent Randy Rollins of one count of first degree murder, among other charges and enhancements. After the verdict, but before Rollins was sentenced, the Legislature adopted Senate Bill No. 1437 (Senate Bill 1437) (Stats. 2018, ch. 1015), which amended California's murder statutes to eliminate certain theories of vicarious liability for murder. Rollins moved for a new trial on the basis of these statutory changes. The trial court granted his motion as to the murder count.
The People appeal, arguing that the motion for a new trial should have been denied in its entirety. But the argument that the People now propose as the basis for reversing the trial court's ruling was not raised in the trial court, and indeed it was not raised on appeal until the People's reply brief. As such, the argument is forfeited. In any event, on this record, we do not find the People's reasoning persuasive. We therefore affirm the trial court's ruling.
I. BACKGROUND
This case arises from the March 2012 robbery of a jewelry store at an indoor swap meet in Victorville, California, during which a person who worked at the swap meet was shot and killed. Rollins was not the shooter; his codefendant Larry Fradiue was tried and convicted of being the actual killer.
Rollins and Fradiue were tried together but had separate juries. Two other codefendants were tried separately. The judgment against Fradiue was affirmed on appeal. (People v. Walker (Apr. 10, 2017, D071097 [nonpub. opn.].)
Rollins was charged with special circumstances murder (§§ 187, subd. (a), 190.2, subds. (a)(17)(A) (robbery-murder) &(a)(22) (gang-murder), count 1), second degree robbery (§ 211, count 2), and active gang participation (§ 186.22, subd. (a), count 3), as well as gang and firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subds. (b)(c)(d) &(e)(1)). As to the murder charge, the jury was instructed on several theories of liability, including directly committing the crime, aiding and abetting, that the murder was a natural and probable consequence of the robbery, conspiracy to commit robbery, with murder as a natural and probable consequence of that robbery, and felony murder. The jury was instructed that any murder was murder in the second degree unless the People proved beyond a reasonable doubt that it was murder in the first degree as provided in certain jury instructions. Those instructions offered two theories of first-degree murder: (1) that it was willful, deliberate and premeditated, and (2) that it was felony murder.
At no point, however, did the prosecution argue that Rollins personally committed the murder, and it is undisputed that there is no evidence to suggest that he did. Rather, the prosecution argued for various theories as to which Rollins would be liable for murder even though Fradiue was the killer. The prosecution proposed two reasons why the murder was first degree murder: (1) Rollins was an aider and abettor to willful, deliberate, and premeditated murder, or (2) under the felony murder rule, because the murder was a natural and probable consequence of the robbery he participated in or conspired to commit.
In September 2014, the jury found Rollins guilty of first degree murder and thus did not return a verdict on the form provided them as to second degree murder. The jury otherwise found Rollins guilty as charged except for a not true finding on the section 190.2, subdivision (a)(17)(A) robbery-murder special circumstance. The verdict forms do not specify what theory or theories the jury relied on in finding Rollins guilty of first degree murder.
The People plausibly attribute this inconsistent verdict to an error in the verdict form for the robbery-murder special circumstance, which mistakenly asked whether the murder "was committed by Randy Rollins while the defendant was engaged in the commission of the crime of Robbery...." (Italics added.) The jury, of course, found that not to be true; there was no evidence that Rollins, rather than Fradiue, had personally killed the victim, and the prosecution had never argued otherwise. Nevertheless, because of the not-true finding, the robbery-murder special circumstance does not provide support for any inferences that might otherwise be drawn from that special circumstance.
In briefing, Rollins aptly describes the posttrial procedural history of this case as "highly unusual." We need not recount the details here. It is enough to note that, despite the September 2014 verdict, Rollins still had not been sentenced as of June 2021, when he filed the new trial motion at issue in this appeal. Rollins's new trial motion was based on the changes to the murder statutes enacted by Senate Bill 1437.
Both in the trial court and in this court, Rollins has framed his request for a new trial as a single, purely legal question, specifically, whether the jury's instructions and the resulting verdicts show that he was, or might have been, convicted of murder on a theory that is invalid after Senate Bill 1437. Rollins's motion did not expressly invoke Senate Bill 1437 but implicitly referred to it. The argument portion of the motion read, in full, as follows: "Mr. Rollins is entitled to a new [trial] based on changes to California Penal Code Sections 188 and 189." The points and authorities marshalled in support of that argument consist of a single case, cited without pin cite or parenthetical description, a copy of which was submitted as an attachment to the motion: People v. Thomas (2021) 64 Cal.App.5th 924 (Thomas). Although Thomas addressed several issues, the only one potentially relevant to this case is its holding that a motion for new trial is an appropriate avenue for a defendant who has been convicted, but not yet sentenced, to seek relief based on the statutory changes enacted by Senate Bill 1437, and thus such a defendant may be entitled to a new trial on the basis of those changes. (Thomas, supra, 64 Cal.App.5th at pp. 941-947.) Rollins's trial counsel's similarly laconic oral argument did not broaden the scope of the issues, but only asserted that the trial court was bound to follow Thomas under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
Rollins did not argue, for example, that the trial court should reexamine the evidence presented at trial, or any potential new evidence, to determine whether he was a "major participant" in the robbery who acted with "reckless indifference to human life," the minimum now required to sustain a felony murder prosecution under Penal Code section 189, subdivision (e)(3). On appeal, too, Rollins has argued that the trial court properly refrained from conducting "a Banks/Clark analysis" in determining whether a new trial should be granted.
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) provided the standards for analyzing whether the evidence establishes that a defendant was a "major participant" and acted with "reckless indifference to human life" for purposes of performing a substantial evidence review of felony-murder special circumstances findings, and the legislature "codified the understanding of those requirements" when it amended Penal Code section 189 to incorporate major participation and reckless indifference requirements. (See People v. Strong (Aug. 8, 2022) Slip Op. at p. 13.)
Over the People's opposition, the trial court granted Rollins's motion as to count 1 only, reasoning that a new trial was necessary so that a jury could determine whether "he was, in fact, a major participant or acted with reckless indifference."
II. DISCUSSION
A. Standard of Review
Generally, rulings on motions for new trial are reviewed for abuse of discretion. (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) Nevertheless, our review of purely legal issues in a new trial ruling is de novo. (E.g., Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 639-640.)
B. Analysis
Senate Bill 1437 "amend[ed] 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 the 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).) Senate Bill 1437 also created section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) The intent to kill theory of murder remains valid after Senate Bill 1437, and a felony-murder conviction remains valid if the defendant acted as a major participant with reckless indifference to human life, as that standard has been explicated by case law. Where a defendant may have been convicted on a felony-murder theory before Senate Bill 1437, that fact alone leaves it uncertain whether or not the defendant will qualify for retroactive relief under the changed law. (Compare People v. Hola (2022) 77 Cal.App.5th 362, 370 (Hola) [defendant qualified for relief because of "prosecution's singular reliance" on natural and probable consequences theory of murder rendered invalid by SB 1437] with People v. Law (2020) 48 Cal.App.5th 811, 825 [no retroactive relief because record demonstrated defendant "qualified as a major participant who acted with reckless indifference to human life under Banks and Clark"], review granted July 8, 2020, S262490.)
The People devote their opening brief on appeal to arguments that are without merit. First, the People argue that the trial court erred by granting the motion on the ground that any defendant who was "convicted of first degree murder" but not sentenced before Senate Bill 1437 was automatically entitled to a new trial. The People here mischaracterize the trial court's ruling. The trial court found that the record in this case did not show Rollins was convicted on a theory of murder that was unaffected by Senate Bill 1437, and the jury "never had an opportunity to make a determination and specify" whether Rollins qualified as a major participant who acted with reckless indifference to human life, which remains a valid basis for first degree felony murder under current law. The trial court found that, in such circumstances, Rollins "has a right to have that determination made by a jury of his peers," and therefore granted the motion for new trial as to the murder charge. This is a faithful application of the reasoning of Thomas, not an automatic reversal.
Second, in the opening brief, the People argue that the trial evidence demonstrates Rollins was a major participant in the robbery who acted with reckless indifference to human life under Banks and Clark. This argument, however, is essentially non-responsive to the question presented by Rollins's motion, and to the trial court's ruling. Rollins did not contend that the evidence was insufficient for him to be found to be a major participant who acted with reckless indifference to human life, an argument that would invoke section 1181, subdivision (6) ("When the verdict or finding is contrary to law or evidence...") as the basis for a new trial. Rather, his new trial motion raised the issue of whether the jury's instructions allowed him to be convicted on a theory of murder that is no longer valid after Senate Bill 1437; essentially a claim of instructional error under section 1181, subdivision (5). As the trial court recognized, the jury did not have the opportunity to express whether it found Rollins to be a major participant who acted with reckless indifference to human life.
By error, of course, we mean error only in light of Senate Bill 1437. (See Hola, supra, 77 Cal.App.5th at p. 375 ["A postconviction change in the law invalidating a prosecution theory is the equivalent of a trial error because it means the jury was instructed on a legally invalid theory"].) Rollins has not argued for a new trial on the ground that the instructions given were erroneous in some manner at the time of trial.
An argument that the People raise for the first time in their reply brief, which it also did not raise in trial court, is more to the point. Generally, however, an appellant "forfeits an issue by failing to raise it in his or her opening brief." (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115.) The People's appellate counsel candidly conceded at oral argument that the reason for failing to raise the argument in the opening brief is simply that the idea did not occur to him until the reply brief stage. Of course, "'[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.'" (Smith v. Anderson (1967) 67 Cal.2d 635, 646 (conc. opn. of Mosk, J.), quoting from Wolf v. Colorado (1949) 338 U.S. 25 (dis. opn. of Rutledge, J.).) It is questionable, however, whether it is appropriate for the People to benefit in this case from such belated wisdom: "'[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.'" (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.)
Nevertheless, we generally prefer to decide appeals on the merits where possible. (See People v. Chapman (1971) 5 Cal.3d 218, 225 ["it is the policy of the appellate courts to hear appeals on the merits, and avoid, wherever possible, forfeitures of substantial rights on technical grounds"].) Rollins was given the opportunity to file a sur-reply and to address the People's late-raised arguments at oral argument. We therefore turn to discussion of the merits of the People's belatedly raised argument. We conclude that, even if the People had not forfeited the argument, reversal would nevertheless be inappropriate.
Even if the jury's instructions permitted it to find Rollins guilty of first-degree murder on a theory of liability that was invalidated by Senate Bill 1437, "[r]eversal would not be warranted" if the error were harmless beyond a reasonable doubt. (Hola, supra, 77 Cal.App. 5th at p. 376, fn. 14; accord People v. Gentile (2020) 10 Cal.5th 830, 851, superseded by statute on another ground as stated in Hola, supra, at p. 369-370; People v. Birdsall (2022) 77 Cal.App.5th 859, 868.) This standard can be met, for example, by demonstrating that the jury based its verdict on a theory of liability that is valid. (People v. Stringer (2019) 41 Cal.App.5th 974, 984.)
The People effectively turn this standard of review upside down when they suggest that under Thomas a new trial "need only be granted where the defendant is clearly convicted under a now invalid murder theory." This out-of-context mischaracterization of a footnote in Thomas is unpersuasive. In Thomas, the court of appeal held that "the trial court erred when it denied Thomas's motion for a new trial under a belief [former] section 1170.95 [now section 1172.6] was his only remedy." (Thomas, supra, 64 Cal.App.5th at p. 947.) It further commented in a footnote that it was "evident" from the record that Thomas's motion should have been granted. (Id. at p. 947, fn. 7.) It did not hold that a convicted, but not yet sentenced defendant seeking relief under Senate Bill 1437 should be granted a new trial only where the record definitively establishes that the defendant was convicted on a theory that is now invalid.
The People argue that the record here establishes that the jury based its verdict on a theory of murder that remains valid, namely, directly aiding and abetting with intent to kill. It contends that such a conclusion necessarily follows from the jury's true finding on the gang-murder special circumstance.
Notably, the People conceded at oral argument that, but for the true finding on the gang-murder special circumstance, there is no way to tell whether the jury convicted Rollins of murder on a still-valid theory of murder.
The People's argument has substantial initial appeal. The jury was instructed, using language derived from CALCRIM No. 736, that to find the section 190.2, subdivision (a)(22) gang-murder special circumstance true, it had to find, among other things, that "[t]he defendant intentionally killed [the victim]." Taken in isolation, this instruction suggests the jury's true finding on the special circumstance equates not only to a finding of intent to kill, but also an active role in the killing.
Thus, at first glance, this case would seem to be distinguishable from People v. Pacheco (2022) 76 Cal.App.5th 118 (Pacheco), review granted May 18, 2022, S274102. In Pacheco, the court of appeal found that the jury's true finding on a section 190.2, subdivision (a)(22) special circumstance did not establish as a matter of law the defendant's liability for murder as a direct aider and abettor. (Pacheco, 76 Cal.App.5th at p. 128.) In Pacheco, the jury had been instructed that, to return a true finding, it had to find that the "'perpetrator'" had "'intentionally killed'" the victim, and also that ""'[t]he defendant had the intent to kill at the time of the killing.'"" (Id. at pp. 127-128.) The court reasoned that the jury's true finding on the special circumstance therefore demonstrated a finding that the defendant had intent to kill, but did not demonstrate a finding that the defendant did anything to directly "'aid, facilitate, promote, encourage, or instigate' the target crime of murder." (Id. at p. 128.) In other words, Pacheco might have harbored intent to kill, but nevertheless been convicted of murder only on an abrogated "natural and probable consequence theory," and not as a direct aider and abettor. (Ibid.) In contrast, the instruction in our case, requiring a finding that the defendant "intentionally killed" the victim, would seem to lead to a different conclusion.
It must be remembered, however, that in this case it was undisputed at trial, as it is now on appeal, that Rollins did not kill the victim, intentionally or otherwise. During closing arguments, the People acknowledged that "[w]e know [Rollins] was not the killer in this murder case." And, as the People state on appeal, "[n]o evidence during the entire trial pointed to [Rollins] as the man who personally killed [the victim]. All of the evidence pointed to Larry Fradiue being the actual killer ...." It is entirely plausible, therefore, that the jury understood the instruction requiring a finding that "[t]he defendant intentionally killed the victim" to mean only a finding that Fradiue intentionally killed the victim, and no finding at all regarding Rollins's intent, or at most a finding that Rollins shared Fradiue's intent to kill. Such a reading of the instruction was expressly encouraged by the prosecution's closing argument. When walking the jury through the gang-murder special circumstance instruction, the prosecutor flatly stated that the requirement that "the defendant intentionally killed" the victim was satisfied because "Larry Fradiue shot [the victim]."
In this context, moreover, the jury might well have looked elsewhere in its instructions, besides the instruction derived from CALCRIM No. 736, for what sort of mental state the People had to prove as to Rollins for the gang-murder special circumstance. And indeed the jury did receive a separate instruction expressly about Rollins's mental state, derived from CALCRIM No. 703: "If you decide that defendant Randy Rollins is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of Murder in the course of Robbery and/or Criminal Street Gang Murder, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life." This instruction brings this case within the scope of Pacheco. It similarly requires the jury to make a determination of Rollins's mental state with respect to the murder. But it does not necessarily require any finding regarding Rollins's actions; a true finding could follow from just "intent to kill." Applying the reasoning of Pacheco to such an instruction, there is nothing demonstrating that the jury must have found Rollins did anything to aid and abet the murder. As such, here as in Pacheco, there remains reasonable doubt as to whether the jury in fact convicted Rollins on a theory of murder that was not abrogated by Senate Bill 1437.
This instruction facially allows a "reckless indifference" mens rea finding, as an alternative to intent to kill, for the gang-murder special circumstance. But the jury also was instructed that "The instruction for each special circumstance explains the intent or mental state required." That instruction arguably directed the jury to the particular instruction on the gang-murder special circumstance, which required intent to kill.
We conclude that the People forfeited their argument, raised for the first time on reply, that the jury's instruction on the gang-murder special circumstance demonstrates Rollins was convicted on a theory of murder that remains valid after Senate Bill 1437. In the alternative, we conclude that the People's belated argument is unpersuasive. On this record, it cannot be determined beyond a reasonable doubt that the jury's decision to convict Rollins of murder rested on still-valid grounds. As such, the trial court's decision to grant Rollins's motion for new trial as to that count was correct.
III. DISPOSITION
The order granting Rollins a new trial as to count 1 is affirmed.
WE CONCUR: MILLER ACTING P. J., MENETREZ J.