Opinion
B307031
02-24-2021
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE LEE SANDERS Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA094940) APPEAL from an order of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Freddie Lee Sanders appeals from a postjudgment order summarily denying his petition for resentencing under Penal Code section 1170.95. No arguable issues have been identified following review of the record by Sanders's appointed appellate counsel or by Sanders in his supplemental brief to this court. We affirm.
Statutory references are to this code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
On the evening of October 8, 1998 three Blood Street gang members were pulled over by the police, and the car was impounded because the driver did not have a license. The gang members, all wearing the red color associated with their gang, were forced to walk near a rival gang area. As they were walking, a green Cadillac driven by David Livingston, a member of the rival Park Village Crips gang, drove by with two male passengers. The car then returned with Livingston in the passenger seat. Livingston fired seven or eight shots from an assault rifle, and one of the bullets hit a bystander in the leg.
The summary of facts is drawn from our nonpublished opinion in People v. Sanders (Jan. 17, 2012, B220328) (Sanders II).
Later that evening the green Cadillac arrived at the Wilmington Arms apartment complex, with Darrell Brown in the driver's seat, Livingston in the front passenger seat, and Sanders in the back seat. Sanders and Brown lived at the complex, and Livingston frequently visited. Sanders was a member of the Park Village Crips gang. A security guard saw the vehicle enter the complex. When police officers arrived a short time later to investigate the shooting, the security guard directed them to the green Cadillac. The next day Livingston approached the guard shack and threatened to kill the guard who had directed the police officers to his car.
A few days before January 2, 1999, a resident of the Wilmington Arms complex overheard Sanders and Livingston talking. Livingston said to Sanders, "Just don't be a punk." "Are you down to shoot them, Mother Fuckers?" "Are you down? Are you just a little punk." "Fuck them at the gate [or] 'front.'" Sanders did not verbally respond to Livingston's comments.
Later that evening, witnesses saw a group of men including Sanders and Livingston enter and exit the complex in Livingston's green Cadillac several times. Around 11:30 p.m. two witnesses overheard a loud argument near the guard shack. They saw Sanders, Livingston, and a third male standing near the green Cadillac parked near the guard shack. Livingston and the third male were yelling into the guard shack, "Fuck you, motherfucker, we'll get you later." Sanders responded, "No, man, not right now," and "Come on. Let's go. We'll do it later." The three got in the Cadillac and drove away.
In our opinion we described the person who said they should leave and "do it later" as "[t]he other African-American male," but the record reflects one of the witnesses identified the male as Sanders. For purposes of our review, it does not matter whether the speaker was Sanders or another male.
At approximately 5:00 the next morning four security guards for the complex were inside the guard shack. One of the guards, Rudolpho Bombarda, heard someone say "Mother fucker," he looked up, and he saw Livingston pointing an assault rifle at him. Livingston then began firing and shot Bombarda six times. Bombarda was able to return fire and survived. Livingston fired approximately 15 rounds at the four security guards, killing two of the guards and blinding a third. Witnesses saw Sanders standing with another man facing the guard shack, and then Sanders ran away from the scene. B. Sanders's Convictions and Appeals
In 2000 the jury convicted Sanders of two counts of second degree murder (§ 187, subd. (a)) and two counts of attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664). The jury found true the allegations Sanders was armed with a firearm in the commission of the offenses (§ 12022, subd. (a)(1)) and the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury also found true the lying-in-wait and multiple-murder special-circumstance allegations (§ 190.2, subd. (a)(3) & (15)). The jury also convicted Sanders with respect to an unrelated May 1999 robbery of two counts of second degree robbery and two counts of assault with a firearm and found the firearm enhancement allegations true. The trial court imposed an aggregate sentence of 55 years to life in state prison. (Sanders II, supra, B220328.)
In his first appeal, we reversed the convictions and sentences, concluding the murder and attempted murder counts were erroneously joined with the May 1999 robbery and assault counts. (See People v. Sanders (July 17, 2002, B142864) [nonpub. opn.] (Sanders I).) Sanders later entered a no contest plea to two counts of robbery based on the May 1999 crimes and was sentenced to 10 years in state prison.
In 2008 Sanders was again charged with two counts of murder and two counts of attempted willful, deliberate, and premeditated murder based on the January 1999 shooting. The jury deadlocked, and the trial court declared a mistrial. After a third trial in 2009 the jury convicted Sanders of two counts of second degree murder and two counts of attempted willful, deliberate, and premeditated murder. As to all counts, the jury found true that a principal personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (c), (d), & (e)(1)) and the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court sentenced Sanders to 30 years to life for the murders and two consecutive life sentences for the attempted murders.
In 2012 we affirmed the convictions but vacated the sentence and remanded the matter for resentencing because the trial court imposed a longer sentence for the guard shack shootings than the court had imposed for the same shootings in 2000. (Sanders II, supra, B220328.) C. Sanders's Petition for Resentencing
On January 3, 2019 Sanders, representing himself, filed a form petition for resentencing under section 1170.95 and requested the court appoint counsel for him. In his petition Sanders declared he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189 effective January 1, 2019; he was not the actual killer; he did not, with the intent to kill, aid or abet the actual killer in the commission of first degree murder; and he was not a major participant in the underlying felony and did not act with reckless indifference to human life during the course of the felony.
The superior court appointed counsel for Sanders. The People filed an opposition to Sanders's petition in which they argued Sanders was ineligible for relief as a matter of law. The People argued, "[T]he People proceeded under two theories of liability. As a non-shooter (non-actual killer), Sanders was alleged, via the jury instructions, to have aided and abetted . . . Livingston commit the crimes of murder and attempted murder. . . . Notably, the concept of natural and probable consequences was not included in the instructions related to aiding and abetting, and he was never alleged to have aided in the commission of a lesser target offense that resulted in the charged crimes. . . . [¶] He was also informally alleged to have been a co-conspirator. . . . Specifically, Sanders was alleged to have conspired to . . . commit the crime of murder. . . . The defendant was not alleged to have conspired to commit another target offense and the jury was not instructed that they could convict the defendant of murder if murder was the natural and probable consequences of any designated target offense. Accordingly, the jury could only convict Sanders of murder or attempted murder under the conspiracy theory if the jury found that he specifically conspired to commit the crime of murder."
The People also argued in a separate brief that Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was unconstitutional. Sanders filed a response in which he argued that Senate Bill 1437 was constitutional, and a reply brief in which he argued he had made a prima facie showing of eligibility for relief.
After reviewing the petition, the jury instructions, other documents in the court file, and the parties' briefing, on July 24, 2020 the superior court summarily denied Sanders's petition. The court found Sanders had not established a prima facie basis for relief as a matter of law, explaining, "Petitioner was convicted [of] two counts of murder and . . . two counts of attempted murder. There was compelling evidence that petitioner conspired with others and was definitely aware of the attack prior to the shooting. [¶] Petitioner directly and explicitly aided and abetted as he was the 'lookout' at an ambush shooting where the shots were fired killing the victims. Petitioner clearly harbored an intent to kill because he was present when the attack was planned and knew the shooter's plan and stayed right there as the shooter fired multiple times. Again, the prosecution's theory at trial was that petitioner conspired to commit murder (not a[] lessor felony); that he aided and abetted the crime of murder; and the prosecution did not argue that the jury should find that the murder was a 'natural and probable consequence' of the other criminal conduct. The jury's verdict reflects a factual finding that they agreed with the theory and the evidence was compelling to support that verdict. . . . [¶] . . . There was no evidence that [petitioner] was 'surprised' that the shooting occurred. Petitioner fled the scene with the other assailants after the shooting. There is no[] reference[] in petitioner's filings to any evidence, probability/possibility that the jury did not find that petitioner possessed the requisite intent for murder. There is nothing in the record to suggest that the jury wavered in their findings. [¶] The evidence in this case show[s] that petitioner acted as 'lookout' when the shooter slaughtered the victims in this case. Petitioner also fled the [scene] afterward and hid out with the other suspects."
DISCUSSION
A. Senate Bill 1437
Senate Bill 1437, effective January 1, 2019, 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." (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 1; see People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile); People v. Verdugo (2020) 44 Cal.App.5th 320, 325 (Verdugo), review granted Mar. 18, 2020, S260493.)
To accomplish this purpose, the Legislature added section 188, subdivision (a)(3), and section 189, subdivision (e). (Gentile, supra, 10 Cal.5th at pp. 842-843.) New section 188, subdivision (a)(3), effectively "eliminates natural and probable consequences liability for murder regardless of degree." (Gentile, at pp. 847-848.) 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), in turn, limits the exception to the malice requirement under the felony-murder rule to circumstances where the People prove the defendant "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."
New section 189, subdivision (e), provides, "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs 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 1437 also provides a procedure in new section 1170.95 for 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 be resentenced on any remaining counts if he or she could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4; see Gentile, supra, 10 Cal.5th at p. 847.) "If the petition contains all required information, section 1170.95, subdivision (c), prescribes a two-step process for the court to determine if an order to show cause should issue: '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, review granted; accord, People v. Perez (2020) 54 Cal.App.5th 896, 903, review granted Dec. 9, 2020, S265254; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165; People v. Tarkington (2020) 49 Cal.App.5th 892, 900-901 (Tarkington), review granted Aug. 12, 2020, S263219; but see People v. Cooper (2020) 54 Cal.App.5th 106, 123 , review granted Nov. 10, 2020, S264684 [once the trial court determines the petition contains the required information, the court performs a single prima facie review, and if the defendant makes a prima facie showing of entitlement to relief, the court issues an order to show cause].) B. Sanders Did Not Make the Required Prima Facie Showing of Entitlement to Relief
In accordance with the procedures described in People v. Cole (2020) 52 Cal.App.5th 1023, 1038, review granted Oct. 14, 2020, S264278, we appointed counsel to represent Sanders on appeal. After reviewing the record, counsel filed a brief raising no issues. On October 21, 2020 we notified Sanders he had 30 days to submit a brief or letter raising any grounds of appeal, contentions, or arguments he wanted the court to consider. On January 7, 2021 we received a 75-page supplemental brief, including exhibits, in which Sanders argued he had made a prima facie showing of eligibility for relief, noting the jury instruction on conspiracy referred to the natural and probable consequences doctrine.
Sanders also contends his case should be remanded to strike the firearm enhancement based on the discretion provided under section 12022.53, subdivision (h). Because Sanders's case became final before the effective date of section 12022.53, subdivision (h), he is not entitled to relief under this statute. (People v. Zamora (2019) 35 Cal.App.5th 200, 207; see In re Estrada (1965) 63 Cal.2d 740, 742.)
The superior court properly concluded Sanders was ineligible for relief as a matter of law because he harbored the intent to kill and was convicted as a direct aider and abettor. As the superior court noted, Sanders was not charged with an underlying target offense. And, as we explained in Sanders I, "The Drive-by Shooting incident disclosed the motive and intent for the subsequent deadly attack on the guards. Livingston was angry with the guards and threatened retaliation against them because a guard assisted the Compton police in locating Livingston's Cadillac, which had been identified as the car involved in the drive-by shooting. . . . [Sanders's] knowledge of the incident and his knowledge of the guard's role in assisting the police may be reasonably inferred because Sanders was seen in the Cadillac by the security guard shortly after the drive-by shooting before the police arrived to impound the vehicle." Further, "Sanders was not an innocent by-stander outside the guard shack at the time of the fatal shootings, and instead, Sanders was present because he knew the guard had cooperated with police and because Sanders intended to lend aid and support to Livingston's plan to seek revenge against the guards." (Sanders I, supra, B142864.) Sanders then fled the scene with his confederates.
"A court of appeal opinion, whether or not published, is part of the appellant's record of conviction." (Verdugo, supra, 44 Cal.App.5th at p. 333, review granted; accord, Tarkington, supra, 49 Cal.App.5th at p. 899, fn. 5, review granted.) --------
Contrary to Sanders's contention, the jury was not instructed that Sanders could be convicted of murder based on the natural and probable consequences doctrine. The trial court instructed the jury, "A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime of a co-conspirator to further the object of the conspiracy, even though that crime was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of that crime or act." As we noted in Verdugo, supra, 44 Cal.App.5th at page 336, review granted, although the conspiracy instruction mentions the natural and probable consequences doctrine, where the defendant is not charged with a conspiracy to commit a lesser crime that resulted in murder, this language would not support a conviction of murder based on the natural and probable consequences doctrine. We relied on the Supreme Court's holding in People v. Beck and Cruz (2019) 8 Cal.5th 548, 645, in which similar conspiracy language was used, explaining the defendants there "'were charged with conspiracy to murder, not conspiracy to commit a lesser crime that resulted in murder. There is thus no possibility they were found guilty of murder on a natural and probable consequences theory.'" (Verdugo, at p. 336, quoting Beck and Cruz, at p. 645.)
Because no cognizable legal issues have been raised by Sanders's appellate counsel or by Sanders, the order denying the section 1170.95 petition must be affirmed. (See People v. Cole, supra, 52 Cal.App.5th at p. 1040, review granted; see also People v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Sanders's petition is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.