Opinion
E072769
05-26-2020
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL DECARLO SAPP, Defendant and Appellant.
Christopher Love, 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, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF114377) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed. Christopher Love, 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, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
In 2005, a jury found defendant and appellant Nathaniel Decarlo Sapp guilty of first degree murder. (Pen. Code, § 187, count 1.) The jury also found two felony-murder special circumstances true—that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and a carjacking (§ 190.2, subd. (a)(17)(L)). The jury found not true the allegation that defendant personally used a deadly and dangerous weapon to commit the murder. (Former § 12022, subd. (b)(1), § 1192.7, subd. (c)(23).) (People v. Sapp (June 26, 2007, E040320) [unpub. opn.].) A trial court sentenced him to life in prison without the possibility of parole. Defendant filed a petition for resentencing under section 1170.95, which the court summarily denied.
All statutory references are to the Penal Code, unless otherwise noted.
On August 2, 2019, this court granted defendant's request to take judicial notice of our prior unpublished opinion in People v. Sapp, supra, E040320. We also reserved ruling for consideration with this appeal on his request to take judicial notice of the respondent's brief that was filed in case No. E040320. We now deny that request.
On October 16, 2019, the People filed a request to take judicial notice of the appellate record of our own case file for case No. E040320. We reserved ruling for consideration with this appeal and now deny that request as unnecessary.
Defendant filed a timely notice of appeal. We reverse and remand.
FACTUAL BACKGROUND
This background is a shortened version of the statement of facts, as recited in our unpublished opinion, People v. Sapp, supra, E040320:
"During the evening of Saturday, January 10, 2004, Joshua Vaughn discovered a body, later identified as the body of John Edward Young, in the parking lot of the Newport Apartments on Banbury near the 91 freeway in Riverside. Vaughn, a resident of the apartment complex, discovered the body as he left his apartment around 8:30 p.m. that evening. Young was lying on the grass, causing Vaughn to initially think he was drunk. When Vaughn turned on the headlights of his car and illuminated Young's body, he saw there was blood on the lower half of Young's shirt. Vaughn returned to his apartment and called 911. He did not see anyone in the vicinity of the body. [¶]
"At 8:44 p.m., Officer Chris Williams responded to a 'subject down' call at the apartment complex. Vaughn directed Officer Williams to Young's location on a grassy area. Young was positioned on his left side and was holding a cell phone in his left hand. The lower half of his shirt was soaked with blood from the shoulder to the waist. Fire department personnel rolled Young onto his back and pronounced him dead. It appeared he had been stabbed.
"Officer Williams notified his supervisor and set up a crime scene perimeter with police tape. Eight to ten officers then searched the area for possible weapons, including a knife. No weapons or knife were found. [¶] . . . [¶]
"[Forensic pathologist] Dr. [Mark] Fajardo opined that death occurred more than 15 minutes, but less than one hour, after the stabbing. The wounds were consistent with evidence the stabbing occurred near a cable room at the apartment complex and then Young walked to the place where he died. Prompt medical attention could have saved Young's life. Toxicologist testing of Young's blood indicated he had a blood alcohol level of .19 percent or .20 percent at the time of death. [¶] . . . [¶]
"Riverside Police Officer Daniel Warren was on patrol during the early hours of Monday, January 12. He had been told to look for a silver Mustang, detain the driver, and notify detectives. Shortly after midnight, Officer Warren saw a silver Mustang being driven into the Motel 6 parking lot on La Sierra.
"As Officer Warren was running a computer check on the license number of the Mustang, defendant got out of the car. The headlights of the car were still on, so Officer Warren called to defendant that his lights were on. Defendant returned to the car, giving Officer Warren time to run a second computer check. Defendant then walked to the driver's door of Officer Warren's patrol car. After running the second computer check, Officer Warren discovered that the Mustang was the subject of a homicide investigation. Officer Warren got out of his patrol car, handcuffed defendant, placed him in the back of his patrol car, and called for backup. Defendant was cooperative. [¶] . . . [¶]
"[Lannell] Galloway [testified he] went for a ride with defendant on Sunday. They picked up [Khalif] Roberts and drove to Moreno Valley. Then they went to Colton to see Galloway's friend Meeker. They stayed at Meeker's home for several hours before going home. Roberts became drunk. He was tipsy when they were at Meeker's. Defendant and Roberts dropped Galloway off at the Smoketree Apartments between 11:00 p.m. and midnight. [¶]
"Galloway further testified that, while they were driving to Meeker's, defendant said something about stabbing. He said something like, 'whatever it takes, he'll [defendant will] stab anyone.' Galloway believed defendant meant he would stab anyone who tried to mess with his friends. Before trial, Galloway told Detective Fuentes that defendant said he would 'stab anyone to get what he wants.' But Galloway also told Detective Fuentes he did not take defendant's statement seriously. At trial, Galloway testified he did not think defendant meant he would stab anyone to get what he wanted. He also denied telling Detective Fuentes that defendant said he used a screwdriver to do a stabbing. Galloway testified that defendant is a 'crazy guy' and says funny things sometimes. [¶]
"Detective Shumway interviewed defendant at the police station on January 12, and recorded the interview on videotape and audiotape. After discussing some preliminary matters, Detective Shumway told defendant that the owner of the Mustang had been found dead. He asked defendant why he initially told Detective Shumway he got the Mustang from his grandfather. Defendant said he lied because he was on parole and he did not realize anyone had been hurt. He said he got the car from Galloway. [¶] . . . [¶]
"Finally, defendant admitted he had not been telling the truth. He told Detective Shumway that, after smoking marijuana and drinking alcohol, he began to walk to Roberts's apartment early Saturday evening. Taking a shortcut, he jumped the gate at the Newport Apartments on Banbury. There, he heard a scuffle and saw a man being robbed. The robber saw defendant and ran away. Defendant described the robber as a Black man, a little older and taller than defendant. Defendant is six feet tall and, as noted, was 18 years old in January 2004.
"Defendant said the robbery victim sat on the grass, keys in one hand, wallet in the other, and looked stunned. He saw nothing wrong with the man and saw no blood on him. He snuck up to the man, snatched his car keys, and ran. He could tell they were Mustang keys because they said Ford and had a little horse on them. He had already walked past a Mustang parked in front of the apartment complex. After taking the keys, defendant jumped a wall and waited to see if the man called the police. He returned a short time later and took the Mustang. He could not get it out of park because he did not know how to drive it. He had to ask a passerby how to get the car out of park. [¶] . . . [¶]
"After defendant was arrested, investigators examined his body and found cuts and abrasions on his hand. Dr. Fajardo, the prosecution's forensic pathologist, opined that photos taken of defendant's hand on January 12 depicted wounds that were fresh, with no scabs, and not more than 36 hours old. Thus, defendant could have suffered the wounds around 8:30 p.m. on January 10, the approximate time Young was killed. The wounds were inconsistent with having been suffered five days to two weeks before the photos were taken."
ANALYSIS
The Court Improperly Denied Defendant's Petition
Defendant argues that the court erred in summarily denying his section 1170.95 petition since the denial was based on the court's mistaken belief that he was the actual killer. We agree.
A. Relevant Law
On September 30, 2018, the Governor signed Senate Bill 1437. (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723.) "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (Id. at p. 722-723.) "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.'" (Id. at p. 723.)
"Section 1170.95 permits 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 . . . .' [Citation.] An offender may file a petition under section 1170.95 where all three of the following conditions are met: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' [Citation.] A trial court receiving a petition under section 1170.95 '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.' [Citation.] If the petitioner has made such a showing, the trial court 'shall issue an order to show cause.' [Citation.] The trial court must then hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been [sic] sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' " (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417 (Gutierrez-Salazar); see § 1170.95.)
B. Procedural Background
On January 7, 2019, defendant filed a petition for resentencing under section 1170.95 in the superior court and requested the court to appoint counsel to assist him. The People filed a response on March 11, 2019, arguing that Senate Bill No. 1437 was unconstitutional and that defendant's petition should be summarily denied because he was the actual killer. The People alleged that, as demonstrated by this court's prior unpublished opinion, defendant stabbed the victim three times, then took his vehicle. Therefore, since defendant was the actual killer, he could not make a prima facie showing for relief under section 1170.95.
On March 26, 2019, defendant filed a letter with the court, again requesting appointment of counsel.
The court held a hearing on April 19, 2019. A deputy public defender represented defendant, and he informed the court he had not yet filed a reply. He requested a 90-day stay. The prosecutor informed the court that a jury found the robbery and carjacking special circumstances true and that the jury was given CALJIC 8.80.1, meaning that it had to find that defendant had the intent to kill or was a major participant who acted with reckless indifference to human life. The prosecutor then told the court that it "looks like he was the actual killer who stabbed the victim." The court asked if there were any codefendants in this case, and the clerk said there were none listed. The court proceeded to summarily deny the petition.
CALJIC 8.80.1 provides, in part: "If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true . . . unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted . . . or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted . . . or assisted in the commission of the crime . . . ."
C. Defendant Was Not the Actual Killer
Defendant contends, and the People concede, that he was not the actual killer. As such, the court erred in summarily denying the petition on that ground. The court gave no alternative reason for ruling defendant was ineligible for resentencing as a matter of law. Therefore, the matter should be remanded for the court to determine whether defendant has made a prima facie showing that he falls within the provisions of section 1170.95.
The People argue that remand would be futile, since the jury found the robbery and carjacking special circumstances true, which means the record established that defendant either harbored the intent to kill, or he was a major participant in the robbery and carjacking and acted with reckless indifference to human life. The People's argument relies exclusively on the jury's special-circumstances findings, treating those findings as if they resolved key disputed facts. However, although the special-circumstances findings rendered in 2005 indicate that the jury concluded defendant either acted with the intent to kill, or was a major participant who acted with reckless indifference to human life in the murder of the victim, those jury findings alone do not preclude him from showing today that he could not be convicted of first or second degree murder, as redefined by Senate Bill No. 1437. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179 (Torres).) Defendant argues, and we agree, that our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), clarifying what it means for an aiding and abetting defendant to be a "major participant" in an underlying felony and to act with "reckless indifference to human life," construed section 190.2, subdivision (d) in a significantly different manner than courts had previously construed the statute. (Torres, at p. 1179.)
Accordingly, we cannot simply defer to the jury's pre-Banks and Clark factual findings that defendant was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time. (Torres, supra, 46 Cal.App.5th at p. 1179.) We note that subsequent courts have determined that a felony murder aider and abettor sentenced to life in prison pursuant to special-circumstance findings is entitled to retroactive consideration of the factors announced in Banks and Clark. (See In re Miller (2017) 14 Cal.App.5th 960, 966-967, 977-978 [granting habeas petition and vacating robbery-murder special circumstance]; In re Bennett (2018) 26 Cal.App.5th 1002, 1006-1007 [granting habeas petition and vacating robbery-murder special circumstance in consideration of Banks and Clark factors without discussing retroactivity].)
Therefore, because the court erred in summarily denying defendant's petition on the ground that he was the actual killer, we reverse and remand the matter. On remand, defendant may file a reply to the People's response, and the court must consider the Banks and Clark factors in determining defendant's eligibility for relief pursuant to section 1170.95. (Torres, supra, 46 Cal.App.5th at p. 1180.) We express no opinion on the issue of whether the evidence, when considered in light of Banks and Clark, would be sufficient to sustain the special circumstances under current law.
DISPOSITION
The order denying defendant's petition is reversed. The matter is remanded with directions to proceed consistently with the views expressed herein.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: FIELDS
J. MENETREZ
J.