Opinion
E076694
09-20-2022
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL DECARLO SAPP, Defendant and Appellant.
Aaron Spolin and Caitlin E. Dukes for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF114377 John D. Molloy, Judge. Reversed with directions.
Aaron Spolin and Caitlin E. Dukes for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
Defendant and appellant, Nathaniel DeCarlo Sapp, filed a petition for resentencing pursuant to Penal Code former section 1170.95, which the superior court summarily denied. (See Sapp II, supra, E072769.) Defendant appealed. We reversed and remanded the matter for reconsideration. (Ibid.)
All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
On July 29, 2021, we granted defendant's request for judicial notice of this court's nonpublished opinions in People v. Sapp (June 26, 2007, E040320) [nonpub. opn.] (Sapp I), from defendant's appeal from the judgment, and People v. Sapp (May 26, 2020, E072769) [nonpub. opn.] (Sapp II), from his appeal of the initial denial of his former section 1170.95 petition. (Evid. Code, § 459.)
On remand, the superior court reconsidered the matter and, again, denied defendant's petition. Defendant appeals, again contending the court erred in denying his petition. We reverse and remand the matter for an evidentiary hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 10, 2004, the victim's body was found in an apartment building parking lot. He had been stabbed multiple times; the victim died between 15 minutes and an hour after being stabbed. Prompt medical attention could have saved his life. (Sapp II, supra, E072769.)
Two days later an officer saw defendant get out of the victim's car. An associate of defendant testified that defendant had said something about a stabbing; defendant said he would do whatever it takes to get what he wants, including stabbing someone. (Sapp II, supra, E072769.)
During an interrogation, defendant told an officer he was "sneaking in between the cars, intending to 'rob' and 'victimize' the robbery victim." (Sapp I, supra, E040320.) Defendant said he saw the victim robbed by someone else; the victim was lying in the grass with his keys and wallet looking stunned. Defendant said he did not see any blood on the victim. Defendant said he took the victim's keys and drove off in the victim's car. (Ibid.) The court instructed the jury on felony murder. (Ibid.)
On December 29, 2005, a jury found defendant guilty of first degree murder (§ 187, subd. (a)). The jury further found true two felony-murder special-circumstance allegations: that defendant committed the murder while engaged in the crimes of robbery (§ 190.2, subd. (a)(17)(A)) and carjacking (§ 190.2, subd. (a)(17)(L)). The jury also found not true an allegation that defendant personally used a knife in the commission of the murder. (§ 12022, subd. (b)(1).) The court sentenced defendant to life without parole. (Sapp II, supra, E072769.)
On January 7, 2019, defendant filed a petition for resentencing pursuant to former section 1170.95, requesting appointment of counsel. On March 11, 2019, the People filed opposition to defendant's petition in which they argued, in pertinent part, that based on the facts recited in this court's opinion in Sapp I, supra, E040320, defendant was the actual killer. On March 26, 2019, defendant filed a letter again requesting appointment of counsel. (Sapp II, supra, E072769.)
On April 19, 2019, the court held a hearing at which a deputy public defender appeared on behalf of defendant; counsel requested a 90-day stay to file a reply to the People's opposition. The People informed the court that the jury had found true two special murder circumstances, and it appeared defendant "'was the actual killer who stabbed the victim.'" (Sapp II, supra, E072769.) The court asked if there were any codefendants in the case; the clerk said there were not. The court summarily denied the petition. (Ibid.)
On appeal from the denial, defendant contended, and the People conceded, that defendant was not the actual killer, and the court erred in denying the petition on that ground. Nonetheless, the People argued that remand would be futile because the jury's findings on the special murder circumstance allegations meant the jury had concluded, at minimum, that defendant was a major participant who acted with reckless indifference to human life, rendering him per se ineligible for former section 1170.95 relief. (Sapp II, supra, E072769.)
We held that since the parties agreed that defendant was not the actual killer, and that the superior court gave no other reason for denying the petition, the matter should be reversed and remanded for reconsideration. (Sapp II, supra, E072769.) We also held that since the special murder circumstance findings had been rendered prior to the decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), they did not render defendant per se ineligible for former section 1170.95 relief. (Sapp II, supra, E072769.) Thus, we reversed the order and remanded the matter to the court with directions to consider the Banks and Clark factors in determining defendant's eligibility for relief pursuant to former section 1170.95. (Ibid.)
At the hearing on remand on February 23, 2021, the court noted that this court had "changed their position and has suggested that the appropriate remedy for a Banks-Clark challenge is not a [former section] 1170.95 motion, but rather a writ of habeas corpus. Be that as it may, I have directions directly from the Court of Appeals specifically telling me that I shall do a Banks-Clark type analysis in determining whether or not to summarily deny the petition pursuant to [former section] 1170.95. I think under these circumstances, I am obliged to do precisely what the Court of Appeals has told me to do, notwithstanding the fact that the very same Court of Appeals has now changed their position with respect to what to do with a pre-Banks, pre-Clark special felony-murder, special true finding."
The People argued that they did not have to prove beyond a reasonable doubt the Banks and Clark factors had been met, but only had to prove there was sufficient evidence to sustain the jury's findings with respect to the Banks and Clark factors. Defense counsel argued the court should issue an order to show cause and conduct an evidentiary hearing on the Banks and Clark factors.
The superior court indicated that it had read the People's request for summary denial of the petition, attached to which were our opinions in Sapp I and Sapp II. In addition, the court indicated it had read defense counsel's reply to the People's request for summary denial. The court asked if the People wished to be heard further.
From the way these pleadings are discussed, we assume they were filed after we remanded the case. Nonetheless, neither the request for summary denial nor the reply are part of the record on appeal.
The People again argued that the court should not apply a beyond a reasonable doubt standard of proof. The People maintained "there is more than ample circumstantial evidence and reasonable inferences to be drawn from the circumstantial evidence that support the jury's finding that the defendant was a major participant." The People contended the evidence showed defendant took the victim's personal property, car keys, and car; thus, he was a major participant. As to reckless indifference, the People noted that defendant did not do anything to help the victim, stole his property, and left the victim to die: "the defendant knew that the victim had been stabbed and really didn't give one whit about whether the victim lived or died."
Defense counsel argued that the "identity of the alleged coparticipant is unknown as of today. Yes, the jury concluded that it was this coparticipant [who] committed the actual stabbing of the victim which caused the death. . . . [¶] . . . [¶] . . . The jury found that [defendant] did not stab the victim, and there was no conviction beyond a reasonable doubt that he did." Defense counsel maintained there was no evidence defendant had any role in supplying the weapon or any awareness of the coparticipant's likelihood of killing. Moreover, defense counsel contended the knife used was "very small . . ., which suggests that there was a very low likelihood of killing."
The superior court adopted "as the facts for this case pages 1 through 10 of the Court of Appeals' decision," in Sapp I, supra, E040320. The court concluded that "it's abundantly clear that [defendant] is indeed a substantial participant." The court also noted: "I don't think there was any evidence that was ever proved that it was indeed a codefendant case. There was no evidence supporting another person other than the testimony-or the statements of [defendant] himself . . . ." The court noted that only defendant ended up with any of the victim's possessions; any other possible coparticipants were not apparently interested in anything belonging to the victim. The court found defendant's contention that he did not see the victim bleeding "absolutely unbelievable," and said, "[t]he facts overwhelmingly support that he was a major participant."
The victim was found with two wallets on his person; one contained $1,171; the other contained a driver's license, eight credit cards, a gift card, and an ATM card. The victim was also wearing a wristwatch. (Sapp I, supra, E040320.)
There was a 100-yard trail of blood spots in the parking lot, which led to where the officer found the victim's body. (Sapp I, supra, E040320.)
The superior court concluded that either defendant watched the victim get stabbed or defendant was the actual killer. Moreover, the court found defendant had ample opportunity to aid the victim but chose not to do so. "There is overwhelming evidence the defendant was a major participant. There is overwhelming evidence, even if you believed this ridiculous story, that he acted with a reckless disregard for the life of the victim. There is ample evidence to support a post-Banks-Clark analysis supporting the finding of the felony-murder special circumstances; and for that reason, the defendant is not eligible for relief under [former section] 1170.95, and the petition is denied."
II. DISCUSSION
Defendant contends the superior court erred in concluding he was a major participant in the robbery acting with reckless indifference for human life. In their brief, the People responded that the jury's true findings on the two special circumstance murder allegations alone rendered defendant ineligible for former section 1170.95 relief.
On May 4, 2022, we issued a tentative opinion proposing to affirm the judgment on the basis that defendant was per se ineligible for relief because the jury had found true findings on two special murder circumstances. Thereafter, shortly before oral argument, the California Supreme Court decided People v. Strong (2022) 13 Cal.5th 698 (Strong), in which it held that special murder circumstance findings rendered prior to both Banks and Clark, alone, do not preclude defendants "from making out a prima facie case for resentencing under section 1172.6." (Strong, at p. 721.) At oral argument, the People conceded that the matter must be reversed and remanded because the special circumstance findings no longer rendered defendant prima facie ineligible for relief and because the court below engaged in factfinding prior to the issuance of an order to show cause and the holding of an evidentiary hearing. We agree and remand the matter for the issuance of an order to show cause and the holding of an evidentiary hearing.
"Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.'" (Strong, supra, 13 Cal.5th at pp. 707-708.) "Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. [Citations.] Under newly enacted section 1172.6, the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citations], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 [citation]." (Id. at p. 708, fn. omitted.)
"When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, supra, 13 Cal.5th at p. 708.)
"While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for . . . relief, the prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, '"the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Ibid.)
The Legislature amended former section 1170.95 effective January 1, 2022. (Stats. 2021, ch. 551, § 2.) "The amendment . . . codifies certain holdings in Lewis . . . ." (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2.)
Where a defendant's "case was tried before both Banks and Clark, . . . special circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6." (Strong, supra, 13 Cal.5th at p. 721.) A court "err[s] in concluding otherwise." (Ibid.)
If, instead, a defendant has made a prima facie showing of entitlement to relief, "'the court shall issue an order to show cause.'" (Strong, supra, 13 Cal.5th at p. 708.) Once the court determines that a defendant has made a prima facie showing, "the court must [then] hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill 1437. [Citation.] 'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Id. at p. 709.) "Senate Bill 1437 relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life . . . .'" (Id. at p. 710.)
Here, the jury rendered the special murder circumstance findings long before both Banks and Clark were decided. Thus, with respect to those findings, "no judge or jury has ever found the currently required degree of culpability . . . ." (Strong, supra, 13 Cal.5th at p. 718, italics added.) Contrary to our initial determination, the special murder circumstance findings rendered by the jury against defendant do not, alone, render him per se ineligible for relief.
Instead, as the People conceded at oral argument, the court below improperly engaged in factfinding, the weighing of evidence, and the making of credibility determinations without first issuing the requisite order to show cause and holding an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 972 ["In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'"]; id. at p. 971 ["'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'"].)
To be fair, the court below was only doing what it was directed by us to do and had neither the benefit of Lewis nor Strong.
The court below concluded that "it's abundantly clear that [defendant] is indeed a substantial participant." The court noted, "I don't think there was any evidence that was ever proved that it was indeed a codefendant case. There was no evidence supporting another person other than the testimony-or the statements of [defendant] himself . . . ." The court noted that only defendant ended up with any of the victim's possessions; any other possible coparticipants were not apparently interested in anything belonging to the victim. The court found defendant's contention that he did not see the victim bleeding "absolutely unbelievable." "The facts overwhelmingly support that he was a major participant." The court concluded that either defendant watched the victim get stabbed or defendant was the actual killer. These are findings of fact rendered upon the weighing of the evidence and the making of credibility determinations, which should only occur at an evidentiary hearing after the issuance of an order to show cause.
Moreover, "effective January 1, 2022, the Legislature limited use of prior appellate opinions, allowing trial judges to 'consider the procedural history of the case recited.' [Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a [former] section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing." (People v. Clements (2022) 75 Cal.App.5th 276, 292.) Here, in rendering its decision, the court relied exclusively on the facts recited in this court's prior opinions. Finally, it is unclear what standard of proof the court employed below. Thus, the matter must be reversed and remanded for an evidentiary hearing.
On remand, "the trial court [shall] issue[] an order to show cause, and 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 . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' [Citation.] 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' [Citation.] At the [evidentiary] hearing stage, 'the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.'" (Lewis, supra, 11 Cal.5th at p. 960.) The court should not rely exclusively on the factual recitations contained in this court's previous opinions. (People v. Clements, supra, 75 Cal.App.5th at p. 292 ["[T]rial judges should not rely on the factual summaries contained in prior appellate decisions when a [former] section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing."].)
III. DISPOSITION
The order dismissing defendant's petition is reversed. The matter is remanded with directions to issue an order to show cause under section 1172.6, subdivision (c) (see fn. 2, ante), and to hold a hearing under section 1172.6, subdivision (d). We express no opinion on whether defendant is entitled to relief following the hearing.
I concur: FIELDS J.
MENETREZ, J, Concurring.
The special circumstance findings were made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, so they are not preclusive on prima facie review of defendant's petition under Penal Code section 1172.6. (People v. Strong (2022) 13 Cal.5th 698, 703.) Because there is no other basis to deny defendant's petition at the prima facie stage, the order denying the petition must be reversed with directions to issue an order to show cause and conduct an evidentiary hearing under subdivision (d) of Penal Code section 1172.6. I therefore concur in the judgment.