Opinion
B298413
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH TONY SMITH, 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, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Stephanie C. Santoro, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. A974333) APPEAL from an order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
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Joseph Tony Smith (defendant) filed a petition seeking resentencing pursuant to Penal Code section 1170.95. The trial court summarily denied the petition without appointing counsel. Because the findings by the jury and this court establish as a matter of law that defendant was the actual killer for both of his murder convictions, the trial court's denial of relief was correct. Accordingly, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
We take judicial notice of the opinion and appellate record from the direct appeal in this matter. (People v. Joseph Tony Smith (Aug. 6, 1993, B064537) [nonpub. opn.]; see also Evid. Code, §§ 459, 452, subd. (c))
On August 24, 1988, defendant shot and killed two men. In the "early morning," he went to an alley to buy rock cocaine from 18-year-old Eric Riley (Riley). After completing the purchase, defendant pulled out a gun, demanded all the cocaine and money in Riley's possession and, when Riley did not comply, shot Riley in the stomach. Riley died from that wound. After stopping at a liquor store, defendant drove to the residence of 76-year-old Anthony Earl (Earl). After selling Earl $20 of cocaine, defendant sent Earl's companion to the liquor store, knocked Earl to the floor, kicked him repeatedly, pulled out his gun, and demanded that Earl give him money. When Earl refused, defendant shot him in the stomach. Although Earl tossed the money from his pants pockets toward defendant and begged for his life, defendant shot him a second time in the chest. Earl died from those wounds.
B. Prosecution , conviction and appeal
The People charged defendant with (1) the murder of Earl (§ 187), (2) the robbery of Earl (§ 211), (3) the murder of Riley (§ 187), (4) the robbery of Riley (§ 211); and (5) the robbery of Earl's companion (§ 211). The People further alleged that defendant personally used a firearm for each of the murders (former § 12022.5, subd. (a) (1987)), that the murders were committed in the course of the robberies (§ 190.2, subd. (a)(17)), and that defendant committed multiple murders (§ 190.2, subd. (a)(3)). The People additionally alleged that defendant had three prior serious felony convictions (§ 667, subd. (a)).
The trial court instructed the jury on the crimes of murder and robbery as well as grand theft (as a lesser included offense to robbery). As to murder, the court instructed the jury that defendant could be found guilty if he (1) acted with malice aforethought in killing the victim(s), or (2) acted with the "specific intent to commit a robbery" and the victim(s) were killed "during the commission" of the robberies (that is, on a felony-murder theory). The court denied defendant's request to instruct the jury on voluntary manslaughter due to provocation.
The jury convicted defendant of the first degree murder of Earl, the second degree murder of Riley, and grand theft of Earl (as a lesser included offense to the charged robbery); the jury acquitted defendant of robbing Earl, Earl's companion, and Riley. The jury found true the personal use of a firearm allegation as to Earl's murder [as to each murder] as well as the multiple murder allegation, but found untrue that either murder was committed in the course of a robbery. The court found the three prior serious felony convictions true. The trial court sentenced defendant to life without the possibility of parole plus 17 years and eight months, comprised of (1) a sentence of life without the possibility of parole as to Earl's murder plus two years for personal use of a firearm plus 15 years for the three prior serious felonies (at five years a piece), (2) a concurrent sentence of 15 years to life as to Riley's murder, and (3) a consecutive sentence of eight months (one third of the midterm sentence of two years) for the grand theft of Earl.
Defendant appealed his convictions. As pertinent to this appeal, this court ruled that the trial court correctly declined to instruct on voluntary manslaughter because "the average reasonable person in [defendant's] circumstances would not be compelled to kill from passion rather than, as [defendant] did, from due deliberation and reflection."
II. Procedural Background
On February 5, 2019, defendant filed a petition seeking resentencing under section 1170.95. In the form petition, defendant checked the boxes for the allegations that he had been charged with murder, that he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine," and that his murder conviction would be invalid under the "changes made to Penal Code §§ 188 and 189, effective January 1, 2019." He also requested the appointment of counsel.
The trial court summarily denied defendant's petition on the ground that, after a review of the "court file and [the] appellate opinion," defendant was "not eligible" for relief because he was the "actual shooter" in both murders.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily denying his section 1170.95 petition without appointing counsel and entertaining briefing. Because resolution of this argument turns on questions of statutory construction and the application of law to undisputed facts, our review is de novo. (People v. Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled to the appointment of counsel if, in his petition, he "makes a prima facie showing that he or she is entitled to relief" under that section. (§ 1170.95, subd. (c); People v. Lewis (2020) 43 Cal.App.5th 1128, 1140 (Lewis), review granted Mar. 18, 2020, S260598; People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo), review granted Mar. 18, 2020, S260493; see also People v. Fryhaat (2019) 35 Cal.App.5th 969, 982-984 [so holding, as to post-conviction relief under section 1473.7].) A person is entitled to relief under section 1170.95 if, as relevant here, (1) "[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder . . .," (2) he "was convicted of . . . second degree murder following a trial," and (3) he "could not be convicted of first or second degree murder because of changes to section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).) A person may be convicted of murder, even after the 2019 changes made to sections 188 and 189, if he "was the actual killer" (§ 189, subd. (e)(1)) or "was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(3).) A "'prima facie showing is one that is sufficient to support the position of the party in question.'" (Lewis, at p. 1137, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
Although defendant in his petition alleged each element necessary to make out a prima face case for relief under section 1170.95, a trial court evaluating whether a defendant has made a prima facie showing in a section 1170.95 petition is not required to accept those allegations at face value and may also examine the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) However, the contents of the record of conviction defeat a defendant's prima facie showing only when the record "show[s] as a matter of law that the petitioner is not eligible for relief." (Lewis, at p. 1138, italics added; Verdugo, at p. 330; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius), review granted Mar. 18, 2020, S260410 [record must show defendant is "indisputably ineligible for relief"].)
Here, the trial court correctly concluded that defendant did not make out a prima facie case for relief because the record of conviction establishes, as a matter of law, that he is not eligible for relief. As to Earl's murder, the jury specifically found that he personally used a firearm. This finding of fact necessarily labels him the "actual killer" and hence ineligible for relief under section 1170.95. (E.g., Cornelius, supra, 44 Cal.App.5th at p. 58 [so holding].) As to Riley's murder, the jury was presented with only two theories to convict him—as a killer acting with malice aforethought or as a person who kills unintentionally in the course of a robbery (that is, felony murder). Because the jury acquitted defendant of robbery, because robbery was the only felony supporting the felony-murder theory, and because the jury found that neither murder was committed in the course of a robbery, the jury necessarily rejected felony murder as a basis for liability; the only remaining theory was liability as the actual killer acting with malice aforethought, which renders defendant ineligible for relief under section 1170.95. (Accord, In re Hansen (2014) 227 Cal.App.4th 906, 922 ["'Absent some contrary indication in the record, we presume the jury follows its instructions "and that its verdict reflects the legal limitations those instructions imposed.'""], quoting Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.) What is more, this court in rejecting defendant's argument that the jury should have instructed on heat of passion as to both murders found that defendant acted with deliberation rather than out of passion, which necessarily rests on the finding that he was the "actual shooter." This finding also forecloses relief. (E.g., Lewis, supra, 43 Cal.App.5th at pp. 1138-1139 [finding of appellate court necessarily forecloses relief]; Verdugo, supra, 44 Cal.App.5th at pp. 335-336 [same]; see generally People v. Stanley (1995) 10 Cal.4th 764, 786-787 [describing the law of the case doctrine and its application to the findings of appellate courts].)
Although this court's prior opinion stated that the jury also found the personal use of a firearm true as to Riley, the underlying trial court record is muddled on this point: The People so alleged, the jury was so instructed, and the trial court's minute order recording the verdict so reflects, but the jury's verdict forms contain no such finding and the trial court in imposing sentence did not reference (let alone impose sentence for) such a finding. This uncertainty is of no moment, however, because (as discussed in the text) the record of conviction elsewhere reflects that defendant is ineligible for relief on this murder count.
Defendant makes two arguments in response.
First, he argues that Verdugo, and by extension Lewis and Cornelius, are wrongly decided because the counter-factual allegations he set forth in his petition should be given controlling weight. We disagree, for the reasons articulately set forth in those decisions.
Second, he argues that he has a constitutional right to counsel that precludes summary denial of his section 1170.95 petition. Again, we disagree. Defendant cites no authority for the proposition that a party is constitutionally entitled to counsel to litigate a post-conviction petition on which the record of conviction forecloses relief as a matter of law. The law is to the contrary. (See People v. Shipman (1965) 62 Cal.2d 226, 232 ["in the absence of adequate factual allegations stating a prima facie case, counsel need not be appointed either in the trial court or on appeal from a summary denial of [post-conviction] relief in that court"]; Pa. v. Finley (1987) 481 U.S. 551, 555 (plurality) ["the [constitutional] right to appointed counsel extends to the first appeal of right, and no further"]; accord, Dillon v. United States (2010) 560 U.S. 817, 828 [legislative acts granting post-conviction relief do not implicate the Sixth Amendment right to a jury].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
ASHMANN-GERST