Opinion
H051315
08-30-2024
THE PEOPLE, Plaintiff and Respondent, v. GLENN BARRY SPILLMAN, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS031841A.
WILSON, J.
In 2006, a jury convicted defendant Glenn Barry Spillman of second degree murder (Pen. Code, § 187, subd. (a)) and found true a special allegation that the murder was committed by shooting a firearm from a motor vehicle (§ 190, subd. (d)). Spillman was sentenced to an indeterminate term of 20 years to life.
Unspecified statutory references are to the Penal Code.
Spillman appeals following the denial of his petition for resentencing under section 1172.6. The parties agree that the trial court erred by misconstruing this petition as a renewal of Spillman's prior unsuccessful petition for recall of sentence under section 1170.91, subdivision (b). We concur. We therefore reverse the trial court's order and remand with directions.
I. Factual and Procedural Background
We omit a recitation of the facts underlying Spillman's offense as they are not relevant to or necessary for resolving his appeal.
A. Spillman's conviction, sentencing, and direct appeal
On June 16, 2006, a jury convicted Spillman of second degree murder (§ 187, subd. (a)) and found true the allegation that the murder was committed by means of shooting a firearm from a motor vehicle (§ 190, subd. (d)). The jury could not reach a decision on certain other firearm enhancement allegations (§§ 12022.5, 12022.53, subds. (b), (c), and (d)). The trial court subsequently sentenced Spillman to an indeterminate term of twenty years to life.
On direct appeal, a different panel of this court affirmed Spillman's conviction in an unpublished opinion, People v. Spillman (Aug. 17, 2009, H030551) (Spillman I). Following issuance of the remittitur in Spillman I, the prosecutor retried the firearm enhancement allegations and, on May 13, 2010, the jury found each of those allegations to be not true.
B. Petitions for resentencing under former section 1170.95 and section 1170.91
Section 1170.95 has been amended and renumbered as section 1172.6. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022; see also Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) For ease of reference, we will refer to this statute by its current designation, section 1172.6.
On February 15, 2019, Spillman filed a petition for resentencing under section 1172.6 (2019 resentencing petition). After the trial court denied this petition for failing to make a prima facie showing for relief, a different panel of this court affirmed the trial court's order in an unpublished opinion, People v. Spillman (Oct. 27, 2020, H047057) (Spillman II).
On May 26, 2023, Spillman filed a petition for recall of sentence under section 1170.91, subdivision (b) (section 1170.91 petition), alleging that the sentencing judge did not take into consideration his "[military] service-connected trauma, injury or condition as a factor in deciding" his sentence. By written order dated June 20, 2023, the trial court denied Spillman's section 1170.91 petition on the ground that Spillman's conviction for murder made him ineligible for resentencing under that statute.
C. Spillman's second petition for resentencing under section 1172.6
On July 12, 2023, Spillman filed a second petition for resentencing pursuant to section 1172.6 (2023 resentencing petition). This petition was referred to the trial court by the clerk with a note asking, "How does the Court wish to proceed?" The trial court responded on July 26, 2023 as follows: "Notify the Defendant that the court heard and denied this petition on June 20, 2023. Send him a certified copy of the minute order from that date."
Spillman timely appealed.
II. Discussion
On appeal, Spillman argues that the trial court erred by failing to address the merits of his 2023 resentencing petition due to the fact that the court mistakenly believed that it was a renewed petition for relief under section 1170.91, subdivision (b). The Attorney General agrees that the trial court made this mistake.
We agree that the Attorney General's concession is well-taken. We will reverse the order denying the 2023 resentencing petition and remand for further proceedings.
A. Relevant legal principles
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) "amend[ed] the felony murder rule and the natural and probable consequences doctrine . . . 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." (Stats. 2018, ch. 1015, § 1, subd. (f).) To that end, the bill amended section 188, subdivision (a)(3), which now requires that all principals to murder must act with express or implied malice to be convicted of that crime, with the exception of felony murder under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) A felony murder conviction under section 189, subdivision (e), as amended by Senate Bill No. 1437, requires that the defendant be the actual killer, an aider and abettor to the murder who acted with intent to kill, or a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3.)
In addition to the amendments to sections 188 and 189 described above, Senate Bill No. 1437 added section 1170.95 (now section 1172.6). (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) As relevant here, section 1172.6 allows a person convicted of murder under prior law to petition the court to vacate their conviction and be resentenced on any remaining counts. (§ 1172.6, subd. (a).) All of the following conditions must apply to warrant section 1172.6 relief: "[¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime ... [¶] (2) The petitioner was convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder ... . [¶] (3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).) Section 1172.6, subdivision (c), requires the court to appoint counsel for all properly pleaded petitions and then conduct a prima facie analysis, with briefing by the parties, as to the petitioner's eligibility before determining whether to issue an order to show cause. (People v. Lewis (2021) 11 Cal.5th 952, 966 (Lewis).)
If the petition presents a prima facie showing of entitlement to relief, the court issues an order to show cause. (§ 1172.6, subd. (c).) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (Ibid.) The bar for establishing a prima facie claim for relief is very low, and "[i]n 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.'" (Lewis, supra, 11 Cal.5th at p. 972.) After issuing an order to show cause, the court then "hold[s] 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." (§ 1172.6, subd. (d)(1).)
B. Analysis
In this case, the trial court mistakenly believed that Spillman's 2023 resentencing petition was instead a successive petition under section 1170.91, subdivision (b) and directed the clerk to send Spillman a certified copy of the June 20, 2023 order denying that prior section 1170.91 petition. This was error. Pursuant to section 1172.6, subdivision (c), when presented with a properly pleaded petition, the trial court is required to first appoint counsel, and after receiving the parties' briefing on the matter, evaluate whether the petitioner has presented a prima facie claim for relief. (Lewis, supra, 11 Cal.5th at p. 966.)
Accordingly, on remand, the trial court must appoint counsel to represent Spillman in connection with his 2023 resentencing petition. Given that the statutory briefing deadlines set forth in section 1172.6, subdivision (c) have long since expired, the prosecutor's 60-day period to file a response to the petition shall commence on the date that remittitur issues. To the extent the parties desire a more expeditious remand, they may stipulate to the immediate issuance of the remittitur. (Cal. Rules of Court, rule 8.272(c)(1).)
Under section 1172.6, subdivision (c), the prosecutor "shall file and serve a response [within 60 days of service of the petition ] ... ." (Italics added.)
We express no opinion on the outcome of the trial court's evaluation of Spillman's 2023 resentencing petition.
III. Disposition
The trial court's July 26, 2023 order denying Spillman's Penal Code section 1172.6 petition for resentencing is reversed. On remand, the trial court shall appoint counsel and, for purposes of submitting the briefing required by Penal Code section 1172.6, subdivision (c), the petition will be deemed to have been served on the date the remittitur issues.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P. J., DANNER, J.