Opinion
C097585
12-19-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOHN STOCKTON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. NCR38779
DUARTE, J.
A jury found defendant Robert John Stockton guilty of the first degree murder of James Todd Bates, and in a bifurcated proceeding the trial court found that he personally used a firearm during the offense. The jury acquitted defendant of burglary and was unable to reach a verdict on a lying in wait special circumstance allegation, which was later dismissed. Defendant received a life sentence for the murder plus five years in prison for the firearm enhancement.
Defendant later petitioned for resentencing under Penal Code former section 1170.95 (now section 1172.6). The trial court denied the petition, finding defendant did not establish a prima facie claim for relief. In doing so, it refused to consider declarations defendant attached to his reply brief from a codefendant who took responsibility for shooting the victim, and from defendant's counsel, who obtained the declaration from the codefendant.
Undesignated statutory references are to the Penal Code. The Legislature amended section 1170.95 effective January 1, 2022, under Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551). Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) This opinion will refer to section 1172.6.
Defendant now contends the trial court erred when it declined to issue an order to show cause and hold an evidentiary hearing on the petition because the evidence he submitted, including the declarations the court refused to consider, showed that he was neither the actual killer nor a major participant who acted with reckless indifference to human life. Finding no merit in defendant's contentions, we affirm the order.
BACKGROUND
In September 1994, the victim Bates acted as an agent for the police and purchased methamphetamine from David Norris, who was supplying Bates's girlfriend with methamphetamine. (People v. Stockton (Jan. 27, 1997, C022151) [nonpub. opn.] (Stockton).) As a result, Norris and Bates's girlfriend were arrested. Another of Norris's customers, codefendant Jeremy Budden, was upset about Norris's arrest, and Budden and defendant went to confront Bates about his role in the drug sting operation at a false rendezvous set up by Bates's girlfriend. Budden was armed with a nine-millimeter pistol and defendant was armed with a sawed-off shotgun; Bates was shot dead with several rounds from a nine-millimeter pistol during the encounter. While defendant claimed he walked back to the getaway car when he learned Budden intended to shoot Bates, others testified to statements defendant made after the killing admitting that he had tried to shoot Bates with the shotgun and when it misfired he took the pistol from Budden and killed Bates. (Ibid.)
We provide this brief factual summary from our unpublished opinion in People v. Stockton, supra, C022151, solely for the purpose of summarizing the background of this case; our consideration of whether defendant stated a prima facie case under section 1172.6 is based on our independent review of the record of conviction. (See People v. Delgadillo (2022) 14 Cal.5th 216, 222, fn. 2.)
In January 1995, defendant was charged with the willful, premeditated, and deliberate murder of Bates (§§ 187, subd. (a), 189; count I) while lying in wait (§ 190.2, subd. (a)(15)) and while personally using a firearm, a shotgun/pistol (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)). He was also charged with first degree residential burglary. (§ 459; count II.) The firearm enhancement was bifurcated, and the remaining charges and allegations were tried to a jury.
Codefendant Budden was similarly charged.
At defendant's trial, codefendant Budden, who had earlier pleaded guilty to first degree murder in exchange for dismissal of the special allegations and the first degree burglary charge, invoked his privilege against self-incrimination and refused to testify. Defendant testified on his own behalf.
The jury found defendant guilty of first degree murder and not guilty of first degree residential burglary but could not reach a verdict on the lying in wait special circumstance (§ 190.2, subd. (a)(15)) and the trial court declared a mistrial as to the special circumstance. In the bifurcated proceeding, the court found the firearm enhancement true. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).)
Defendant was sentenced to life with the possibility of parole and a consecutive five years for the firearm enhancement. He appealed, and this court affirmed the judgment in Stockton, supra, C022151.
In January 2022, defendant filed a resentencing petition under section 1172.6, alleging in relevant part that: (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) at trial he was convicted of first degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine; and (3) he could not now be convicted of first degree murder because of changes made to sections 188 and 189 effective January 1, 2019. The petition further alleged that he was convicted of first degree felony murder and could not now be convicted because of changes to section 189, effective January 1, 2019, because he was not the actual killer, he did not, with the intent to kill, aid, abet, counsel, command, solicit, request, or assist the actual killer in the commission of murder in the first degree, he was not a major participant in the felony or he did not act with reckless indifference to human life during the course of the crime or felony, and the victim was not a peace officer. Defendant requested the appointment of counsel.
The People opposed the petition, arguing defendant was ineligible for relief as a matter of law because the record of conviction showed the jury was not instructed on felony murder, the natural and probable consequences doctrine, or on any theory of imputed malice. The People attached copies of the information, the jury verdicts, the jury instructions given, including CALJIC 3.00 regarding principals in a crime and CALJIC 3.01 regarding direct aiding and abetting, and jury instructions that were withdrawn and not provided to the jury, including liability for first degree felony murder (CALJIC 8.27) and the natural and probable consequences doctrine (CALJIC 3.02).
In reply, defendant argued he had made the requisite prima facie showing and attached copies of this court's opinion in Stockton, supra, C022151, and the transcript of Budden's 1995 plea hearing in Tehama County Superior Court case No. NCR38838 wherein he pleaded guilty to first degree murder and stipulated to his counsel's recitation that Budden was angry at Bates for snitching on Norris and intended to harm Bates, that after Budden and defendant located Bates, defendant shot the victim using the nine-millimeter firearm Budden had in his possession, and that Budden acknowledged liability as a natural and probable consequence of his aiding and abetting defendant in the murder.
During the plea hearing, the prosecutor noted for the record that witnesses would testify that Budden admitted to being the shooter.
Defendant also submitted two declarations to support his reply: (1) a June 1997 declaration from his then-attorney Eric Weaver (who also currently represents defendant on appeal) regarding his communications in 1996 and 1997 with Budden about defendant's" 'innocence;'" and (2) a declaration signed by Budden in January 1996 claiming that he shot Bates despite his earlier statements to police that defendant had grabbed Budden's gun and shot the victim.
Defendant previously submitted Budden's declaration in a 1997 habeas petition as new evidence of his innocence; the trial court apparently denied the petition.
The trial court held a prima facie hearing in August 2022. Defense counsel argued that codefendant Budden's plea colloquy and the prior appellate opinion proved the possibility that the People proceeded against defendant on an accomplice theory, which was sufficient to satisfy his prima facie burden. The trial court, however, disagreed with defendant's characterization of the prior appellate opinion that discussed the accomplice instructions in the context of the testifying witnesses. Following argument, the court tentatively denied the petition, but took the matter under submission for further consideration.
In a subsequent written ruling, the trial court denied the petition, finding defendant had failed to establish a prima facie case for relief because he was convicted of first degree murder and the enhancement for personally using a firearm was found true. The court declined to consider the declarations of Budden or defense counsel because the court found them to be inadmissible hearsay from declarants who were not subject to cross examination. The court also declined to consider this court's prior opinion in Stockton, finding it was not admissible evidence at the prima facie stage. Defendant appealed.
DISCUSSION
I
Applicable Law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) amended 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).)
Senate Bill No.1437 also added what is now section 1172.6 (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10). Effective January 1, 2022, Senate Bill No. 775 (20212022 Reg. Sess.) (Senate Bill No.775) amended section 1172.6 to expand those eligible for relief. (Stats. 2021, ch. 551, § 1(a).) Section 1172.6, subdivision (a) now provides in relevant part that, "[a] person convicted of felony murder or 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," may file a petition for resentencing and be resentenced if all of the following conditions apply: (1) a complaint or information 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; and (3) the petitioner could not presently be convicted of murder because of changes to Sections 188 and 189 made effective January 1, 2019.
If the petition presents a prima facie showing of entitlement to relief, the trial court must issue an order to show cause. (§ 1172.6, subd. (c).) The court must then hold a hearing to determine whether petitioner is entitled to resentencing. (§ 1172.6, subd. (d)(1).)
The prima facie inquiry under section 1172.6, subdivision (c) is limited, and the bar for establishing a prima facie claim for relief is very low. (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) The trial 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." '" (Ibid.) Although the court may rely on the record of conviction in determining whether defendant has made a prima facie showing, it "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
We independently review a trial court's determination as to whether a petitioner has made a prima facie showing. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
II
Consideration of Defendant's Proffered Declarations at the Prima Facie Stage
Defendant contends the trial court prejudicially erred by refusing to consider the declarations signed by Budden, wherein Budden claimed sole responsibility for the killing, and by his attorney, which detailed how he obtained Budden's declaration, in determining whether defendant made a sufficient prima facie showing under section 1172.6. He concedes that based on the instructions given and the verdicts rendered he would be ineligible for relief as a matter of law if only those items were considered, but he nevertheless argues the court had to consider more than the jury instructions and verdicts in assessing the prima facie showing. He contends the court erred in disregarding the declarations, which he argues made a sufficient prima facie showing that he was not the actual killer or a major participant in the killing.
Defendant premises his argument on the notion that in a writ of habeas corpus proceeding, a court may consider new evidence on a writ petition. Citing several habeas cases, he asserts that declarations containing admissible evidence are considered a part of a prima facie case in habeas. He cites no cases, and we have located none, that sanction consideration of a declaration containing new evidence that was never presented as part of defendant's trial proceedings when deciding whether a defendant has made the requisite prima facie showing under section 1172.6, subdivision (c). But this case is not a habeas proceeding. The Legislature created a specific statutory scheme for resentencing under section 1172.6, and the statute expressly provides that a court may consider new evidence from either party at an evidentiary hearing after an order to show cause has issued. (§ 1172.6, subds. (d)(1), (d)(3).) It says nothing about considering such evidence before a sufficient prima facie showing is made. The Legislature easily could have provided for the introduction of such evidence at the prima facie stage, but it did not. (Cf. § 1172.6, subd. (c) with § 1172.6, subd. (d)(3).) We decline to add the language ourselves. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545 [reviewing court "may not broaden or narrow the scope of the [statutory] provision by reading into it language that does not appear in it or reading out of it language that does"]; In re Hoddinott (1996) 12 Cal.4th 992, 1002 [court may not rewrite a statute to conform to an assumed intention that does not appear from its language].)
Defendant cites In re Avena (1996) 12 Cal.4th 694, 728, In re Figueroa (2018) 4 Cal.5th 576, 585, In re Alvernaz (1992) 2 Cal.4th 924, 930-932, and People v. Johnson (2015) 242 Cal.App.4th 1155, 1162.
Further, applicable case authority undermines defendant's position. The Supreme Court in Lewis made clear that after receiving briefing from the parties on a facially sufficient petition the trial court may consider the "record of conviction" in determining whether the prima facie showing is made. (Lewis, supra, 11 Cal.5th at pp. 971-972.) The Lewis court reasoned that "[t]he record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.)
Lewis recognized that prior appellate opinions are generally considered to be part of the record of conviction, although they may not supply all answers. (Lewis, supra, 11 Cal.5th at p. 972.) Courts have also found that the record of conviction includes jury instructions, closing arguments, and the jury's verdict. (People v. Ervin (2021) 72 Cal.App.5th 90, 106; see also People v. Woodell (1998) 17 Cal.4th 448, 454-455 [record of conviction includes items that are considered to be normal part of the record or which could be augmented into the record, including trial and appellate records].)
Since Lewis, the Legislature has amended section 1172.6 to provide that review of a prior appellate opinion at an evidentiary hearing following issuance of an order to show cause is limited to the procedural history of the case. (People v. Clements (2022) 75 Cal.App.5th 276, 292; § 1172.6, subd. (d)(3) [at the hearing to determine whether a petitioner is entitled resentencing, "[t]he court may also consider the procedural history of the case recited in any prior appellate opinion"].)
What it does not include, however, is a prior appellate opinion in a codefendant's case. (See, e.g., People v. Flores (2022) 76 Cal.App.5th 974, 988.) For similar reasons, the plea colloquy from codefendant Budden's case is not part of defendant's record of conviction, nor are Budden's or defense counsel's declarations, both of which were signed after the jury found defendant guilty of first degree murder either as the direct perpetrator or as a direct aider and abettor based on the instructions given during his trial.
We reject defendant's contention that the trial court "create[d] a 'record of conviction' tailored to justify denying the petition." As explained above, the declarations simply did not constitute a part of defendant's record of conviction and thus the court properly disregarded them in making the prima facie determination. (Lewis, supra, 11 Cal.5th at pp. 971-972.) Whether the declarations constitute hearsay or would be admissible at an evidentiary hearing under section 1172.6, subdivision (d), is simply irrelevant, because defendant did not make the required prima facie showing required under subsection (c) to qualify for an evidentiary hearing under subdivision (d).
At the prima facie stage, a court may not engage in factfinding involving the weighing of evidence, the exercise of discretion, or credibility determinations. (Lewis, supra, 11 Cal.5th at pp. 971-972.) Considering the declarations as defendant urges--for the truth that he did not shoot the victim and that codefendant Budden was the actual killer, or that he withdrew his support and no longer intended to kill--is contrary to this mandate. Because defendant's proffered declarations were not part of his record of conviction, the trial court did not err in declining to consider them when making the prima facie determination.
Given our conclusion, we need not consider the People's argument that failing to consider the declarations was harmless error.
III
True Finding on the Personal Use of Firearm Enhancement
The parties agree, as do we, that the true finding on the firearm use enhancement did not preclude defendant from relief as a matter of law because it did not legally establish that he was the actual killer. The finding was merely that defendant "used" a firearm within the meaning of section 12022.5, subdivision (a), which does not require the discharge of a weapon. (People v. Wilson (2008) 44 Cal.4th 758, 806.)
To the extent the trial court found defendant failed to make a prima facie showing based on the true finding on the firearm use enhancement, the court erred. We thus turn to whether the court's determination that defendant failed to make the requisite prima facie showing was correct on any applicable legal theory. (People v. Zapien (1993) 4 Cal.4th 929, 976 ["' "a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion"' "]; Anderson v. Davidson (2019) 32 Cal.App.5th 136, 144 [there is no prejudicial error from erroneous logic or reasoning if the decision itself is correct].)
IV
Prima Facie Determination
In the absence of the proffered declarations, the parties agree that, as a matter of law, defendant is not eligible for relief based on the instructions given and the jury's verdicts. We agree with the parties.
To make a sufficient prima facie showing, defendant had to establish that he was convicted of felony murder or 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. (§ 1172, subds. (a), (c).) If the jury was not instructed on any of those theories, he is not eligible for relief under section 1172.6. (See e.g., People v. Coley (2022) 77 Cal.App.5th 539, 546-549 [the defendant not entitled to resentencing where record showed the jury was not instructed on felony murder, murder under a natural and probable consequences theory, or attempted murder under the natural and probable consequences doctrine but was instructed on direct aiding and abetting, which remained a valid theory after Senate Bill No. 1437]; People v. Harden, supra, 81 Cal.App.5th at p. 53 [if the record of conviction shows the jury found the defendant guilty on a malice theory, the defendant would be ineligible for resentencing because the statute applies only where the murder conviction is based on felony murder, or the natural and probable consequences doctrine, or any other theory under which malice is imputed based on a person's participation in a crime].)
As the People note, the record shows defendant's jury was not instructed on the natural and probable consequences doctrine, felony murder, or any other theory where the jury could have imputed malice to defendant. Rather, the jury was instructed on direct perpetrator or direct aider and abettor liability. The instructions on natural and probable consequences and felony murder were withdrawn and not given to the jury.
To find defendant guilty as a direct perpetrator, the jury had to have found defendant "kill[ed] a human being with malice aforethought." The jury was instructed that malice aforethought meant "an intention unlawfully to kill a human being." (People v. Gentile (2020) 10 Cal.5th 830, 844 ["[w]hen a person directly perpetrates a killing, it is the perpetrator who must possess such malice"], superseded by statute on other grounds as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.)
Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aides the commission of that offense with "knowledge of the direct perpetrator's unlawful intent and [with] an intent to assist in achieving those unlawful ends." (People v. Perez (2005) 35 Cal.4th 1219, 1225.) The jury here was so instructed with CALJIC 3.01. Thus, even if the jury relied on this theory to convict defendant of first degree murder rather than as a direct perpetrator, it had to find that he knew of and shared Budden's murderous intent. (People v. Gentile, supra, 10 Cal.5th at p. 844 ["when a person directly aids and abets a murder, the aider and abettor must possess malice aforethought"]; see also id. at p. 848 ["Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought"].)
CALJIC 3.01 provides: "A person aids and abets the commission of a crime when he or she, [¶] (1) with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, encourages, or instigates the commission of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting."
Under either theory, the guilty verdict shows the jury determined defendant acted with the subjective intent to kill. Thus, defendant is not entitled to relief under section 1172.6. (§ 1172.6, subd. (a) [resentencing relief available for "[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed based solely on that person's participation in a crime"].)
Because the record of conviction shows the trial court reached the legally correct conclusion when it found that defendant failed to make a sufficient prima facie showing to proceed to an evidentiary hearing, the court did not err in denying defendant's petition.
DISPOSITION
The order denying defendant's petition for resentencing under section 1172.6 is affirmed.
We concur: Mauro, Acting P. J., Mesiwala, J.