Opinion
B298537
06-01-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DOUGLAS TAYLOR, Defendant and Appellant.
Vanessa Place, 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, Amanda V. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GA000274) APPEAL from an order of the Superior Court of Los Angeles County, David C. Brougham, Judge. Affirmed.
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Vanessa Place, 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, Amanda V. Lopez and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Michael Taylor challenges the trial court's denial of his petition for resentencing of his felony murder conviction, relying on Penal Code section 1170.95. The trial court denied Taylor's petition, finding beyond a reasonable doubt that Taylor was ineligible for resentencing because he was a major participant in the underlying attempted robbery and acted with reckless indifference to human life. (See §§ 189, subd. (e)(3), 1170.95, subd. (d)(3).)
Unless otherwise specified, subsequent statutory references are to the Penal Code.
Taylor contends that the trial court erred by combining the procedures under section 1170.95, subdivisions (c) and (d) into a single hearing, and by relying on the prior appellate opinion in the case, which he argues was inadmissible hearsay. He also contends that the facts set out in our prior opinion did not establish that he acted with reckless indifference to human life. We affirm.
FACTS AND PROCEEDINGS BELOW
On July 9, 1987, Taylor and two accomplices, Joe Ledezma and Thomas Estrada, participated in the attempted robbery of a North Hollywood jewelry store that resulted in the death of the store's proprietor. In a prior opinion, this court gave a description of the facts of the case. The opinion described Taylor as "the mastermind behind this and several other jewelry store robberies in Los Angeles and Orange County. He used various 'recruits' to carry out the robberies, had his girlfriend, Lisa Prindes, case the stores, and used his neighbor, Henry Sahin, to sell the stolen jewelry." (People v. Taylor (Aug. 15, 1996, B075822) [nonpub. opn.].) The opinion went on to state that in this instance, Ledezma and Estrada "entered the Creme de la Gem jewelry store with guns drawn and ended up in a shoot-out with the victim, killing him. Afterwards, Ledezma apologized to [Taylor] for not taking any jewelry." (Ibid.) The opinion did not state who was responsible for supplying the guns used in the robbery, but Prindes testified at trial that Taylor did so.
A jury convicted Taylor of one count of first degree felony murder (§ 187, subd. (a)) and one count of second degree attempted robbery (§§ 211, 664). The trial court imposed a sentence of 25 years to life for murder, plus an additional one-year enhancement because Taylor was armed during the offense (§ 12022, subd. (a)(1)). The court stayed sentence on the attempted robbery conviction pursuant to section 654. Taylor challenged his conviction on several grounds on direct appeal, but this court affirmed the convictions. (People v. Taylor, supra, B075822.) In his appeal, Taylor challenged the sufficiency of the evidence of attempted robbery, but not of murder.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which, among other changes, amended section 189 to eliminate felony murder liability in cases in which the defendant was not a major participant in the underlying felony or did not act with reckless indifference to human life. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248.) The legislation also enacted section 1170.95, which establishes a procedure for vacating murder convictions for defendants who would no longer be guilty of murder under the new law and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.)
Taylor filed a petition for resentencing on January 7, 2019. The trial court appointed counsel, and at a March 11 appearance, the court informed the parties that it tentatively intended at the next hearing date to issue an order to show cause, and immediately afterward to hold a hearing to determine whether to vacate Taylor's murder conviction and resentence him. Defense counsel did not object to the procedure. The motion was continued and ultimately heard on April 29. At the hearing, the prosecution filed its opposition to the petition. The trial court issued an order to show cause. Taylor did not request a continuance to further support his petition. The court held a hearing on the merits. The parties argued the matter, referring to the evidence at trial and in the appellate opinion, but presented no new evidence. The court denied Taylor's petition.
DISCUSSION
A. Background on Section 1170 .95
Senate Bill No. 1437 limited the circumstances in which a defendant may be guilty of murder for participating in a felony in which a victim was killed. Under section 189, subdivision (e), as amended by Senate Bill No. 1437, a defendant is guilty of felony murder only if he actually killed the victim; directly aided and abetted or solicited the killing, or otherwise acted with the intent to kill; or "was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(3).)
Section 1170.95 allows a defendant serving a sentence for felony murder who would not be guilty of murder under the new law to petition for resentencing. To obtain relief, a defendant must file a declaration affirming that he is eligible for resentencing under the new law. (See § 1170.95, subd. (b)(1).) The trial court considers the petition according to a three-step process. First, the court "review[s] the petition and determine[s] if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).)
If the petition survives this first stage of review, the court must appoint counsel if the petitioner has so requested. (§ 1170.95, subd. (c).) The prosecutor then files a response, and the petitioner may file a reply. The review at this stage "is equivalent to the familiar decision-making process before issuance of an order to show cause in habeas corpus proceedings, which typically follows an informal response to the habeas corpus petition by the Attorney General and a reply to the informal response by the petitioner." (People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18, 2020, S260493 (Verdugo).) Under this standard, "[i]f the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
If the court issues an order to show cause, it must hold a hearing within 60 days to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d)(1).) At this third and final stage of the proceeding, the prosecution has the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
B. Combination of Second and Third Stage of Review
In this case, the trial court conducted both the second stage of prima facie review, as described in section 1170.95, subdivision (c), and the third stage of review, as described in section 1170.95, subdivision (d), in a single hearing. Taylor contends that this was error and deprived him of an opportunity to litigate the case fully and fairly. We disagree. Taylor forfeited the claim by failing to assert it below, and the claim also fails on the merits. Nothing in the text of the statute forbids the trial court from deciding multiple stages of review at the same proceeding. In this case, the record shows that Taylor had ample opportunity to prove his eligibility, and that the court applied the correct standard at each stage of the proceeding.
1. Relevant proceedings
The trial court appointed counsel to represent Taylor on February 25, 2019. Although the court did not say so explicitly, impliedly the court found that Taylor's petition had survived the first stage of prima facie review under section 1170.95, subdivision (c). On March 11, 2019, the trial court informed the parties that it tentatively intended to issue an order to show cause and to conduct a hearing regarding Taylor's eligibility at the next appearance date in the case.
On April 29, the date of the hearing, the prosecution filed its opposition to Taylor's petition, in which it argued that section 1170.95 was unconstitutional, and in the alternative, that Taylor was ineligible for relief under the statute because he was a major participant in the robbery and acted with reckless indifference to human life. The court began the proceeding by ruling in favor of Taylor at the second stage of prima facie review. The court stated that it would "overrule the People's constitutional objections and . . . make a finding under . . . section 1170.95[, subdivision] (c) that . . . Taylor has made a prima facie showing that he's entitled to relief; and that is because he was not the shooter in the robbery murder of the store in question."
The trial court continued: "[B]ecause I've made a prima facie showing that he's entitled to relief, I'm issuing an order at this point for [the] People to show cause. And as indicated to both counsel at the previous hearing, we will do that hearing today." The court clarified that at the hearing, "the People bear the burden . . . to prove that [Taylor] is not eligible for re-sentencing."
The court then asked both parties if they wished to introduce any new evidence. The prosecution sought to introduce a transcript of Taylor's parole hearing and letters he submitted on behalf of his codefendant Ledezma. The trial court declined to admit this evidence on the ground that it was irrelevant, and the prosecution decided to rely solely on the record of conviction. For his part, Taylor neither produced evidence nor claimed he could do so at a later time, but relied on the contents of his petition for relief.
The court then heard argument from both parties. The prosecution argued that Taylor's petition should be denied because he was "the mastermind who orchestrated the armed robbery that resulted in [the victim's] death." According to the prosecution, Taylor displayed reckless indifference to human life because he "must have foreseen the need to use guns to shoot somebody in the event it became necessary to accomplish the crime that he planned. [¶] . . . Taylor then planned for this contingency by supplying his recruits with loaded guns to be used in the robbery."
Taylor argued that there was no evidence that he or his accomplices cased the Creme de la Gem jewelry store. He also claimed he could not have been a mastermind because he drove his own truck to the robbery rather than using a car that could not be traced to him. He claimed he told his accomplices not to do the robbery, but they refused to listen. He claimed that some evidence showed he did not act with reckless indifference to human life, including a witness's testimony that, when the shooting began, Taylor said, " 'There's a shooting. Get down.' " Taylor also argued that the testimony against him was contradictory and not credible. Taylor did not deny distributing guns, but claimed that Prindes's testimony indicated that he did so months before the robbery.
The court found "that the People have met their burden. They have proven beyond a reasonable doubt that [Taylor] is ineligible for re-sentencing. They have proved that he was a very major participant, that he acted with reckless indifference to human life. [¶] And, therefore, his petition for relief is denied."
2. The propriety of combining multiple stages in a single hearing
Section 1170.95, subdivision (d)(1) requires the trial court to hold a hearing to determine a defendant's eligibility "[w]ithin 60 days after the order to show cause has issued," but nothing in the text of the statute establishes a minimum amount of time between the issuance of the order to show cause and the subsequent hearing.
Furthermore, it is clear from the transcript of the hearing that the trial court understood and applied the correct standard at each stage of the hearing. First, the court found that Taylor had made a prima facie showing that he was entitled to relief and accordingly issued an order to show cause. Then, the court invited each side to introduce evidence, listened to the argument, and issued a ruling, finding that the prosecution had proven beyond a reasonable doubt that Taylor was not eligible for resentencing. In all of these statements, the court followed the text of section 1170.95, and nothing in the record suggests that the trial court failed to understand the significance of each stage.
Of course, the trial court does not have unlimited discretion regarding the scheduling of section 1170.95 proceedings. At the final eligibility hearing under section 1170.95, subdivision (d), due process requires the trial court to provide the defendant enough time to prepare for the hearing. In this case, the trial court informed the parties on March 11 that it tentatively intended to issue its order to show cause and hold the final eligibility hearing at the next proceeding in the case. The hearing took place seven weeks later on April 29. Taylor did not object to any of these decisions or ask for additional time to prepare. Under these circumstances, the scheduling of the proceedings did not deprive Taylor of due process.
C. Reliance on the Facts as Described in the Prior Court of Appeal Opinion
Taylor contends that the trial court erred by relying on the description of the facts contained in this court's prior opinion (see People v. Taylor, supra, B075822), which he claims was inadmissible hearsay. Taylor forfeited this argument by failing to object to the trial court's use of the opinion (see People v. Stevens (2015) 62 Cal.4th 325, 333), and his claim also fails on the merits.
Because Taylor's argument fails on the merits, his counsel did not render ineffective assistance by failing to raise the issue at the hearing.
Section 1170.95, subdivision (d)(3) provides that at the hearing to determine a defendant's eligibility for resentencing, "[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." In People v. Woodell (1998) 17 Cal.4th 448 (Woodell), our Supreme Court held that for purposes of determining the nature of a defendant's prior convictions, the record of conviction includes the appellate opinion and other appellate court documents, in addition to the trial court record. (Id. at p. 456.) In People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598, we held that the trial court may consider a prior appellate opinion as part of the record of conviction in determining whether the defendant has made a prima facie case for relief. (Id. at p. 1136, fn. 7; accord, Verdugo, supra, 44 Cal.App.5th at p. 333; People v. Law (Apr. 27, 2020, E072845) ___ Cal.App.5th ___ [2020 WL 2125716, at *4-*5].) By the same reasoning, the trial court may do the same at the final stage of review.
Nevertheless, Taylor argues that the trial court erred by relying on the prior appellate opinion for the facts of the case because the opinion was inadmissible as hearsay. Taylor is correct that when introduced at trial to prove the defendant's conduct, the contents of an appellate court opinion are subject to the ordinary rules regarding the admission of hearsay. (Woodell, supra, 17 Cal.4th at pp. 457-458; see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)
But in post-trial proceedings, statements contained in prior appellate opinions are admissible as reliable hearsay even if they would not be admissible at trial. (See People v. Guilford (2014) 228 Cal.App.4th 651, 660 (Guilford) [Proposition 36 proceedings].) The law defining appellate opinions as part of the record of conviction and allowing the admission of reliable hearsay in post-trial proceedings was well established when the Legislature enacted section 1170.95. We infer that when the Legislature expressly allowed the parties to "rely on the record of conviction" in proceedings under section 1170.95, subdivision (d)(3), it intended to allow the admission of prior appellate opinions regardless of their status as hearsay.
D. Reliance on the Appellate Opinion on Direct Appeal
Taylor contends that, even if our prior opinion is admissible and supports that he was a major participant in the attempted robbery, the facts as described in our prior opinion do not support that he acted with reckless indifference to human life. That assertion is immaterial because it assumes incorrectly that the only evidence the trial court relied on is found in the appellate opinion. Although the court stated it was "bas[ing] [its] ruling on the critical trial facts as described by the appellate opinion" because it found "the appellate court opinion and their summary of the trial facts . . . most reliable," the court also expressly stated that it had "reviewed the entire file . . . that was available."
The court found that Taylor "did not recruit one, but recruited two people to carry . . . out [the robbery]. He did not recruit one, but two people to use guns. And I find it significant that he did not use a gun himself, thereby leaving the dangerous and dirty work for the other two to do. [¶] The fact that he . . . left the store right before the shooting is not at all a mitigating circumstance in his behavior. It is the action of a mastermind who allows others to do his dangerous and dirty work for him."
Because appellant does not challenge the sufficiency of those additional fact findings by the court quoted above, we need not discuss their sufficiency. In any case, they do support that Taylor acted with reckless indifference to human life.
The question of whether a defendant acted with reckless indifference to human life is closely related to whether he was a major participant. Our Supreme Court noted in People v. Clark (2016) 63 Cal.4th 522 (Clark) that the two issues " 'significantly overlap both in this case and in general, for the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.' (Tison [v. Arizona (1987) 481 U.S. 137, 153].) . . . '. . . [E]ven in cases where the fact that the defendant was a major participant in a felony did not suffice to establish reckless indifference, that fact would still often provide significant support for such a finding.' " (Clark, supra, 63 Cal.4th at p. 615.)
Because he was the mastermind of the attempted robbery, Taylor was by definition a major participant. (See People v. Williams (2015) 61 Cal.4th 1244, 1281 ["A major participant need not be the ringleader [citation], but a ringleader is a major participant"].)
In Clark, the defendant was the "principal planner and instigator" of a scheme to rob a CompUSA store, but the Court held that there was insufficient evidence that he acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 622.) The Court set out five factors courts should consider when examining this question: First, the defendant's knowledge of weapons and the use and number of weapons in the crime. (Id. at p. 618.) In Clark, there was only a single weapon, loaded with one bullet. (Ibid.) A recorded statement from a codefendant indicated that the defendant did not believe the gun was loaded. (Id. at p. 612.) In this case, by contrast, the trial court found that Taylor recruited two accomplices to use guns in the robbery. Being the mastermind, it is reasonable to conclude that he also provided the guns and ammunition.
The second relevant factor is the defendant's presence at the scene and opportunities to restrain the attacker aid the victim. (Clark, supra, 63 Cal.4th at p. 619.) In Clark, the defendant was distant from the scene of the robbery at the time of the shooting. (Id. at p. 620.) In this case, the trial court found that Taylor exited the store just before the robbery, specifically to allow his codefendants to do the "dangerous and dirty work." In other words, Taylor was in position to restrain his codefendants or aid the victims but deliberately removed himself from the scene, thereby unleashing his codefendants against the victims. We agree with the trial court that Taylor's absence from the store was in this case an aggravating, not a mitigating, factor.
The last of the Clark factors is also highly relevant: The defendant's efforts to minimize the risk of violence. (Clark, supra, 63 Cal.4th at pp. 621-622.) In Clark, the defendant scheduled the robbery of a computer store to take place after the store had closed, when fewer people would be present. In addition, only one gun was used, loaded with only a single bullet, and the defendant may have believed it was not loaded at all. (Ibid.) The Court recognized that these factors were weighed against a finding of reckless indifference to human life. (Id. at p. 622.) There is no indication that Taylor took any such steps. Instead, the robbery took place when the store was open for business, and Taylor left his cohorts inside the store to do the dangerous and dirty work without any attempt to limit the potential damage.
The trial court did not make findings regarding the third and fourth Clark factors, the duration of the felony and the defendant's prior knowledge of his cohorts' likelihood of killing. (See Clark, supra, 63 Cal.4th at pp. 620-621.)
In short, the record supports that Taylor's plan and execution of the robbery "elevated the risk to human life beyond those risks inherent in any armed robbery" (Clark, supra, 63 Cal.4th at p. 623), and thus that Taylor acted with reckless indifference to human life. Thus, the trial court did not err in denying Taylor's petition for resentencing.
DISPOSITION
The trial court's order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.