Opinion
E075544
05-17-2021
THE PEOPLE, Plaintiff and Respondent, v. ARCHIE DOYLE WOODS, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. VCR4232) OPINION APPEAL from the Superior Court of San Bernardino County. Tony Raphael, Judge. Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1989, defendant Archie Doyle Woods was tried and convicted by jury of two counts of first degree murder (Pen. Code, § 187, subd. (a)), along with a special circumstance finding of multiple murder (§ 190.2, subd. (a)(3)), and a finding that principal was armed with a firearm, to wit, a shotgun (§ 12022, subd. (a)). He was sentenced to two consecutive terms of life without possibility of parole consecutive to a determinate term of 1 year for the arming allegation.
All further statutory references are to the Penal Code unless otherwise indicated. --------
In 2019, following the enactment of Senate Bill No. 1437 (Senate Bill 1437) and section 1170.95, defendant filed a petition for resentencing, which was denied. Defendant appealed. On appeal, defendant argues that because the jury was instructed on aider and abettor liability, including the natural and probable consequences doctrine, the trial court erred in finding he was ineligible for relief. We affirm.
BACKGROUND
We take the background section from our unpublished opinion in People v. Woods (May 13, 1991), E007170 [nonpub. opn.]:
Defendant lived in Victorville with Sherry Mills. One evening Rick Crisan, who was a friend of defendant and Mills, and Shanna Tholl arrived in a white Corvette at defendant's house. Crisan told Mills that he was being chased, and someone wanted to kill him. Tholl and Crisan spent the night in an extra bedroom.
The next morning when Mills left for work, defendant, Crisan and Tholl remained at the house. When Mills arrived home that evening, Tholl and Crisan were still there. Around 6:30 or 7:00 p.m., defendant told Mills he was going to leave to make a phone call and when he returned, Mills had to go to Ed Fitzgerald's house. When defendant returned about an hour later he told her Crisan was going to have some visitors and needed privacy so Mills had to wait at Fitzgerald's house. Mills saw a case on the bed; however, it was smaller than a shotgun case shown to her later by police. When Mills left at 8:30 p.m., Crisan and Tholl were in bed.
Defendant arrived at Fitzgerald's house around 11:00 p.m. and talked with Fitzgerald. Defendant told Mills to stay there until he called or came and got her. Mills later told her daughter defendant was carrying a shotgun at the time. Mills testified she just presumed it was a shotgun. Fitzgerald left a minute or two after defendant left. Fitzgerald and his wife owned two trucks. Mills later told her daughter that Fitzgerald and defendant left together in Fitzgerald's truck and that Fitzgerald later returned to his house by himself. The next morning she found a note from defendant telling her she could return home, and he had gone North.
When Mills returned home, Tholl and Crisan were gone. The house was locked, and all windows were closed. Mills noticed that in the bedroom where Crisan and Tholl had stayed there was a different mattress in the room. The original mattress and box spring were missing, as was the bed linen. A paint bucket was in the room, and one of the walls had been freshly painted. The rug was missing from the hallway.
That day the bodies of Crisan and Tholl were found in a remote area. Only a truck or four-wheel-drive vehicle would have been able to get to that area. A mattress, box spring, bedding and rug, all blood stained, were discovered with the bodies which had suffered two shotgun wounds each from close range. Mills identified the mattress, box spring, bedding and rug as those items missing from her home.
An investigation of defendant's house revealed a trail of blood consistent with Crisan's leading through the living room out to the back porch. Fresh white paint covered blood stains on a wall of the bedroom in which Crisan and Tholl had stayed. There were also drops of blood on the headboard. A white bootprint appeared on the garage floor. Boots recovered from defendant when he was arrested had white paint on them. Blood consistent with Tholl's was found on the pair of jeans defendant wore the day of the murders.
Two different kinds of shotgun shells were recovered from the bodies, 12-gauge and double-aught. The blood stains and wounds were consistent with the victims having been shot while reclining in bed. Officers found two 12-gauge shotguns at Fitzgerald's house and retrieved 12-gauge shells and double-aught buckshot from him. Fitzgerald's pickup truck was examined, but no blood was found.
The day after the bodies were found, officers arrested defendant in Stanislaus County after seeing two handguns under the front seat of a white Corvette he was driving. Defendant was very nervous when police approached him. When told why he was being arrested, he said, "Is that all?", and calmed down.
A couple of days later a Stanislaus County deputy sheriff saw a white Corvette fail to stop at a stop sign. The last number on the rear license plate and the first number on the front license plate had been covered with masking tape. The officer chased defendant at speeds of 80 to 90 miles per hour. Defendant had cut his hair since his arrest two days earlier.
Defense Evidence
Crisan was hiding at the time of his death and had been "running with [the] wrong people."
A forensic scientist testified that the blood on defendant's jeans was a droplet or transfer stain, not a smear. He found in the bedding different shotgun shells than those elwhich were recovered from Tholl's and Crisan's bodies. It was his opinion that Tholl was sitting upright when shot. He also testified concerning the amount of time it would have taken to drive from defendant's house to where the bodies were found and then to Fitzgerald's house.
Defendant testified that Crisan was a friend whom he had helped in the past. Crisan was running away from people who wanted to kill him when he arrived at defendant's house. Defendant planned to take Crisan's Corvette as a decoy while Crisan met with some people. After defendant took the Corvette, he was followed through Victorville but eventually lost them. He stopped at Fitzgerald's house to talk to Mills, whom he had sent there for her protection. He stopped at his house before driving to Modesto where he was to continue acting as a decoy. He saw blood in the bedroom and noticed the mattress was gone. Defendant panicked and thought Crisan had killed someone so he tried to clean up the scene, including painting one wall, in order to protect Crisan. Defendant then drove to Modesto, arriving there at 5:00 a.m. The prosecutor impeached defendant with a prior voluntary manslaughter conviction which the court allowed defendant to explain.
Defendant was charged with two counts of murder (§ 187, subd. (a)), with enhancing allegations that a principal was armed with a shotgun (§ 12022, subd. (a)), that defendant personally used a firearm (§ 12022.5), that he personally inflicted great bodily injury or death (§ 12022.7), as well as a multiple murder special circumstance allegation. (§ 190.2, subd. (a)(3).) Following a jury trial, defendant was convicted of the murder counts, and the jury returned true findings on a special circumstance allegation that defendant was convicted of more than one murder, pursuant to section 190.3, subdivision (a)(3), and that a principal was armed with a firearm, namely, a shotgun. The jury returned not true findings as to the allegations that defendant personally used a firearm and that he personally inflicted great bodily injury or death.
On September 11, 1989, defendant was sentenced to a determinate term of one year for the allegation that a principal was armed with a firearm, and two indeterminate terms of life without the possibility of parole were ordered to run consecutive to the determinate term. Defendant appealed. On May 13, 1991, we affirmed the convictions and sentence in full.
Effective January 2019, Senate Bill 1437 amended sections 188 and 189, and added section 1170.95, to allow petitions for resentencing for persons who were convicted of first degree felony murder but who were not the actual killer and were convicted under the natural and probable consequences doctrine. On February 1, 2019, defendant filed his petition for resentencing pursuant to section 1170.95, asserting he was convicted of first degree murder under the felony murder rule or natural and probable consequences doctrine, that he could not now be convicted of first or second degree murder because of changes to sections 188 and 189, that he was not the actual killer, nor did he aid or abet the murder with an intent to kill, that he was not a major participant or act with reckless indifference to human life.
On August 7, 2020, after several continuances related to the General Order Re: Implementation of Emergency Relief Authorized Pursuant to Government Code section 68115, issued by the Judicial Council, the trial court denied the petition, finding defendant was ineligible for relief. Defendant appeals.
DISCUSSION
1. Petitioner Has Forfeited Any Challenge to the Adequacy of the Record Considered by the Trial Court in Ruling on his Petition.
Petitioner argues that the trial court relied on an incomplete record and facts from our opinion in the direct appeal in ruling on his petition. He asserts the prosecutor relied on the facts described in the Court of Appeal opinion, which does not directly address the issue raised in his petition for resentencing, so it should not have been relied on. We disagree on both points.
The record on appeal reveals that at the inception of the hearing on August 7, 2020, the court indicated it had reviewed the petition filed by the defendant, and that it had received and reviewed the People's motion to strike the petition with exhibits attached. The court then asked, "Is there anything else I should have?" In response to that question, defense counsel asked if the court had reviewed the record on appeal. The court responded, "That's what I have in the file with all the attachments." Defense counsel then said, "Thank you." Thereafter, the court listed the exhibits it had reviewed, including our unpublished opinion, People v. Woods, supra, E007170, the original as well as the amended information filed in the case, the verdict forms, sentencing minutes, the judgment, the jury instructions and the reporter's transcript of the oral instructions to the jury. Again, the court asked the parties, "Is there anything else I should have?" Petitioner's counsel said, "No."
It is clear from the above exchange that the court considered, at a minimum, the record of conviction, including our unpublished opinion from the direct appeal. The court's response to defense counsel's original question also makes it appear the court was familiar with the appellate record. It is equally clear the petitioner considered that to be adequate. Under the circumstances, petitioner has forfeited any claim that the court made its ruling on an inadequate record.
A defendant who fails to make a timely objection may not later claim error. (People v. Abel (2012) 53 Cal.4th 891, 924, citing People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Hayes (1999) 21 Cal.4th 1211, 1261.) A related principle, the "'doctrine of invited error,' is an 'application of the estoppel principle': 'Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal' on appeal. [Citation.]" (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) "'"The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the . . . court at [their] behest.'" [Citation.]" (In re I.A. (2020) 48 Cal.App.5th 767, 774.)
Here, the court gave defense counsel two separate opportunities to indicate any other records or other matter it should consider before ruling on the petition for resentencing. Defense counsel indicated there was nothing else the court should consider before ruling. Petitioner cannot now claim the trial court relied on an inadequate record where defendant indicated it had all the required material. Any claim that the court ruled based on an inadequate record has been forfeited.
In any event, any error was harmless because the record on appeal supports the inferences drawn from the matters that were presented to the trial court. Defendant was not charged with felony murder so the amendments to section 189 did not apply to him. Further, although the jury was instructed on principles of aiding and abetting and the natural and probable consequences doctrine, those instructions were based on the People's theory that defendant actively aided and abetted the murders, and not some other target felony.
Specifically, the jury was instructed that, "A person who aids and abets the commission of a crime when he or she with knowledge of the unlawful purpose of the perpetrator, and with the intent, purpose of encouraging, facilitating, aids, promotes, encourages or instigates the commission of the crime [sic]." The only theory presented to the jury was that defendant aided and abetted a murder, with knowledge of the perpetrator's unlawful purpose and with the intent and purpose of the perpetrator.
There was no error.
2. The Trial Court Was Not Required to Issue an Order to Show Cause Where the Record of Conviction Demonstrated Petitioner Was Not Entitled to Relief.
On appeal, defendant challenges the trial court's finding he was ineligible for resentencing relief under section 1170.95. He argues he established prima facie eligibility because the jury in his case was instructed on the natural and probable consequences theory, and that the People failed to meet their burden of establishing ineligibility for relief and he was entitled to an order to show cause. He asserts that, "making all factual inferences in favor of the petitioner," the record of conviction does not show, as a matter of law, that petitioner personally acted with malice and intended to kill, or that the jury did not rely on the natural and probable consequences theory. We disagree.
Senate Bill 1437, which became effective in January 2019, was enacted after the Legislature determined there was further "need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).) To accomplish this goal, it amended section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought, and that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2; In re R.G. (2019) 35 Cal.App.5th 141, 144.)
Under the amendment to section 188, subdivision (a)(3), to be guilty of murder other than as specified in section 189, subdivision (e), concerning felony murder, the subjective mens rea of "malice aforethought" must be proved: "[T]o be convicted of murder, a principal in a crime shall act with malice aforethought." (See also Stats. 2018, ch. 1015, § 1, subd. (g) ["[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea"].) And that required element of malice "shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); People v. Lopez (2019) 38 Cal.App.5th 1087, 1103 [review granted Nov. 13, 2019, S258175].)
However, this amendment did not alter the law regarding the criminal liability of active or direct aiders and abettors of murder because such persons necessarily "know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see People v. Chiu (2014) 59 Cal.4th 155, 167 [a direct aider and abettor "acts with the mens rea required for first degree murder"].) To prove liability for murder as a direct aider and abettor—a theory that is still viable after the amendments—"the prosecution must show the defendant acted with knowledge of the perpetrator's criminal purpose and with the intent of committing, encouraging, or facilitating commission of the offense." (People v. Nguyen (2020) 53 Cal.App.5th 1154, 1164.) One who directly aids and abets another who commits murder is thus liable for murder under the new law, just as he or she was liable under the old law.
Senate Bill 1437 also amended section 189. As amended, the natural and probable consequences doctrine can no longer be used to support a murder conviction. (People v. Lopez, supra, 38 Cal.App.5th 1087, 1103 & fn. 9 [review granted November 13, 2019, S258175]; Stats. 2018, ch. 1015, § 1, subd. (f).) That section now limits first degree murder liability based on a felony murder theory to a person who: (1) was the actual killer; or (2) although not the actual killer, intended to kill and assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e).) In so doing, Senate Bill 1437 ensures that murder liability is not imposed on a person who did not act with implied or express malice, was 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. (People v. Munoz (2019) 39 Cal.App.5th 738, 749-750 [review granted November 26, 2019, S258234].)
Nevertheless, even under the amended provisions of section 189, a defendant can be convicted of felony murder if he was the actual killer; acted as a direct aider and abettor 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); People v. Murillo (2020) 54 Cal.App.5th 160 [review granted November 18, 2020, S264978].) The terms "major participant" and "reckless indifference to human life" as used in section 189, subdivision (e), thus have the same meaning in the context of first degree felony murder as they do in the context of the felony murder special circumstance (§ 190.2, subds. (a)(17) & (d).) (See People v. Banks (2015) 61 Cal.4th 788, 798-811; People v. Clark (2016) 63 Cal.4th 522, 611-623.)
Senate Bill 1437 also added section 1170.95, which permits a person convicted of murder under a felony murder or natural and probable consequences theory to petition the court to have the murder conviction vacated and to be resentenced. (§ 1170.95, subds. (a) & (e).) Section 1170.95 requires that the petition be filed in the sentencing court, and must include the petitioner's declaration showing eligibility, the case number, the year of conviction, and any request for counsel. (§ 1170.95, subd. (b); People v Verdugo (2020) 44 Cal.App.5th 320, 327 (Verdugo) [review granted March 18, 2020, S260493].)
Section 1170.95, subdivision (a) provides that a person convicted of felony murder or murder under a natural and probable consequences theory may petition the trial court to have his or her murder conviction vacated or be resentenced, asserting the petitioner could "not be convicted of first or second degree murder because of changes to Section[s] 188 or 189" made by Senate Bill 1437. (§ 1170.95, subd. (a)(3), People v. Lewis (2020) 43 Cal.App.5th 1128, 1135-1136 (Lewis) [review granted March 18, 2020, S260598].)
Subdivision (c) of section 1170.95 describes the next stage of the petition process: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor['s] response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
In Verdugo, supra, the court interpreted this provision as providing for a multi-step process in evaluating a section 1170.95 petition. An initial review is conducted to determine the facial sufficiency of the petition. If the trial court determines a petitioner has made a prima facie showing of eligibility for relief, the court proceeds to the "second" inquiry into the prima facie showing under section 1170.95, subdivision (c). (Verdugo, supra, 44 Cal.App.5th at p. 330 [review granted March 18, 2020, S260493.].)
In this second step, the trial considers whether the petitioner has made a prima facie showing of entitlement to (rather than eligibility for) relief. (Verdugo, supra, 44 Cal.App.5th at pp. 327-330, review granted March 18, 2020, S260493; People v. Tarkington (2020) 49 Cal.App.5th 892, 897 [review granted, August 12, 2020, S263219], citing People v. Torres (2020) 46 Cal.App.5th 1168, 1177-1178 [review granted June 24, 2020, S262011]; People v. Drayton (2020) 47 Cal.App.5th 965, 975-976 (Drayton) [§ 1170.95 provides for two separate prima facie reviews, with the first focused on eligibility for relief and the second on entitlement to relief].)
At this level of evaluation, the trial court's authority to make factual determinations at the prima facie stage "'is limited to readily ascertainable facts from the record (such as the crime of conviction) . . . ' [Citation.]" (People v. Duchine (2021) 60 Cal.App.5th 798, 812.) Thus, "[i]f a defendant asserts he lacked the requisite intent or did not act in a manner that would make him liable under still-valid murder theories, unless the record of conviction refutes those assertions as a matter of law, the defendant has met his prima facie burden." (Id. at p 813, citing Drayton, supra, 47 Cal.App.5th at p. 980.)
In Lewis, the reviewing court held that in determining whether the petitioner has stated a prima facie basis for relief a trial court may consider the record of conviction, a question currently pending in the California Supreme Court. (Lewis, supra, 43 Cal.App.5th at p. 1137.) The Lewis court observed that in such petitions, a trial court undertakes an "'"initial screening"'" of the petition to determine whether it states ""'a prima facie basis for relief.'"" (Lewis, supra, at p. 1137, citing People v. Washington (2018) 23 Cal.App.5th 948, 953, 955 [noting that in evaluating the petition at that stage, the court is permitted to examine the petition "'as well as the record of conviction.'"].) In this case, the parties agreed the court could consider the exhibits attached to the People's motion to strike the petition for resentencing, including our opinion.
In Drayton, the reviewing court considered the record of conviction, including the preliminary hearing transcript, comparing this second level of "prima facie eligibility review" as akin to the review conducted by courts in determining whether a petitioner in habeas corpus proceedings has made a prima facie showing of entitlement to an order to show cause. (Drayton, supra, 47 Cal.App.5th at pp. 977-978.) There, the court observed that "if the record, including the court's own documents, 'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified in making a credibility determination adverse to the petitioner.'" (Drayton, supra, 47 Cal.App.5th at p. 979, citing In re Serrano (1995) 10 Cal.4th 447, 456.)
However, in Drayton, the reviewing court reversed the denial of a petition because the trial court denied the petition after making credibility determinations where there were "no facts in the trial court record that, as a matter of law, refuted Drayton's assertion that he had been convicted of first degree murder on a theory of felony murder." (Drayton, supra, 47 Cal.App.5th at p. 981.)
In the present case, defendant's petition alleged he was convicted of first degree murder under the felony murder rule or the natural and probable consequence doctrine. But the former assertion is refuted by the record of conviction demonstrating he was charged with and convicted of premeditated and deliberate murder as a direct aider and abettor. The jury was instructed on the elements of that crime, as well as malice (both express and implied.) The court read CALJIC 3.31.5 regarding malice aforethought as the necessary mental state for murder, the elements of murder, including malice aforethought, express malice, first degree murder by premeditation and deliberation, and lying in wait as a form of first degree murder. Defendant was not charged with murder under the felony murder doctrine.
As to the latter assertion, that he was convicted under the natural and probable consequences doctrine, it also is refuted by evidence that defendant was charged and convicted as a direct aider and abettor, who had knowledge of and shared the perpetrator's intent, despite defendant's focus on the fact the jury was instructed on the natural and probable consequences theory as to aider and abettor liability. In this respect, defendant ignores the context of that instruction, which was given as part of the instructions on direct aider-abettor responsibility. The jury was instructed that defendant could be convicted of first degree murder even if defendant was not the actual killer, if it found he aided and abetted the crime of murder.
Senate Bill 1437 and the amendments to sections 188 and 189 did not abrogate direct aider-abettor liability for murder. Section 188, subdivision (a)(3), as amended, provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." In defendant's case, the jury was instructed that to be convicted as an aider and abettor, defendant was required to have the requisite mental state of malice aforethought in order to convict him.
The jury in this case was also instructed that it could only find defendant guilty of first degree murder if it found he had the requisite knowledge of the killer's intent to kill, and, having that same intent or purpose, he aided and abetted the killer. As such, even after the amendments to section 188 and 189, petitioner could 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)(3).) A defendant is ineligible for relief as a matter of law in cases where the record conclusively shows that the jury actually relied—and the defendant's murder conviction actually rests—upon a theory of liability that is unaffected by section 1170.95.
The theories that a defendant was the actual killer or directly aided and abetted the killing have been unaffected by the amendments to sections 188 and 189, so petitioner was ineligible as a matter of law. Here, the theory of the prosecution was that Woods directly aided and abetted the killing with the requisite intent to kill, as the jury was instructed to, and did, find. That theory renders him ineligible for resentencing because it was unaffected by Senate Bill 1437.
The court properly denied relief.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.