Filed 3/30/22 P. v. Blalock CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge.

Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 1991, petitioner William Blalock pled guilty to the second degree murder of Gerald Smart.[1] (Pen. Code,[2] § 187.) For this offense, the trial court sentenced petitioner to a term of 15 years to life.

In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The court denied the petition on the ground petitioner was not convicted of felony murder or murder under a natural and probable consequences theory, and thus was ineligible for resentencing.

On appeal, petitioner asserts he established a prima facie claim for resentencing relief and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. We agree with petitioner and reverse.

FACTUAL AND PROCEDURAL HISTORY

On January 24, 1991, the Fresno County District Attorney filed a first amended information, charging petitioner and his codefendant Brenda Joyce Lowe with the murder of Smart (§ 187; count one), with an enhancement for personal use of a weapon, specifically, a motor vehicle, in the commission of the offense (§ 12022, subd. (d)), and a special circumstance for murder committed in the commission or attempted commission of a robbery (§ 190.2, former subd. (a)(17)(i)); robbery of Smart (§§ 211, 212.5, former subd. (b); count two); kidnapping of Smart (§ 207, subd. (a); count three); and fraudulent use of Smart’s access card (§ 484f, former subd. (2); count four). The information further alleged 2 one-year prior prison term enhancements (§ 667.5, former subd. (b)) and a five-year prior serious felony enhancement (§ 667, subd. (a)) as to petitioner. That same day, count three was stricken.

On the same date, petitioner entered a guilty plea to second degree murder on count one and admitted the deadly weapon enhancement. He also pled guilty on count four and admitted the prior prison term and prior serious felony enhancements.[3] Count two and the robbery special circumstance were dismissed. The factual basis for the plea was listed on the minutes as a stipulated statement and the preliminary hearing transcript. Neither is contained in the record on appeal.

On February 20, 1991, the trial court sentenced petitioner on count one to a term of 15 years to life, and on count four to a two-year term. The court also imposed a one-year term for the deadly weapon enhancement, 2 one-year terms for the prior prison term enhancements, and a five-year term for the prior serious felony enhancement.[4]

On January 2, 2019, petitioner, in propria persona, filed a petition for resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a complaint, information, or indictment was filed against him that allowed him to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; he pled guilty or no contest to first or second degree murder in lieu of going to trial because he believed he could have been convicted of first or second degree murder at trial pursuant to the felony-murder rule or the natural and probable consequences doctrine; and he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019.

On March 4, 2019, the People filed a motion to dismiss the petition on the ground section 1170.95 is unconstitutional. On the same date, the People also filed an opposition to the petition on the merits. Therein, the People provided the following factual summary of the case:

“The available record^[[5]^] shows that Mr. Smart was a retired senior citizen. It appears he regularly allowed drug-addicted prostitutes to use his apartment, automobile, checkbook and credit cards in exchange for sexual favors. The co-defendant in this case was one such prostitute. The defendant was her boyfriend, whom she introduced to Mr. Smart as her brother.

“On October 13, 1989, Mr. Smart had begun to suspect that the defendants had been stealing from him and asked both to leave his apartment. Later that evening, the defendants took Mr. Smart for a ride and killed Mr. Smart by using his own vehicle to run him over. In the following days, both defendants made retail purchases with Mr. Smart’s own charge card. Additionally, a witness identified both defendants as the two people who abandoned Mr. Smart’s vehicle.”

The People explained that the evidence “did not provide proof beyond a reasonable doubt as to which of the defendants drove the vehicle that ran over Mr. Smart, which resulted in his death.” The People further explained that, “had the case gone to trial, the jury would have been presented with the question as to which defendant was the perpetrator of the murder and which defendant aided and abetted the murder. A further question would have been whether either or both of the defendants acted with an intent to kill in running over Mr. Smart.” The People argued that neither felony murder nor the natural and probable consequences doctrine were implicated by the plea because “there appears to be no evidence to show that the defendants’ possession of Mr. Smart’s property was without his consent, let alone via the force or fear necessary for robbery.” Thus, the People argued, neither felony murder nor the natural and probable consequences doctrine would have been a theory of murder at trial, and petitioner therefore was ineligible for resentencing.

Counsel was eventually appointed to represent petitioner. On June 13, 2019, petitioner filed a response to the People’s opposition and motion to dismiss. Petitioner stated the People’s brief “adequately [laid] out the facts, though it omitted the fact that Ms. Lowe regularly drove the victim around.” Petitioner argued the record did not establish he was the actual killer, and the facts and charge permitted him to be prosecuted under a theory of felony murder. He further argued the court was required to hold a hearing to resolve factual issues as to whether he was the actual killer or a major participant in an underlying felony who acted with reckless indifference to human life. He therefore argued he had made a prima facie case for relief and was entitled to an order to show cause. Petitioner also argued section 1170.95 is constitutional.

The People thereafter filed supplemental points and authorities on the question of constitutionality. On November 19, 2019, the People also filed supplemental points and authorities on the merits. The People again recited the facts from the “available record,” as stated in their opposition. However, the People also referred to petitioner’s testimony at two parole hearings. The first such hearing occurred on November 2, 2016, and petitioner’s relevant testimony is as follows:

“So basically, I met a female named Brenda Low[e]. And I used her to come out of a halfway house because she had her own apartment. And she was involved with several people, Mr. Smart being one of them. And we told Mr. Smart that I was her brother so that he wouldn’t be upset about the situation. Now Brenda and myself as well was using Mr. Smart for financial gain. And one day, I came back in, I heard them arguing. And when I went in, he was accusing her of stealing one of his credit cards, telling her he was going to call the police. And they was arguing and shouting. And he told her that he was going to call the police for robbery, robbery and something else. So I basically told him that the best thing would be, the best thing to do would be for us to leave. So we asked him to drop us off at her father’s house, he agreed. And before we got [to Lowe’s father’s house], me and Mr. Smart was arguing in the car. . . . [¶] . . . [¶] . . . I basically was -- I was rubbing it in, I was egging him on, letting him know that you’re just stupid, you’re just a sugar daddy. This is really my girlfriend. And it had the desired effect. He became very frustrated and upset, and he told her to stop the car which she did. And he got out of the passenger seat and was coming around the front, and I told her to get him. That’s when she ran him over.”

In the hearing, petitioner also explained that, when he said, “get him,” he “actually meant for [Lowe] to get out and go get him.” The People characterized petitioner’s explanation of the offense as “implausible,” and “simply not credible.”

The second parole hearing occurred on November 1, 2019, and petitioner’s relevant testimony was as follows:

“When I told her to get him, I meant for her to run him over because I was going to be a culprit to the crime and already know this and I had only been out of prison for six, seven months. I had already . . . been convicted three times, so I know that was a – that was a three striker right there.”

The People argued petitioner’s statements at the parole hearings established he was ineligible for relief. On January 30, 2020, the People provided further supplemental points and authorities as to why the parole hearing transcripts should be considered in the prima facie review.

On February 10, 2020, the court held a hearing on the petition. The court noted that petitioner pled guilty to second degree murder and admitted that he personally used a deadly and dangerous weapon. Additionally, the court noted the robbery special circumstance and the robbery count were dismissed. The court noted that, had the case gone to trial, “the jury would have been presented with the question as to whether the defendant or his codefendant was the perpetrator of the murder and which defendant aided and abetted the murder. Accordingly, neither felony murder, nor the natural and probable consequences [doctrine] appear to be an applicable theory given that the special circumstances and the robbery charge had been dismissed.” On that basis the court found petitioner had failed to state a prima facie case and was ineligible for resentencing. The court noted that it did not consider the parole hearing transcripts, but that the transcripts further supported a conclusion that felony murder and the natural and probable consequences doctrine were not applicable theories, particularly given that the robbery special circumstance and robbery charge had been dismissed. Accordingly, the trial court denied the petition.

This timely appeal followed.

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) “to amend 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).) The bill accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”[6] (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill added section 1170.95 to provide a procedure for those convicted of a qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile, at p. 843.) This procedure is available to persons 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, attempted murder under the natural and probable consequences doctrine, or manslaughter.” (§ 1170.95, subd. (a).)

“Section 1170.95 lays out a process” for a person convicted of one of the aforementioned offenses “to seek vacatur of his or her conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the sentencing court averring that:

“(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, or attempted murder under the natural and probable consequences doctrine[;]

“(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and]

“(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)

Additionally, the petition shall state “[w]hether the petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1)(C).)

If a petition fails to contain the required information and the information cannot be “readily ascertained” by the court, the petition may be denied without prejudice to the filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a reply. The trial court must then hold a hearing to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.)

If the court determines the petitioner has met his or her prima facie burden, “the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also “may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural history of the case recited in any prior appellate opinion.” Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)

To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)

II. The Record Does Not Establish Petitioner is Ineligible for Resentencing

The trial court determined petitioner failed to make a prima facie case for resentencing because he was not convicted of felony murder or murder under a natural and probable consequences theory. Specifically, the court noted that the underlying felony robbery and robbery-murder special circumstance were dismissed which, according to the court, eliminated the possibility petitioner was convicted under a felony-murder theory. In this regard, the court erred.[7]

Section 1170.95, subdivision (a) requires a petitioner seeking resentencing to file a petition averring, as relevant here, that the charging instrument permitted him to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine, that he accepted a plea in lieu of going to trial on those charges, and that he could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019. (§ 1170.95, subd. (a)(1)-(3); accord, Lewis, supra, 11 Cal.5th at pp. 959-960.) If the petition meets these requirements, the court must determine whether petitioner has set forth a prima facie case. (§ 1170.95, subd. (c).)

The prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘ “[T]he 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. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ [Citation.] ‘However, 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.” ’ ” (Ibid.)

Here, petitioner was charged, in relevant part, with murder, a robbery-murder special circumstance, and felony robbery. The generic murder charge did not specify or exclude any particular theory of murder. (People v. Rivera (2021) 62 Cal.App.5th 217, 233 [generically charging murder did not preclude prosecution based on any particular theory of murder]; see People v. Eynon (2021) 68 Cal.App.5th 967, 977-978 [same].) The inclusion of the robbery charge and the robbery-murder special circumstance not only allowed the prosecution to proceed under a felony-murder theory, but also suggested the prosecution’s intent to do so. (See § 1170.95, subd. (a)(1).)

Petitioner ultimately pled guilty to second degree murder in lieu of going to trial on these charges. (see § 1170.95, subd. (a)(2).) As a result of the plea, the robbery charge and robbery-murder special circumstance were dismissed. A conviction of second degree murder does not categorically bar a petition under section 1170.95. (People v. Rivera, supra, 62 Cal.App.5th at p. 232 [a conviction of second degree murder does not categorically bar a petition under § 1170.95].) Nor is there anything in the record to suggest the dismissal of the robbery charge and special circumstance resulted from anything other than a negotiated plea. The dismissals do not conclusively refute petitioner’s allegation that he was convicted of felony murder. (See Lewis, supra, 11 Cal.5th at p. 971 [unless facts contained in the record of conviction conclusively refute petitioner’s allegations, the court may not make credibility determinations adverse to the petitioner]; accord, People v. Duchine (2021) 60 Cal.App.5th 798, 815; People v. Drayton (2020) 47 Cal.App.5th 965, 968, abrogated on another ground by Lewis, at pp. 962-963.)

Finally, the record does not otherwise establish, as a matter of law, that petitioner could still be convicted under section 188 or 189, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.). (See § 1170.95, subd. (a)(3).) In the trial court, the People relied on their own factual summary of the case and petitioner’s parole hearing transcripts to establish that petitioner was ineligible for resentencing. However, the People’s factual summary does not constitute admissible evidence on the question of petitioner’s eligibility for resentencing. (See § 1170.95, subd. (d)(3).) Regardless, the summary does not establish, as a matter of law, that petitioner was the actual killer, aided and abetted in the murder with express or implied malice, or was a major participant in the underlying felony who acted with reckless indifference to human life. Rather, such conclusions could only be drawn through judicial factfinding, which is prohibited at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.)

While the parole hearing transcripts would be admissible at an evidentiary hearing (§ 1170.95, subd. (d)(3)), we have substantial doubt that they constitute part of the “record of conviction” that may be considered at the prima facie stage (see Lewis, supra, 11 Cal.5th at pp. 970-971). Regardless, they are not dispositive. The transcripts present two different accounts of the murder. In one account, petitioner stated he did not intend for Lowe to run over Smart; in the other account, petitioner stated he did intend for Lowe to run over Smart. In the trial court, the People argued the first account was “implausible,” and “simply not credible,” but the second account established petitioner harbored intent to kill. As is apparent from these arguments, one of petitioner’s statements must be credited over the other for the transcripts to have any relevance. Such weighing of the evidence is prohibited at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.) The weight to be afforded this testimony can only be determined through an evidentiary hearing.

In sum, petitioner adequately alleged a prima facie claim for relief and the record does not rebut his allegations as a matter of law. The court was required to issue an order to show cause (§ 1170.95, subd. (c)), and to hold a hearing at which the prosecution bears the burden of proving petitioner’s ineligibility for resentencing beyond a reasonable doubt, unless such hearing is waived (§ 1170.95, subd. (d)). In failing to do so, the court erred. Accordingly, we must reverse and remand for further proceedings. We express no opinion on the merits of the petition.

DISPOSITION

The February 10, 2020 order denying petitioner’s section 1170.95 petition is reversed. On remand, the trial court is directed to issue an order to show cause and to conduct further proceedings as required under section 1170.95, subdivision (d), in light of the principles set forth herein.

* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.

[1] Petitioner entered a plea to additional offenses, as described below.

[2] Undesignated statutory references are to the Penal Code.

[3] Lowe similarly pled guilty to second degree murder with the use of a deadly weapon, and to fraudulent use of an access card.

[4] It appears petitioner’s prior prison term enhancements recently were rendered invalid. (Sen. Bill. No. 483 (2021-2022 Reg. Sess.); see § 1171.1, subd. (a).) On remand, petitioner may raise the issue of his entitlement to resentencing pursuant to section 1171.1.

[5] The People did not specify the record relied on in creating this factual summary. It appears to be taken from either a summary of the preliminary hearing contained in the probation officer’s report, or a letter submitted by the prosecutor to the probation department for use in preparation of that report.

[6] Additionally, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672.)

[7] The trial court did not hold that Senate Bill No. 1437 (2017-2018 Reg. Sess.) is unconstitutional. Nonetheless, petitioner argues Senate Bill No. 1437 is constitutionally sound. The People concede as much. This court has previously upheld the constitutionality of Senate Bill No. 1437 against a variety of challenges. (E.g., People v. Nash (2020) 52 Cal.App.5th 1041, 1053.)