Filed 3/30/22 P. v. Danielson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

This is an appeal from a denial of relief on a petition for resentencing under Penal Code[1] section 1170.95. Appellant’s counsel raises no issues and requests that we conduct a Wende review of the resentencing proceedings. (People v. Wende (1979) 25 Cal.3d 436.) The courts, recognizing that Wende review is constitutionally required only from a defendant’s first appeal of right from a criminal conviction, have held they are not required to conduct Wende review on appeal from a denial of a petition under section 1170.95 because it is from a postconviction order denying sentencing relief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct. 14, 2020, S264278; People v. Flores (2020) 54 Cal.App.5th 266, 273; see People v. Delgadillo, review granted Feb. 17, 2021, S266305 [issue pending in Supreme Court].) Hence this appeal could be dismissed. (Cole, at p. 1028; People v. Freeman (2021) 61 Cal.App.5th 126, 134.)

We nonetheless have discretion to conduct a Wende-style review in an appeal from a postconviction order and have been encouraged to do so. (People v. Flores, supra, 54 Cal.App.5th at pp. 273–274.) The Courts of Appeal currently disagree about what approach to take to such discretionary review. (See People v. Cole, supra, 52 Cal.App.5th at p. 1035 [summarizing different approaches].) Counsel for appellant followed standard Wende procedures in this case, advised him that after reviewing the record she would be filing a Wende brief, and further advised him that he had a right to file a supplemental submission with us should he wish to do so. We received and have considered a one-page submission in propria persona from appellant filed on March 23, 2022. And we have exercised our discretion to conduct a Wende review in this case because we view it as the more prudent course while the issue remains pending before the Supreme Court.

After a full review of the record of the resentencing proceedings, we conclude the trial court correctly denied appellant’s petition under section 1170.95, and there are no arguable issues for his attorney to brief.

• I. BACKGROUND

1. The Underlying Murder[2]

In March 1990, appellant Gary Stephen Danielson (Gary), in the company of his brother, David Wayne Danielson (David), and a friend named Brian A. Nielsen, killed a Napa chiropractor, Richard Holman, by stabbing him 57 times, while assaulting and terrorizing his wife. The three stole Holman’s wallet and other household and personal items. The two brothers were found guilty of murder at a later joint jury trial, with the special circumstance that the killing occurred in the course of a burglary and a robbery. (§§ 187, subd. (a), former § 190.2, subd. (a)(17).) Nielsen was not tried with them, and he testified against them under an agreement with the prosecution that the People would not seek the death penalty against him if he testified truthfully.

According to testimony from Dr. Warrick, another chiropractor who worked in Holman’s office and the Danielson brothers’ stepfather, the plan to rob and murder Holman arose from the fact that David sometimes did janitorial work in the office, and David was disgruntled over the way Holman treated him and Dr. Warrick. The crime was discussed for about a week before it was carried out. The robbery and murder were David’s idea. He knew Holman had been convicted of and imprisoned for income tax evasion in 1978. He also knew Holman was supposed to have a large amount of cash in his home on that Friday night. During the robbery, Nielsen told Holman’s wife they were seeking revenge for a homosexual act performed by Holman when he was in prison. They planned this ruse ahead of time to throw off the police, which it did. The three robbers planned to kill Holman from the outset because they were afraid he would recognize David from the chiropractic office. The Danielson brothers wanted to kill his wife, too, but Nielsen testified he talked them out of it.

The killers were not identified or apprehended for several years after the crime, when Nielsen’s divorcing wife came forward to disclose what she knew, asking for police protection from Nielsen. Her information led to the identification and prosecution of all three burglars/robbers/killers.

Holman’s widow testified Nielsen was the most active participant in the stabbing—indeed, the only participant—but Nielsen testified at the Danielson brothers’ trial that both brothers also stabbed the chiropractor, though Nielsen admitted being the principal killer and admitted he slit the victim’s throat. Under the widow’s testimony, Gary appeared to be the least culpable of the three intruders. Nielsen testified the three agreed ahead of time to all participate in the murder so they would all be fully culpable. Nielsen escaped the death penalty, while both brothers were sentenced to life without the possibility of parole.

2. The Resentencing Petition

In 2018, effective January 1, 2019, the Legislature amended the murder statutes to narrow the class of defendants subject to a murder conviction by restricting those who could be convicted under a felony murder theory or under the natural and probable consequences doctrine. (2018 Stats., ch. 1015, §§ 2 & 3, amending Pen. Code, §§ 188 & 189.) The Legislature also provided a procedure through which a person convicted in the past of murder under a felony murder or natural and probable consequences theory could petition to have the murder conviction vacated and a resentencing hearing granted under the new statute. (§ 1170.95, subd. (a).)

On February 6, 2019, Gary filed in superior court a petition for resentencing under section 1170.95 alleging he had been convicted in 1998 of first degree murder based on the natural and probable consequences doctrine or a felony-murder theory. On February 11, 2019, the court appointed counsel for Gary, thereby complying in advance with the Supreme Court’s dictate in People v. Lewis (2021) 11 Cal.5th 952, 957–958 (Lewis). On April 26, 2019, Gary’s attorney filed an amended petition under section 1170.95.

A petitioner’s prima facie case consists of three mandatory elements: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder [or] murder under the natural and probable consequences doctrine . . . . [¶] (2) The petitioner was convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder . . . . [¶] (3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)

On October 14, 2021, the judge denied the petition based on the special circumstance finding at Gary’s trial in 1998. The jury was instructed that, before they could find the special circumstance true, they had to find either that Gary was an “actual killer” of Holman or that he was an aider and abettor or co-conspirator who participated in the first degree murder with the intent to kill. (CALJIC No. 8.80.) Because the jury’s special circumstance findings included that both brothers had, at least, formed the intent to kill, the judge ruled that Gary was statutorily ineligible for resentencing under section 1170.95, because he was still guilty of felony murder under the current version of section 189, subdivision (e)(2).

That subdivision provides: “A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) 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.” (§ 189, subd. (e)(2).)

Gary’s appellate counsel has filed a brief under People v. Wende, supra, 25 Cal.3d 436. As explained, although we would be legally justified in dismissing the appeal, we have instead conducted a full record review of the resentencing proceedings. We conclude there are no issues that merit briefing.

• II. DISCUSSION

Gary’s appellate attorney, in addition to filing a standard Wende brief, asks the question: “Did the trial court err in denying appellant’s petition for relief under section 1170.95?” It should be noted that the briefing by both parties in superior court preceded issuance of the Supreme Court’s opinion in Lewis, supra, 11 Cal.5th 952, but the trial court’s ruling was made after Lewis was decided.

Lewis held that a trial court could rely upon the record of conviction, including a prior appellate opinion, in assessing whether a petitioner has made a prima facie case for relief under section 1170.95, subdivision (c). (Lewis, supra, 11 Cal.5th at pp. 971–972.) It further observed that an appellate opinion “ ‘might not supply all answers,’ ” and the superior court should not engage in “ ‘weighing of evidence or the exercise of discretion’ ” when it examines the “record of conviction” to determine whether a petitioning defendant has established a prima facie case of entitlement to relief under section 1170.95. (Lewis, at p. 972; see People v. Duchine (2021) 60 Cal.App.5th 798, 813, 815–816.)[3] The resentencing court in Gary’s case also recognized the availability of the indictment, verdicts, and jury instructions as parts of the “record of conviction” for purposes of a prima facie determination. On that point, we conclude the court’s ruling was correct. (See People v. Ervin (2021) 72 Cal.App.5th 90, 99, 102.)[4]

Gary and the others were charged by indictment in August 1995. In addition to alleging murder under section 187, subdivision (a), the indictment alleged special circumstances of murder in the commission of a burglary and robbery. “It is further alleged that the murder of Richard Holman, was committed by [the three defendants], while the said persons were engaged in the commission of, an accomplice in the commission of, engaged in the attempted commission of, an accomplice of, an accomplice in the attempted commission of, engaged in immediate flight after having committed and attempted to commit the crime of Burglary, within the meaning of Penal Code [former] section 190.2(a)(17)(vii)” (now § 190.2, subd. (a)(17)(G)). An identically worded allegation was made with respect to a robbery special circumstance under former section 190.2, subdivision (a)(17)(), now section 190.2, subdivision (a)(17)(A). An enhancement for personal use of a deadly weapon (§ 12022, subd. (b)) was alleged only against Nielsen. Gary’s supplemental submission to us attaches a copy of what he represents to be a jury instruction given at his trial, then-current CALJIC 3.02, which includes a natural and probable consequences aiding and abetting instruction based on then prevailing law.

While Gary and David’s personal intent to kill was not alleged in the indictment, and while a natural and probable consequences instruction appears to have been given, we know that the jury must have found that Gary personally harbored intent to kill because such a finding was necessary for it to render a true finding on the special circumstance allegations, based on the jury instructions governing that finding. Then-current CALJIC No. 8.80, given at Gary’s trial, told the jurors: “If you find a defendant in this case guilty of murder of the first degree, you must then determine if one or more of the following special circumstances is true or not true: that the murder was committed while the defendant was engaged in or was an accomplice in the commission of a burglary, or that the murder was committed while the defendant was engaged in or was an accomplice in the commission of a robbery. [¶] The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true. [¶] If you find beyond a reasonable doubt that the defendant was either the actual killer or a co-conspirator or an aider or abettor, [i]but you are unable to decide which, then you must also find beyond a reasonable doubt that the defendant with intent to kill participated as a co-conspirator with or aided and abetted an actor in commission of the murder in the first degree, in order to find the special circumstance to be true. On the other hand, if you find beyond a reasonable doubt that the defendant was the actual killer, you need not find that the defendant intended to kill a human being in order to find the special circumstance to be true. [¶] You must decide separately as to each of the defendants the existence or nonexistence of each special circumstance alleged in this case. If you cannot agree as to both the defendants, but can agree as to one of them, you make your finding as to the one upon which you do agree. [¶] You must decide separately each special circumstance alleged in this case as to each of the defendants. If you cannot agree as to all of the special circumstances, but can agree as to one, you must make your finding as to the one upon which you do agree. [¶] In order to find a special circumstance alleged in this case to be true or untrue, you must agree unanimously.” (Italics added.)

Emphasizing the italicized words in the above-quoted jury instruction, Gary’s attorney argued in superior court that CALJIC No. 8.80 did not eliminate the possibility that the jury could have decided and did decide which role Gary played in the murder, and thus would not have proceeded to determine whether he harbored the intent to kill. If, for instance, the jury decided that Nielsen was the actual killer, but unanimously agreed that Gary was an aider and abettor, under his trial counsel’s reading of CALJIC No. 8.80, the jury could have found Gary was guilty of the special circumstance even if they did not conclude he personally entertained an intent to kill, for in that circumstance, they would not have needed to proceed with the clause beginning with the word “then.”

The superior court judge disagreed with this interpretation of the jury instruction and concluded the instruction offered the jury a “binary” choice: “either” Gary was guilty under a “direct liability” theory if they concluded he was the actual killer, or they convicted him under a “vicarious liability” theory, in which case, even if they unanimously concluded he was an aider and abettor or unanimously concluded he was a co-conspirator, they still would have proceeded to the question whether he also himself harbored an intent to kill because either theory is a form of vicarious liability. In short, even if the natural and probable consequences instruction, in retrospect, can now be said to have been erroneous (looking at it under current law), the error was harmless beyond a reasonable doubt because the jury must have found Gary was either (1) the actual killer or (2) a direct aider and abettor or a co-conspirator with intent to kill. Gary’s appellate counsel, correctly, does not renew his trial counsel’s argument on this issue on appeal.

We conclude it is not reasonably likely the jury would have construed the instruction as postulated by Gary’s trial counsel. The jury’s special circumstance findings that Gary committed the murder while engaged in a burglary and a robbery eliminated any potential relief available to him under section 1170.95. Based on the jury instructions, those findings necessarily included that Gary himself harbored an intent to kill, making him ineligible for resentencing under section 1170.95, subdivision (a)(3) because he still could be convicted of first degree murder under section 189, subdivision (e)(2), as amended effective January 1, 2019. We find no error and no arguable issues requiring briefing.

• III. DISPOSITION

Having reviewed the entire record of the resentencing proceedings, we affirm the finding and order of the superior court that petitioner Gary Stephen Danielson was not entitled to a hearing under subdivision (d) of Penal Code section 1170.95 because he failed to establish a prima facie case of entitlement under subdivision (c) of the statute.

STREETER, J.

WE CONCUR:

POLLAK, P. J.

BROWN, J.

[1] All further undesignated statutory references are to the Penal Code.

[2] The facts are taken from the nonpublished appellate opinion in People v. Danielson (Oct. 31, 2000, A084090, A084249).

[3] Recent amendments to that section further limit the courts’ reliance on a previous appellate opinion, except insofar as it provides procedural background, effective January 1, 2022. (§ 1170.95, subd. (d)(3), 2021 Stats., ch. 551, § 2(d)(3).) We have drawn background facts from the appellate opinion, but not from the probation report. The facts we have relied on from the appellate opinion have not been material to our disposition, which relies solely on the indictment, jury instructions, and verdict.

[4] On the other hand, the presentence probation report, attached to the prosecution’s brief, is not ordinarily considered a part of the record of conviction (People v. Burnes (2015) 242 Cal.App.4th 1452, 1458; People v. Banda (2018) 26 Cal.App.5th. 349, 357–358) and should not have been consulted by the superior court judge, at least not for a hearsay recitation of the facts. As we read the record, however, the judge’s ruling did not rely on the probation report.