Filed 4/7/22 P. v. Dixon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kern County. Michael G. Bush, Judge.

Elizabeth M. Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

In 2009, petitioner Kevin Dixon pled no contest to the second degree murder of Kisasi Baltrip.[1] (Pen. Code,[2] § 187, subd. (a).) For this offense and a related enhancement, the trial court sentenced petitioner to a term of 25 years to life.

In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The trial court summarily denied the petition without providing a statement of reasons.

On appeal, petitioner asserts he established a prima facie claim for resentencing eligibility and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. The People concede error. We accept the People’s concession and reverse.

FACTUAL AND PROCEDURAL HISTORY

On February 5, 2009, the Kern County District Attorney filed an amended indictment charging petitioner, along with codefendants Anthony Ford, Brian Brookfield, and Evan Wells, with the first degree premeditated murder of Baltrip (§§ 187, subd. (a), 189; count one), conspiracy to commit murder (§ 182, subd. (a)(1); count two), discharge of a firearm at an occupied motor vehicle (§ 246; count three), and active participation in a criminal street gang (§ 186.22, subd. (a); count four). As to count one, the indictment alleged a special circumstance that the murder was intentional and carried out to further the activities of the gang. (§ 190.2, subd. (a)(22).) As to counts one, two, and three, the indictment alleged that a principal personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)), the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and petitioner was 16 years of age or older when he committed the offense (Welf. & Inst. Code, § 707, former subd. (d)(1)). As to counts one and two, the indictment additionally alleged the offense was committed within 1,000 feet of an open school (§ 186.22, subd. (b)(2)). As to count four, the information alleged petitioner was 16 years of age or older when he committed the offense (Welf. & Inst. Code, § 707, former subd. (d)(1)).

On March 30, 2009, petitioner pled no contest to an amended charge of second degree murder on count one (§ 187, subd. (a)), and admitted an amended enhancement for personal use of a firearm pursuant to section 12022.53, subdivision (b). Petitioner additionally pled no contest to counts three and four, and admitted that he was 16 years of age or older when he committed the offenses. The parties stipulated that the “offense reports, and the testimony at the Grand Jury proceedings” provided a factual basis for the plea.[3] The remaining counts and allegations were dismissed.

On April 24, 2009, the trial court sentenced petitioner to a term of 15 years to life on count one, with an additional term of 10 years for the firearm enhancement. The trial court imposed a concurrent term of seven years on count three, and a concurrent term of three years on count four.

On April 2, 2010, this court modified the judgment with respect to petitioner’s custody credits and affirmed the judgment as modified. (People v. Dixon (Apr. 2, 2010, F057961) [nonpub. opn.].)

On February 4, 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; 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. He further requested that counsel be appointed to represent him on the petition.

On February 15, 2019, the court appointed counsel to represent petitioner on the petition.

On July 11, 2019, the People filed a motion to dismiss the petition on the ground Senate Bill No. 1437 (2017-2018 Reg. Sess.) is unconstitutional. On March 18, 2020, the motion was denied.

On May 15, 2020, the People filed an opposition to the petition on the merits, arguing petitioner was not prosecuted under the felony-murder rule or the natural and probable consequences doctrine and, in any event, was a major participant in the offenses and acted with reckless indifference to human life. On August 10, 2020, petitioner filed a reply, arguing he made a prima facie showing of relief and was entitled to an evidentiary hearing.

On August 11, 2020, the trial court summarily denied the petition in a minute order without providing a statement of reasons.

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.”[4] (§ 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.” (§ 1170.95, subd. (d)(3).) 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 Trial Court Erred in Failing to Issue an Order to Show Cause

The basis for the trial court’s denial of the petition for resentencing is unclear. However, as the People concede, the record does not establish petitioner is ineligible for resentencing as a matter of law. Accordingly, the court erred in denying the petition at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 966 [at the prima facie stage, the court may deny a petition if the petitioner is ineligible for resentencing as a matter of law].)

In the plea context, a petitioner convicted of murder is ineligible for resentencing if the record establishes, as a matter of law, that (1) the complaint, information, or indictment did not allow the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or another theory of imputed malice; (2) the petitioner was not or could not have been convicted under such theory; or (3) the petitioner could presently be convicted of murder or attempted murder under the law as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.). (See § 1170.95, subd. (a)(1)-(3).)

Here, petitioner was charged with first degree premeditated murder and other crimes, including shooting at an occupied vehicle. As the People concede, had the case gone to trial, a jury could have been instructed on, and convicted petitioner on, a theory that he aided and abetted in shooting at an occupied vehicle, which naturally and probably led to the victim’s murder. As the People further concede, such conviction potentially would be eligible for resentencing under section 1170.95. Accordingly, the charge does not exclude petitioner from resentencing eligibility as a matter of law.

Additionally, petitioner pled no contest to second degree murder. The conviction likewise does not render petitioner categorically ineligible for resentencing. (People v. Rivera (2021) 62 Cal.App.5th 217, 232-234 [a conviction of second degree malice murder does not categorically bar a petition under § 1170.95].) Significantly, petitioner did not admit the allegation that the murder was committed with premeditation, nor the allegation that the murder was intentional and carried out to further the activities of a criminal street gang. Instead, petitioner pled no contest to a generic charge of murder in the second degree, which did not specify or exclude any particular theory of murder. (See Rivera, at p. 233 [generically charging murder did not preclude prosecution based on any particular theory of murder]; see also People v. Eynon (2021) 68 Cal.App.5th 967, 977-978 [same].) In entering his plea, petitioner did not admit to or stipulate to any particular theory of murder. The plea does not exclude petitioner from resentencing eligibility as a matter of law.

We additionally note the plea involved no admission or stipulation that petitioner was a major participant in an underlying crime who acted with reckless indifference to human life. Thus, to the extent the trial court may have determined petitioner was a major participant who acted with reckless indifference to human life, it necessarily engaged in factfinding. However, the trial court may not engage in factfinding involving the weighing of the evidence at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.) To the extent the court engaged in factfinding, it erred.

In sum, petitioner adequately alleged a prima facie claim for resentencing 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.[5] We express no opinion on the merits of the petition.

DISPOSITION

The August 11, 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., Franson, J. and Peña, J.

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

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

[3] Neither record is contained in the record on appeal. A summary of the police reports contained in the probation officer’s report reflects that Baltrip was shot while in his vehicle. Petitioner was identified by witnesses as one of three suspects who fired directly into the vehicle.

[4] 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.)

[5] In light of this disposition, we do not address petitioner’s argument that the summary denial of his petition violated his federal due process rights.