Filed 3/4/22 P. v. Harris CA2/4

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Allen J. Webster, Jr., Judge. Reversed and remanded with instructions.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorney Generals, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Senior Assistant Attorneys General, Robin Urbanski, Supervising Deputy Attorney General, Lynne McGinnis and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

After participating in a gang-related drive-by shooting, appellant Kevaughn Harris was convicted of one count of murder and three counts of attempted murder. In affirming his convictions, we noted he had been the driver, but did not address the underlying theories of liability or otherwise clarify his role in the shooting. (People v. Harris (Aug. 15, 2006, No. B181957) Cal.App.Unpub. LEXIS 7115.) Years later, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) imposed new limits on two theories of murder liability, viz., the natural and probable consequences doctrine and the felony murder rule. SB 1437 also enacted Penal Code section 1170.95 (Section 1170.95), creating a procedure for defendants convicted of murder under these newly limited theories to petition for postconviction relief. Appellant filed a petition under Section 1170.95 for relief from his four convictions, and requested the appointment of counsel.

Rather than appoint counsel or hold a hearing, the trial court issued an order summarily denying appellant’s petition. Without identifying the source on which it relied, the court found that appellant had been one of the shooters, and that he had “assisted, facilitated, counseled, and encouraged the commission of a gang murder . . . .” In so doing, the court implicitly found appellant had not been convicted under the natural and probable consequences doctrine or the felony murder rule, and concluded he was ineligible for relief under Section 1170.95 as a matter of law.

On appeal, appellant contended the trial court erred by summarily denying his petition. Anticipating the People’s argument that relief from attempted murder convictions was unavailable under Section 1170.95, he argued the equal protection clauses of the state and federal constitutions prohibited the Legislature from withholding relief under Section 1170.95 from those convicted of attempted murder. He further contended we should instruct the court, on remand, to appoint counsel and issue an order to show cause why his convictions should not be vacated. As anticipated, the People argued Section 1170.95 provided no relief from attempted murder convictions. However, the People conceded the court erred by relying on impermissible factfinding to summarily deny appellant’s petition with respect to his murder conviction. They agreed that we should instruct the court to appoint counsel on remand, but disagreed that we should instruct the court to issue an order to show cause, arguing Section 1170.95 first required the court to receive briefing and determine whether appellant had made a prima facie showing of entitlement to relief.

In our initial opinion, we agreed with both parties that the court erred by relying on impermissible factfinding to summarily deny appellant’s petition with respect to his murder conviction. However, we agreed with the People that the court properly denied the petition with respect to appellant’s attempted murder convictions, as Section 1170.95 then provided no relief from such convictions. We noted that a closely related issue was then pending our Supreme Court’s review in People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted Nov. 13, 2019, and cause transferred Nov. 10, 2021, S258175. Pending guidance from the Lopez decision, we affirmed the order with respect to the attempted murder convictions, reversed the order with respect to the murder conviction, and remanded the matter to the trial court with instructions to appoint counsel for appellant, set a briefing schedule, and follow Section 1170.95’s further procedures for evaluating his petition for relief from his murder conviction.

Our Supreme Court granted review and deferred further action pending consideration of Lopez. While Lopez remained pending, the Governor signed into law Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective January 1, 2022, which amended Section 1170.95 to apply expressly to attempted murder convictions. (Stats. 2021, ch. 551, § 2.) After transferring Lopez to the Court of Appeal with directions to vacate its decision and reconsider the cause in light of SB 775, our Supreme Court transferred this case to us with identical directions. The parties filed supplemental briefs pursuant to the California Rules of Court, which require such briefs to be “limited to matters arising after the previous Court of Appeal decision in the cause, unless the presiding justice permits briefing on other matters.” (Cal. Rules of Court, rule 8.200(b)(2).) Appellant argued that because Section 1170.95 now applies not only to murder convictions but also to those for attempted murder, we should reverse the trial court’s order with respect to all his convictions. Without requesting or receiving permission to address matters existing before our initial opinion, the People requested that we take judicial notice of materials in the record of appellant’s direct appeal, and argued those materials establish his ineligibility for relief from his attempted murder convictions.[1]

We deny the People’s request for judicial notice of materials that were available to them before our initial opinion, as we “‘need not consider arguments which exceed the proper scope of supplemental briefing.’” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2021) Ch. 13-E ¶ 13:202.1). Having reconsidered the order denying appellant’s petition in light of SB 775, we reverse the order in its entirety. We remand to the trial court with directions to appoint counsel for appellant, set a briefing schedule, and follow Section 1170.95’s further procedures for evaluating his petition for relief from his convictions for murder and attempted murder.

PROCEEDINGS BELOW

On the afternoon of July 11, 2003, Keenan Chaney, Jason Martin, Dequin Bradford, and Deandre Pearson were walking on the sidewalk in an area claimed by the Campanella Park Pirus, a Blood gang. Martin was a member of the Campanella Park gang. A blue car with three occupants pulled alongside and stopped. Appellant was the driver. Someone in the car asked, “What’s up, Cuz?” Two occupants of the car began shooting, and the men on the sidewalk started running. Chaney was shot in the left arm and left leg. Martin suffered a fatal gunshot wound to the chest. Following a jury trial, appellant was convicted of Martin’s murder and the attempted murders of Chaney, Bradford, and Pearson. On direct appeal, we found sentencing error (immaterial to this appeal), but affirmed the convictions, which appellant had not challenged. (People v. Harris, supra, Cal.App.Unpub. LEXIS 7115.)[2]

On June 3, 2019, appellant filed a petition in propria persona for postconviction relief pursuant to Section 1170.95. By checking boxes on a form petition, he alleged that (1) he was not “the actual killer”; (2) he did not aid or abet the actual killer with the intent to kill; and (3) he was not a major participant in any felony underlying the killing, or did not act with reckless indifference to human life during the course of any such felony. He further alleged that he was convicted at trial “pursuant to the felony murder rule or the natural and probable consequences doctrine,” and that he could not be convicted under the law as modified by SB 1437. He requested the appointment of counsel.

On June 10, 2019, the court issued a minute order summarily denying appellant’s petition. In addition to stating facts included in our opinion on direct appeal, the court stated the following: “Police officers were directed to a backyard of a residence at 14601 South Corlett Avenue. They found victims Chaney and Martin in the backyard and Chaney was lying against the rear of the southwest corner of the house and Martin was lying in a tall grass area along a fence. Both were treated for their injuries[;] however[,] Martin succumbed to his injuries. [¶] One of the men who ran, Pearson, stated that the rear passenger displayed a ‘C’ hand sign and was the first to initiate the shooting. He also indicated that petitioner was the driver and that he fired 10 to 15 rounds from a semi-automatic type weapon. [¶] Another victim, Bradford, gave a similar account as victim Pearson[,] [a]dding that he believed petitioner described as the driver emptied the entire magazine from the weapon.” As the People acknowledge, “it is unclear where the trial court obtained these facts.”^[3]

Evidently relying on Pearson’s and Bradford’s asserted identifications of appellant as one of the shooters, the court concluded, “Because petitioner was the actual driver of the car, was one of the shooters and assisted, facilitated, counseled, and encouraged the commission of a gang murder involving a rival gang[,] he does not come with[in] the exceptions [established by SB 1437].” The court did not separately address appellant’s attempted murder convictions. Appellant timely appealed.

DISCUSSION

Appellant contends the trial court erred by summarily denying his petition under Section 1170.95 to vacate his murder and attempted murder convictions. He further contends we should instruct the court, on remand, to appoint counsel and to issue an order to show cause why his convictions should not be vacated.

1. Principles

SB 1437 eliminated murder liability under any theory of imputed malice other than the felony murder rule, which it narrowed. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e); Stats. 2018, ch. 1015, §§ 2, 3.) SB 1437 also enacted Section 1170.95. (Stats. 2018, ch. 1015, § 4.) As amended by SB 775, Section 1170.95 permits a defendant who was convicted of murder or attempted murder under any theory of imputed malice (including a felony murder theory or a natural and probable consequences theory), but who could not be convicted of murder or attempted murder because of SB 1437’s changes to the law, to petition the sentencing court to have the murder or attempted murder conviction vacated and to be resentenced on any remaining counts. (Pen. Code, § 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.)

After ascertaining that a Section 1170.95 petition contains certain required information, the court must appoint counsel for the petitioner (where requested), allow the parties to file briefs, and determine whether the petitioner has made a prima facie showing of entitlement to relief. (Pen. Code, § 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 960‑968 (Lewis).) “[A]t the prima facie stage, a petitioner’s allegations should be accepted as true, and the court should not make credibility determinations or engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’” (Lewis, supra, at 974, quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton).) This prohibition against factfinding at the prima facie stage is subject to a limited exception: “‘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.”’” (Lewis, at 971, quoting Drayton, at 979.) “However, this authority to make [factual] determinations without conducting an evidentiary hearing . . . is limited to readily ascertainable facts from the record (such as the crime of conviction) . . . .” (Drayton, at 980.) “[T]he ‘prima facie bar was intentionally and correctly set very low.’” (Lewis, at 972.)

Where the court finds the petitioner has made a prima facie showing of eligibility for relief, it must issue an order to show cause and, if the parties do not stipulate to relief, hold an evidentiary hearing on the petitioner’s eligibility. (Pen. Code, § 1170.95, subds. (c)-(d).) “At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by [SB 1437].” (Id., § 1170.95, subd. (d)(3).) If the prosecution fails to meet this burden, the court must vacate the convictions for murder or attempted murder. (Ibid.)

2. Analysis

As the parties agree, the trial court erred by relying on impermissible factfinding to summarily deny appellant’s petition with respect to his murder conviction. The People concede the record on this appeal “does not indicate which theories of liability the People presented the jury and what instructions were given by the trial court.” Indeed, the court did not purport to find that the jury had rejected -- or had never been presented with -- the natural and probable consequences and felony murder theories. Rather, the court implicitly rejected those theories itself, relying on unspecified sources to find appellant had been one of the shooters and had aided and abetted “a gang murder” (rather than a different target offense, of which murder was a natural and probable consequence). The court’s factfinding was impermissible. (See Lewis, supra, 11 Cal.5th at 974; Drayton, supra, 47 Cal.App.5th at 980-981 [trial court erred by summarily denying Section 1170.95 petition, where no readily ascertainable facts in trial court record refuted, as a matter of law, petitioner’s assertion he had been convicted of first degree murder under felony murder theory].)

In light of SB 775, the same analysis applies to appellant’s convictions for attempted murder. (See Pen. Code, § 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.) The People’s argument to the contrary is based on documents outside the record, which we have declined to judicially notice. We conclude the trial court erred in summarily denying appellant’s petition with respect to all his convictions.

Though we must remand for further proceedings, it would be premature to instruct the court to issue an order to show cause, as appellant requests. The statute first requires the court to appoint counsel (as requested), receive briefing, and determine whether appellant has made a prima facie showing of entitlement to relief. (Pen. Code, § 1170.95, subd. (c).) From the record before us, we cannot determine whether appellant has made such a showing. On remand, the People remain free to submit documents from appellant’s trial, and to argue that those documents preclude a prima facie showing. Accordingly, we will instruct the court to appoint counsel, set a briefing schedule, and follow Section 1170.95’s further procedures for evaluating his petition for relief from his convictions for murder and attempted murder.

DISPOSITION

The order summarily denying appellant’s petition for postconviction relief under Section 1170.95 is reversed. The matter is remanded to the trial court with directions to appoint counsel for appellant, set a briefing schedule, and follow Section 1170.95’s further procedures for evaluating his petition for relief from his convictions for murder and attempted murder.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.

[1] The People made this unauthorized argument even after we denied their request for additional time to obtain materials from appellant’s trial, stating that we “discern[ed] no good cause for a belated augmentation of the appellate record to include” those materials, and citing the rule limiting the parties’ supplemental briefs to matters arising after our initial opinion.

[2] Our description of the offenses is reproduced from our opinion on direct appeal. The record on this appeal does not include any documents from appellant’s trial, or a transcript of the resentencing hearing on remand from the prior appeal.

[3] A pre-conviction probation report stated similar facts concerning the police officers’ discovery of Chaney and Martin and the statements from Pearson and Bradford. No other document in the appellate record addresses these matters.