Filed 5/11/22 P. v. King CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Kathryn A. Solorzano, Judge. Affirmed.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Ronald King appeals from the superior court’s order denying his petition under Penal Code section 1170.95.^[1] We conclude substantial evidence supported the superior court’s finding, after an evidentiary hearing and beyond a reasonable doubt, King was a major participant in a robbery and acted with reckless indifference to human life. Therefore, the superior court did not err in ruling King was not eligible for relief under section 1170.95, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. King and His Confederates Rob Their Victim and Leave Him To Die

In January 2013 King formulated a plan to rob Anthony Perini, a “morbidly obese” man who had offered to pay King for sex. Daniel Llacuna and another individual agreed to help him carry out the robbery. (People v. King (Mar. 22, 2017, B260307) [nonpub. opn.].)

King went to Perini’s apartment and convinced him to let King tie Perini’s hands behind his back as part of a sex act. After King tied up Perini “pretty tight” with a cord from a cell phone charger, King let Llacuna into the apartment. Llacuna approached Perini with a knife, put Perini in a chokehold, and began choking him. As King rummaged through Perini’s apartment, he saw Llacuna choking Perini, and later saw Perini unconscious on the couch. King and Llacuna stole a wallet, a cell phone, credit cards (which King later used), cash, and drugs from Perini’s apartment. Before they left, King hit Perini in the face to make sure he was unconscious and would not be able to identify them. (People v. King, supra, B260307.)

The apartment manager later found Perini dead in the apartment, with a towel stuffed in his mouth and his hands tied behind his back. The medical examiner determined the cause of Perini’s death was asphyxia from a chokehold or positional asphyxia from being placed down on the couch with his hands tied behind him and a towel in his mouth. (People v. King, supra, B260307.)

B. A Jury Convicts King of Multiple Crimes; We Modify the Judgment and Affirm

A jury convicted King on one count of first degree felony murder (§ 187, subd. (a)), two counts of first degree robbery (§ 211), one count of identity theft (§ 530.5, subd. (a)), and one count each of first degree burglary and second degree burglary (§ 459). Among other findings, the jury found true the special circumstance allegation the murder was committed while King was engaged in the commission of a robbery and a burglary, within the meaning of section 190.2, subdivision (a)(17). (People v. King, supra, B260307.)

The trial court sentenced King on his murder conviction to

two terms of life in prison without the possibility of parole, plus 25 years to life. The court also imposed various determinate terms on King’s other convictions. (People v. King, supra, B260307.)

King appealed, arguing among other things that substantial evidence did not support the special circumstance finding under section 190.2, subdivision (a)(17), that the trial court erroneously admitted certain gang evidence, and that the trial court committed several sentencing errors. We held substantial evidence supported the special circumstance findings.[2] We stated the evidence showed that “King actively participated in the planning and execution of the robbery and burglary”; that “King came up with the plan and the others agreed to it”; that King “gained entry into the apartment under the guise of agreeing to engage in a sex act with Perini in exchange for money”; that “King then used a ruse to restrain Perini by convincing him to let King tie his hands behind his back as part of the purported sex act”; and that, “[o]nce Perini was restrained and unable to defend himself, King brought Llacuna into the apartment so that they could carry out their plan to rob him.” We also stated the evidence showed that “King was present during the sequence of events that led to Perini’s death but did not take any action to intervene”; that when Llacuna entered the apartment he approached Perini with a knife, “grabbed Perini from behind and choked him to the point of unconsciousness, while King ransacked the apartment looking for items to steal”; that King saw Llacuna choking Perini and saw Perini face down on the couch; and that King took no action to “restrain Llacuna from carrying out his violent attack, or to aid Perini once he was rendered unconscious.” We also observed that, after the robbery, King fled the apartment knowing “Perini was still unconscious with his face down on the couch and his arms tied behind his back” and that, “[r]ather than render aid, King chose to leave Perini in that dangerous condition.” We concluded: “From such evidence, the jury reasonably could have concluded that King was subjectively aware of the grave risk of death posed by his participation in the crimes and nevertheless acted with a reckless indifference to Perini’s life.” (People v. King, supra, B260307.)

After reversing one robbery conviction and correcting several sentencing errors (including striking one of the two life terms and the additional term of 25 years to life on King’s murder conviction), we affirmed the judgment as modified. (People v. King, supra, B260307.)

C. The Superior Court Denies King’s Petition Under Section 1170.95

In April 2019 King, represented by counsel, filed a petition for resentencing under section 1170.95. King alleged that the People proceeded against him under a theory of felony murder or murder under the natural and probable consequences doctrine, that he was convicted of first degree murder under one of those theories, and that he could not now be convicted of first degree murder because of changes to sections 188 and 189. King alleged he was not the actual killer, did not act with the intent to kill, and was not a major participant in the underlying felony who acted with reckless indifference to human life.

King submitted a declaration in support of his petition. King stated that he intended to rob Perini, but that he did not intend to murder him or for him to die. King said that, when he and Llacuna left the apartment, Perini was alive and that, had he “known or expected Mr. Perini to fall forward and suffocate,” he “would have moved him to the floor.” King stated: “We would not have even committed the robbery at his apartment had we known Mr. Perini would die as a result of him being tied up.”

The People opposed the petition, arguing among other things King was not eligible for resentencing under section 1170.95 because this court, in its opinion affirming the judgment as modified, “very clearly stated that there was substantial evidence to support the find[ing] that [King] was a major participant who acted with reckless indifference to human life.” The People also argued King was ineligible for relief under section 1170.95 because the jury found true the special circumstance allegation under section 190.2, subdivision (a)(17).

After issuing an order to show cause, the superior court, the same judge who conducted the trial, held an evidentiary hearing over several days in 2020. Regarding the standard of proof at the evidentiary hearing, the court stated: “I do understand that the prosecution carries the burden of proof once I made [the] prima facie finding. So it’s got to be proven beyond a reasonable doubt. It was proven to a jury beyond a reasonable doubt. The jury found . . . the special circumstance to be true. But this court is not bound by that finding . . . . It’s up to the court to decide, in light of the case law since Mr. King’s conviction.”

Counsel for King essentially stipulated King was a major participant in the robbery of Perini,[3] and the court recognized the “real issue” was whether King acted “with reckless indifference to human life.” The court found King was “clearly a major participant because he [was] the one who planned it,” he was “the one who went to the victim’s house under the ostensible plan of having some kind of sexual interlude with the victim,” and he was “the one who . . . tied up the victim.”

The court found beyond a reasonable doubt King acted with reckless indifference to human life. After stating King and Llacuna left Perini tied up with a sock (actually, a towel) in his mouth,[4] the court found: “From my perspective, there was a very evident indifference to human life, to leave a man who anybody could see would have such difficulty getting to his feet and calling for help or obtaining any kind of help. They just left him there. And so in a way, from my perspective, this is so indifferent, so reckless, so cold, so cruel, in my mind.” The court found King “had the opportunity to assist, had the opportunity to do something to summon assistance or aid for the victim in this matter, but didn’t, chose not to, just left him there.” The court also found that “anybody in the position of Mr. King or any of his accomplices” would have seen that Perini “was in grave danger” and that “there was a grave risk of death.” The court also stated: “I don’t think [King] cared whether [Perini] lived or died, frankly.” The court also observed that King and Llacuna had the opportunity to help Perini and prevent his death by untying his hands when they left, taking the towel out of his mouth, calling the police, or doing “something to alert somebody that there was a guy tied up in the apartment,” but that “none of that was done.”

The court ruled: “From my perspective, it’s not a direct torture, but what they did, assuming he was still alive when they left, and it seems that he was, was tortuous. So . . . this is not even a close call, not even a close call.” The court found the evidence “absolutely” demonstrated King acted with reckless indifference to human life, adding that the court did not think “on appeal this court will be found to have erred in making that decision.”

The court denied the petition. King timely appealed. (2 CT 38).

DISCUSSION

A. Senate Bill No. 1437 and the Section 1170.95 Petition Procedure

At the time of King’s trial section 189 permitted a conviction for felony murder by imputing malice to a participant in an inherently dangerous felony, including robbery, that resulted in a homicide. (See People v. Chun (2009) 45 Cal.4th 1172, 1184.) No longer. Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) “substantially modified the law relating to accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder [citation] and significantly narrowing the felony-murder exception to the malice requirement for murder.” (People v. Mancilla (2021) 67 Cal.App.5th 854, 862; see §§ 188, subd. (a)(3), 189, subd. (e).) Regarding felony murder, Senate Bill No. 1437 added section 189, subdivision (e), which states: “A participant in the perpetration or attempted perpetration of [a qualifying felony] 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,” the felony-murder special-circumstance provision. (See People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile); People v. Ramirez (2021) 71 Cal.App.5th 970, 985.)

Senate Bill No. 1437 also authorized, through new section 1170.95, an individual convicted of felony murder or murder based on the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not now be convicted of murder because of Senate Bill No. 1437’s changes to the definitions of the crime. (See People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); Gentile, supra, 10 Cal.5th at p. 843.) As amended by Senate Bill No. 775 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 551, § 2), effective January 1, 2022, these changes to the law now apply also to attempted murder and voluntary manslaughter. (See § 1170.95, subds. (a), (g).)

As the Supreme Court clarified in Lewis, supra, 11 Cal.5th 957, and as amendments by Senate Bill No. 775 made explicit, if a section 1170.95 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief, the court must appoint counsel to represent the petitioner if requested. (Id. at pp. 962-963; see § 1170.95, subds. (b)(1)(A), (b)(3).) The prosecutor must then file a response to the petition, to which the petitioner may file a reply, and after which the court must hold a hearing to determine whether the petitioner has made a prima facie showing he or she is entitled to relief. (§ 1170.95, subd. (c).)

The prima facie inquiry under section 1170.95, subdivision (c), 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.”’” (Ibid.) “‘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.)

If the petitioner makes a prima facie showing under section 1170.95, subdivision (c), the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) At this hearing the prosecutor has the burden of proving, “beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (d)(3).) The prosecutor and petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens. (See Gentile, supra, 10 Cal.5th at pp. 853-854.)

On appeal from an order denying a petition under section 1170.95, we “review the trial judge’s factfinding for substantial evidence. [Citation.] We ‘“examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.”’ [Citation.] Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt.” (People v. Clements (2022) 75 Cal.App.5th 276, 298.)

B. Major Participant and Reckless Indifference to Human Life

In People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which were decided after King’s trial but before our decision in King’s direct appeal, and again in In re Scoggins (2020) 9 Cal.5th 667 (Scoggins), the Supreme Court identified the overlapping factors for assessing whether the defendant was a major participant in an underlying serious felony and acted with reckless indifference to human life for purposes of section 190.2, subdivision (d), and thus for section 189, subdivision (e)(3). In Banks the Supreme Court listed the following factors to consider in determining whether the defendant was a major participant in one of the specified felonies: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Banks, at p. 803, fn. omitted.)

In Scoggins the Supreme Court listed the following factors to consider in determining whether the defendant acted with reckless indifference to human life: “Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant’s knowledge of his or her confederate’s propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony?” (Scoggins, supra, 9 Cal.5th at p. 677; see Clark, supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient.”’” (Scoggins, at p. 677; see Banks, supra, 61 Cal.4th at p. 803.) As the Supreme Court explained in Scoggins, “Reckless indifference to human life is ‘implicit in knowingly engaging in criminal activities known to carry a grave risk of death.’” (Scoggins, at p. 676; see Banks, at p. 808 [reckless indifference to human life requires “knowingly creating a ‘grave risk of death’”].)

C. Substantial Evidence Supported the Superior Court’s Finding Beyond a Reasonable Doubt King Was Ineligible for Relief Under Section 1170.95

As the People point out, the superior court, after issuing an order to show cause, engaged in the proper analysis: The court reviewed the evidence in the record and made independent determinations that King was a major participant in the robbery of Perini and that he acted with reckless indifference to human life. (See People v. Clements, supra, 75 Cal.App.5th at p. 296 [section 1170.95 requires the superior court to determine independently “whether the People satisfied their burden of proving beyond a reasonable doubt” the defendant committed implied malice murder]; People v. Garrison (2021) 73 Cal.App.5th 735, 745 [section 1170.95 requires “the trial court, acting as an independent fact finder, to determine beyond a reasonable doubt whether defendant is guilty of murder under a valid theory of murder”]; People v. Ramirez (2021) 71 Cal.App.5th 970, 984 [“‘it is the [superior] court’s responsibility to act as an independent fact finder and determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189 and is thus ineligible for resentencing under section 1170.95, subdivision (d)(3)’”].) The court also applied the correct standard of proof: The court ruled the People had to prove King was ineligible for relief under section 1170.95 beyond a reasonable doubt. (See § 1170.95, subd. (d)(3); People v. Davenport (2021) 71 Cal.App.5th 476, 481 [“At the evidentiary hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”]; People v. Mancilla, supra, 67 Cal.App.5th at p. 863 [same].) The only issue is whether substantial evidence supported the court’s findings at the evidentiary hearing under section 1170.95, subdivision (d).

As the superior court and counsel for King recognized, there was no doubt King was a major participant in the robbery of Perini. King planned the robbery, tied up Perini, searched the apartment for cash and valuables as Perini was bound and gagged, hit Perini on the way out, and left him there to die. Substantial evidence supported the court’s (uncontested) finding King was a major participant, and King does not seriously argue otherwise on appeal.

Substantial evidence also supported the superior court’s finding King acted with reckless indifference to human life. King was not only physically present, he was the one who tied Perini’s arms behind his back, which allowed Llacuna to attack Perini without resistance. After letting Llacuna into the apartment, and throughout the robbery, King made no effort to minimize the risk of violence. To the contrary, he allowed Llacuna to threaten Perini with a knife, choke him until he lost consciousness, and stuff a towel in his mouth. And King punched Perini in the face to make sure he was unconscious. It is true, as King points out, neither he nor Llacuna used a traditional weapon to kill Perini. But the cord King used to tie Perini’s hands behind his back and the chokehold and towel King saw Llacuna use to suffocate Perini were deadly enough. (Cf. In re Harper (2022) 76 Cal.App.5th 450, 464 [“True, petitioner did not personally use a weapon, but his statements during the robbery clearly show he was indifferent to whether [his codefendants] used deadly violence.”].)

Moreover, King had several opportunities to restrain Llacuna or aid Perini, but he did neither. Rather than coming to Perini’s aid or calling for help, King left Perini in the apartment face down on the couch with his hands tied behind him and a towel in his mouth that would asphyxiate him. As the superior court found, King’s actions showed he did not care if Perini lived or died, the very essence of reckless indifference to human life.

King’s attempts to reinterpret the facts, though creative, do not undermine the superior court’s findings. For example, King suggests that, because Perini’s feet were not bound, “a reasonable person in [King’s] position could have expected that he would be able to upright himself.” But Perini was obese, admittedly weighing over 400 pounds. A reasonable person in King’s position would have expected that a man in Perini’s physical condition, left alone and tied up with his breathing obstructed, was in serious danger. King also asserts that “the decision to tie Perini up, while ultimately ill-advised in that it inadvertently led to him suffocating to death, should nonetheless be characterized as an effort to minimize the risk of violence” because it “prevented him from resisting, which arguably prevented a violent encounter . . . .” King’s characterization of the robbery distorts the facts. Binding and gagging a robbery victim like Perini does not reduce the risk of violence to the victim. Not only did tying up Perini make him more vulnerable to his attackers (who had a knife), it prevented him from escaping the apartment and avoiding violence and injury altogether. And it didn’t stop King from punching Perini in the face as King and Llacuna left the apartment.

Finally, “‘the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.’” (Clark, supra, 63 Cal.4th at p. 615; see In re Harper, supra, 76 Cal.App.5th at p. 458.) As the trial court found, King was the motivating force of the entire operation. It was his idea, his plan, his robbery. King’s act of tying Perini’s hands behind his back with a cord made it possible for King’s confederate to either choke Perini to death or allow him to suffocate. And as things went from bad to worse to life-threatening for Perini, King ignored the grave risk of death to Perini and left him to die in the apartment.

DISPOSITION

The superior court’s order denying King’s petition under section 1170.95 is affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

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

[2] We also held that any error in admitting the gang evidence was harmless and that the trial court did commit sentencing errors, which we corrected.

[3] The court stated, “The important thing for this court is to resolve is not whether [King] was a major participant in the robbery, because he clearly was a major participant in the robbery. I don’t think there is any argument that he wasn’t. You would agree . . . ?” Counsel for King answered, “Oh, yes. I agreed in my position papers.”

[4] The court found that, because Perini’s apartment was small, it was a reasonable inference King was aware Llacuna put a towel in Perini’s mouth.