P. v. Taylor

Filed 9/26/07 P. v. Taylor CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed.

John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Robert David Breton, Deputy Attorneys General for Plaintiff and Respondent.

Following a jury trial in 1989, appellant Ronald Taylor was convicted of murder while attempting robbery, and other offenses. After he sought relief by writ of habeas corpus, the California Supreme Court ordered the Director of the Department of Corrections to show cause whether appellant was innocent of certain factual allegations relevant to his convictions, and whether he should be resentenced under Penal Code section 1170, subdivision (d) (section 1170(d)).^[1] In finding appellant innocent of the allegations and resentencing him, the trial court declined to address other contentions appellant had raised in his petition for writ of habeas corpus. We affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

In March 1988, an information was filed charging appellant in count 1 with murder ( 187, subd. (a), 664); in count 2, with attempted robbery ( 211, 664); and in count 3, with grand theft of an automobile (former 487(3)). It alleged as a special circumstance under count 1 that the murder occurred during the attempted robbery ( 190.2, subd. (a)); in addition, it alleged under counts 1 and 2, that appellant had personally used a firearm, and that a principal was armed with a firearm ( 12022, subd. (a)(1), 12022.5, subds. (b), (c)). The information was subsequently amended to allege that appellant had suffered a prior felony conviction for robbery ( 667, subd. (a)) and served a prior prison term ( 667.5, subd. (b)). Appellant pled not guilty and denied the special allegations.

At trial, evidence was presented that appellant and another man stole a vehicle and drove it to a restaurant, where they attempted a robbery. According to the evidence, appellants accomplice acted as a lookout. The evidence further indicated that when the restaurants owner intervened in the robbery, appellant fatally shot him with a handgun; appellant and his accomplice then fled without removing money from the restaurants cash register. On August 8, 1989, the jury found appellant guilty as charged under counts 1 and 2, and found the special allegations to be true. It also found appellant guilty of the unlawful taking of a vehicle (Veh. Code, 10851, subd. (a)), a lesser included offense of the offense charged under count 3. Appellant admitted his prior convictions.

After the verdicts were rendered but before a sentence was imposed, appellant told his defense counsel that he had acted as the lookout during the robbery, and that his accomplice -- whom he identified as Hugh Hayes -- had shot the restaurant owner. Hayes refused to be interviewed about appellants allegations. Appellant filed a motion for a new trial, or in the alternative, sought to have the allegations stricken that he had personally used a firearm in the course of the attempted robbery. The trial court denied the motion for a new trial and declined to strike the special allegations, concluding that the evidence showed overwhelmingly that appellant had been the shooter. The trial court subsequently sentenced appellant to imprisonment for life without the possibility of parole, plus an additional term of 11 years imprisonment. This court affirmed the judgment of conviction. (People v. Taylor (Mar. 6, 1991, B045818 ) [nonpub. op.] review den. May 16, 1991, S020406.)

Appellant repeatedly and unsuccessfully sought relief from his conviction by writ of habeas corpus. In 1999, Hayes was tried for the murder of the restaurant owner during the attempted robbery, but was acquitted. On October 19, 2004, appellant filed his fifth petition for writ of habeas corpus in the California Supreme Court (S128550). The petition contended that newly offered evidence established that Hayes was the shooter during the attempted robbery, and that appellant was factually innocent of the special allegations that he had personally used a firearm during the attempted robbery. It also contended that appellants murder conviction was infirm, arguing that the prosecutor told the jury at the 1989 trial that if appellant was the lookout, he could not be convicted of special circumstance felony-murder as an aider and abettor because there was no evidence that the lookout had the specific intent to kill the restaurant owner. In addition, the petition contended that appellants defense counsel had rendered ineffective assistance, and that the prosecutor had denied him due process by suppressing evidence discovered in 1996, and by pursuing contradictory theories about the shooters identity at appellants and Hayess trials.

On March 15, 2006, our Supreme Court issued the following order: Good cause having been shown, the Director of the Department of Corrections is ordered to show cause before the Los Angeles County Superior Court when the matter is ordered on calendar why [appellant] is not factually innocent of the special circumstance and the firearm[]use allegation, and why he should not be resentenced under [] section 1170[(d)]. Appellant subsequently filed a motion before the trial court to stop all sentencing, contending that it lacked jurisdiction to sentence him for felony-murder, attempted robbery, and auto theft. The motion argued that the jury at the 1989 trial had determined that appellant was the shooter, and thus he could not be liable for the offenses as an aider and abettor. The trial court denied the motion, reasoning that the Supreme Court had ordered resentencing unless the Department of Corrections showed cause.

In response to the order to show cause, respondent conceded that appellant had adequately shown he was factually innocent of the special circumstance and firearm use allegations, but contended the remaining contentions in his petition were meritless. On May 10, 2006, the trial court denied appellants motion to hear all the contentions raised in his petition, concluding that the order to show cause limited its review to the items identified therein. The trial court found that appellant was factually innocent of the special circumstance and firearm use allegations, and resentenced appellant under section 1170(d) to 25 years to life with the possibility of parole, plus an additional term of nine years. This appeal followed.^[2]

DISCUSSION

Appellant contends that the trial court improperly limited its review of his conviction to determining whether he was factually innocent of the special circumstance and firearm use allegations. He argues that the prosecutor in the 1989 trial relied solely on the theory that he was the shooter, and told the jury that he could not be convicted of special circumstance felony-murder as an aider and abettor because there was no evidence the lookout had the specific intent to kill. As appellant observes, an aider and abettor is liable for special circumstance felony-murder only if he or she had the specific intent to kill. (People v. Sanders (1990) 51 Cal.3d 471, 515.) He thus concludes that the trial court, upon finding that appellant was not the shooter, was obliged to inquire whether his conviction for murder and the other offenses was infirm. For the reasons we explain below, the trial court properly restricted its inquiry to the items identified in the order to show cause.^[3]

Because [t]he same rules apply in ascertaining the meaning of a court order or judgment as in ascertaining the meaning of any other writing (Mendlyv. County of Los Angeles, supra, 23 Cal.App.4th at p. 1205), we do not look beyond the face of the order when its language is clear. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437.) Although appellants petition for a writ of habeas corpus attacked appellants murder conviction and the special allegation findings on the grounds described above, the order to show cause expressly directed the trial court to examine only the special circumstance and firearm use allegation findings. As our Supreme Court has explained, the issuance of an order to show cause on a specific issue is an implicit determination that a prima facie case has not been made as to the other issues presented in the petition for writ of habeas corpus. (People v. Bloyd (1987) 43 Cal.3d 333, 363; see People v. Miranda (1987) 44 Cal.3d 57, 199, fn. 37, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) In view of this principle, the order, by its plain language, limited the trial courts inquiry into appellants conviction to the special circumstance and firearm use findings. (People v. Lewis (2004) 33 Cal.4th 214, 228 [trial court properly limited its inquiry upon remand from Supreme Court to matters identified in remand order].)

Pointing to the authorization for resentencing within the order to show cause, appellant contends that the order obliged the trial court to impose an authorized or lawful sentence, and thus permitted an inquiry into his murder conviction. He is mistaken. Generally, courts may properly intervene to prevent a so-called unauthorized sentence when the error is clear and correctable (People v. Scott (1994) 9 Cal.4th 331, 353-354, quoting People v. Welch (1993) 5 Cal.4th 228, 235), that is, presents pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court (People v. Welch, supra,5 Cal.4th at p. 235). In our view, the deficiency appellant asserts in his murder conviction is not such an error. Appellants challenge to his conviction relies on the existence of facts other than his actual innocence of the special circumstance and firearm use allegations, and requires an inquiry into the record of his 1989 trial that exceeds the limits imposed by the Supreme Court.

Appellant also contends that resentencing under section 1170(d) obliged the trial court to investigate whether there was legal cause not to impose sentence. Section 1170(d) authorizes the trial court to recall a defendants sentence and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. As our Supreme Court explained in Dix v. Superior Court (1991) 53 Cal.3d 442, 463: [S]ection 1170(d) permits the sentencing court to recall a sentence for any reason which could influence sentencing generally, even if the reason arose after the original commitment. The court may thereafter consider any such reason in deciding upon a new sentence [and] . . . may then impose any new sentence that would be permissible under the Determinate Sentencing Act if the resentence were the original sentence.

Appellant suggests that resentencing under section 1170(d) accorded him the right to challenge the imposition of a sentence available to defendants upon arraignment for judgment. At that time, the defendant must be asked whether there is any legal cause to show why judgment should not be pronounced against him. ( 1200.) The defendant may offer good cause by attacking the accusatory pleading through a motion for arrest of judgment, or by making a motion for a new trial. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, 132, p. 162; 1201.) Here, appellant does not challenge the legal sufficiency of the information, but objects to resentencing on grounds akin to those supporting a motion for a new trial. (6 Witkin & Epstein, supra, 90-92, at pp. 121-123.)

We conclude that resentencing under section 1170(d) does not permit appellant to assert what is effectively a motion for a new trial. Although no published case has addressed this issue, courts have generally determined the scope of section 1170(d) by reference to the trial courts discretion when a case is remanded for resentencing by an appellate court. (People v. Hill (1986) 185 Cal.App.3d 831, 834; see People v. Johnson (2004) 32 Cal.4th 260, 265-266.) In that context, courts have uniformly held that a trial court directed to engage in resentencing may not entertain a new trial motion, absent express authorization in the remand order. (People v. Smyers (1969) 2 Cal.App.3d 666, 668-669; People v. Pineda (1967) 253 Cal.App.2d 443, 449-454; People v. Oppenheimer (1965) 236 Cal.App.2d 863, 866.) As the court explained in People v. Pineda, supra, 253 Cal.App.2d at page 451, [t]o permit a new attack on the conviction in the trial court is to grant the trial court the unwarranted power to rehear a decision of the appellate court.

This rationale is also applicable here. Under established precedent, the order to show cause impliedly determined that appellant did not establish a prima facie case for relief regarding his murder conviction; had the Supreme Court intended the trial court to examine his claim, the order to show cause would have expressly encompassed it. Accordingly, the trial court properly declined to address appellants contentions outside the scope of the order to show cause.^[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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^[1] All further statutory citations are to the Penal Code, unless otherwise indicated.

^[2] At respondents request, we take judicial notice of the records of one of appellants prior petitions for writ of habeas corpus and a portion of the record in the criminal action against Hayes. (Evid. Code, 452, subd. (d), 453.) However, these materials play no role in our resolution of the issues before us.

^[3] The interpretation of the order to show cause presents a question of law (Mendlyv. County of Los Angeles (1994) 23 Cal.App.4th 1193, 1205) that we review de novo (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799).

^[4] In so concluding, we neither examine nor express any view on the merits of the contentions that the trial court declined to address. Our review is limited to the scope of the order to show cause.