Filed 12/20/18 P. v. Collier CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. TREMAYNE COLLIER, Defendant and Appellant.

A154169 (San Francisco County Super. Ct. No. SCN182125-02)

Tremayne Collier appeals from a judgment of conviction and sentence imposed following remand. His attorney has filed a brief seeking our independent review of the appellate record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

I. FACTS AND PROCEDURAL HISTORY

In 2004, a jury convicted Collier of first degree murder and two counts of robbery and found arming allegations to be true. (Pen. Code, §§ 187, 212.5, subd. (c), 12022, subd. (a)(1).) The jury found a robbery special circumstance allegation to be not true. (Pen. Code, § 190.2, subd. (a)(17)(A).) With priors, Collier was sentenced to an aggregate term of 13 years plus 51 years to life. We affirmed the judgment on appeal, and the Supreme Court denied review. (People v. Collier (Aug. 30, 2006, A108751) [nonpub. opn.], review den. Dec. 13, 2006, S147017.)

Collier filed a petition for writ of habeas corpus, contending his murder conviction must be reversed because he was tried and convicted on a natural and probable consequences theory, and our Supreme Court in People v. Chiu (2014) 59 Cal.4th 155 (Chiu) had thereafter repudiated the use of that doctrine as a basis for first degree premeditated murder liability. We determined that the rule in Chiu applied to Collier’s case. We also decided that the error was not harmless, because it could not be concluded beyond a reasonable doubt that the verdict was based on a legally valid theory given the jury’s rejection of the robbery special circumstance. (In re Tremayne Collier (April 21, 2017, A150054) [nonpub. opn.] (Collier II).) We noted that the “remedy outlined in Chiu is a reversal of the first degree murder conviction, ‘allowing the People to accept a reduction of the conviction to second degree murder or to retry the greater offense.’ ” (See Chiu, supra, 59 Cal.4th at p. 168.) We further stated: “The parties agree that this is the appropriate remedy in this case.” Accordingly, our disposition read: “The judgment as to the first degree murder conviction is vacated, and the matter is remanded to the superior court with directions to allow the People to accept a reduction of the conviction to second degree murder or to retry the greater offense. Following the People’s election and at the conclusion of further proceedings, the superior court is directed to amend the abstract of judgment accordingly, and to send a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation.”

The record in the present appeal sets forth the basis for our conclusion in Collier II that the parties had reached agreement on the appropriate remedy. In Collier II, the People represented that it “ ‘would waive its right to submit a return and for oral argument’ ” if Collier’s request for relief were consistent with the relief that “ ‘every previous court’ ” had granted for Chiu error. As Collier’s briefing noted, the prosecutor’s condition arose from the fact that in his pro per habeas petition, Collier had requested that the trial court be required to retry him on remand. Collier’s briefing continued: “As set forth in the attached declaration of counsel, petitioner [Collier] now agrees that this court is bound by the remedy authorized by the court in Chiu, and that this court should and must follow Chiu’s dictate . . . [that] the People [must] accept a reduction of the conviction to second degree murder or retry the greater offense”. (Italics added.) The briefing continued: “Therefore, he [Collier] asks that this court order the remedy set forth by the California Supreme Court, and adopted by the courts that have addressed similar petitions arising under Chiu. [Citation.] He recognizes that such an order is consistent with controlling California law which this court is bound to follow. [Citation.]” Collier’s attorney also submitted a declaration under penalty of perjury, averring that she had reviewed the record, Chiu, and applicable law, and also discussed the matter with Collier. Counsel advised: “I have also communicated extensively with Mr. Collier. He has authorized me to inform the Attorney General and the court that he accepts that California law establishes that the remedy in this type of case is a remand to the trial court, giving the District Attorney the discretion to decide whether to retry the matter or accept reduction to second degree murder. He has also indicated that he recognizes that the Court of Appeal is bound to follow the law set forth by the California Supreme Court in Chiu, and that the other state courts which have addressed similar habeas petitions have also adopted the Chiu remedy when granting habeas relief.”

Notwithstanding all of the foregoing, after the matter was remanded to the superior court, Collier challenged the lawfulness of entering a judgment of conviction of second degree murder. Specifically, while represented by different counsel, Collier filed a motion for a new trial on the ground that the prior jury verdict and judgment in the case had been vacated and was a “legal nullity for all purposes,” and the elements of second degree murder had not been decided by a jury. Alternatively, Collier suggested that he obtain either a new trial because the jury was improperly instructed or a directed verdict of not guilty to a second degree murder charge.

The People opposed Collier’s motion, electing to reduce the conviction to second degree murder as permitted by this court’s decision in Collier II and consistent with Chiu.

On April 11, 2018, after rejecting Collier’s arguments, the trial court entered a judgment of conviction for second degree murder and resentenced Collier on the murder count to a term of 30 years to life (15 years to life doubled based on a strike prior), plus one year for arming with a firearm.

This appeal followed.

II. DISCUSSION

In a declaration accompanying the opening brief in this appeal, Collier’s appellate attorney represented that counsel had advised Collier of the filing of a Wende brief and Collier’s opportunity to file a supplemental brief, and that counsel had sent Collier the record to aid in his preparation of a supplemental brief.

We received from Collier a document entitled “Appellant[’]s Opening Brief,” which was filed herein on October 29, 2018. In this document, Collier makes several arguments, none of which raises an arguable issue.

A. Basis for Second Degree Murder

Collier contends the court wrongfully imposed a second degree murder conviction after remand because necessary elements of second degree murder were not submitted to the jury – specifically, he claims, the jury was not instructed on felony murder or implied malice theories of second degree murder, and second degree murder based on a predicate offense of robbery is no longer a valid theory of liability.

We find no arguable issue concerning the trial court’s entry of the second degree murder conviction. Our Supreme Court indicated in Chiu that the proper remedy for a defendant convicted of first degree murder under a natural and probable consequences theory is to allow the prosecution to either accept a second degree murder conviction or retry the matter. Moreover, the briefing in Collier II, which is included in the record in this case, shows that the parties in Collier II expressly agreed to that resolution, both as the appropriate and sole legal remedy and also as a stipulated resolution of Collier’s habeas petition. Despite the full and fair opportunity to argue a different remedy in Collier II, Collier did not do so, and the decision in Collier II became final long ago. The trial court complied with the directions in our disposition in Collier II and acted within the scope of remand.

B. Senate Bill 1437

On September 30, 2018, Senate Bill 1437 was signed into law, amending Penal Code section 189 to limit who can be liable for felony murder in most cases to those who actually committed the killing and anyone who either aided and abetted the killing or was a major participant in the underlying felony and acted with reckless indifference to human life. This law is retroactive, such that under Penal Code section 1170.95 a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the sentencing court to have the murder conviction vacated, and to be resentenced on any remaining counts, if the person was convicted of first or second degree murder under the natural and probable consequences doctrine and could not be convicted of first or second degree murder because of the changes to section 188 or 189 effective January 1, 2019 (pursuant to Stats. 1437, ch. 1015).

Collier contends that his acquittal on the robbery special circumstance shows that the jury was unable to find beyond a reasonable doubt that he intended to kill or acted in reckless indifference to human life. Therefore, he claims, he is entitled to relief under S.B. 1437.

There is no arguable issue. First, Collier has not filed a petition in the sentencing court for relief. Second, he is not entitled to such relief because his conviction for second degree murder is the accepted remedy for Chiu error. Third, he has not demonstrated entitlement to relief under Penal Code section 1170.95, because he has failed to show that he could not be convicted of second degree murder under Penal Code section 189, as amended.

C. Compensation for Excess Prison Time

Collier contends there is an “enormous amount of prison time” that he spent in prison “over the allowable time,” and he is entitled to $140 for each excess day pursuant to Senate Bill 1134 (see Pen. Code, § 1485.55). However, Collier fails to establish that he served any time in excess of what the law allows. He also fails to establish that the requirements of Penal Code section 1485.55 have been met.

We find no arguable issues on appeal. There are no legal issues that require further briefing.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.