Filed 2/22/22 P. v. Harrell CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a post-judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Reversed.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sedival and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

This is an appeal from the denial of defendant’s petition for resentencing under Penal Code section 1170.95.[1] In his petition, defendant declared that he was convicted of murder under a theory of natural and probable consequences, which is no longer a valid ground to support a murder conviction. The trial court denied the petition at the prima facie stage without issuing an OSC. The court reasoned that defendant was also convicted of burglary, and that charge required the jury to find defendant intended to commit murder.

We reverse. The jury instructions left open the possibility that defendant could be convicted of murder and burglary under a theory of natural and probable consequences, which would permit the jury to convict defendant without finding that he harbored malice. Accordingly, the jury instructions did not refute defendant’s petition as a matter of law, and the court erred in denying the petition at the prima facie stage. We will remand with instructions that the court issue an OSC and hold an evidentiary hearing.

FACTS

The following facts are taken from this court’s unpublished opinion, filed in 1979 (1979 Opinion). We present these facts with a major caveat: defendant is free to dispute these facts at an evidentiary hearing. Neither this court nor the trial court may engage in factfinding at this prima facie stage. (People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) At a subsequent evidentiary hearing under section 1170.95, the People have the burden to prove beyond a reasonable doubt that defendant is guilty of murder under current law, relying on both previously admitted evidence and any new evidence either party chooses to introduce. (§ 1170.95, subd. (d)(3).) The People cannot rely on an appellate opinion to meet that burden. Section 1170.95 states, “The court may also consider the procedural history of the case recited in any prior appellate opinion.” (Italics added.) However, “A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Subd. (d)(3) (italics added).) Nevertheless, we provide the original statement of facts below merely for context and with its limitations in mind. Without further ado, the 1979 opinion reflects the following:

“K.C., Sandy and Tina were prostitutes. The three of them and K.C.’s six-year-old son, Gene, lived with a pimp, James Harbin. Sandy was Harbin’s girl.

“K.C. went to Edward[’s] home.[[2]] Harbin followed her and hit her.

“George King, convicted of the same murder but not a party to these proceedings, was Edward[’s] right hand man. They had a conversation. Then, when all three of these defendants [Rodney Griffin, Gary Harrell, and Thomas Jackson] were present, Griffin asked Edward . . . how much he was paying. Edward . . . gave a gun to Antonio Sears, Griffin’s cousin, who in turn gave it to Griffin. Then, King and these three defendants went to Harbin’s residence. King started to beat Harbin with a gun. Sandy started to run out but Griffin pointed a gun at her and told her to go back. Harbin tried to get away, but King dissuaded him by pointing a gun at him. Harrell and Jackson tied up Harbin, Sandy and Tina. Harrell took Harbin upstairs; Jackson took Sandy upstairs. Sandy and Harbin were tied to the railing. K.C. was taken to the kitchen. Griffin stood at the door. King said to the others, ‘You know what you have to do.’ Jackson cut Sandy’s throat. He was not cutting her very effectively so Harrell gave Jackson another knife. Jackson cut her some more. Sandy pretended she was dead. She heard Harbin in the next room say, ‘George you are killing me . . . .’ King ascertained that Sandy was not dead yet so they turned her over, and someone stabbed her in the back. King asked K.C. if Tina could be trusted. K.C. said she could, and King said to Tina, ‘You got this lady to thank for your life.’ Harrell came downstairs wiping the railing with a towel.

“King, Jackson, Harrell, Tina, K.C., and K.C.’s son went to Edward[’s]… house. Sandy got loose, escaped, and when the police arrived, they found Harbin dead from multiple stab wounds. The entire group of survivors then went to Las Vegas. K.C. overheard a conversation between King, Gary Harrell, Jackson and Edward . . . . Gary Harrell said it was the last time he would do a job like that with that many people, and that Redeye (Jackson) had ‘fucked up.’ King said there were too many people involved, and that it took too much time. He made the same remark about Jackson who protested that the knife bent when he stabbed Sandy.

“As indicated, King was convicted of murder in a separate trial.

“Thus, there is presented the picture of a meeting between these defendants, King and Edward . . ., after Edward . . . had seen Harbin hit K.C. Following this conversation, the four active participants went to Harbin’s house where they killed him, thought they killed Sandy, and let K.C. and Tina leave because they were “cool.” Edward . . ., not a party to these proceedings, was also convicted of the same offenses. A reasonable inference can be drawn from this record that he was the guiding, or directing force in the whole thing.

“At trial, Griffin offered evidence that he was not a violent character. So did Harrell. Jackson testified that while he did cut Sandy, it was under duress because King had a gun on him.”

After being instructed on both a natural and probable consequences theory, as well as an uncharged conspiracy theory, the jury convicted defendant of murder, attempted murder, and burglary.[3] He was sentenced to life in prison on the murder count, with the remaining counts stayed pursuant to section 654.

In January 2019, defendant filed the underlying petition to vacate his murder conviction and for resentencing pursuant to section 1170.95. He submitted a declaration stating that he was “charged by a complaint or information that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.” He further stated, “I could not be convicted of this count of first-degree murder because of the changes made to Penal Code section 188 or 189 . . . .”

Defendant’s petition was initially denied on the ground that section 1170.95 is unconstitutional. Defendant appealed from that ruling, and we reversed, remanding the case with directions to the trial court to consider the petition on its merits.

On remand, the court denied the petition at the prima facie stage without holding an evidentiary hearing. It commented, “I’ve indicated off the record that I don’t believe this is a case that even justifies an OSC; my reasoning being that he was convicted of murder, burglary with the intent to commit murder. [¶] The facts of the case are really pretty aggravated. Mr. Harrell goes upstairs after one of the victims fled up there and chases her into another room where she’s stabbed multiple times. And the jury instructions and the verdicts indicate to me that this is not a case where he was an aider and abettor. Even if there was not a specific finding that he dealt the mortal blow to this woman, he certainly was a major participant who acted with reckless disregard to human life in the commission of the crime.”[4] Defendant appealed.

DISCUSSION

Defendant contends the court erred in denying his petition at the prima facie stage without holding an evidentiary hearing. We review the court’s ruling de novo. (People v. Arias (2021) 66 Cal.App.5th 987, 999.) We agree with defendant.

Section 1170.95 creates a procedural mechanism to resentence defendants who were convicted of murder on a theory no longer valid under the amended versions of sections 188 and 189. Those amendments, broadly speaking, eliminated the natural and probable consequences theory of aiding and abetting liability, and made significant changes to the felony murder rule. As applicable here, section 188 was amended to add the following language: “Except as stated in subdivision (e) of Section 189 [felony murder], in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (Subd. (a)(3).)

Once a defendant files a facially sufficient petition pursuant to section 1170.95, the court must appoint counsel and hold a hearing to determine whether defendant has made a prima facie case for relief. (Lewis, supra, 11 Cal.5th at p. 957.) At the prima facie hearing, “a petitioner’s allegations should be accepted as true . . . .” (Id. at p. 974.) That presumption will entitle the defendant to an evidentiary hearing (§ 1170.95, subd. (d)) unless the record of conviction refutes defendant’s claim to relief as a matter of law. (People v. Roldan (2020) 56 Cal.App.5th 997, 1003 [“To determine whether a petitioner has made a prima facie case for relief under section 1170.95, a trial court may look to the record of conviction and the court file. The contents of the record of conviction defeat a prima facie showing when the record shows as a matter of law that the petitioner is not eligible for relief.”].) Because this is a purely legal question, resolving disputed facts is not permitted at this stage and is instead reserved for the evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 972.)

As such, the People correctly concede on appeal that “the trial court’s reasoning was faulty,” at least to the extent the court relied on its own perception of defendant’s role in the underlying events, which defendant is free to contest at an evidentiary hearing. Instead, the People contend we should affirm the court’s ruling because the jury’s guilty finding as to burglary necessarily included a finding that defendant aided and abetted with the intent to kill Harbin.

The jury instruction on burglary stated the following: “Every person who enters a residence with the specific intent to commit murder, a felony, is guilty of burglary. [¶] The essence of a burglary is entering such a place with such specific intent, and the crime of burglary is complete as soon as the entry is made, regardless of whether the intent thereafter is carried out.”[5] At first blush, this instruction seems to support the People’s position that the jury necessarily found defendant intended to commit murder.

However, the remaining instructions undercut that simple logic. The jury was instructed on aiding and abetting as follows: “All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who with knowledge of the unlawful purpose of the perpetrator of the crime aid and abet in its commission or, whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof. [¶] One who aids and abets is not only guilty as a principal of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable as a principal for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.” Similarly, as to conspiracy, the jury was instructed, “The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. Every conspirator is legally responsible for an act of a co-conspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as part of the original plan and even though he was not present at the time of the commission of such act.”

These instructions were not limited to the murder charge, and thus the jury could have found defendant guilty of burglary on a theory of natural and probable consequences. For example, the jury could have found defendant conspired with others to enter Harbin’s home and attack him, but that one of the co-conspirators decided to murder Harbin before entering the home, and that such a change of course was the natural and probable consequence of the original conspiracy.[6]

Moreover, the aiding and abetting instruction was flawed, as subsequently identified in People v. Beeman (1984) 35 Cal.3d 547. Analyzing the same instruction, our high court faulted it for failing to specify the mens rea required of the aider and abetter. Consequently, the instruction technically permitted “‘a conviction if the defendant knowing of the perpetrator’s unlawful purpose, negligently or accidentally aided the commission of the crime.’” (Id. at p. 560.)

As a result, we cannot say as a matter of law that the jury necessarily found defendant intended murder.

Other instructions given to the jury support our conclusion. For example, the instructions advised the jury there must be a union of act and mental state in “the perpetrator.” In another instruction the jury was advised that “[t]o constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of the killing and the reasons for and against such a choice and, having in mind the consequences, he decided to and does kill.” (Italics added.) These instructions serve to emphasize the mental state of the actual killer, and, by implication, deemphasize the mental state of accomplices.

In re Loza (2018) 27 Cal.App.5th 797 (Loza) is on point. There, the defendant filed a habeas corpus petition after our high court had held, in People v. Chiu (2014) 59 Cal.4th 155, that the natural and probable consequences theory cannot support a premeditated murder conviction (but before section 1170.95 became effective in 2019). The Loza court vacated a first-degree murder conviction of an aider and abettor. As was the case here, the underlying trial in Loza had involved multiple defendants. The jury was likewise given the “slayer” instruction. (Id. at p. 804.) The Loza court concluded, “the jurors could have found that Andrade (the slayer) premeditated and deliberated, but not necessarily Loza [the aider and abettor].” (Ibid.) In the instant case, the jury could have found Harbin’s slayer harbored malice, but not defendant, yet nevertheless could have convicted defendant under the instructions given.

As our high court emphasized, “the ‘prima facie bar was intentionally and correctly set very low.’” (People v. Lewis (2021) 11 Cal.5th 952, 972.) Defendant’s petition could only be denied if the verdicts and jury instructions necessarily entailed a finding that defendant acted with malice aforethought. That is not the case here. To resolve defendant’s claims, the court must look to the contested facts of the case, which can only be done after an evidentiary hearing.

DISPOSITION

The post-judgment order denying defendant’s section 1170.95 petition is reversed. The court is instructed to issue an order to show cause pursuant to section 1170.95, subdivision (c).

MARKS, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.

*Judge of the Orange County Superior Court., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All statutory references are to the Penal Code unless stated otherwise.

[2] Per the 1979 opinion, Edward’s last name was Harrell. Because appellant’s last name is likewise Harrell, we refer to Edward by his first name to avoid confusion.

[3] Defendant was tried with two co-defendants who were also found guilty.

[4] The court appears to have misapprehended the underlying facts of the case. “[T]his woman”—presumably, Sandy—was not actually killed. The murder sentence arose from the killing of Harbin.

[5] The standard burglary instruction included a list of other target felonies that qualify for burglary, but in the instruction given to the jury, the entirety of the list had been crossed out with the exception of murder.

[6] Another conspiracy instruction stated, “A conspiracy is an agreement between two or more persons with the specific intent to agree to commit a public offense such as murder or burglary . . . .” The People seize on the identification of murder and burglary to argue that any conspiracy required a finding that defendant intended to kill. However, the People ignore the crucial language “such as,” which indicates the jury was not restricted to finding a conspiracy to commit murder or burglary.