Filed 4/7/22 P. v. Kent CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Reversed and remanded with directions.

Leslie Conrad, 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, Alan Amann and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Kate Lyn Kent[1] filed a petition for resentencing pursuant to Penal Code[2] section 1170.95, which the court denied after holding an evidentiary hearing. On appeal, defendant contends the evidence was insufficient to render defendant ineligible for relief. We reverse and remand the mater for reconsideration.

I. FACTUAL AND PROCEDURAL BACKGROUND[3]

Gary Kratz, testified that Michael Jendrock, defendant, and several others woke him at 5:30 a.m., on August 22, 1995; Kratz invited them into his home. They were talking and drinking in the living room during which he heard Jendrock talking about kicking in the doors and tying up the people across the street. Kratz vaguely remembered Jendrock using the term, “jacking them up.” Defendant and the others listened as Jendrock discussed his plans; they laughed or commented on them. Jendrock asked Kratz for duct tape and a strait jacket, which Kratz gave him. (Jendrock et al., supra, E022446.)

Edward Purcell and Michael Robinson were both acquainted with Jendrock and defendant. Purcell testified that he heard a commotion at about 5:30 or 6:00 a.m.; he heard Robinson repeatedly say, “No.” Purcell opened his bedroom door and was confronted by Jendrock, who had a gun in his hand. Defendant ripped out the telephone. Both Jendrock and defendant began “tending to” Robinson. (Jendrock et al., supra, E022446.)

Jendrock ordered Purcell into the living room where defendant tied him up. When Purcell became hysterical, Jendrock hit him behind the ear with the gun. Someone then put a bag on over his head. Jendrock began playing Russian roulette with him. Purcell heard Jendrock empty the gun, say “Two in,” spin the cylinder, place the gun on Purcell’s lower lip, and pull the trigger. When the gun did not fire, Purcell heard the hammer click again. Purcell was then placed in the closet. (Jendrock et al., supra, E022446.)

While he was in the closet, Purcell heard the house being ransacked. He also heard a shot. Jendrock came to the closet and removed the bag from Purcell’s head; Jendrock then demanded Purcell’s keys and money. Jendrock and defendant left in Purcell’s truck. Purcell freed himself and ran next door to call the police. As he went through the kitchen, he saw Robinson’s lifeless body on the floor. Robinson was tied with a strait jacket and duct tape. Purcell subsequently found a substantial amount of property had been taken from the home. (Jendrock et al., supra, E022446.)

Jendrock testified that he and the others went to Purcell’s home that morning; he claimed another defendant, Ross Eulenfeld, had the gun. Jendrock denied asking for the strait jacket or duct tape. He had no prior knowledge any force would be used. Jendrock heard a shot while he was in the front yard smoking. He then went inside the home and saw Eulenfeld with the gun and Robinson lying on the floor, tied up, and shot. Jendrock admitted driving away in Purcell’s truck with defendant. (Jendrock et al., supra, E022446.)

Defendant testified to being a member of the group that rushed into Purcell’s home. Defendant admitted yanking out the telephone cord and saw Robinson and Purcell being tied up. Defendant was outside smoking when defendant heard a shot. Defendant denied taking any property from the home, planning to shoot Robinson, knowing whether anyone was armed, or participating in any conversation with respect to duct tape or the strait jacket. (Jendrock et al., supra, E022446.)

Charles Winters, another member of the group, testified that he was acquainted with everyone in the group except Eulenfeld. He was with them at Kratz’s home prior to the murder. He admitted going to Purcell’s home with them but denied any knowledge of what they were going to do there. Winters admitted binding Robinson’s hands and mouth with duct tape at the command of Jendrock, who was waving a gun at him. While Winters was in the bedroom, defendant came in and ordered Winters to help stuff things into pillowcases. As he did so, he heard a shot. He saw Jendrock standing over Robinson and blood gushing from Robinson. (Jendrock et al., supra, E022446.)

Eulenfeld testified that he went to Kratz’s home with defendant, Jendrock, and the others. He briefly held the gun for Jendrock. Eulenfeld admitted that Jendrock told the group they were going over to Purcell’s home to tie up the occupants and take their property. He admitted entering Purcell’s home with defendant, Jendrock, and the others. Eulenfeld told the police they went to the home to rob the occupants. While in the home, Jendrock was waiving the gun around and directing Eulenfeld to take property. (Jendrock et al., supra, E022446.)

The court instructed the jury with CALJIC No. 8.21: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during the commission or attempted commission of the crime] of Robbery or Residential Burglary is murder of the first degree when the perpetrator had the specific intent to commit the crime of Robbery or Residential Burglary. [¶] The specific intent to commit Robbery or Residential Burglary and the commission or attempted commission of such crime or crimes must be proved beyond a reasonable doubt.” The court also instructed the jury on the natural and probable consequences doctrine, CALJIC No. 3.02. (Jendrock et al., supra, E022446.)

The jury convicted defendant of first degree murder (§ 187), attempted murder (§§ 664, 187), two counts of residential robbery (§ 211), residential burglary (§ 459), and two counts of false imprisonment by violence (§ 236). The jury additionally found true allegations that a principal was armed during the offenses and rendered a special finding that the attempted murder was committed willfully, deliberately, and with premeditation.[4] (Jendrock et al., supra, E022446.)

Defendant appealed but only joined in the issues raised by the codefendants to the extent they might inure to defendant’s benefit. This court remanded the matter for recalculation of credits but otherwise affirmed the judgment. (Jendrock et al., supra, E022446.)

On January 7, 2019, defendant filed a form petition for resentencing pursuant to section 1170.95. Defendant did not check the boxes asserting defendant was not the actual killer, did not aid and abet with the intent to kill, and was not a major participant in the murder acting with reckless indifference to human life.

On February 28, 2019, the People filed an informal response contending defendant had failed to set forth a prima facie case for relief. The People requested the court take judicial notice of this court’s decision in Jendrock et al., supra, E022446, and the trial court’s own records. On the same day, the People filed a motion to strike defendant’s petition based on its purported unconstitutionality. The People again requested judicial notice of this court’s opinion and the trial court’s own records. On March 19, 2019, the People filed a motion to deny defendant’s petition for resentencing in which they contended that defendant was ineligible for relief because defendant acted as a major participant acting with reckless indifference to human life in the murder.

On June 5, 2019, the superior court issued a tentative decision on defendant’s petition for resentencing; the court proposed to grant the People’s motion to strike defendant’s petition and deny it. The court first determined that section 1170.95 was unconstitutional. The court then concluded, from our decision and consideration of People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, that defendant was a major participant who acted with reckless disregard for human life.

At the hearing on October 25, 2019, defense counsel informed the court that he had not received copy of the tentative decision. The court initially agreed to continue the matter to give counsel the opportunity to review the file and await potential appellate resolution of the issues. However, the court later ruled that the matter had been fully briefed, a tentative opinion had issued, and that both sides had the opportunity to review and respond. The court ordered the matter submitted and directed that its tentative decision become final within 10 days.

On November 4, 2019, the court issued a ruling on defendant’s petition for resentencing. The court ruled that section 1170.95 was unconstitutional, and defendant was ineligible for relief regardless because defendant was a major participant in the murder who acted with reckless indifference for human life. The court struck and denied defendant’s petition.

At a hearing on September 11, 2020, the court noted that a number of appellate court decisions had held that section 1170.95 was constitutional. Thus, the court noted that the only remaining issue was whether defendant had made a prima facie showing of entitlement to relief.[5] The court noted that it had utilized this court’s opinion for the underlying facts of defendant’s offenses in order to determine that defendant was a major participant in the robbery acting with reckless indifference to human life. The court stated: “We are here today for the court to make a determination as to whether or not the underlying facts of the conviction would support liability for murder under the newly enacted . . . section 189.”

Defense counsel posited: “I don’t believe the court can rely simply on the Court of Appeal opinion. . . . [¶] . . . [R]eviewing a Court of Appeal opinion for determination of facts in and of itself oversteps the ability of the court to make an effective determination. I’m not saying—and the code does not contemplate looking at the entire record on appeal. However, the Court of Appeal opinion by itself and its recitation of facts is an opinion of the Court of Appeal with regard to what the facts were based on their review. And that’s too attenuated from the actual issue for a court sitting in your position to ultimately determine the ultimate issue of facts in the case.”

The court asked counsel how it was supposed to resolve the issues. Defense counsel responded: “You can have active live testimony if there is augmentation to the record.” The court replied: “Basically a retrial?” Defense counsel responded: “I’m not saying that you have to have a retrial under the circumstances. . . . The court is allowed to review the transcripts of the trial. We have actually seen that already in your courtroom and throughout the state where they review the transcript of the trial, what happened during the trial to make an independent review of whether or not there was a factual underpinning that meets the standard. But simply taking a Court of Appeal opinion and determining from that whether the act or nonact met the statue is insufficient. [¶] . . . Without having . . . reviewed the entire record on appeal, this court just getting an opinion from another judge, that doesn’t reach the ultimate fact because it’s not the opposite of which the court found, well there was Banks error or Clark error or there may have been Chiu^[[6]^] error. . . . [¶] Ultimately, . . . I’m not instructing the court on what procedure it needs to take. I’m just saying the procedure in simply reviewing the Court of Appeal opinion is insufficient for the purposes of making any determination in this case; as is the court’s memory of the actual trial . . . .”

The People argued that the court could rely on this court’s opinion in determining whether defendant was a major participant in the robbery acting with reckless indifference to human life. The People also contended the court could rely on its own memory since it was the trial judge in the case: “If the defense believes that any of those facts are inaccurate, they can request the trial transcript and point out to the court where there [are] inaccuracies.”

The court noted: “Depending on the nature of some of the charges and allegations, the Court of Appeal may have to decide whether the evidence proved beyond a reasonable doubt that the defendant was acting with specific intent to kill. So I think [the] court can rely on those kinds of legal analyses when those are the issues that the Court of Appeal was deciding. But I agree that there is a potential concern if the Court of Appeal has not specifically made a determination under [Clark] as to whether a defendant [was] acting with reckless disregard for life . . . .”

The court noted that it was the trial court in defendant’s trial and that it did recall defendant’s participation in the crime. The court observed that from its own memory and a review of the facts discussed in this court’s opinion: “I am satisfied and convinced beyond a reasonable doubt that [defendant] was a major participant in the underlying residential robbery . . . . The critical issue is whether [defendant] was acting with reckless disregard for human life. I am satisfied and convinced beyond a reasonable doubt that [defendant’s] actions clearly demonstrate that [defendant] was acting with reckless disregard for human life.”

The court enumerated the factors it considered in making that determination: (1) defendant was present when Jendrock was discussing going to the residence to rob the victims at gun point at which time Jendrock discussed his hatred of the victims; (2) defendant was present when Jendrock demonstrated he had a firearm; (3) defendant was present when Jendrock demonstrated he had obtained material with which to tie up the victims; (4) defendant “enthusiastically” joined Jendrock in going to the residence to commit the robbery and assault; (5) defendant participated in holding Purcell down and tying him up while Jendrock held him a gunpoint; (6) defendant was present while Jendrock played Russian roulette with Purcell by “pointing the gun” at Pursell, spinning the cylinder, and pulling the trigger; and (7) defendant did nothing to dissuade Jendrock from that activity.

Defendant then participated in dragging Purcell to a closet and locking him therein. Defendant was present when Purcell was removed from the closet at gunpoint and his keys were taken. Defendant actively participated in the robbery. Defendant’s “presence, proximity and participation with Jendrock afforded [defendant] the opportunity to observe Jendrock’s behavior, both before and during the killing, and . . . Jendrock was demonstrating a willingness to use lethal force. [Defendant] not only failed to restrain that but actively participated in it.”

Defense counsel responded that the court’s reliance on its memory and its review of this court’s opinion was legally insufficient to find defendant ineligible for relief beyond a reasonable doubt: “I think with the gravity of something like this, the minimum the court should do is review the entire record on appeal and the transcript. I realize that seems arduous in that the court was the court that heard this [trial].”

Defense counsel argued that defendant was not armed and had not engaged in any lethal activity. He argued that there must be something more than just participation in a robbery, “something that makes someone substantially certain that a human life will end as a result of it.”

The court noted that reading this court’s opinion refreshed its recollection of the trial. “This case stood out to me . . . . [¶] In this case, I’m satisfied that the recitation of the underlying facts in the Court of Appeal decision coupled with my own memory of the evidence at trial, principally citing the factors that I enumerated does clearly demonstrate that [defendant] was a major participant in the underlying residential robbery and that [defendant] was acting with reckless indifference to human life. . . . [¶] . . . [T]he facts that I indicated, in the court’s view, are sufficient to demonstrate and for the court to conclude beyond a reasonable doubt that [defendant] was a major participant and was acting with reckless disregard for human life.” The court denied the petition.

II. DISCUSSION

Defendant contends the evidence was insufficient to render defendant ineligible for relief. Defendant contends the court erred in relying on our opinion from defendant’s judgment, which occurred prior to the California Supreme Court’s rulings in Banks and Clark which, defendant avers, “substantially narrowed” the criteria for convicting someone for murder. Defendant contends the court should have been required to review the entire trial transcript in rendering its ruling. We agree that the court erred in relying on its own memory and the facts recited in this court’s opinion in Jendrock et al., supra, E022446, in denying the petition.

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 [(2017-2018 Reg. Sess.)] ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats 2018, ch. 1015, § 1, subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)

Once “the trial court determines that a prima facie showing for relief has been made, the trial court [shall] issue[] an order to show cause, and then . . . hold a hearing ‘to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage, ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’” (Lewis, supra, 11 Cal.5th at p. 960.)

Senate Bill No. 775 (2021-2011 Reg. Sess.) made changes to the evidence on which a court may rely when ruling on a section 1170.95 petition (Stats. 2021, ch. 551, § 2). “[E]ffective January 1, 2022, the Legislature limited use of prior appellate opinions, allowing trial judges to [only] ‘consider the procedural history of the case recited.’ [Citation.] . . . ts specificity indicates the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing.” ([i]People v. Clements (2022) 75 Cal.App.5th 276, 292.) A court also errs when it relies on its own memory of the trial because its recollection is not part of the record of conviction. (People v. Mancilla (2021) 67 Cal.App.5th 854, 867, fn. 4.)

Here, the court conducted the evidentiary hearing, rendered its analysis, and made its ruling prior to the decision in Lewis and the changes rendered by Senate Bill No. 775. We commend the court on its thorough analysis. However, because the court relied on the recitation of the facts in Jendrock et al., supra, E022446, and its own recollection, bases now verboten, the court’s ruling must be reversed.

III. DISPOSITION

The order denying defendant’s section 1170.95 petition for resentencing is reversed, and the matter is remanded for reconsideration by the court below.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

CODRINGTON

J.

[1] Defendant and appellant was formerly known as Kenneth Kent. On March 11, 2022, appellant’s counsel notified this court that defendant had “successfully petitioned the superior court for a decree changing his gender to female and name to Kate Lyn Kent. . . . Her new name now appears on the [Department of Corrections and Rehabilitation] website.”

[2] All further statutory references are to the Penal Code unless otherwise indicated.

[3] On the court’s own motion, we take judicial notice of this court’s previous unpublished opinion. (See People v. Jendrock et al.(Dec. 2, 1999, E022446) [nonpub. opn.] (Jendrock et al., supra, E022446); see Evid. Code § 459.) We derive much of our factual recitation from the opinion in that matter.

[4] The jury found not true special circumstance allegations that the murder was committed during a residential robbery and burglary. (Jendrock et al., supra, E022446.)

[5] It is unclear why the court was reconsidering its prior ruling that even if constitutional, defendant was ineligible for relief pursuant to section 1170.95 because defendant was a major participant who acted with reckless indifference to human life.

[6] People v. Chiu (2014) 59 Cal.4th 155.