Filed 4/8/22 P. v. Richson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Sean Richson appeals the denial of his petition for relief under Penal Code[1] section 1170.95, Proposition 57, and Senate Bill No. 1391. We reverse.

FACTS

In 2002, a jury found Richson guilty of first degree murder (§§ 187, subd. (a), 189) and found true that the murder was committed during the commission of a felony, robbery (§ 190.2, subd. (a)(17)(A)). The jury also found Richson guilty of second degree robbery (§ 211), and, as to both counts, that a principal was armed with a firearm during the commission of the offenses. Because Richson was a minor, the trial court sentenced him to 25 years to life instead of life without the possibility of parole.

We affirmed. (People v. Richson (Nov. 24, 2003, B158889) [nonpub. opn.].) Our Supreme Court denied review on February 18, 2004. [2]

Facts from Opinion on Appeal

Pablo Ponce Juarez was employed at the Astroburger restaurant in Gardena. One of his duties included closing the restaurant at night.

On April 17, 2000, Maria Manahan was driving by the restaurant sometime after 9:00 p.m. She saw a Hispanic male put his hands behind his head. An African-American man stood behind him. A third man sat at a table.

Manahan decided to find a telephone to call the police. While she was looking for a telephone, she saw a man standing with his hands in his pockets. When she looked at him, he looked away toward the restaurant. She became frightened and drove on. She called the police when she got home.

Gardena police responded to a call of a robbery in progress. When an officer arrived at the restaurant, he saw Juarez lying on the floor in a pool of blood. He also saw two cash registers with their cash drawers pulled out.

Other officers saw Eric Nicholson and Richson walking near the restaurant. After checking the descriptions of the suspects, the officers shined the patrol car spotlight on the subjects. As soon as the spotlight illuminated Nicholson and Richson, they ran toward an apartment complex. After a short pursuit, Richson complied with the officer’s order to stop. Nicholson hid in the apartment complex carport. Eventually, Nicholson complied with the officer’s orders to come out of hiding.

At the time of Richson’s arrest, he was carrying a white plastic bag. Inside the bag police found a brown cloth glove, $180, and Juarez’s wallet. During a booking search of Richson, police found a dark brown glove, a black bandana, and a cutting tool. Near Nicholson’s hiding place police found a .38-caliber revolver. The revolver contained five live rounds and one expended round. Police also found Juarez’s gold necklace about six inches away from Nicholson as they handcuffed him. Police found keys to the restaurant in the shrubbery between the restaurant and the apartment complex.

After the police handcuffed Richson and Nicholson at the scene, they put paper bags on their hands to preserve any gunshot residue (GSR). A sheriff's department criminalist later tested Richson and Nicholson for GSR. Nicholson tested positive for one particle unique to gunshot primer residue. This indicated Nicholson either handled a gun, fired a gun, had been in close proximity to a discharging firearm, or had otherwise been in contact with GSR. Tests disclosed no particles on Richson. Criminalists found an expended bullet in Juarez’s clothing. The firearms examiner was unable to determine whether the bullet was fired from the .38-caliber gun found where Nicholson was hiding. He testified, however, that the expended bullet was similar to a bullet found in the gun. They both had a surface content that was primarily zinc. Neither the examiner nor other experts in his laboratory were familiar with ammunition of this type.

Police obtained a videotape from the restaurant’s security system. The tape shows Juarez with his hands on his head and a man standing behind him. Another man is in the restaurant. Juarez took money out of the cash register drawers. At one point, Juarez is kneeling with his hands behind his head. The two men leave the restaurant. A short time later, the two men reenter the restaurant, go out of the camera’s view for a moment, and leave the restaurant again. One has a white plastic bag. The arresting officer testified that the two men on the videotape were similar in appearance to Richson and Nicholson at the time of their arrest.

Neither defendant put on a defense.

Section 1170.95 Petition

On January 7, 2019, Richson filed a petition to vacate his murder conviction pursuant to section 1170.95. Among other matters, he alleged he was convicted of murder under the felony-murder rule; he was not the actual killer and did not with the intent to kill aid or abet the actual killer; he was not a major participant in the felony or did not act with reckless indifference to human life; and he could not now be convicted of murder because of the changes made to sections 188 and 189 effective January 1, 2019.

Richson’s prior counsel, who represented him through the fitness hearing in juvenile court, volunteered to represent him pro bono in his section 1170.95 petition. Richson’s counsel stated in his moving papers that Richson was 14 years old and Nicholson was 35 years old at the time of the robbery-murder. Richson claims that the robbery was Nicholson’s idea; during the robbery, Nicholson asked Richson if he wanted to see him shoot Juarez; Richson tried to leave but Nicholson told him to sit back down; Richson did what he was told because he was afraid of Nicholson; Nicholson shot Juarez; Richson did not directly participate in the shooting.

The trial court denied the petition on the ground that Richson did not state a prima facie case. The court found that Richson was a major participant who acted with reckless indifference to human life.

DISCUSSION

I

Section 1170.95

Effective January 1, 2019, the Legislature amended sections 188 and 189 to limit the application of the felony murder rule and the natural and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2, 3.)

Section 188, subdivision (a)(3) now provides, in part, “Malice shall not be imputed to a person based solely on his or her participation in a crime.”

Section 189, subdivision (e) provides:

“A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) 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.”

Along with the amendments to sections 188 and 189, the Legislature enacted section 1170.95. The section provides retroactive relief to persons who were convicted of murder under the felony-murder rule or the natural and probable consequences doctrine who could not be so convicted after January 1, 2019, because of the changes made to sections 188 and 189.

Section 1170.95, subdivision (a) provides:

“A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

“(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.

“(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.

“(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.”

A person seeking relief under section 1170.95 must file a petition with the court that sentenced him or her alleging that he or she is eligible for relief based on all the requirements of subdivision (a). (§ 1170.95, subd. (b)(1)(A).) The court must review the petition to determine whether the petitioner has made a prima facie showing of entitlement to relief. (Id., subd. (c).) If the petitioner makes a prima facie showing, the court shall issue an order to show cause. (Ibid.) Within 60 days of issuing the order to show cause, the court must hold a hearing to determine whether the petitioner is entitled to relief. (Id. at subd. (d)(1).)

II

Prima Facie Case

Richson’s opening brief appears to be based on the misperception that the trial court denied his petition after a full evidentiary hearing pursuant to section 1170.95, subdivision (d)(1). In fact, such a full evidentiary hearing was not held. Instead, the trial court found that Richson failed to establish a prima facie case.

In determining whether the petitioner has established a prima facie case, the trial court may rely on the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 971.) Appellate convictions are generally considered to be part of the record of conviction. (Id. at p. 972.)

Here the record of conviction shows the jury found true the special circumstance that the murder was committed during a robbery. (§ 190.2, subd. (a)(17)(A).) The People point out that the special circumstances require a finding that a person who was not the actual killer acted with reckless indifference to human life and was a major participant in the robbery. (Id., subd. (d).) In Richson’s appeal, we upheld the special circumstances finding as supported by substantial evidence. (People v. Richson, supra, B158889.) Thus, the People argue, Richson cannot satisfy the requirement of section 1170.95, subdivision (a)(3) that the petitioner could not be convicted of murder because of the changes made in sections 188 or 189. Section 189, subdivision (e)(3), as amended, provides that a person may be convicted of felony murder if he was a major participant in the underlying felony and acted with reckless indifference as described in section 190.2, subdivision (d).

Banks and Clark

Richson contends the jury’s finding of special circumstances is not determinative because it was made prior to People v Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).

In Banks, our Supreme court considered under what circumstances an accomplice who lacks the intent to kill can be considered a “major participant” so as to be statutorily eligible for the death penalty or life imprisonment without the possibility of parole. Banks also spoke to reckless indifference.

Our Supreme Court stated that the term “major participant” had no specialized or technical meaning. (Banks, supra, 61 Cal.4th at pp. 800-801.) But the court listed certain factors that may play a role in determining whether the defendant’s culpability is sufficient to make him eligible for special circumstances punishment. The factors are: “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?” (Id. at p. 803, fn. omitted.)

Banks said that no one of these considerations is necessary, nor is anyone of them necessarily sufficient. (Banks, supra, 61 Cal.4th at p. 800.) All may be weighed in determining the ultimate question whether the defendant’s participation in criminal activities known to carry a grave risk of death was sufficiently significant to be considered “major.”

In Clark, our Supreme Court considered in more detail the other half of the special circumstances requirement for a nonshooter aider and abettor, “reckless indifference to human life.” The court listed factors to consider with the caution that no one of the factors is necessary, nor is any one of them necessarily sufficient. (Clark, supra, 63 Cal.4th at p. 618.) The factors are: (1) knowledge of weapons, use of a weapon, and number of weapons; (2) physical presence at the crime and opportunities to restrain the crime or aid the victim; (3) duration of the felony; (4) defendant’s knowledge of the cohort’s likelihood of killing; and (5) defendant’s efforts to minimize the risks of violence during the felony. (Id. at pp. 618-622.)

There is a division of authority on the effect of Banks and Clark on a prior finding of special circumstances under section 190.2, subdivision (d).

In People v. Torres (2020) 46 Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011, the court held that the jury’s finding of special circumstances pursuant to section 190.2, subdivision (d) made prior to Banks and Clark did not preclude relief under section 1170.95. The court reasoned that Banks and Clark construed section 190.2, subdivision (d) “in a significantly different, and narrower manner than courts had previously construed the statute.” (Torres, at p. 1179.)

People v. Allison (2020) 55 Cal.App.5th 449 reached a different conclusion. The court noted that the amendment to section 189, subdivision (e)(3) incorporates the language of section 190.2, subdivision (d). (Allison, at p. 457.) The court rejected the argument that Banks and Clark changed the law. Instead, they merely clarified “major participant’ and “reckless indifference to human life.” (Allison, at p. 458.) Those phrases do not have specialized definition, but are interpreted as they are used in common parlance. (Ibid.)

Other cases have held that a petition under section 1170.95 is not the proper vehicle for challenging a pre-Banks and Clark finding. Instead, a defendant who wishes to challenge his pre-Banks and Clark finding under section 190.2, subdivision (d) as not supported by substantial evidence must proceed by petition for writ of habeas corpus. (See People v. Nunez (2020) 57 Cal.App.5th 78, 94-97, review granted Jan. 13, 2021, S265918.)

Our Supreme Court will ultimately resolve the question whether a pre-Banks and Clark finding is determinative, as well as the proper procedure for raising that issue. Until then, we must resolve those issues in the context of a petitioner who was 14 years old at the time he committed the offenses and whose accomplice was a significantly older adult. In that context, the spirit of section 1170.95, if not the letter, requires a reexamination of the conclusion that Richson was a major participant in the offense and acted with reckless indifference to human life. (See In re Moore (2021) 68 Cal.App.5th 434, 454 [defendant’s youth is relevant factor in determining whether he was a major participant and acted with reckless indifference].) Richson’s youth, the age of his accomplice, plus the absence of evidence in the record are sufficient to show a prima facie case. Nothing herein shall be interpreted as indicating how the trial court should rule at the hearing pursuant to section 1170.95, subdivision (d)(1).

III

Relief Under Proposition 57 and Senate Bill No. 1391

Richson contends the trial court erred in denying him relief under Proposition 57 and Senate Bill No. 1391.

The voters enacted Proposition 57, effective November 9, 2016. It amended Welfare and Institutions Code section 707, subdivision (a)(1) to require that allegations of criminal conduct against persons under 16 years of age be commenced in juvenile court. Senate Bill No. 1391, effective January 1, 2019, eliminated the prosecutor’s ability to seek transfer of persons 14 and 15 years of age from juvenile court to adult court, unless the person was not apprehended prior to the end of juvenile court jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(2), as amended by Stats. 2018, ch. 1012, § 1.)

The trial court denied Richson a transfer hearing because he had a fitness hearing at the time he was charged with robbery-murder, and because the judgment against him was final long before the passage of Proposition 57 and Senate Bill No. 1391.

Our Supreme Court held in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304, that Proposition 57’s juvenile hearing transfer reforms apply to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.

Similarly, the reforms in Senate Bill No. 1391 will only apply to defendants whose judgments were not final at the time it was enacted. (In re Estrada (1965) 63 Cal.2d 740, 745.)

If the trial court denies Richson’s section 1170.95 petition, the judgment will remain final and he will not be entitled to relief under Senate Bill No. 1391. If the trial court grants the section 1170.95 petition, Richson will be entitled to relief under Senate Bill No. 1391 as to the remaining robbery count.

DISPOSITION

We reverse the judgment (order) and remand this matter to the trial court for a new section 1170.95 hearing.

NOT TO BE PUBLISHED.

GILBERT, P. J.

I concur:

PERREN, J.

YEGAN, J., Dissenting.

The majority’s opinion violates the cardinal rule that an appellate court is bound by the jury’s findings if supported by substantial evidence. “If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. [Citations.] . . . It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

The jury found true the special circumstance that the murder had been committed during a robbery. This finding should be dispositive of Richson’s appeal from the denial of his Penal Code section 1170.95 petition.[3] The majority acknowledges “that the special circumstances require a finding that a person [such as Richson] who was not the actual killer acted with reckless indifference to human life and was a major participant in the robbery.” (Maj. opn. ante, at p. 7.) The majority notes that, in Richson’s prior appeal from the judgment of conviction, “we upheld the special circumstances finding as supported by substantial evidence.” (Ibid.)

Despite the jury’s true finding on the special circumstance, the majority concludes that “Richson’s youth [14 years old], the age of his accomplice [35 years old], plus the absence of evidence in the record are sufficient to show a prima facie case.” (Maj. opn. ante, at p. 10.) But the jury surely considered Richson’s youth and the age of his older accomplice. These were important factors. Nevertheless, the jury found beyond a reasonable doubt that Richson was a major participant and had acted with reckless indifference to human life. The jury’s verdict necessarily encompassed a finding that the age of Richson and his accomplice did not raise a reasonable doubt as to the truth of the special circumstance.

Having concluded in our prior opinion that the jury’s true finding on the special circumstance is supported by substantial evidence, we cannot now disregard this finding in reviewing the trial court’s denial of Richson’s petition for relief under section 1170.95. (People v. Torres (1958) 158 Cal.App.2d 213, 215 [“Since the question is one of fact primarily for the trial court’s determination, the finding of that court, supported by substantial evidence, is binding upon an appellate court”].)

The majority mistakenly assumes that “the spirit of section 1170.95, if not the letter, requires a reexamination of the conclusion that Richson was a major participant in the offense and acted with reckless indifference to human life.” (Maj. opn. ante, at p. 10.) Neither the spirit nor the letter of section 1170.95 requires appellate courts to ignore jury verdicts.

The majority’s determination that Richson made a prima facie showing is based in part on the alleged “absence of evidence in the record.” (Maj. opn. ante, at p. 10.) The majority does not specify what evidence is absent. We assume it is referring to evidence concerning whether Richson was a major participant who acted with reckless indifference to human life. The absence of such evidence in the record is of no consequence. Because the jury’s true finding on the special circumstance is supported by substantial evidence, we must uphold the denial of Richson’s petition for relief under section 1170.95.

NOT TO BE PUBLISHED.

YEGAN, J.

Hector M. Guzman, Judge

Superior Court County of Los Angeles

______________________________

Janyce Keiko Imata Blair, 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, Assistant Attorney General, David E. Madeo and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

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

[2] We grant respondent’s request for judicial notice filed September 15, 2021.

[3] All statutory references are to the Penal Code.