Filed 6/29/22 P. v. Lathan CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of the County of Los Angeles, James R. Dabney, Judge. Reversed with directions.

Janet Uson, 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, Senior Assistant Attorney General, Charles S. Lee and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Richard Lathan appeals from the trial court’s summary denial of his Penal Code section 1170.95[1] petition for resentencing. We reverse and remand the matter to the court with directions as set forth below.

II. FACTUAL BACKGROUND

“At the time of the crimes, [G.T.], Veronica Perez, and their children were visiting [I.M.], [A.P.], and their children. At some point in the evening, [I.M.] and [G.T.] were sitting in [I.M.]’s car, parked near the front door to the house. [I.M.] was in the passenger seat, [G.T.] in the driver’s seat. The driver’s side door was open. [Defendant] and another man approached them.

“[Defendant] shot [G.T.] twice, in the stomach and in the chest. The other man shot [I.M.] twice. [G.T.] ran into the house and fell on the couch. [Defendant] continued to shoot at [G.T.] as he ran.

“[A.P.] was inside the house when she heard six or seven shots fired. She ran to the front door and saw two men. She could not tell if both . . . were shooting, but she heard rapid gunshots when she saw them both there. The men turned and appeared to see her, so she stepped back into the house. The shooters got as close as the front door jamb, so that they could see Veronica Perez inside the house, in the living room. When the shots stopped, Veronica [Perez] said ‘They shot me too,’ and fell. Veronica Perez was killed by a gunshot wound.

“Two bullets were recovered at the scene. One of them was found inside the house, in front of the couch, and the other outside, two or three feet from the rear of [I.M.]’s car. Those bullets were fired from the same gun. A bullet recovered at the hospital where [G.T.] was taken after the shooting was shot from another gun.

“[I.M.] identified the [codefendant] in this case as the man who shot him. However, the jury could not reach a verdict on the charges against the [codefendant], and the court declared a mistrial on those charges.” (People v. Lathan (Oct. 21, 1993, B070970) [nonpub. opn.].)

The jury found defendant guilty of the second degree murder of Veronica Perez and the attempted premeditated murders of G.T. and I.M. The jury also found true the allegation that defendant personally used a firearm in the commission of the murder. (People v. Lathan, supra, B070970.)

At a later retrial, the codefendant was convicted of the second degree murder of Veronica Perez and the attempted premeditated murder of I.M. The jury found true an allegation that the codefendant had personally used a firearm in the commission of both crimes (§ 12022.5, subd. (a)). (People v. Elliotte (Mar. 6, 1995, B078292) [nonpub. opn.].)

III. PROCEDURAL BACKGROUND

On March 7, 2019, defendant filed his petition for resentencing pursuant to Senate Bill No. 1437 (Senate Bill 1437).[2] Defendant contended that he was eligible for resentencing because the jury did not find that he acted with premeditation and deliberation, there was no proof that he had the intent “to kill anyone under the natural and probable consequence[s theory,]” and no proof that he “aided and abetted his [codefendant] in the second degree murder he stands convicted of under the old felony murder rule.” Defendant requested the appointment of counsel.

The District Attorney opposed the petition.

On April 12, 2019, the trial court summarily denied the petition, finding “that the [defendant] has failed to allege any facts that would entitle him to relief under section 1170.95.”

On December 17, 2020, we affirmed the trial court’s denial of defendant’s petition. On March 10, 2021, the California Supreme Court granted defendant’s petition for review. On February 16, 2022, the Supreme Court transferred the cause back with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775 (Senate Bill 775) (Stats. 2021, ch. 551) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis).

III. DISCUSSION

A. Section 1170.95

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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 . . . , 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. [Citation.]” (Lewis, supra, 11 Cal.5th at p. 959.)

On October 5, 2021, the Governor signed Senate Bill 775, which sought to “clarif[y] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.” (Sen. Bill 775 (2021–2022 Reg. Sess.), as amended Oct. 5, 2021, p. 3; Stats. 2021, ch. 551, §§ 1–2.) A petitioner who files “a facially sufficient petition” is entitled to “the appointment of counsel and the opportunity for briefing . . . . (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 957.)

When briefing has been completed, “the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. (c).) Within 60 days of issuance of the order to show cause, the trial court shall hold a hearing “to determine whether the petitioner is entitled to relief.” (Id., subd. (d)(1) & (3).) “[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.” (Id., subd. (d)(3).) The court acts as the finder of fact when determining whether the prosecution has met its burden beyond a reasonable doubt. (See Ibid.; People v. Gentile (2020) 10 Cal.5th 830, 855 (Gentile) [“section 1170.95 requires the superior court to determine on an individualized basis, after considering any new or additional evidence offered by the parties, whether the defendant is entitled to relief”].)

B. Analysis

Defendant contends the trial court erred in summarily denying his petition without appointing counsel to represent him. The Attorney General concedes that the court erred but argues that the error was harmless. The erroneous failure to appoint counsel under section 1170.95 is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 957–958.)

As noted, Senate Bill 775 expanded section 1170.95’s reach to include the circumstance where a defendant was convicted on a theory under which malice was imputed based solely on the defendant’s participation in a crime. (People v. Langi (2022) 73 Cal.App.5th 972, 975, citing section 1170.95, subd. (a) (Langi).) Defendant contends that “[b]ecause the ballistics evidence did not establish that [he] fired into the home, there is a possibility that the jury convicted [him] of murder under an imputed malice theory.” As to his attempted murder convictions, defendant contends “[t]he jury instructions . . . were ambiguous as to the requisite intent to kill for each attempted murder victim. For the premeditated attempted murder counts, the jury was instructed, ‘the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice, and having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being.’ . . . Although the evidence indicated the ‘would be slayer’ was different for each attempted murder victim, the instructions did not make that distinction. The jury could have found the ‘would be slayer,’ not [defendant], premeditated and deliberated and decided to kill a particular victim.”

We have reviewed the record of conviction, including the jury instructions delivered in defendant’s case, and conclude that the undisputed error in summarily denying defendant’s section 1170.95 petition without appointing counsel was not harmless. (People v. Sandoval (2015) 62 Cal.4th 394, 422 [reasonable probability of a more favorable result does not mean more likely than not; it means “‘“‘“merely a reasonable chance, more than an abstract possibility”’”’”]; see Langi, supra, 73 Cal.App.5th at pp. 975, 982–984.) Accordingly, we reverse the trial court’s order denying defendant’s petition. On remand, the court is to appoint counsel and permit briefing pursuant to section 1170.95, subdivision (c). (Lewis, supra, 11 Cal.5th at p. 957.)

IV. DISPOSITION

The order denying the resentencing petition under section 1170.95 is reversed. The matter is remanded to the trial court with directions to appoint counsel to represent defendant and permit briefing pursuant to section 1170.95, subdivision (c).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.

[1] All further statutory references are to the Penal Code.

[2] Although defendant stated that he made his motion pursuant to section 1170, subdivision (d)(1), we will treat his motion as one made pursuant to section 1170.95.