Opinion
G056013
09-25-2019
In re ANTHONY T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANTHONY T., Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17DL0154) OPINION Appeal from an order of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
The juvenile court sustained allegations that Anthony T. committed second degree murder and attempted murder. On appeal from the dispositional order, he argues the true finding on the murder allegations must be vacated and his commitment recalled under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) because he had been found guilty under a natural and probable consequences theory but was not the actual killer, did not harbor an intent to kill, and was not a major participant in an underlying felony.
We conclude Senate Bill No. 1437 and the petitioning procedure of Penal Code section 1170.95 (section 1170.95) apply to Anthony T. but relief is not available by direct appeal. Instead, the procedure created by section 1170.95 is the exclusive means by which Anthony T. may obtain relief under Senate Bill No. 1437. We agree with the Attorney General the commitment order must be corrected to reflect the maximum period of imprisonment that could be imposed on an adult was an indeterminate term of 40 years to life, plus a determinate consecutive term of 19 years. We therefore affirm the dispositional order and direct the juvenile court to correct the commitment order.
FACTS AND PROCEDURAL HISTORY
Due to the limited scope of the appeal, a short summary of facts is presented. In March 2011, Anthony T. and fellow Tiny Rascals Gang (TRG) members, riding in several cars, chased eight rival gang members who were riding in an SUV. One of the cars pulled up alongside the SUV, and a TRG member in that car fired at least five times at the occupants of the SUV. One passenger in the SUV was killed and another was seriously injured. Anthony T., who was 17 years old at the time, was not the shooter and was not in the same car as the shooter. Anthony T. was tried as an adult as an aider and abettor under a natural and probable consequences theory.
A jury found Anthony T. guilty, as charged by information, of second degree murder (count 1) (Pen. Code, § 187, subd. (a)), attempted murder (count 2) (id., §§ 664, 187, subd. (a)), shooting at an occupied motor vehicle (count 3) (id., § 246), and criminal street terrorism (count 4) (id., § 186.22, subd. (a)). The jury also found Anthony T. committed counts 1 through 3 for the benefit of, at the direction of, or in association with a criminal street gang (id., § 186.22, subd. (b)), and he vicariously discharged a firearm causing great bodily injury or death (id., § 12022.53, subds. (d), (e)(1)).
Before Anthony T. was sentenced, the voters passed Proposition 57 (the Public Safety and Rehabilitation Act of 2016), which requires that any allegation of criminal conduct against a person under the age of 18 be commenced in juvenile court. (Welf. & Inst. Code, §§ 602, subd. (a), 707.) The parties stipulated this matter be suspended and transferred to the juvenile court. At a hearing in March 2017, the juvenile court deemed the information against Anthony T. to be a petition under Welfare and Institutions Code section 707. Anthony T. denied the allegations of the petition. The juvenile court denied the district attorney's motion to transfer the matter back to a court of criminal jurisdiction.
A dispositional hearing was conducted. In a dispositional order entered on January 23, 2018, the juvenile court deemed the jury verdict to be true findings on the allegations of the juvenile petition and found the allegations of the petition to be true beyond a reasonable doubt. Anthony T. was declared a ward of the court. In January 2018, Anthony T. was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice. The court determined the maximum period Anthony T. could be imprisoned if sentenced as an adult would be 57 years to life. Anthony T. appealed from the dispositional order.
DISCUSSION
I. Relief Under Senate Bill No. 1437 Applies to Juvenile
Offenders But Is Not Available on Direct Appeal.
Anthony T. contends that due to Senate Bill No. 1437 his conviction for second degree murder, and related enhancements, must be vacated because he was not the actual shooter, did not act with intent to kill, and was not a major participant in any underlying felony.
Senate Bill No. 1437, which became effective January 1, 2019, was enacted 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.'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez), quoting Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 accomplished that purpose by substantively amending Penal Code sections 188 and 189 and adding section 1170.95.
Under Penal Code section 188, subdivision (a)(3), as amended, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." Section 189, as amended, limits murder liability based on felony murder or a natural and probable consequences theory to a person who: (1) was the actual killer; (2) although not the actual killer, intended to kill and assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (Id., § 189, subd. (e).)
Senate Bill No. 1437 added section 1170.95, which creates a procedure by which persons convicted of felony murder or murder under a natural and probable consequences theory may seek resentencing. Under subdivision (a) of section 1170.95, "[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." A petition may be filed if the following three conditions are met: "(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 [Penal Code] Section 188 or 189 made effective January 1, 2019." (Ibid.)
If the court determines the petitioner has made a prima facie showing of eligibility, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subds. (c), (d)(1).) At that hearing, the prosecution bears the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) If the prosecution does not sustain its burden of proof, then the prior conviction, including any enhancements, must be vacated and the petitioner sentenced on the remaining charges. (Ibid.) "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid.)
Anthony T. argues the amendments to the Penal Code enacted by Senate Bill No. 1437 apply retroactively to the true finding against him on the murder allegations. The Attorney General agrees that Senate Bill No. 1437 applies to Anthony T.'s murder conviction and does not contest the application of Senate Bill No. 1437 to juvenile offenders. In In re R.G. (2019) 35 Cal.App.5th 141, 144, 151, the Court of Appeal held that Senate Bill No. 1437, including the petitioning procedure of section 1170.95, applies to a juvenile offender whose murder allegation was sustained by the juvenile court on a natural and probable consequences theory. Thus, we conclude, Senate Bill No. 1437 applies to the true finding against Anthony T. on the murder allegations.
Anthony T. argues the amendments to the Penal Code enacted by Senate Bill No. 1437 authorize us to grant him relief on direct appeal and compel us to vacate the true finding for second degree murder. The Attorney General argues Anthony T. cannot obtain relief by direct appeal but must follow the procedures set forth in section 1170.95.
In Martinez, the Court of Appeal extensively analyzed the issue and concluded Senate Bill No. 1437 applies equally to persons whose sentences are final and those whose sentences are not. (Martinez, supra, 31 Cal.App.5th at pp. 722, 724-727.) The Martinez court concluded relief under Senate Bill No. 1437 in either case is not available by direct appeal; instead, the person seeking relief must file a petition in the sentencing court pursuant to section 1170.95. (Martinez, supra, 31 Cal.App.5th at pp. 727-729; accord People v. Munoz (September 6, 2019, B283921) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 843, pp. *17-22]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1113-1114; People v. Carter (2019) 34 Cal.App.5th 831, 835; People v. Anthony (2019) 32 Cal.App.5th 1102, 1153 (Anthony).)
The Martinez court explained that section 1170.95 operates in a similar fashion to Propositions 36 and 47 by creating a statutory mechanism by which defendants may obtain relief. (Martinez, supra, 31 Cal.App.5th at pp. 725-727.) In People v. Conley (2016) 63 Cal.4th 646, 661-662, the California Supreme Court held the postconviction statutory mechanism was the exclusive means for obtaining relief for those who had been sentenced before Proposition 36's effective date. In People v. DeHoyos (2018) 4 Cal.5th 594, 600, 603, the California Supreme Court held the statutory provisions for a petition to recall sentence were the exclusive means to obtain retroactive relief under Proposition 47 for persons sentenced before its effective date.
The Martinez court concluded: "The analytical framework animating the decisions in Conley and DeHoyos is equally applicable here. Like Propositions 36 and 47, Senate Bill 1437 is not silent on the question of retroactivity. Rather, it provides retroactivity rules in section 1170.95. The petitioning procedure specified in that section applies to persons who have been convicted of felony murder or murder under a natural and probable consequences theory. It creates a special mechanism that allows those persons to file a petition in the sentencing court seeking vacatur of their conviction and resentencing. In doing so, section 1170.95 does not distinguish between persons whose sentences are final and those whose sentences are not. That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal." (Martinez, supra, 31 Cal.App.5th at p. 727.)
The Martinez court also reasoned that the procedure set forth in section 1170.95 itself "underscores the legislative intent to require those who seek retroactive relief to proceed by way of that statutorily specified procedure." (Martinez, supra, 31 Cal.App.5th at p. 727.) Section 1170.95 requires a petitioner to submit a declaration stating he or she is eligible for relief and gives both the prosecution and the petitioner the opportunity to present new and additional evidence to support their respective positions. (§ 1170.95, subds. (b)(1)(A), (d)(3).) "Providing the parties with the opportunity to go beyond the original record in the petition process, a step unavailable on direct appeal, is strong evidence the Legislature intended for persons seeking the ameliorative benefits of Senate Bill [No.] 1437 to proceed via the petitioning procedure. The provision permitting submission of additional evidence also means Senate Bill [No.] 1437 does not categorically provide a lesser punishment must apply in all cases, and it also means defendants convicted under the old law are not necessarily entitled to new trials. This, too, indicates the Legislature intended convicted persons to proceed via section 1170.95's resentencing process rather than avail themselves of Senate Bill [No.] 1437's ameliorative benefits on direct appeal." (Martinez, supra, 31 Cal.App.5th at p. 728; accord People v. Munoz, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 843 at pp. *19-*20]; People v. Lopez, supra, 38 Cal.App.5th at p. 1114; Anthony, supra, 32 Cal.App.5th at p. 1153.)
In Anthony, supra, 32 Cal.App.5th at page 1153, the Court of Appeal agreed with and adopted the analysis of Martinez and rejected the argument the defendant was entitled to relief under Senate Bill No. 1437 on direct appeal. The Anthony court also addressed, and rejected, the argument that a defendant's constitutional right to a jury trial would be violated if the petitioning procedure of section 1170.95 were the exclusive means of obtaining relief under Senate Bill No. 1437. "This argument is unpersuasive," the court explained, "because the retroactive relief they are afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis. Rather, the Legislature's changes constituted an act of lenity that does not implicate defendants' Sixth Amendment rights." (Anthony, supra, 32 Cal.App.5th at p. 1156; accord People v. Lopez, supra, 38 Cal.App.5th at pp. 1114-1115.)
We agree with and adopt the analyses of Martinez and Anthony. We conclude the amendments enacted by Senate Bill No. 1437 apply to the true finding on the murder allegations against Anthony T. but he may not obtain relief by direct appeal: The procedure created by section 1170.95 is the exclusive means by which he may seek relief under Senate Bill No. 1437. The Court of Appeal in In re R.G., supra, 35 Cal.App.5th at pages 145 to 146 also agreed with Martinez and Anthony and concluded a juvenile offender must file a petition under section 1170.95 and cannot obtain relief by direct appeal.
II. The Commitment Order Must Be Corrected to Reflect
the Correct Maximum Period of Imprisonment.
The commitment order signed by the juvenile court reflects the maximum period of imprisonment that could be imposed on an adult convicted of the same offenses that brought Anthony T. before the juvenile court to be a term of 57 years to life. The trial court calculated the maximum incarceration period for count 1 to be 50 years to life and for count 2 to be a determinate term of seven years. The Attorney General argues the maximum period of imprisonment reflected in the commitment order is incorrect and should be corrected to reflect an indeterminate term of 40 years to life plus a consecutive determinate term of 19 years. We agree.
Second degree murder (count 1) is subject to an indeterminate term of 15 years to life. (Pen. Code, § 190, subd. (a).) The gang firearm enhancement adds a consecutive term of 25 years to life. (Id., § 12022.53, subds. (d), (e)(1).) The trial court believed Anthony T. would have been subject to a 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C). But section 186.22, subdivision (b)(5) provides that when a defendant commits a crime punishable by imprisonment for life, the defendant is subject to a minimum term of 15 years before being considered for parole. The determinate term enhancement of subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense with a determinate term; if the conviction is of an offense with an indeterminate term, the limitation of parole eligibility provided in subdivision (b)(5) is to be applied. (People v. Fiu (2008) 165 Cal.App.4th 360, 390.) Thus, the maximum period of imprisonment for count 1 would be 40 years to life (15 years to life for second degree murder plus 25 years to life for the gang firearm enhancement) rather than 50 years to life as reflected on the commitment order.
As to count 2, the sentencing range for attempted murder absent a finding of deliberation and premeditation is a determinate term of five, seven, or nine years (Pen. Code, § 664, subd. (a)), not the seven years to life term reflected on the commitment order. The maximum term for count 2 must also include the ten-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C), for the conviction of a violent felony. On count 2, the maximum sentence therefore is a determinate term of 19 years (nine years for attempted murder plus 10 years for the gang enhancement).
The commitment order therefore must be corrected to reflect the maximum period of imprisonment that could be imposed on an adult would be an indeterminate term of 40 years to life, plus a consecutive, determinate term of 19 years.
DISPOSITION
The dispositional order is affirmed. Our decision is without prejudice to Anthony T. filing a petition for relief under section 1170.95, and we express no opinion whether he should be granted relief if he chooses to do so. The juvenile court is directed to correct the commitment order to reflect a maximum period of imprisonment that could be imposed on an adult for the same offenses to be an indeterminate term of 40 years to life, plus a determinate term of 19 years. The juvenile court is directed to forward a certified copy of the corrected commitment order to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.