Opinion
E073937
05-11-2021
THE PEOPLE, Plaintiff and Respondent, v. BRANDON KEITH BASKETT, Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal; Spolin Law, Aaron Spolin and Annette Gifford for Defendant and Appellant. Xavier Becerra and Rob Banta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA1001189) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Reversed and remanded with directions. Joanna Rehm, under appointment by the Court of Appeal; Spolin Law, Aaron Spolin and Annette Gifford for Defendant and Appellant. Xavier Becerra and Rob Banta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
In 2013, this court affirmed defendant Brandon Keith Baskett's conviction of first degree felony murder for his participation in an armed robbery of a gold dealer that resulted in the dealer's murder, and affirmed his state prison sentence of 11 years, plus 25 years to life. Almost six years later, Baskett petitioned the superior court to vacate his murder conviction pursuant to Penal Code section 1170.95, a resentencing statute enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). In a nutshell, that bill limited first and second degree murder under the natural and probable consequences doctrine and under the felony-murder rule to defendants who: (1) are the actual killer; (2) are not the actual killer, but who share the killer's intent to kill, and aid and abet in the killing; or (3) are a major participant in a felony and who act with reckless indifference to human life. The superior court summarily denied Baskett's petition after finding the record of his conviction established that he was the actual killer, and he was a major participant in the robbery and acted with reckless indifference for human life.
Unless otherwise indicated, all additional statutory references are to the Penal Code.
On appeal, Baskett argues the superior court erred when it found he had not made a prima facie case for relief, and the court was required to conduct a jury trial to determine his eligibility for relief. The People concede the superior court erred by ignoring the allegation in Baskett's petition that he was not the shooter and making a factual finding that he was the actual killer. But, the People contend the error was harmless because the record of conviction establishes he was a major participant in the underlying robbery who acted with reckless indifference to human life. Because Baskett cannot establish he is entitled to relief under section 1170.95, the People argue the superior court correctly denied the petition without conducting an evidentiary hearing.
We agree with Baskett that the superior court exceeded the limited scope of the inquiry under section 1170.95, subdivision (c), into whether a petitioner makes a prima facie case for relief. Therefore, we reverse and remand for the superior court to issue an order to show cause and set an evidentiary hearing on Baskett's petition. However, we disagree with Baskett that the People will be barred during that evidentiary hearing from attempting to prove beyond a reasonable doubt that he was the actual shooter, and we disagree with his additional assertion that he will be entitled to a jury.
I.
FACTS
We take our summary of facts from this court's nonpublished decision in Baskett's direct appeal in People v. Tucker et al. (July 26, 2013, E054399), of which we take judicial notice. (Evid. Code, §§ 452, subd. (a), 459, subd. (a); see People v. Allison (2020) 55 Cal.App.5th 449, 454 & fn. 3.)
"On the evening of July 26, 2010, defendants [Baskett and Ricco Tucker] met with [A.S.], [R.B.], and someone named 'Little Trouble' or 'Lil D.' [A.S.] and [R.B.] had previously dealt with [the victim, L.T.]; they knew he bought gold and carried a lot of cash. The five men 'set up a plan to rob' [L.T.] The plan was to meet the next morning, lure [L.T.] to Rialto under the pretense of selling him gold, and rob him.
We have omitted the full names of victims and witnesses. (See Cal. Rules of Court, rule 8.90(b)(4), (11); Cal. Style Manual (4th ed. 2000) § 5:9, pp. 179-180, § 5:12, p. 181.)
"[L.T.] was known as the 'gold man.'" (People v. Tucker et al., supra, E054399.)
"On the morning of July 27, defendants and Little Trouble picked up [A.S.] and [R.B.] in a blue Dodge Avenger. Then, around 10:00 a.m., [A.S.] called [L.T.], told him he had a lot of gold to sell, and asked him to meet him at a garage in front of an apartment on Jackson Street in Rialto. The plan was for [A.S.] and [R.B.] to meet [L.T.] while defendants waited in the Dodge, hidden from view. When [A.S.] or [R.B.] walked out of the garage to 'get more gold,' that would signal defendants to come into the garage and rob [R.T.]
"Later that day, [A.S.] and [R.B.] met [L.T.] in front of the appointed garage. [L.T.]'s friend [G.G.] was with [L.T.], and [L.T.] had $8,000 to $10,000 with him. [A.S.] and [R.B.] led [L.T.] and [G.G.] into the garage, and [A.S.] handed [L.T.] a Rolex chain. [A.S.] told [R.B.] to get more gold and [R.B.] left.
"Moments later, defendants walked into the garage with guns drawn. According to [A.S.], Baskett put a silver and black .40-caliber gun to the back of [G.G.]'s head and told [G.G.] and [L.T.] to get down. Tucker then pointed a black and brown nine-millimeter gun at [G.G.], while Baskett turned his gun away from [G.G.] and pointed it at [L.T.]'s head. [Fn. omitted.] [L.T.] reached for Baskett's gun. Tucker then pointed his gun at [L.T.] and said, 'This is for real.' [L.T.] picked up his bag and ran out of the garage. Next, [A.S.] ran out of the garage. [A.S.] heard two shots, turned, and saw [L.T.] lying on the ground. [A.S.] ran back toward the Dodge Avenger and saw defendants in the car, speeding away. [A.S.] and [R.B.] walked to [R.B.]'s house. Later that day, [A.S.] spoke with Baskett by phone and asked him whether he would give some of the robbery proceeds to [A.S.] and [R.B.] Baskett said, 'Yeah, later on.'
"[G.G.] came out of the garage after hearing shots and 'all the footsteps running.' [L.T.] was lying on the ground and had two gunshot wounds. [G.G.] called for an ambulance and the police. [¶] . . . [¶]
"The police arrived at the scene of the shooting at 1:27 p.m. on July 27, 2010. Three .40-caliber shell casings were found on the garage floor. Trible suffered two gunshot wounds, and one was fatal.
"A day or two after the shooting, officers stopped Baskett driving the blue Dodge Avenger and discovered that [C.C.] had rented the car on July 23, 2010, four days before the shooting. Tucker was apprehended in [C.C.]'s home. In the trunk of [C.C.]'s Chevrolet Suburban, officers found a receipt from Shiekh Shoe Store in Victorville dated July 27, 2010, at 2:17 p.m. Surveillance videotapes showed Baskett and Tucker in the store, displaying large amounts of cash around the time the receipt was issued.
"On July 28, the day after the shooting, a witness saw Baskett and Tucker wearing new clothing, in contrast to the 'raggedy' clothing they had been wearing. Baskett was also carrying a black handgun in his waistband and flashing 'a large amount of hundred dollar bills.'
"During a police interview, Tucker admitted his role in the robbery and that he and Baskett bought shoes in Victorville after the robbery, but Tucker denied shooting [L.T.] Baskett gave Tucker $600 of the robbery proceeds." (People v. Tucker et al., supra, E054399.)
II.
PROCEDURAL HISTORY
A. Baskett's Trial.
In a first amended information, the People charged Baskett with first degree murder (§ 187, subd. (a), count 1), second degree robbery (§ 211, count 2), and possession of a firearm by a felon (§ 12021, subd. (a)(1), count 5). Inter alia, with respect to the murder and robbery counts, the People alleged Baskett personally and intentionally discharged a firearm and caused great bodily injury and death (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.53, subd. (b)). Finally, the People alleged Basket suffered a prior prison term. (§ 667.5, subd. (b).)
At the prosecutor's request, the trial court dismissed the count of second degree robbery. Instead, the prosecutor tried Baskett on the theory of felony murder with second degree robbery as the target offense. (People v. Tucker et al., supra, E054399.) The jury was instructed with CALCRIM Nos. 540A and 540B that it could find Baskett guilty of murder if it found beyond a reasonable doubt that he was the actual shooter or if it found beyond a reasonable doubt that he aided and abetted in the commission of the robbery during which the murder took place. In addition, the jury was instructed it need not agree unanimously on which theory was true, so long as each juror found one or the other theory had been proven beyond a reasonable doubt.
During deliberations, the jury asked whether a conviction on count 1 required it to find that Baskett "pulled the trigger." The trial court referred the jury to the instructions and reiterated the jury could convict Baskett if it found beyond a reasonable doubt that he was the actual killer or that he aided and abetted the robbery during which a coparticipant killed L.T. In a follow-up question, the jury seemed to indicate that it had reached a guilty verdict on the aiding and abetting theory, but asked the trial court whether it was nonetheless required to reach a conclusion on the direct-shooter theory. The trial court responded that the jury was not required to unanimously agree on the theory of first degree felony murder, so long as each juror found one or the other theory had been proven beyond a reasonable doubt.
After further deliberation, the jury indicated it had reached its verdicts but, when the trial court noted the jury had not signed either of the verdict forms (true or not true) for the sentencing allegation that Baskett personally discharged a firearm and caused death or great bodily injury, the court sent the jury back to deliberate some more. The jury found Baskett guilty on counts 1 and 3 and found true the allegation that he personally used a firearm. However, the jury was still unable to make a finding on the allegation that Baskett personally discharged a firearm. The trial court indicated there was "a split" among the jurors whether Baskett "was the actual shooter." And, because the prosecutor believed "it would be very unlikely" that the jury could agree on a finding for the personal discharge allegation because of "a split in terms of how [the jury] viewed the evidence," the trial court granted the prosecutor's request to dismiss it pursuant to section 1385.
Separately, Baskett admitted to having suffered a prior prison term. The trial court sentenced him to state prison for 25 years to life for count 1; a consecutive term of 10 years for the true finding that he personally used a firearm; and a consecutive one year term for his prior prison term, for a total prison term of 11 years, plus 25 years to life.
B. Baskett's Direct Appeal—People v. Tucker et al., supra, E054399.
On direct appeal, Baskett did not challenge the sufficiency of the evidence to support his murder conviction. Instead, he and Tucker argued, and the prosecutor conceded, the trial court erred when it instructed with a modified CALCRIM No. 376 that the jury could consider their possession of recently stolen property as evidence that they committed the offense of murder. (People v. Tucker et al., supra, E054399.) But, this court agreed with the People that the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836.
We noted the jury had been properly instructed it could only convict Baskett and Tucker of first degree felony murder if it found beyond a reasonable doubt "defendants either directly perpetrated the murder by shooting [L.T.] in the course of the robbery, or aided and abetted the other defendant in robbing [L.T.,] and [L.T.] was murdered during the course of the robbery." (People v. Tucker et al., supra, E054399.) And, we concluded the error was harmless because, inter alia, "ample evidence showed that defendants murdered [L.T.] during the course of robbing him—apart from and in addition to the evidence defendants knowingly possessed recently stolen property shortly after the robbery, namely, the large amount of cash they were displaying in the Victorville shoe store." (Ibid.)
"[A.S.] and [R.B.], defendants' accomplices, testified that they and defendants planned the robbery the night before the robbery and shooting. The plan was for [A.S.] and [R.B.] to lure [L.T.] to the garage under the pretense of selling him gold for cash and rob him after one of them walked out of the garage, signaling defendants to walk into the garage and carry out the robbery. After [A.S.] left the garage and defendants walked in with guns drawn—Baskett with a .40-caliber handgun and Tucker with a nine-millimeter handgun—defendants pointed their guns at [L.T.] and [L.T.]'s friend [G.G.], and ordered them to get down. [L.T.] tried to grab Baskett's gun, then grabbed his bag, ran out of the garage, and was shot.
"[A.S.]'s and [R.B.]'s accomplice testimony identifying defendants as the robbers, and at least one of them as the shooter, was amply supported by corroborating evidence. (§ 1111.) [G.G.] testified the robbery occurred just as [A.S.] and [R.B.] described: [G.G.] was approached from behind, a gun was pointed at his head, and he was ordered to get down. Another gun was pointed at [L.T.], [L.T.] 'tried to wrestle with' that gun, then ran out of the garage and was shot.
"In addition, the day after the shooting another witness saw defendants wearing new clothing, in contrast to the 'raggedy' clothing they had been wearing, and saw Baskett carrying a .40-caliber handgun in his waistband. [A.S.] and [R.B.] also testified that Baskett was carrying a .40-caliber handgun at the time of the robbery, and three .40-caliber shell casings were recovered from the scene.
"Thus, even if the prosecution had not presented the evidence that defendants were displaying large amounts of cash in the Victorville shoe store shortly after the robbery and shooting, and even if CALCRIM No. 376 had not been given, it is not reasonably likely the juries would not have found defendants guilty of first degree felony murder based on robbery as the underlying felony." (People v. Tucker et al., supra, E054399.)
The California Supreme Court denied Baskett's petition for review. (People v. Baskett, review denied Nov. 13, 2013, S212920.)
C. Baskett's Petition for Resentencing Under Section 1170 .95.
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to limit the application of the felony-murder rule and the crime of murder under the natural and probable consequences doctrine to persons who: (1) are the actual killer; (2) are not the actual killer, but who share the killer's intent to kill, and aid and abet in the killing; or (3) are a major participant in a felony and who act with reckless indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e)(1)-(3).) In addition, Senate Bill No. 1437 enacted section 1170.95 (Stats. 2018, ch. 1015, § 4), which permits persons previously convicted of first or second degree murder under the felony-murder rule or the natural and probable consequences doctrine, but who could not be so convicted after the amendments to sections 188 and 189 made by Senate Bill No. 1437, to petition the superior court to vacate their murder convictions and to resentence them on any remaining counts.
The same judge who conducted defendant's trial denied defendant's petition. To avoid potential confusion, we will refer to the lower court as the "superior court" when discussing the proceedings on defendant's petition to distinguish it from the "trial court."
On May 30, 2019, Baskett, acting as his own attorney, filed a petition for resentencing under section 1170.95. Using a check-box form, he alleged he had been charged with and convicted of first degree felony murder but that he could no longer be convicted of murder under that theory. Relevant here, Baskett checked the boxes that indicated: "I was not the actual killer"; "I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree"; and "I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony." He requested the court appoint counsel for him.
The district attorney filed a motion to strike the petition on the ground Senate Bill No. 1437 was unconstitutional. The same day, the district attorney filed an informal response to the petition and alternatively argued the superior court should summarily deny the petition and not issue an order to show cause because Baskett could still be convicted of felony murder. According to the prosecutor, the superior court was not required to accept as true the mere allegations in the petition that were contradicted by facts in the record of conviction, especially this court's prior opinion, that demonstrate Baskett was a major participant in the robbery who acted with reckless indifference to human life.
Although at the hearing on Baskett's petition the superior court stated it agreed with the prosecutor's constitutional argument, it did not expressly rule on the constitutionality of Senate Bill No. 1437. Like every other appellate court to address that issue in a published decision, this court has since rejected the same constitutional arguments made by the prosecutor in this case. (People v. Johns (2020) 50 Cal.App.5th 46; People v. Lippert (2020) 53 Cal.App.5th 304.) On appeal the parties agree the bill is constitutional, so we need not address the issue further.
Apparently, the superior court appointed counsel for Baskett (the record contains no minute order to that effect) because his attorney filed an opposition to the motion to strike and argued Senate Bill No. 1437 is constitutional.
The district attorney filed a formal opposition and once more argued Baskett was not entitled to relief under section 1170.95 because, contrary to the mere allegations in the petition, this court's prior opinion established Baskett could be convicted today of first degree felony murder as a major participant who acted with reckless indifference to human life.
In a brief in support of the petition, Baskett again argued he was entitled to relief because he was not the actual killer, and the jury in his trial was not asked to find and did not find that he was a major participant in the robbery who acted with reckless indifference to human life. He contended the petition made a prima facie case for relief, and he requested the court issue an order to show cause and conduct a jury trial where he could offer testimony. And, in a declaration filed in support of a supplemental brief, Baskett stated he was present for the robbery, he saw L.T. run and heard shots fired, but he did not shoot L.T.
At the hearing on Baskett's petition, the superior court stated it had read and considered the petition and the papers filed in opposition and support of the petition, and indicated it had tentatively ruled Baskett had not made a prima facie showing that he was either not the actual killer or that he was not a major participant who acted with reckless indifference to human life.
With respect to whether Baskett was the actual killer, his attorney argued the trial judge had dismissed the allegation that Baskett personally discharged a firearm and caused death or great bodily injury because the jury had been unable to reach a finding on it; "that dismissal means that he is not the actual killer"; and the double jeopardy clauses and the doctrine of law of the case barred the court from denying his petition on the ground he was the actual killer. Counsel also argued the petition itself and Baskett's declaration made a prima facie case that he was not a major participant who acted with reckless indifference to human life, and the court was required to conduct a jury trial on the petition.
Based on her "recollection of the facts" from the trial and her "review of the Court of Appeal's opinion," the judge stated that, "despite the fact that the jury was hung on the enhancement that [Baskett] personally discharged the firearm that caused the death of [L.T.]," had the jury been given the opportunity to deliberate further, "maybe they would have arrived at a verdict." The judge stated her recollection that the prosecutor "didn't give that jury an opportunity to continue the deliberation. Once they sent out one note that they were hung, he dismissed it." The judge believed "not a lot of meaning" should be placed on the prosecutor's dismissal of the enhancement allegation because, "with further clarification by the Court, reading back the testimony or reopening [evidence and] closing arguments, the jury may have no longer been deadlocked as to that enhancement." "When one looks at the overall evidence, most importantly the ballistics evidence, and other testimony, it all indicates that [Baskett] was the actual killer despite his self-serving statements to the contrary. All evidence points to [Baskett] as possessing the .40-caliber gun and .40-caliber shell casings were found at the scene leading to the logical conclusion that [Baskett] had to have been the actual killer."
In addition, "regardless of the argument that he was not the actual killer," the superior court relied on the facts from the transcript of Baskett's preliminary examination and from this court's prior decision to conclude Baskett was ineligible for relief because he was a major participant who acted with reckless indifference to human life. After setting forth the relevant factors for determining whether Baskett was a "major participant" in the robbery (see People v. Banks (2015) 61 Cal.4th 788 (Banks)), the court stated "there is significant evidence to convince this Court beyond a reasonable doubt that [Baskett] was not only a major participant, but also a ringleader in the underlying felony."
The court cited evidence that Baskett "took possession" of the rented getaway car the day before the robbery and met with Tucker and their confederates later that night to plan the heist as establishing Baskett "had a major role in planning the criminal enterprise" and was a "ringleader." According to the court, the facts of the actual robbery and shooting, and that "[a]t no time did [Baskett] try to prevent the shooting or render aid to the victim," "weigh[ed] in favor" of finding he was a major participant. Baskett "was armed with a lethal weapon. He was present at the scene of the killing and in a position to facilitate or prevent the actual murder and, again, he held a loaded gun to one of the victims during the commission of the robbery all leading to the conclusion that his own actions play[ed] a particular role in the victim's death." The court concluded, "[t]he most egregious factor" in favor of finding Baskett was a major participant were "his actions after the lethal force was used." Rather than stay and render aid to L.T., Baskett "took the property from the victim as he was laying on the ground, he fled with . . . Tucker, and instead of showing any remorse, within hours, he went with [Tucker] to Victorville to buy shoes and clothing as he was continually displaying a large amount of cash. [Baskett] kept most of the proceeds from the robbery and was responsible for doling out the money to the co-participants." Although the court acknowledged no evidence had been introduced at trial about Baskett's awareness of the dangers posed by an armed robbery or about his knowledge of Tucker's past use of weapons and the like, the court stated the lack of evidence bearing on those factors "does not diminish the conclusion of the Court that [Baskett] was a major participant in the commission of the crime."
Likewise, after stating the factors to be considered when determining whether a defendant acted with reckless indifference to human life (see People v. Clark (2016) 63 Cal.4th 522 (Clark)), the superior court concluded Baskett had so acted. Regarding the factor of a defendant's knowledge of weapons and their use of them during the crime, the court stated, "Both [Baskett] and . . . Tucker entered the garage . . . armed and pointed the loaded handguns directly at the victim, [L.T.,] and [G.G.,] his business partner." As for the factor of a defendant's proximity to the crime and opportunity to prevent the killing or render aid to the victim, the court stated, Baskett "was actually inside the garage with Tucker when the shots were fired. Instead of aiding the victim as he was down on the ground, [Baskett] and . . . Tucker took the victim's bag of money and fled." Finally, with respect to the factor of a defendant's efforts to minimize the chance of violence, the court stated: "There is no evidence whatsoever that [Baskett] made any efforts to minimize the possibility of violence. [¶] [Baskett] and . . . Tucker entered into the garage brandishing [loaded] firearms in the broad daylight without making any attempt to hide their identity, obviously, because they knew each had a loaded weapon." The court noted the short duration of the robbery weighed in favor of Baskett, and no evidence had been introduced at trial about Baskett's knowledge of Tucker's "likelihood of killing." However, the court concluded: "The fact that [Baskett] planned a brazen robbery and was a major participant in the commission of that brazen robbery substantially outweighs these two factors."
The superior court stated the plan for the robbery "contributed to a heightened risk to human life" because "both [Baskett] and Tucker [were] armed with loaded firearms," and there was no evidence Baskett made "any efforts to minimize the risk of violence in the planning stages of the underlying felony or during its implementation." Moreover, the court concluded Baskett "escalated" the potential for violence when he and Tucker forced G.G. to get down on the ground at gunpoint, and L.T. tried to wrestle the gun from Baskett. Revisiting the factor of Baskett's awareness of Tucker's experience with or propensity for violence, the court stated: "Although there appears to be no indication that [he] was aware that Tucker had a proclivity for lethal violence, he had an unimpeded opportunity to observe Tucker's actions immediately preceding the shooting that suggested a willingness, assuming that . . . Tucker would use deadly force to accomplish their objectives when he held a loaded gun to [L.T.]'s head and said, 'This is for real.'" Those factors, "coupled with [Baskett's] inaction, created a reasonable expectation that the death of [L.T.] or another would result." And, the court stated Baskett's acts of fleeing with the money instead of helping L.T. and almost "immediately spending the proceeds of the robbery indicates that [Baskett] demonstrated reckless indifference to human life."
It is not entirely clear from the record whether the court's mention of Baskett's "inaction" referred to his failure to render aid to L.T. after the shooting or some other failure to act.
Therefore, considering "[t]he totality of the circumstances," and "after conducting a preliminary examination of the facts," the court found Baskett had not made a prima facie showing of entitlement to relief, and it denied the petition.
III.
DISCUSSION
A. The Superior Court Erred by Summarily Denying Baskett's Petition.
Baskett's primary argument on appeal is that the superior court erred by summarily denying his petition because the court failed to accept as true the factual allegations in his petition, and it engaged in factfinding on disputed issues that were properly reserved for a jury trial. He argues the facts in his petition made a prima facie case that he was entitled to relief, and the superior court should have issued an order to show cause.
The People concede the superior court was required to accept as true Baskett's allegation that he was not the actual shooter, and the court could not make a contrary determination based on the record of conviction but was instead required to issue an order to show cause and conduct an evidentiary hearing (the People deny Baskett would have been entitled to a jury at such a hearing). However, the People argue the error was harmless because the record of Baskett's conviction supports the superior court's alternative findings that he was a major participant in the robbery who acted with reckless indifference for human life and, therefore, the petition did not make a prima facie case for relief, and the court properly denied it summarily.
During oral argument before this court, counsel for the People informed us that, since the briefs were filed in this appeal, the Attorney General has adopted the reasoning of the courts that we follow in this decision with respect the proper scope of the superior court's inquiry into whether a petitioner has made a prima facie showing for relief.
1. The proper scope of prima facie review under section 1170 .95.
Upon receiving a petition under section 1170.95, "[t]he court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).) If, after having received a response from the prosecutor and any reply from the petitioner, the superior court concludes a prima facie showing for relief has been made, "the court shall issue an order to show cause" and conduct a hearing "to determine whether to vacate the murder conviction . . . ." (Id., subds. (c), (d)(1).) If the record of conviction contains an express finding by a court or jury that the defendant "did not act with reckless indifference to human life or was not a major participant in the felony," the superior court must vacate the conviction and resentence the defendant. (Id., subd. (d)(2).) Otherwise, the prosecutor has the burden of proving beyond a reasonable doubt that the defendant is ineligible for relief, and both the prosecutor and the defendant "may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Id., subd. (d)(3).) And, if the prosecutor fails to meet his or her burden of proof, the superior court shall vacate the murder conviction and resentence the defendant on any remaining charges. (Ibid.)
The courts have teased out of the language of section 1170.95 three distinct stages of review a superior court must conduct before it may issue an order to show cause. At the first stage, the court must review the "facial sufficiency of the petition" to determine whether it includes all the information required by section 1170.95, subdivision (b)(1); and, if the court finds the petition is lacking, subdivision (b)(2) provides the court may deny the petition without prejudice to the defendant filing a new one. (People v. Verdugo (2020) 44 Cal.App.5th 320, 327-328, review granted Mar. 18, 2020, S260493 (Verdugo).) "Subdivision (c) [of section 1170.95] then prescribes two additional court reviews before an order to show cause may issue, one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95—that is, that the petitioner may be eligible for relief—and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, at p. 328.)
The superior court in this case appointed counsel for Baskett and received informal and formal briefing from the parties before it ruled on the petition, so we need not concern ourselves with the first review conducted under section 1170.95, subdivision (c), i.e., to determine whether Baskett fell within the scope of the statute in the first place. As this and other courts have already concluded, the superior court may properly consider relevant portions of the record of conviction, including a prior opinion in the defendant's direct appeal, when deciding under the second review contemplated by subdivision (c) whether a defendant has made a prima facie case relief. (E.g., People v. Palacios (2020) 58 Cal.App.5th 845, 855-856, review granted Feb. 24, 2021, S266701; People v. Law (2020) 48 Cal.App.5th 811, 820-821, review granted July 8, 2020, S262490.)
The Supreme Court will decide that issue in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
Citing Verdugo, supra, 44 Cal.App.5th 320 and People v. Drayton (2020) 47 Cal.App.5th 965 (Drayton), Baskett argues the superior court was required to accept as true the allegations in his petition during the second review conducted under section 1170.95, subdivision (c), and it had to issue an order to show cause unless the readily ascertainable facts from the record of conviction disproved those allegations as a matter of law.
Comparing the second, postbriefing review under section 1170.95, subdivision (c), "to the familiar decisionmaking process before issuance of an order to show cause in habeas corpus proceedings," Verdugo held the superior court is required to accept the allegations in the petition when making a preliminary assessment of whether the petitioner has made a prima facie case for relief if those facts are proven true. (Verdugo, supra, 44 Cal.App.5th at p. 328.) Drayton expanded upon Verdugo. Although Drayton agreed with the People that "habeas corpus procedures provide an imperfect analogy" to section 1170.95, the court nonetheless concluded habeas procedures are "sufficiently similar" with respect to the superior court's determination under section 1170.95, subdivision (c), whether the petition has made a prima facie showing of entitlement to relief. (Drayton, supra, 47 Cal.App.5th at p. 980.) Using habeas procedures as its guide, Drayton held the superior court is required to accept as true all facts stated in the petition, it may not evaluate the credibility of those facts or weigh evidence, and it must issue an order to show cause and conduct an evidentiary hearing, unless facts readily available in the record "conclusively refute" the facts alleged in the petition and establish the petitioner is not entitled to relief as a matter of law. (Id. at pp. 968, 980-981.)
Drayton held the nature of the inquiry at the prima facie review stage is very narrow. "The trial court should not evaluate the credibility of the petition's assertions, but it need not credit factual assertions that are untrue as a matter of law—for example, a petitioner's assertion that a particular conviction is eligible for relief where the crime is not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in habeas corpus, if the record 'contain[s] facts refuting the allegations made in the petition . . . the court is justified in making a credibility determination adverse to the petitioner.' [Citation.] However, this authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subd. (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime)." (Drayton, supra, 47 Cal.App.5th at p. 980.)
As here, the defendant in Drayton alleged in his petition that he had been convicted of felony murder but could no longer be so convicted because he was not a major participant in the underlying felony and did not act with reckless indifference for human life. (Drayton, supra, 47 Cal.App.5th at pp. 970, 981.) Also, as here, the jury in Drayton's trial made no findings that he was a major participant who acted with reckless indifference. But the superior court summarily denied the petition after it found the record of conviction—in particular, testimony at Drayton's preliminary examination—established he was a major participant who acted with reckless indifference. (Id. at pp. 971-972, 981-982.) The appellate court held that was in error. "At this stage of the petition review process, governed by section 1170.95(c), the trial court should not have engaged in this factfinding without first issuing an order to show cause and allowing the parties to present evidence at a hearing, as described in section 1170.95, subdivision (d). Further, the Banks test, which governs the inquiry whether the defendant was a major participant in a felony necessarily requires the weighing of facts and drawing inferences. (Banks, supra, 61 Cal.4th at p. 803.) The question whether Drayton acted with reckless indifference is a similarly multifaceted inquiry. (See People v. Clark (2016) 63 Cal.4th 522, 622 . . . .) In making an assessment of the petitioner's prima facie showing, the trial court should not have evaluated and weighed the evidence but instead should have accepted petitioner's asserted facts as true." (Drayton, at p. 982.)
A split has since developed among the courts about the evidentiary standard the superior court applies during the postbriefing, prima facie review conducted under section 1170.95, subdivision (c). In People v. Garcia (2020) 57 Cal.App.5th 100 (Garcia), review granted February 10, 2021, S265692, the appellate court disagreed with Drayton, and held the superior court need not accept the allegations in the petition as true, and it may deny the petition without issuing an order to show cause, if the record of conviction contains substantial evidence demonstrating the petitioner has not made a prima facie case for relief. (Garcia, at pp. 110, 114-116.) Inter alia, Garcia rejected Drayton's holding that the superior court must accept the facts alleged in the petition unless they are conclusively disproved by facts readily ascertainable in the record. (Garcia, at p. 116.)
Garcia adopted the reasoning from People v. Duke (2020) 55 Cal.App.5th 113 (Duke), review granted January 13, 2021, S265309, that the burden of proof applicable during the evidentiary hearing is essentially the same as the standard of review on appeal, substantial evidence. (Id. at p. 123; see Garcia, supra, 57 Cal.App.5th at pp. 116-117.) The question posed by Duke is pending before the California Supreme Court.
But, our colleagues in the First Appellate District expressly rejected Garcia's conclusion that the superior court may ignore the allegations in the petition and deny it without issuing an order to show cause if substantial evidence in the record of conviction shows the petitioner has not made a prima facie showing for relief. (People v. Duchine (2021) 60 Cal.App.5th 798 (Duchine).) Instead, Duchine agreed with Drayton that the superior court must accept the allegations in the petition as true unless the record of conviction conclusively disproves those facts as a matter of law. (Duchine, at pp. 812- 816.) "[W]e hold that the time for weighing and balancing and making findings on the ultimate issues arises at the evidentiary hearing stage rather than the prima facie stage, at least where the record is not dispositive on the factual issues. Thus, absent a record of conviction that conclusively establishes that the petitioner engaged in the requisite acts and had the requisite intent, the trial court should not question his evidence. The court may . . . consider the record of conviction at the prima facie stage, but may not evaluate the evidence, make credibility findings adverse to the petitioner, engage in factfinding or exercise discretion. (Drayton, supra, 47 Cal.App.5th at pp. 981-982.) The record should be consulted at the prima facie stage only to determine 'readily ascertainable facts,' such as the crime of conviction and findings on enhancements. Once the petitioner has made a prima facie showing, true factfinding should be reserved and exercised only after an order to show cause is issued and the parties are permitted to supplement the record with new evidence, including, if requested, through an evidentiary hearing. (Id. at pp. 980-981.)" (Duchine, at p. 815.)
Recently, this court implicitly rejected Garcia and Duke to the extent those decisions held the beyond a reasonable doubt standard of proof applicable at the evidentiary hearing is essentially the same as the substantial evidence standard of review applicable on appeal. (People v. Clements (2021) 60 Cal.App.5th 597, 615-618, review granted Apr. 28, 2021, S267624.)
As of this writing, every other subsequent published decision has followed Duchine's lead and rejected Garcia. (People v. DeHuff (Apr. 23, 2021, B305374) ___ Cal.App.5th ___ [2021 Cal.App. Lexis 340, at pp. *15-*21] [adopting the reasoning of Duchine and Drayton, and rejecting Garcia]; People v. Secrease (Apr. 19, 2021, A158342) ___ Cal.App.5th ___ [2021 Cal.App. Lexis 326, at pp. *21-*22] [same]; People v. Rivera (2021) 62 Cal.App.5th 217, 230 [same].)
2. The superior court erred by engaging in factfinding.
We agree with the reasoning from Drayton, supra, 47 Cal.App.5th 965 and conclude it controls here. Unless the readily ascertainable facts from the record of conviction establish, as a matter of law, that the petitioner could still be convicted of felony murder even after the amendments made to section 189, the superior court may not engage in normal factfinding but must instead issue an order to show cause and conduct an evidentiary hearing. At that time, the court must weigh the evidence, make credibility determinations, and decide whether the prosecutor has proven beyond a reasonable doubt that the petitioner could still be convicted of felony murder as the actual killer or as a major participant in the underlying robbery who acted with reckless indifference for human life.
For example, in People v. Jones (2020) 56 Cal.App.5th 474, 482, review granted January 27, 2021, S265854, this court held that the superior court may find a petitioner is not entitled to relief as a matter of law when the record of conviction contains a final, undisturbed special circumstance finding under section 190.2, subdivision (d), that demonstrates the jury expressly found the defendant was a major participant who acted with reckless indifference for human life. That issue is currently pending before the California Supreme Court. (People v. Strong (Mar. 10, 2021, S266606) .)
Here, the superior court did not accept as true Baskett's allegation in his petition and in his declaration that he was not the shooter. Instead, the court found Baskett's allegation to be "self-serving," and found "the overall evidence" "lead[] to the logical conclusion that [Baskett] had to have been the actual killer." We accept the People's concession that the superior court erred by making such a finding. Although the record of conviction contains evidence from which a reasonable trier of fact could conclude Baskett was the shooter, the jury at Baskett's trial made no such finding, and the superior court was not permitted at the prima face review stage to reconcile conflicts in the evidence and make its finding that Baskett was the shooter.
Defendant argues this court's prior decision contains factual errors that bear on the question of whether he was the actual shooter. During oral argument before this court, defendant gently chastised us for repeating those factual errors here. And, he requests that we direct the superior court on remand to limit its inquiry and factfinding to evidence admitted at the evidentiary hearing and to not consider the factual discussion in the prior decision.
The factual discussion in this court's prior decision is not necessarily binding on us because the issues presented are distinct, but we are not free to ignore or revisit what was already decided in the prior decision. However, our discussion of and quotations from the prior decision here (ante, §§ I, II.B.) should in no way be considered as limiting the scope of the evidentiary hearing on remand. To repeat, section 1170.95, subdivision (d)(3), expressly provides, "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Italics added.) The prior decision is undoubtedly part of the record of conviction but, to the extent the People or the superior court rely on its factual discussion, defendant is free to argue that the opinion contains factual errors, and he may rely on the testimony that was introduced at trial and/or introduce additional and new evidence to demonstrate the prosecutor cannot prove beyond a reasonable doubt that he was the actual shooter.
In addition, we must conclude the superior court erred when it found Baskett was a major participant who acted with reckless indifference to human life. The court concluded the evidence in the record of Baskett's conviction supported some, but not all, of the factors set forth in Banks and Clark. But, the court concluded certain factors weighed in favor of finding he was a major participant in the robbery (indeed, that he was "a ringleader"), and that his actions and omissions demonstrated reckless indifference. As Drayton held, the multifactor analyses under Banks and Clark—that necessarily involve careful weighing and balancing of evidence—are not properly conducted at the prima facie review stage but must be reserved for the evidentiary hearing. (Drayton, supra, 47 Cal.App.5th at p. 982.)
Therefore, we conclude the superior court erred by summarily denying Baskett's petition.
B. Baskett's Claims About the Evidentiary Hearing on Remand.
Baskett argues the superior court hearing his petition was barred from concluding he was the actual shooter on double jeopardy and/or collateral estoppel grounds (as noted, ante, in the superior court he relied on the doctrine of law of the case, not collateral estoppel) because the jury at his trial "had already found Baskett was not the killer." He argues the same holds true for an evidentiary hearing on remand. Although the superior court erred by concluding Baskett was the actual shooter at the prima facie review stage, the record simply does not support Baskett's claim that, after conducting a proper evidentiary hearing, the superior court would be barred from making such a finding on double jeopardy or collateral estoppel grounds.
Under the federal and California Constitutions, a defendant may not be twice placed in jeopardy for the same offense. (U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15; Monge v. California (1998) 524 U.S. 721, 727; People v. Aranda (2019) 6 Cal.5th 1077, 1083.) This principle applies to formal acquittals and their legal equivalents, such as a reversal on appeal for insufficient evidence (Burks v. United States (1978) 437 U.S. 1, 17; People v. Goolsby (2015) 62 Cal.4th 360, 365) or dismissal of charges by a trial court for insufficient evidence before a jury has rendered a verdict (Evans v. Michigan (2013) 568 U.S. 313, 318-319; People v. Eroshevich (2014) 60 Cal.4th 583, 589). The doctrine of collateral estoppel has been engrafted onto the double jeopardy rule, and it generally precludes relitigation of ultimate facts in a future criminal proceeding when those identical facts were necessarily decided in a prior proceeding. (Ashe v. Swenson (1970) 397 U.S. 436, 443; People v. Santamaria (1994) 8 Cal.4th 903, 908, 916.)
True, the jury's questions during its deliberations about the theories of first degree felony murder indicate it was split on whether to convict Baskett as the actual shooter or as an aider and abettor. But the jury found Baskett guilty, and the record does not support his suggestion that the jury necessarily found he was not the actual shooter. The jury was not provided with special verdict forms on which to record the theory of first degree murder it found proven, and none were required—there was no requirement the jury unanimously agree on the theory of culpability for first degree murder so long as there was evidence to convict him beyond a reasonable doubt under either theory. (See People v. Wilson (2008) 44 Cal.4th 758, 801-802.)
Also true, the jury indicated it could not agree on the sentencing allegation that Baskett personally discharged a firearm and caused great bodily harm and death. But, contrary to the suggestion in Baskett's briefs, the jury did not render a "not true" finding. And, when informed the jury was "split" and "hung" on the allegation, the prosecutor elected to dismiss it under section 1385 rather than request the jury be sent back for further deliberations.
"[B]ecause the record does not clearly show an intent by the trial court to dismiss for legal insufficiency of the evidence" (People v. Hatch (2000) 22 Cal.4th 260, 274), dismissal of the sentencing allegation under section 1385 was not the functional equivalent of an acquittal for purposes of the double jeopardy clauses (id. at pp. 275- 278), and it patently does not bar the People from attempting to prove during an evidentiary hearing that Baskett was the actual shooter. Likewise, because the jury was "split" or "hung" on the sentencing allegation, the record does not support Baskett's assertion that the jury necessarily decided he was not the actual shooter, and collateral estoppel poses no bar to the prosecutor attempting to prove that fact on remand. (See Yeager v. United States (2009) 557 U.S. 110, 121-122 [hung counts are not relevant in collateral estoppel analysis].)
Next, Baskett argues he is entitled to a jury trial on remand. But, nothing in the plain language of section 1170.95 provides for a jury at the hearing contemplated by subdivision (d), and the courts have unanimously concluded a petitioner is not entitled to one by the Sixth Amendment to the United States Constitution either. (See, e.g., People v. Howard (2020) 50 Cal.App.5th 727, 740 ["The retroactive relief provided by section 1170.95 reflects an act of lenity by the Legislature" and does not implicate a defendant's Sixth Amendment rights.]; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 ["[T]he retroactive relief . . . afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis," and defendants had no right to a jury trial on a section 1170.95 petition.]; see People v. Rodriguez (2020) 58 Cal.App.5th 227, 243, review granted Mar. 10, 2021, S266652 [following Anthony]; People v. Perez (2020) 54 Cal.App.5th 896, 908, review granted Dec. 9, 2020, S265254 [same]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1114-1115, review granted Nov. 13, 2019, S258175 [same].)
During oral argument before this court, defendant argued that the decisions cited, ante, were wrongly decided and did not adequately recognize the type of change made by Senate Bill No. 1437. Whereas previous ameliorative enactments (such as Prop. 36 & Prop. 47) focused primarily on resentencing, defendant argues Senate Bill No. 1437 focuses on continued criminal liability for murder, so any factfinding to be made at the evidentiary hearing must be by a jury. Recently, our colleagues in the First Appellate District addressed that argument. "Appellant correctly notes that the relief granted by Senate Bill No. 1437 differs in kind from the relief granted by Propositions 36 and 47. Those prior ameliorative provisions merely authorized reductions in the sentences imposed for convictions of the unchanged underlying offenses [citations], whereas Senate Bill No. 1437 has changed the nature of the offense itself. Therefore, appellant argues, he is constitutionally entitled to have a jury determine whether the People have proved beyond a reasonable doubt the redefined elements of the offense." (People v. James (Apr. 27, 2021, A159207) ___ Cal.App.5th ___ [2021 Cal.App. Lexis 353, at p. *6] (James).)
The court in James was not persuaded that the distinction between section 1170.95 and previous ameliorative statutes made a difference. "[A]ppellant was properly convicted of second degree murder under the law that was in effect at the time of his offense and when he entered his guilty plea. Section 1170.95 is 'an act of lenity' that requires, under specified circumstances, reduction of the offense for which he was properly convicted. The constitutional right to a jury trial does not require a jury determination of those circumstances. '[T]he retroactive relief . . . 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.' [Citation.] This reasoning has consistently been followed in proceedings under section 1170.95. [Citations.] No constitutional provision required the Legislature to authorize relief under the conditions specified in section 1170.95 and none compels it to make the conditions subject to jury determination." (James, supra, ___ Cal.App.5th at pp. ___ [2021 Cal.App. Lexis 353 at pp. *6-*7].) We are persuaded by the analysis employed in James and adopt it as our own.
Finally, during oral argument, defendant requested that we reassign the evidentiary hearing to a new judge. According to defendant, the judge's statements below indicate she has already prejudged the outcome of a potential evidentiary hearing and, presumably, cannot fairly conduct such a hearing with an open mind. "Code of Civil Procedure section 170.1, subdivision (c), provides: 'At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.' An appellate court must exercise its power to disqualify a judge under that statute sparingly, and only when the interests of justice require it." (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1078-1079 (LaBlanc).)
"An appellate court need not find actual bias in order to invoke Code of Civil Procedure section 170.1, subdivision (c). [Citations.] The court may order disqualification when necessary to dispel the appearance of bias, for example, when the record shows the trial judge became embroiled or personally invested in the outcome of the proceedings." (LaBlanc, supra, 238 Cal.App.4th at p. 1079.) "Mere judicial error does not establish bias and normally is not a proper ground for disqualification. [Citations.] Proper grounds for disqualification under Code of Civil Procedure section 170.1, subdivision (c), 'include "where a reasonable person might doubt whether the trial judge was impartial [citation], or where the court's rulings suggest the 'whimsical disregard' of a statutory scheme."'" (LaBlanc, at p. 1079.)
In LaBlanc, we reversed an order summarily denying a petition for unconditional release of a sexually violent predator. We held that the trial court had abused its discretion when it found the petition was frivolous and declined to conduct an evidentiary hearing. (LaBlanc, supra, 238 Cal.App.4th at p. 1078; see Welf. & Inst. Code, former § 6608, subd. (a).) Inter alia, the defendant requested that we reassign the case to another judge for an evidentiary hearing because "there is an appearance that he is biased against defendant and could not fairly conduct an evidentiary hearing on the petition." (LaBlanc, at p. 1078.) We rejected the suggestion that the record showed the judge could not keep an open mind during an evidentiary hearing. "[The judge] made no comments on the record that would lead a reasonable person to conclude he was biased or that he had already made up his mind, and that he could not come to a different conclusion after conducting a full evidentiary hearing. We find nothing in the record that demonstrates actual bias or the appearance of bias . . . ." (Id. at p. 1080.)
So too here. The judge in this case ruled that, based on the available record of conviction, defendant had not made a prima facie case for relief. We have found the court erred, because at the prima facie review stage the court was not permitted to weigh the evidence or make credibility determinations. But, we find nothing in the record to suggest that, on remand, with the benefit of this opinion and the developing body of decisional law on section 1170.95, the trial court would not fairly and with an open mind reconsider her view of the existing evidence or that she would not fairly and neutrally consider new or additional evidence that might be admitted at the evidentiary hearing. In the absence of evidence of actual or apparent bias, we deny defendant's request. Defendant is, of course, free on remand to request disqualification of the judge directly in the superior court, but we express no opinion on the merits of such a request. (See LaBlanc, supra, 238 Cal.App.4th at p. 1081.)
III.
DISPOSITION
The order summarily denying Baskett's petition is reversed. On remand, the superior court shall issue an order to show cause and conduct an evidentiary hearing on the petition as contemplated by section 1170.95, subdivision (d). Baskett's request to disqualify Judge Uhler is denied without prejudice to him requesting disqualification in the superior court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.