Opinion
A157879
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. SHAWNDRA STARR BOODE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H46925A)
Shawndra Starr Boode appeals the denial of a petition under Penal Code section 1170.95, which allows persons convicted of murder under theories of accomplice liability invalidated by Senate Bill No.1437 (SB 1437) to petition for resentencing. Boode challenges the trial court's summary denial of her petition, contending that the court erred in failing to assign the matter to the judge who presided at her trial to conduct an evidentiary hearing, to appoint counsel for her, and to direct the district attorney to file a response to the petition. Her record of conviction, however, establishes as a matter of law that she is ineligible for relief under the new statute, so that any arguable procedural error was harmless. We shall affirm the order denying her petition.
All statutory references are to the Penal Code.
Factual and Procedural History
Boode attached to her petition a copy of this court's opinion affirming her convictions (People v. Rodriguez (Oct. 10, 2012, A128678 [nonpub. opn.]) and she quoted extensively from the opinion to serve as the petition's statement of facts. Our prior opinion begins as follows: "Appellants Jorge Rodriguez and Shawndra Star Boode . . . were jointly tried and each was convicted of two counts of first degree murder (Pen. Code, § 187, subd. (a)). The jury also found true two special circumstances (murder committed in the course of a robbery and multiple victims), which elevated both counts to special circumstance murder (§ 190.2, subds. (a)(3), (a)(17)(A)). The jury also found true various special allegations." (Fn. Omitted.) At this point, the opinion includes this footnote: "Specifically, . . . the jury found that [Boode] personally used a firearm in the commission of the murders (§ 12022.5, subd. (a)); and personally and intentionally discharged a firearm, and caused great bodily injury on another person (§§ 12022.7, subd. (a), 12022.53, subds. (d), (g)). . . . [T]he jury found that [Rodriguez] was armed with a firearm (§ 12022, subd. (a)(1))."
As set forth in the opinion, "The prosecution's theory of the case was that on or about January 17, 2004, appellants shot and killed David and Catherine Brooks (Dave and Cathy), with whom they were acquainted, in order to steal approximately $380,000 Dave had recently received in settlement for an on-the-job injury." According to the testimony of Peter Elisary, a third participant in the crime who testified at trial, "[o]n the night of the murders, Elisary and appellants ingested methamphetamine and discussed the robbery for about an hour. At about 'two, three, four in the morning,' appellants, accompanied by Elisary, set out to commit the robbery." Afterward, "Boode described the murder to Elisary. Boode said she demanded money from Dave and then 'she shot Dave in the back.' She then heard a noise in the kitchen, turned and saw Cathy, chased Cathy into the bedroom, and 'just shot her' in the 'neck or facial area.' " The opinion relates other testimony that described the details of the murders differently, but the jury convicted appellants of all counts, special findings, and special circumstances.
Boode's petition alleges that she "qualifies for the relief sought" under section 1170.95. Upon reviewing the petition, the presiding judge issued an order summarily denying it. After reciting the case history and explaining how SB 1437 modified the law of murder, the order concludes as follows: "The petition is denied because relief under Penal Code section 1170.95 is unavailable as [Boode] was the actual killer. (Pen. Code, § 189, subd. (e)(1).) Furthermore, [Boode] was not convicted of murder under a natural and probable consequences theory. Rather, [she] was convicted on a valid theory of murder which survives the changes to . . . sections 188 and 189 made by SB 1437. (Pen. Code, § 1170.95, subd. (a)(3).) [¶] Accordingly, the petition is DENIED for failure to make a prima facie showing that [Boode] is entitled to relief or falls within the provisions of Penal Code section 1170.95. (Pen. Code, § 1170.95, subd. (c).)" Boode timely appealed.
Discussion
As detailed in People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review granted, March 18, 2020, S260493 (Verdugo), SB 1437 "significantly modif[ied] the law relating to accomplice liability for murder. In its uncodified findings and declarations the Legislature stated, 'It is necessary 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.' "
SB 1437 also enacted section 1170.95. Division Three of this court recently summarized that provision: "[S]ubdivision (a) provides that the petition must [allege that]: (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 or second degree murder following a trial, and (3) the petitioner could not be convicted of first or second degree murder because of changes in sections 188 and 189 made effective January 1, 2019. ([§ 1170.95], subd. (a)(1), (2), (3).) The petition must also include . . . a declaration stating the petitioner 'is eligible for relief under this section' based on all the requirements in subdivision (a) . . . and whether the petitioner requests the appointment of counsel. (Id., subd. (b)(1)(A) & (C).)" (People v. Edwards (2020) 48 Cal.App.5th 666, 672 (Edwards).)
"Subdivision (c) [of section 1170.95] provides the process by which the court is to decide the petition: 'The 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. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply [thereafter]. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.' Therefore, no order to show cause is issued and no hearing is held [citation] unless the court first [finds] a prima facie showing of entitlement to relief." (Edwards, supra, 48 Cal.App.5th at p. 673.)
Subdivision (b)(1) of section 1170.95 provides: "The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition. . . ."
Like the appellants in Verdugo, supra, 44 Cal.App.5th 320, and Edwards, supra, 48 Cal.App.5th 666, Boode contends that the trial court was obliged to accept at face value the allegations in her petition that she satisfies the three prerequisites for relief under section 1170.95, subdivision (a), and was thus required to assign the matter to the trial judge if still serving, appoint counsel for her, direct the district attorney to file a response, and hold an evidentiary hearing. Boode contends that the presiding judge violated the statute by improperly "going beyond the face of the petition" and relying on the record of conviction to decide that she had not "made a prima facie showing that [she] falls within the provisions of this section." (§ 1170.95, subd. (c).)
We agree with our colleagues in Division Three, who followed Verdugo, supra, 44 Cal.App.5th 320, in rejecting that argument: "Section 1170.95, 'which authorizes the court both to dismiss the petition if it lacks any required information and to determine if there is a prima facie showing the petitioner falls within the provisions of the statute before ordering briefing, indicates the Legislature's intent that the superior court perform a substantive gatekeeping function, screening out clearly ineligible petitioners before devoting additional resources to the resentencing process. [Citations.]' [Citation.] To that end, 'the relevant statutory language, viewed in context, makes plain the Legislature's intent to permit the [superior] court . . . to examine readily available portions of the record of conviction to determine whether a prima facie showing has been made that the petitioner falls within the provisions of section 1170.95.' " (Edwards, supra, 48 Cal.App.5th at p. 673, quoting Verdugo, supra, 44 Cal.App.5th at pp. 331, 323.)
In this case, Boode attached to her petition a copy of this court's opinion affirming her conviction and quoted its factual and procedural history in full (footnotes excepted). The petition itself thus alleges, expressly or by incorporation, the facts that are stated in the opinion and that collectively establish, as a matter of law, Boode's ineligibility for relief under section 1170.95: "Each victim died from a gunshot wound to the head"; "the jury found that [Boode] . . . personally and intentionally discharged a firearm, and caused great bodily injury on another person (§§ 12022.7, subd. (a), 12022.53, subds. (d), (g))"; and the only special circumstance the jury found true as to Rodriguez is that he was armed (§ 12022, subd. (a)(1)). Section 12022.53, subdivision (d), which the jury found applicable to Boode, applies to "any person who, in the commission of [specified felonies], personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice." (§ 12022.53, subd. (d).) Boode thus remains subject to conviction for murder under the current law because the jury necessarily found her to be the actual killer. (§ 189, subd. (e)(1).)
The trial court stated that relief under section 1170.95 "is unavailable as [Boode] was the actual killer." On appeal, Boode cites authority holding it improper to rely on statements in a judicial opinion to make factual findings about the circumstances of an underlying crime. (Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 418.) But while the trial court's order might be read to imply that the court made a factual finding about the underlying crime, in context it is clear that the court determined only that the jury found that she was the actual killer. The portions of the record of conviction attached to the petition show beyond doubt that the jury did so.
Boode's petition correctly asserts that mere knowledge that a codefendant is armed does not necessarily evince reckless indifference to life, citing two decisions postdating her conviction that discuss factors to consider in determining whether a person who participated in a robbery, but who did not herself kill anyone, qualifies as a major participant who acted with reckless indifference to human life. (People v. Clark (2016) 63 Cal.4th 522, 610-623; People v. Banks (2015) 61 Cal.4th 788, 804-811). At an evidentiary hearing, the petition asserts, she could "argue additional facts and evidence from the record that are important now under Banks and Clark" and that show that the jury's fact-finding was inaccurate. She claims she could offer "polygraph evidence which was inadmissible during [her] trial but could be considered by a judge during a hearing pursuant to SB 1437" to "evaluate whether the chief prosecution witnesses were, in fact, truthful." She also offered to "submit to an additional polygraph examination" about "what happened on . . . January 17, 2004." Because the court denied her petition without a hearing, she contends, "[n]either this court nor the trial court can categorically state at this point, beyond a reasonable doubt, that any such evidence would not entitle [her] to resentencing."
Boode's argument fails because the judgment of conviction precludes her from relitigating whether, as her jury necessarily found, she was the actual killer. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1138-1139, review granted, Mar. 18, 2020, S260598, citing 1 Witkin & Epstein, Cal. Crim. Law (4th ed. 2012) Defenses, § 208, pp. 683-684.) Boode cites no part of section 1170.95 or of its legislative history suggesting an intent to deprive a jury's factual findings of their usual issue-preclusive (or "collateral estoppel") effect.
Section 1170.95 is not designed to permit a defendant to secure a redetermination of the facts found to support a conviction, but to allow one convicted of murder to show that those findings no longer support a conviction of murder on a theory that remains valid. Moreover, even if we were to "assume, without deciding, that section 1170.95 permits a petitioner to present evidence from outside the record to contradict a fact established by the record of conviction" (People v. Lewis, supra, 43 Cal.App.5th at p. 1139), Boode failed to make a prima facie showing of entitlement to relief. She never stated what facts her "polygraph evidence" would prove, or how those facts could negate the jury's findings that she personally fired a gun causing the death of two victims.
Because Boode's record of conviction establishes that she is ineligible for relief as a matter of law, the presiding judge properly denied her petition without further proceedings. Moreover, even if the trial court erred by failing to refer the petition to her sentencing judge, or to appoint counsel and hold an evidentiary hearing, any such procedural error was necessarily harmless under any standard of review. (Edwards, supra, 48 Cal.App.5th at p. 675.)
No published decision appears to have yet addressed whether a failure to assign a section 1170.95 motion to "the judge that originally sentenced the petitioner" (§ 1170.95, subd. (b)(1)) constitutes harmless error. However, a line of decisions analyzing section 1053, which authorizes a midtrial substitution of judges if the original judge " 'shall die, become ill, or for any other reason be unable to proceed with the trial,' " establishes that an erroneous substitution of judges is subject to harmless-error review. (People v. Rogers (2009) 46 Cal.4th 1136, 1171-1172, italics omitted; People v. Halvorsen (2007) 42 Cal.4th 379, 429; People v. Truman (1992) 6 Cal.App.4th 1816, 1828.) We perceive no reason why the same principle should not apply to section 1170.95, nor any prejudice that resulted from the failure to assign the petition to the trial judge in this case.
Boode quotes a prior decision addressing section 1053, People v. Gonzalez (1990) 51 Cal.3d 1179, 1211, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691, which cited cases from other jurisdictions that "confirm that a well-justified change of judges, even if technically erroneous, is no basis for reversal if the accused failed to object and no substantial prejudice resulted." While Boode had no opportunity to object here, and argues that the failure to transfer the case was not "well-justified," the later decisions cited above establish that an erroneous judicial substitution may be harmless so long as it caused no prejudice. --------
Disposition
The order denying the petition is affirmed.
POLLAK, P. J. WE CONCUR: TUCHER, J.
BROWN, J.