Opinion
B299815
01-25-2023
THE PEOPLE, Plaintiff and Respondent, v. MAURICE VERNELL CARROLL, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. BA203327 William R. Pounders, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Maurice Vernell Carroll was convicted following a jury trial in 2002 for the first degree murder of Reynaldo Araujo, the attempted willful, deliberate, and premeditated murder of Roberto Garcia, and the second degree robbery of Araujo and Garcia. The jury found true the murder was committed during the commission of a robbery and a principal personally used and discharged a firearm, causing great bodily injury or death, but it found not true the allegation Carroll personally used and discharged a firearm causing great bodily injury or death. The trial court sentenced Carroll to life without the possibility of parole, plus a consecutive term of 25 years to life. We affirmed. (People v. Carroll (Sept. 10, 2003, B157628) [nonpub. opn.] (Carroll I).)
In May 2019 Carroll filed a petition for resentencing pursuant to Penal Code former section 1170.95 (now section 1172.6). The trial court denied the petition without appointing counsel or holding an evidentiary hearing, instead relying on our opinion in Carroll I to conclude Carroll was not entitled to relief. In our original opinion, we concluded the superior court did not err in finding Carroll ineligible for relief without issuing an order to show cause and holding an evidentiary hearing because, as we had found in Carroll I, any reasonable jury under the circumstances would have found Carroll harbored the same intent with respect to Araujo and Garcia, and the jury found Carroll harbored express malice aforethought in the attempted murder of Garcia. Further, the evidence showed Carroll was either the actual shooter or aided and abetted the shooter with the intent to kill by stating as to Araujo and Garcia, "'Let me kill them both.'"
Further statutory references are to the Penal Code.
After granting Carroll's petition for review, the Supreme Court transferred the case to us with directions to vacate our decision and reconsider Carroll's appeal in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis). In their supplemental briefing, the People concede the superior court erred in denying Carroll's petition without appointing counsel, but they argue the error was harmless because the record of conviction (including our opinion in Carroll I) shows Carroll was ineligible for relief as a matter of law. Carroll argues we should reverse the superior court's order denying his petition and remand for an evidentiary hearing because under Lewis, the record of conviction does not conclusively show he is ineligible for relief. We agree and now reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
On May 16, 2000 Carroll and Terrell Cunningham, both members of the Rollin 20's gang, entered a video store. After warning a customer to leave the store, Cunningham pulled out a gun and pointed it at Garcia, the owner of the store, and Araujo, Garcia's nephew. Cunningham ordered Garcia and Araujo into a corner at the back of the store and told them to get on the floor. When Cunningham demanded to know where Garcia kept the money, Garcia told him there was no money.
We provide a recitation of the facts from the trial as set forth in Carroll I for background. To the extent we rely on specific facts, they are taken from the trial testimony. (See People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9 [relying on recitation of facts in prior appellate opinion to the extent undisputed, noting former section 1170.95, subdivision (d)(3) (now section 1172.6, subdivision (d)(3)), provides that the superior court at the evidentiary hearing may consider "'the procedural history of the case recited in any prior appellate opinion.'"].) We grant Carroll's motion to augment the record to include volume 1 of the clerk's transcript and volume 7 of the reporter's transcript from Carroll I, supra, B157628. (Cal. Rules of Court, rule 8.155(a)(1)(A).) On our own motion we also augment the record with volume 5 from the reporter's transcript. (Ibid.)
Cunningham then directed Garcia and Araujo to the cash register and ordered them to open it. When Cunningham discovered the register only had five dollars, Cunningham became angry and demanded, "Show me the money or I'll kill you both." Cunningham took Garcia and Araujo to the back of the store, made them lie on the floor, and emptied their pockets. Carroll, who had been stuffing video games into garbage bags, said to Cunningham, "Let me kill them both." After hearing this, Garcia jumped up and ran toward the back door, which was about four to five feet from where he was sitting. As Garcia was opening the back door to escape, he heard a gunshot. He went out the door and heard two more gunshots five or six seconds later. Garcia then saw Carroll and Cunningham drive away. The police arrived and discovered Araujo's body in the back room. He had died from three gunshots, one to the back of his head and two to his back.
Although Carroll initially bragged that he had been the shooter, he changed his story after discovering that Cunningham "had snitched." This was consistent with Garcia's testimony that it was the "tall guy" who had the gun about a minute before Garcia heard the gunshots, not the "little guy." Garcia identified Carroll as the smaller man. However, Cunningham claimed Carroll was the shooter. According to Cunningham, he gave the gun to Carroll to watch Garcia and Araujo while Cunningham went to the door to speak to the "lookout." When he opened the door, Cunningham heard the shots, and then he and Carroll ran to the getaway vehicle.
B. Carroll's Conviction and Appeal
Carroll and Cunningham were tried before separate juries. The jury found Carroll guilty of the murder of Araujo (§ 187, subd. (a); count 1), and it found true the special circumstance that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A)). The jury also found Carroll guilty of the attempted willful, deliberate, and premeditated murder of Garcia (§§ 187, subd. (a), 664, subd. (a); count 2). Further, the jury found Carroll guilty of the robberies of Araujo and Garcia (§ 211; counts 3 &4). The jury found true as to each count the gang enhancement allegation (§ 186.22, subd. (b)(1)) and that in the commission of the crimes a principal personally used a firearm, personally and intentionally discharged a firearm, and personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d) &(e)(1)). The jury did not find true the allegations Carroll personally used and discharged a firearm, causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d)). The trial court sentenced Carroll to life without the possibility of parole, plus a consecutive sentence of 25 years to life for the firearm-use enhancement under section 12022.53, subdivisions (d) and (e)(1). (Carroll I, supra, B157628.)
The jury found Cunningham guilty of first degree murder and two counts of robbery, and it found true the special circumstance, gang, and firearm-use allegations, except for the allegation Cunningham personally and intentionally discharged a firearm. However, the jury was unable to reach a verdict on the attempted murder charge, and the court declared a mistrial on that count. (Carroll I, supra, B157628.)
We affirmed Carroll's convictions but concluded the trial court erred by failing to instruct the jury on the felony-murder special circumstance allegation with CALJIC No. 8.80.1, which explains the mental state required for a true finding. Instead, the jury was instructed only with CALJIC No. 8.81.17, that to find the special circumstance true, the jury needed to find (1) the murder was committed while the defendants were engaged in the commission or attempted commission of a robbery; and (2) the murder was committed to advance the commission of or escape from the robbery and was not merely incidental to the robbery. However, we found the error harmless beyond a reasonable doubt, reasoning, "In Carroll's case, even if his jury found he was not the actual killer but instead was an aider and abettor, they necessarily found he intended to kill under other properly given jury instructions. Carroll's jury found him guilty of the attempted murder of Garcia. Under the court's instructions in order to find him guilty of this charge his jury had to find 'the person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.' In addition, Carroll's jury found true the special allegation the murder attempted was 'willful, deliberate and premeditated.' These findings establish beyond doubt the jury was convinced Carroll harbored an intent to kill. Moreover, because the murder and attempted murder occurred nearly simultaneously, in very close quarters, and were presumably motivated by the same frustration over the lack of loot and desire to eliminate witnesses to the robbery, any reasonable juror would have found Carroll harbored the identical intent to kill with regard to both of his victims." (Carroll I, supra, B157628, fns. omitted.)
In his closing argument the prosecutor acknowledged there was not sufficient evidence from which the jury could conclude beyond a reasonable doubt whether Carroll or Cunningham was the actual shooter. (Carroll I, supra, B157628.)
C. Carroll's Petition for Resentencing
On May 31, 2019 Carroll, representing himself, filed a form petition for resentencing and supporting declaration in the superior court stating he had met the requirements under former section 1170.95 for relief under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), including that he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019"; he "was not the actual killer"; he "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 "[t]here has been a prior determination by a court or jury that [he] was not a major participant and/or did not act with reckless indifference to human life." Carroll also requested the court appoint an attorney for him.
On June 11, 2019 the superior court summarily denied Carroll's petition for resentencing. In its ruling, the court recited the facts set forth in Carroll I and explained, "The appellate court acknowledged the mental state required for a true finding of a felony-murder special circumstance for an aider and abettor; i.e., the aider and abettor had to have the intent to kill or be a major participant in the underlying felony and acted with reckless indifference to human life. The court held 'in Carroll's case, even if his jury found he was not the actual killer but instead was an aider and abettor, they necessarily found he intended to kill under other properly given jury instructions.'" The court also relied on the conclusion in Carroll I that because the murder and attempted murder occurred almost simultaneously in very close quarters with the same motivation, "'any reasonable juror would have found Carroll harbored the identical intent to kill with regard to both of his victims.'"
Carroll timely appealed.
DISCUSSION
A. Senate Bill 1437 and Section 1172.6 (Former Section 1170.95)
Senate Bill 1437 eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder except under the revised felony-murder rule as set forth in section 189, subdivision (e). That section requires the People to prove specific facts relating to the defendant's individual culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); although not the actual killer, the defendant, with the intent to kill, assisted in the commission of the murder (§ 189, subd. (e)(2)); or the defendant was a major participant in an underlying felony listed in section 189, subdivision (a), and acted with reckless indifference to human life "as described in subdivision (d) of Penal Code Section 190.2," the felony-murder special-circumstance provision (§ 189, subd. (e)(3)). (See Strong, at p. 708.)
Senate Bill 1437 also provided a procedure (now codified in section 1172.6) for an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) The ameliorative changes to the law now apply to attempted murder and voluntary manslaughter. (§ 1172.6, subd. (a).)
If the section 1172.6 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief based on the requirements of subdivision (a), the court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1172.6, subdivision (b)(3). Further, upon the filing of a facially sufficient petition, the court must direct the prosecutor to file a response to the petition and permit the petitioner to file a reply, and the court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (See § 1172.6, subd. (c).) Where a petitioner makes the requisite prima facie showing he or she falls within the provisions of section 1172.6 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) &(d)(1).)
As the Supreme Court instructed in Lewis, in determining whether the petitioner has made a prima facie showing he or she is entitled to relief under section 1170.95, subdivision (c), "[l]ike the analogous prima facie inquiry in habeas corpus proceedings, '"the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."'" (Lewis, supra, 11 Cal.5th at p. 971.) But "[i]n reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) Rather, at the prima facie review stage, the court's review is limited to "'readily ascertainable facts'" in the record, such as the jury instructions, the record of the crimes committed, and jury findings on the enhancements. (People v. Duchine (2021) 60 Cal.App.5th 798, 815; see People v. Harden (2022) 81 Cal.App.5th 45, 50 [considering jury instructions and verdicts to determine whether the record of conviction conclusively established that defendant was actual killer]; People v. Ervin (2021) 72 Cal.App.5th 90, 106 [considering as part of record of conviction the jury instructions, closing arguments, and verdicts, which did not show defendant was ineligible for relief based on jury's true findings on felony-murder specialcircumstance allegation].)
B. The Trial Court's Error in Denying Carroll's Petition for Resentencing Without Appointing Counsel Was Prejudicial
1. The trial court erred in failing to appoint counsel
Carroll contends, the People concede, and we agree the trial court erred in summarily denying Carroll's petition for resentencing without appointing counsel because Carroll filed a facially sufficient petition. Under Lewis, supra, 11 Cal.5th 952, which was decided after the superior court's order denying Carroll's petition and our decision affirming that order in Carroll's initial appeal, once a petitioner files a facially sufficient petition under section 1172.6 and requests appointment of counsel, the superior court must appoint counsel before performing a prima facie review under section 1172.6, subdivision (c). (Lewis, at p. 963 ["petitioners who file a complying petition requesting counsel are to receive counsel upon filing of a compliant petition"]; see § 1172.6, subd. (b)(3) ["Upon receiving a petition in which the information required by this subdivision is set forth . . ., if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner."].) The trial court therefore erred in denying Carroll's petition for resentencing without first appointing counsel.
2. The error in failing to appoint counsel was prejudicial
Failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, reviewable for prejudice under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 957-958, 973-974.) As the Lewis court explained, "[A] petitioner 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing."'" (Id. at p. 974.)
The People contend that although the trial court erred in failing to appoint counsel, the error was harmless because it is not reasonably probable the court would have issued an order to show cause and held an evidentiary hearing even if Carroll had been appointed counsel. Specifically, relying on our opinion in Carroll I, B157628, because the jury necessarily found Carroll intended to kill Garcia (in finding Carroll guilty of attempted murder), and the firing of shots at Garcia and Araujo occurred nearly simultaneously in close quarters with Carroll having a similar motivation, any reasonable juror would have found Carroll harbored the same intent to kill Araujo.
We agree with Carroll, however, that our discussion in Carroll I in the context of whether the instructional error was harmless (in failing to instruct the jury on the mental state required to find the special-circumstance allegation true) does not establish as a matter of law that Carroll is ineligible for relief. As the Supreme Court cautioned in Lewis, supra, 11 Cal.5th at page 972, "the probative value of an appellate opinion is case specific, and 'it is certainly correct that an appellate opinion might not supply all answers.'"
At the evidentiary hearing the prosecution will need to prove beyond a reasonable doubt that Carroll intended to kill Araujo, or if he was liable under the felony-murder doctrine, that he was a major participant who acted with reckless indifference to human life. (§ 189, subd. (e).) The prosecution may rely on the jury's finding that Carroll had the intent to kill Garcia around the same time as the shooting of Araujo, but Carroll will have an opportunity to present evidence to the contrary. (§ 1172.6, subd. (d)(3) [at the evidentiary hearing, "[t]he prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens"].) Further, although we concluded in Carroll I, supra, B157628 that the shooting at Araujo and Garcia occurred almost simultaneously in close quarters, the evidence at trial showed Garcia was escaping through the back door as he heard the first gunshot, and he had run out of the store by the time he heard the second and third gunshots.
On this record, we cannot say as a matter of law that the testimony at trial established that Carroll is ineligible for relief based on his intent to kill Araujo. Rather, the superior court will need to determine at the evidentiary hearing whether the People have met their burden. Nor does our opinion in Carroll I establish as a matter of law that Carroll harbored an intent to kill Araujo. As the Court of Appeal explained in People v. Harden, supra, 81 Cal.App.5th at p. 50, "At the prima facie stage . . . it is of course impossible to know what the evidence will ultimately be at an evidentiary hearing that has not yet occurred. We thus agree with [appellant] that prior to a hearing under [former] section 1170.95, subdivision (d)(3), the law-of-the-case doctrine cannot conclusively establish disentitlement."
Moreover, the People's theory of the case at trial was that Carroll was guilty of murder under the felony-murder rule. The jury was instructed with CALJIC Nos. 8.10 and 8.27 that to prove Carroll committed murder, the People had to prove he acted with malice aforethought (as the actual killer or an aider and abettor), or the killing was done in the commission of a robbery or attempted robbery. The prosecutor relied almost exclusively on the felony-murder doctrine in his closing argument, stating, "There is such a thing called a felony murder, and the judge is going to instruct you on that. But basically if there's a murder that happens during the commission or attempted commission of a robbery, then it's a first degree murder. You can also get there if you commit a willful, deliberate and premeditated murder, it's also first degree murder, but in this case we clearly have a murder committed during the course of a robbery. It's first degree murder. That is the law. You'll see from that instruction that it doesn't matter whether you're the one who pulled the trigger or not. It doesn't even matter if that murder is intentional. It can be an accidental or incidental killing during that robbery. Under the felony murder rule in California, if a killing is done during a robbery, that is a first degree murder. Since the robbery occurred and Mr. Araujo was killed during that robbery, first degree murder has been proved."
The jury was instructed with CALCRIM No. 8.27, "If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of robbery, all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental. [¶] In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the robbery at the time the fatal would was inflicted."
The People may at the evidentiary hearing, as they did at trial, rely on the felony-murder rule to support Carroll's murder conviction. If so, the superior court will need to decide in the first instance whether the People have met their burden to prove Carroll was a major participant who acted with reckless disregard for human life, and therefore can be convicted of murder under current law.
People v. Coley (2022) 77 Cal.App.5th 539, relied on the People, is distinguishable. In Coley, gunshots were fired at two men walking together along a highway, one of whom was killed, with the other avoiding injury. (Id. at p. 542.) The Court of Appeal concluded the jury's finding on the attempted murder charge that the defendant intended to kill conclusively established his intent to kill on the murder charge. (Id. at p. 547.) In contrast to the facts in Coley, Garcia was escaping through the back door as he heard the gunshots in the store that killed Araujo. And, as discussed, the People and Carroll will have an opportunity at the evidentiary hearing to present additional facts surrounding the shooting of Araujo and Garcia. Moreover, unlike this case, the jury in Coley was not instructed on felony-murder (or the natural and probable consequence doctrine). (Coley, at p. 546.)
The ultimate decision by the superior court at an evidentiary hearing whether the prosecution has met its burden to show beyond a reasonable doubt that Carroll intended to kill Araujo or was guilty of murder under the current requirements for the felony-murder doctrine is judicial factfinding not appropriate at the prima facie review stage. (See Lewis, supra, 11 Cal.5th at p. 972.) Accordingly, the error in failing to appoint counsel for Carroll is prejudicial because we cannot say as a matter of law that the record of conviction shows Carroll is ineligible for resentencing.
DISPOSITION
The order denying Carroll's section 1172.6 petition is reversed. On remand the superior court is to appoint counsel for Carroll, to issue an order to show cause and to conduct further proceedings in accordance with section 1172.6, subdivision (d).
We concur PERLUSS, P. J. SEGAL, J.