Opinion
C089261
12-20-2022
THE PEOPLE, Plaintiff and Respondent, v. ALPHONZE FITZHUGH, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. STKCRFE20115309)
OPINION ON TRANSFER
RENNER, J.
Defendant Alphonze Fitzhugh appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1172.6. He and codefendant Robert Antonio Barnes were found guilty of first degree murder, attempted murder, and attempted robbery. The jury found true the special circumstance that defendant committed the murder during the commission of or attempted commission of a robbery. (§ 190.2, subd. (a)(17)(A).) He received nine years plus life without the possibility of parole, and we affirmed his convictions on direct appeal.
Further undesignated statutory references are to the Penal Code.
Barnes is not a party to this appeal.
Defendant later petitioned the trial court for resentencing based on changes to the felony-murder rule under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019; Senate Bill 1437). The trial court summarily denied his petition before appointing him counsel after finding defendant was ineligible for resentencing given the jury's true finding on the robbery-murder special circumstance. The court reasoned that in finding the special circumstance true, the jury necessarily found defendant was a major participant who acted with reckless indifference to human life during the crimes. The court also noted that this court subsequently found sufficient evidence supported the jury's special circumstance finding.
On April 9, 2021, in an unpublished opinion, we affirmed the court's order denying defendant's resentencing petition, holding that any error in failing to appoint defendant counsel before summarily denying the petition was harmless beyond a reasonable doubt given the jury's true finding on the robbery-murder special circumstance, which this court had previously upheld in defendant's direct appeal.
The California Supreme Court subsequently granted review and transferred the matter back to us with directions to vacate our opinion and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). By separate order, we vacated our decision.
In supplemental briefing after transfer, the parties agree that defendant's petition was facially sufficient under Lewis to require the appointment of counsel and briefing, and that under Strong neither the jury's true finding on the robbery-murder special circumstance allegation, which was made before our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) clarified the meaning of being a major participant who acts with reckless indifference to human life, nor this court's conclusion on direct appeal that substantial evidence supported the special circumstance finding, preclude defendant from relief under section 1172.6 as a matter of law. Having reconsidered the matter, we agree and will reverse and remand for further proceedings under section 1172.6.
I. BACKGROUND
We take the facts from the unpublished opinion we issued in 2018 affirming defendant's convictions in People v. Barnes (Nov. 30, 2018, C073287) [nonpub. opn.] (Barnes). In 2009, Britani lived with her boyfriend, Evan, in her parents' garage in Acampo. Defendant had been friends with Evan and had shown him how to make money selling drugs. At some point, they had a falling out and Evan no longer respected defendant. Defendant had also been close friends with Britani. She had considered dating him at one point, which also caused defendant and Evan to dislike each other.
Defendant attached a copy of our unpublished decision in Barnes to his resentencing petition. We also granted defendant's request to incorporate the appellate record in Barnes into the record for the present appeal. We provide this summary of facts from the prior opinion in defendant's direct appeal solely for context and do not rely on these facts for our analysis or disposition here. (§ 1172.6, subd. (d)(3).)
On the night of November 18, 2009, Britani and Evan left their garage apartment to purchase food. When they returned, a man dressed in dark clothing with gloves and a beanie or ski mask turned the corner and raised a gun at Evan. Britani screamed and Evan ran. As Evan ran, he heard five or six shots; a bullet pierced his left leg. Britani was shot in her torso and later died.
The shooter fled the scene and got into a waiting SUV parked near a neighbor's truck. The driver turned off the vehicle's lights and drove away slowly. Law enforcement later found two digital scales, more than 250 grams of marijuana and $500 cash, and Evan testified that there was $8,000 in a purse.
Multiple witnesses at trial testified that in the months leading up to the shooting defendant had asked where Evan was living and had discussed robbing him. Another witness testified that she heard defendant talking about wanting to kidnap Evan over money or drugs. Defendant sent numerous text messages to various individuals as he prepared for and planned the robbery. In the texts, defendant said that they needed to get more shells and ammunition for his guns. Defendant purchased bullet proof vests from another friend and inquired as to what caliber bullet the vests could stop.
On the night of the shooting, defendant's and Barnes's cell phones were in the area of the crime scene shortly after 8:00 p.m. to until about 8:30 p.m. The first 911 call was made at 8:38 p.m. Shortly after the shooting, defendant and Barnes showed up at another friend's house. Barnes seemed somewhat frantic, and defendant said that the robbery went bad and that Britani was shot. Defendant said he was in the car when he heard two shots and Britani scream. Barnes said he ran up on Evan, that Evan threw a drink at him, and that he shot Evan in the leg. Britani screamed, startling Barnes, and the gun went off. Both defendants claimed they did not intend to kill Britani.
In March 2011, a grand jury indicted defendant on first degree murder (§ 187- count one), attempted murder (§§ 664, 187-count two), and attempted robbery (§§ 664, 211-count three). The indictment further alleged the special circumstances that defendant committed the murder while lying in wait (§ 190.2, subd. (a)(15)), and during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). For all three counts, it alleged that defendant personally used a firearm causing death during the offenses (§ 12022.53, subd. (d)).
A jury found defendant and Barnes guilty of all counts and found true the robbery-murder special circumstance. Although the jury found true that Barnes had personally and intentionally discharged a firearm in the commission of all three counts, it found the same firearm enhancements not true as to defendant. Defendant was sentenced to nine years plus life without the possibility of parole.
Defendant appealed his convictions, arguing, among other things, that insufficient evidence supported the jury's robbery-murder special circumstance finding as to him. Although defendant did not challenge that he was a major participant, he argued that the evidence was insufficient to show he acted with reckless indifference to human life.
We rejected all of defendant's appellate contentions and affirmed the judgment in its entirety in November 2018. In upholding the jury's robbery-murder special circumstance finding, we relied on our Supreme Court's decisions in Banks and Clark to conclude defendant acted with reckless indifference to human life during the offenses.
After waiving oral argument in Barnes, defendant sought leave to file a supplemental brief to raise a claim of insufficiency of the evidence regarding his murder conviction under Senate Bill 1437. We denied defendant's request because he did not dispute that he was a major participant, and the arguments in his motion were precluded by our holding that sufficient evidence supported the conclusion he acted with reckless indifference to human life.
In February 2019, defendant filed a petition for resentencing under section 1172.6, alleging that as the get-away driver during a robbery of a drug dealer he could not now be convicted of murder because of the changes Senate Bill 1437 made to sections 188 and 189. Defendant requested the court appoint him counsel and issue an order to show cause.
In March 2019, the trial court summarily denied defendant's petition in a memorandum of decision after finding he was not entitled to relief as a matter of law. Citing CALCRIM No. 703, with which the jury was instructed, the court reasoned that in order to find the robbery-murder special circumstance true, the jury had to find defendant was the actual killer, had the intent to kill, or was a major participant who acted with reckless indifference to human life. The court further noted that this court had previously found in Barnes that sufficient evidence supported the conclusion that defendant acted with reckless indifference to human life, and that defendant did not dispute that he was a major participant. According to the court, "[t]he facts of this case and the Jury's finding of truth of the Special Circumstance preclude the defendant from seeking relief under . . . section 1170.95." Given the court's summary denial of defendant's petition, it concurrently denied the public defender's request to be appointed counsel for defendant. Defendant timely appealed.
II. DISCUSSION
Defendant originally argued the trial court prejudicially erred by denying his petition because the jury's true finding on the robbery-murder special circumstance did not preclude him from relief as a matter of law. He also asserted the court erred in relying on this court's conclusion in Barnes that sufficient evidence supported the jury's finding that he was a major participant who acted with reckless indifference to human life. In supplemental briefing, the parties now agree, as do we, that the trial court erred in summarily denying defendant's petition.
The Legislature enacted and the Governor signed Senate Bill 1437 to "amend the felony murder rule and the natural and probable consequences doctrine . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 achieves these goals by amending section 188 to require that a principal act with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a person can be liable for felony murder only if: (1) the "person was the actual killer"; (2) the person, with an intent to kill, was an aider or abettor in the commission of murder in the first degree; or (3) the "person was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)
As pertinent here, Senate Bill 1437 also added what is now section 1172.6, which permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if, among other things, the petitioner could not be convicted of first or second degree murder due to the change in the law. (§ 1172.6, subd. (a).) Upon submission of a facially sufficient petition that requests counsel, the court shall appoint counsel and provide the parties an opportunity to submit briefs. (§ 1172.6, subds. (b)(3), (c).) Following briefing, the court must hold a hearing to determine whether the petitioner has made a prima facie case for relief. (§ 1172.6, subd. (c).) If a sufficient prima facie showing is made, the court must issue an order to show cause. (§1172.6, subds. (c), (d).)
The prima facie inquiry under section 1172.6, subdivision (c) is "limited." (People v. Lewis (2021) 11 Cal.5th 952, 971.) 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." '" (Ibid.) Although the court may rely on the record of conviction (including a prior appellate court opinion) in determining whether defendant has made a prima facie showing, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
Since defendant's convictions, the Supreme Court has refined the analysis for who qualifies as a major participant acting with reckless indifference to human life in Banks and Clark. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, abrogated on other grounds in People v. Lewis, supra, 11 Cal.5th at p. 963.) After we rejected defendant's claims in our previous opinion, our Supreme Court decided Strong, which concluded: "Findings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437. This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark." (People v. Strong, supra, 13 Cal.5th at p. 710.) Here, the trial court concluded that the jury's pre-Banks and Clark findings, which this court upheld against defendant's sufficiency of the evidence challenge on direct appeal, precluded defendant from making a prima facie showing. The trial court's conclusion does not survive Strong.
Defendant's resentencing petition, which requested counsel, was facially sufficient and alleged the essential facts necessary for relief under section 1172.6. (§ 1172.6, subds. (a)-(c); People v. Lewis, supra, 11 Cal.5th at pp. 970-972.) Nothing in the record demonstrates defendant is ineligible for relief as a matter of law, so we must reverse and remand the matter for the trial court to appoint defendant counsel, issue an order to show cause, and, to the extent necessary, conduct an evidentiary hearing. (§ 1172.6, subd. (d).) We express no opinion on the ultimate resolution of the petition.
III. DISPOSITION
The trial court's order denying defendant's section 1172.6 petition is reversed. On remand, the trial court is directed to appoint defendant counsel, issue an order to show cause, and, to the extent necessary, the court shall hold an evidentiary hearing on the petition.
We concur: MAURO, Acting P. J. HOCH, J.