Opinion
F080319
07-20-2021
THE PEOPLE, Plaintiff and Respondent, v. JOHN ARTHUR FREE, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County. Nos. 19CEJ300360-1, 19CEJ300360-2, 19CEJ300360-3, 19CEJ300360-4 Scott T. Steffan, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Decades ago, a jury convicted defendant John Arthur Free of second degree murder and found true an allegation he personally used a firearm (Pen. Code, former § 12022.5). (Undesignated statutory references are to the Penal Code.) Following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing pursuant to section 1170.95, asserting he was entitled to resentencing under the new laws. The court denied defendant's petition, finding defendant was ineligible for relief because the jury was not instructed on the felony-murder rule or the natural and probable consequences doctrine.
We, too, conclude the record establishes petitioner is ineligible for resentencing as a matter of law. Accordingly, we affirm the trial court's order.
FACTUAL AND PROCEDURAL HISTORY
In 1980, a jury convicted defendant of murder and found he personally used a firearm while committing the crime. The court sentenced defendant to life imprisonment. This court affirmed defendant's conviction on appeal. (People v. Free (1982) 131 Cal.App.3d 155, 157-158.) The facts as detailed in our prior opinion reflect the evidence at trial established defendant's brother Joe stabbed the victim after the victim physically assaulted defendant. (Id. at p. 157.) Defendant then shot the victim twice, and the victim died as a result. (Id. at p. 158.)
Pursuant to defendant's request, we took judicial notice of our prior opinion in this matter pursuant to Evidence Code sections 452, subdivision (a), and 459, subdivision (a).
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95 using a preprinted form. He checked boxes stating that a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine; at trial, he was convicted of first or second degree murder under a felony-murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box stating he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony-murder doctrine and could not now be convicted of murder because of changes to section 188, effective January 1, 2019. He also checked a box stating, “I request that this court appoint counsel for me during this re-sentencing process.”
Defendant filed a brief in support of his petition, in propria persona, in which he provided a statement of facts based on the probation report from his case. The facts as detailed by defendant stated defendant's brother Joe stabbed the victim after the victim physically attacked defendant. Then, defendant shot the victim twice with a firearm. Defendant argued he qualified for resentencing because he did not act with reckless indifference to human life or malice and was convicted of first or second degree murder pursuant to the felony-murder rule. He asserted he “did not act with reckless indifference to human life even though he was the one that fired the fatal shot.” He argued the record showed the victim assaulted him first, causing defendant to drop to his knees and breaking his nose. Accordingly, defendant's brother Joe went to assist defendant when the victim then attacked Joe. “Looking at the way his brother was getting attack[ed], trying to gain his sense, unable to see clearly, due to the blood getting in his eyes, [defendant] pulled out his gun and fired.” Defendant argued he warned the victim to stop his attack but the victim did not stop advancing after being shot, so defendant fired his gun again and the victim dropped to the ground. He argued the events that transpired amounted to manslaughter not first or second degree murder, and “the change[s] to Penal Code 188 and 190, [i]n [sic] the intent of the legislature in [sic] change the murder statute, [defendant] could not be convicted of any type of murder.” He asserts he should be entitled to relief under section 1170.95 if he had the right to defend himself or his brother, and his conviction should be lessened to manslaughter. Defendant attached the abstract of judgment, jury instructions, and probation report to his petition.
The court denied the petition, holding: “According to the record in this case, [defendant's] conviction was based on evidence that he stabbed and killed the victim. The jury was not instructed on the felony-murder rule, or the natural and probable consequence[s] doctrine. Accordingly, [defendant] is not eligible for relief under … section 1170.95.”
DISCUSSION
I. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 “amend[s] 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amends section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it adds section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)
Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that “[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
“A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”
Newly enacted section 1170.95 permits those “convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts ….” (Id., subd. (a).) An offender may file a petition under section 1170.95 where all three of the following conditions are met:
“(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3).)
A trial court receiving a petition under section 1170.95 “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 the petitioner has made such a showing, the trial court “shall issue an order to show cause.” (Ibid.) The trial court must then hold a hearing “to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been [sic] sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
II. Analysis
Defendant asserts the court violated section 1170.95 by failing to appoint him an attorney to assist him in the prosecution of his petition, resulting in structural error. He further contends the trial court's failure to appoint him counsel violated his Sixth Amendment right to counsel and his due process rights. The People respond the court was not required to appoint defendant counsel until he established a prima facie case for relief, which he failed to do. They further contend the record established defendant was the actual killer and, thus, ineligible for relief as a matter of law, so any error was harmless. They disagree the California or federal Constitution requires the appointment of counsel during the “eligibility determination phase” of the petition process. Because we conclude the record establishes defendant is categorically ineligible for relief, any alleged procedural errors by the trial court were harmless.
Our sister courts have adopted conflicting interpretations of whether section 1170.95 requires a trial court to appoint a petitioner counsel immediately upon the filing of a petition for resentencing under section 1170.95. (Compare People v. Lewis (2020) 43 Cal.App.5th 1128, 1140 [court does not err by denying petition for resentencing without appointing defendant counsel because duty to appoint counsel does not arise unless and until the court makes threshold determination petitioner “‘falls within the provisions'” of statute], review granted Mar. 18, 2020, S260598, and People v. Verdugo (2020) 44 Cal.App.5th 320, 332-333 [holding defendant was not entitled to appointment of counsel before initial prima facie review of eligibility for relief], review granted Mar. 18, 2020, S260493, with People v. Cooper (2020) 54 Cal.App.5th 106, 112 [concluding “when a petitioner files a facially sufficient petition requesting counsel, … the trial court must appoint counsel and give the parties an opportunity to submit briefing before denying the petition”], review granted Nov. 10, 2020, S264684; People v. Daniel (2020) 57 Cal.App.5th 666, 673-674 [reiterating conclusion in Cooper that trial court must appoint counsel for a defendant who files a facially sufficient petition before the court denies petition for failure to make prima facie showing of entitlement to relief], review granted Feb. 24, 2021, S266336.)
We need not decide whether the trial court should have appointed defendant counsel after he filed his petition because we conclude any alleged error in the trial court's failure to appoint counsel was harmless. In so holding, we do not agree with defendant's contention that any alleged error by the trial court in failing to appoint counsel at this juncture was structural, requiring per se reversal. Rather, any alleged error by the trial court in failing to appoint defendant counsel after he filed a petition and prior to the issuance of an order to show cause is subject to review for harmless error. (See People v. Cooper, supra, 54 Cal.App.5th at p. 123 [rejecting argument failure to appoint counsel after petition filing requires per se reversal and instead concluding harmless error analysis applies], review granted; People v. Daniel, supra, 57 Cal.App.5th at pp. 674-675 [holding violation of statutory right to counsel upon filing a facially sufficient petition is not structural error, but instead susceptible to review for prejudice], review granted; accord, People v. Law (2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020, S262490.)
And here, the trial court's error was “harmless under any standard of review.” (People v. Edwards (2020) 48 Cal.App.5th 666, 675, review granted July 8, 2020, S262481, citing Chapman v. California (1967) 386 U.S. 18, 24 [constitutional error] and People v. Watson (1956) 46 Cal.2d 818, 836 [state law error]; see People v. Daniel, supra, 57 Cal.App.5th at p. 678 [applying harmless error standard under Watson], review granted; People v. Law, supra, 48 Cal.App.5th at p. 826 [applying harmless beyond a reasonable doubt standard under Chapman], review granted.) Here, the jury was not instructed on either felony murder or the natural and probable consequences doctrine. (See People v. Soto (2020) 51 Cal.App.5th 1043, 1055 [jury instructions given by the trial court are part of the record of conviction], review granted Sept. 23, 2020, S263939; People v. Edwards, supra, at p. 674 [same].) Further, defendant was not charged with nor was the jury instructed on a target crime on which the natural and probable consequences doctrine could be predicated or a felony articulated under section 189. As the Court of Appeal in Soto concluded in affirming the trial court's denial of the defendant's section 1170.95 petition, “[T]he jurors were not provided any instruction on which they could have found [the defendant] guilty of murder under [the natural and probable consequences] doctrine. Rather, under the instructions, the jury necessarily found [the defendant] culpable for murder based on his own actions and mental state ….” (Soto, at p. 1055; see Edwards, at p. 675 [affirming summary denial of § 1170.95 petition where jury not instructed on defendant not charged and convicted of felony murder or murder under the natural and probable consequences doctrine].) In the absence of instructions on felony murder or the natural and probable consequences doctrine, the jury could not have convicted defendant based on a theory of liability that is no longer valid following Senate Bill 1437's amendments to sections 188 and 189.
Defendant's reliance upon People v. Rouse (2016) 245 Cal.App.4th 292 to argue the failure to appoint him counsel amounted to structural error is misplaced. In Rouse, an incarcerated defendant filed a petition for resentencing pursuant to section 1170.18 after Proposition 47 reclassified theft of property valued at less than $950 as misdemeanor shoplifting. (Rouse, at pp. 294-296.) At the hearing on his petition, the defendant was not present or represented by counsel. (Id. at p. 296.) The court found the defendant's petition to be “well taken.” (Ibid.) It permitted the People to amend the defendant's commercial burglary charge, granted the defendant's petition, vacated the original sentence, and resentenced the defendant. (Ibid.) The Second District Court of Appeal, Division Eight, concluded the defendant “was entitled to the assistance of counsel at the resentencing hearing on his petition under section 1170.18, subdivision (a).” (Id. at p. 295, italics added.) The court therefore reversed and remanded for a new resentencing hearing on that basis. (Ibid.) The Rouse court did not consider whether a defendant's right to counsel attaches at some point before a resentencing hearing is held, as is at issue here. And we have found no cases, nor does defendant point us to any, that hold a court's failure to appoint a petitioner counsel before a hearing under section 1170.95 amounts to structural error. Thus, Rouse does not assist defendant.
Furthermore, defendant concedes he was the actual killer. Thus, he was ineligible for relief as a matter of law under section 1170.95. Accordingly, the court did not err in denying his petition, and any alleged procedural error was harmless. (See Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
We reject defendant's sole contention.
DISPOSITION
The court's order denying defendant's petition for resentencing is affirmed.
[*]Before Franson, Acting P.J., Peña, J. and Smith, J.