Opinion
D080986
03-30-2023
THE PEOPLE, Plaintiff and Respondent, v. DEMUS LUSHAN PETERSON, Defendant and Appellant.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County No. FWV1201336, Daniel W. Detienne, Judge. Reversed and remanded with directions.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, J.
In 2013, a jury convicted Demus Lushan Peterson of first degree murder (Pen. Code, § 187, subd. (a)) and found true an allegation that Peterson personally used a firearm (§ 12022.5, subd. (a)). The court sentenced Peterson to an indeterminate term of 25 years to life plus 10 years in prison.
All further statutory references are to the Penal Code.
Peterson appealed and this court affirmed the judgment in an unpublished opinion. (People v. Peterson (June 24, 2015, D067439).)
In 2022, Peterson filed a pro per petition for resentencing under section 1172.6. The court appointed counsel and held a hearing. At the hearing, the court relying on the testimony of one witness from the trial concluded Peterson was the actual killer, and thus not eligible for relief under section 1172.6.
Peterson appeals contending the trial court erred in denying his petition without first issuing an order to show cause (OSC). The Attorney General concedes the trial court erred in its summary denial of the petition. As the parties point out, there were multiple parties involved in the event. The jury was instructed on aiding and abetting, natural and probable consequences, and felony murder. As the parties discuss, it is not possible, on this record to determine as a matter of law that the jury did not convict on one of the impermissible grounds under section 1172.6 and Senate Bill No. 1473. Accordingly, we will accept the People's concession, reverse the trial court's order and remand with directions to issue an OSC and conduct an evidentiary hearing as required by statute.
STATEMENT OF FACTS
The facts of the offense were stated in our previous opinion. The Attorney General has provided a summary of the facts which we think will be helpful. We will adopt that statement of facts for convenience.
"[A.S.] and [B.S.] met in Florida in 1994. [B.S.], who was a long-haul truck driver, was preparing to drive a load to California and offered [A.S.] a ride to San Diego, which [A.S.] accepted. On December 29, 1994, [A.S.] and [B.S.] stopped at an Ontario truck stop. After purchasing some beer and food, [A.S.] and [B.S.] drove to an adjacent dark parking lot that was known for drug sales. The pair was looking to buy drugs.
"[A.S.] saw three men leaning against a red car. [B.S.] spoke to one of the men, and that man climbed up into the driver's side of the cab. [B.S.] and the man discussed a drug purchase. As [B.S.] spoke with the man, a second man climbed up to the passenger side door where [A.S.] was sitting. The man grabbed a handrail bar outside of the passenger door and motioned for [A.S.] to let him in, but she refused. The man then walked around to the driver's side of the truck and climbed in behind [B.S.], who was sitting in the driver's seat.
"[A.S.] noticed that the second man appeared to be hiding something in his hand. She saw the man, who was now sitting behind [B.S.], point a gun at [B.S.'s] head. [A.S.] thought the gun was a revolver, since it had a 'wheel.' The men demanded [B.S.'s] money. [B.S.] told the men that he had given them what he had. The second man rummaged around behind the two front seats in the cab, found a duffel bag, and tossed it to a third man who was waiting outside the truck. The first man then got out of the truck, leaving the second man, [B.S.] and [A.S.] inside the cab. The second man turned to [A.S.] and, apparently referring to [A.S.'s] jacket, said, 'Take it off, bitch.' [A.S.] jumped out of the truck to run. Just as she exited the cab of the truck, she heard a single gunshot.
"A police investigation into [B.S.'s] murder revealed that he had been shot from inside the truck cab, from behind, at close range. The gunshot was fatal. Police did not find a shell casing, which was consistent with the bullet having been fired from a revolver.
"A forensic technician recovered a fingerprint from the truck's passenger side handrail bar, just where [A.S.] said the second man had grabbed onto the truck. Police were not able to match that fingerprint to a suspect at the time.
"In 2010, an Ontario police detective began reviewing the case file from [B.S.'s] 1994 murder. In 2012, the detective learned that the fingerprint left on the passenger side handrail bar matched Peterson's fingerprint. At this point in time, Peterson was living in Florida.
"The detective contacted [A.S]. [A.S.] was presented with a photographic lineup, and she identified Peterson as the person who shot [B.S]. At trial, [A.S.] stated that she was 'positive' that Peterson was the individual who shot [B.S]."
DISCUSSION
Senate Bill No. 1473 and section 1172.6 were enacted to provide a mechanism for persons convicted of murder as aiders and abettors to petition for resentencing. Specifically, those convicted on a felony murder or natural and probable consequences theory of liability may seek relief under the statute. Those who could not now be convicted on current law could have their convictions vacated and be resentenced. (People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis).)
Once the petitioner files a petition, the trial court must determine if the person has stated a prima facie case for relief under the statute. The court in Lewis stated:" '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 within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. 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.'" (Lewis, supra, 11 Cal.5th at p. 961, quoting § 1172.6, subd. (c).)
The trial court may review the record of conviction as part of the process of determining if the petition demonstrates a prima facie case for relief, but the court may not engage in factfinding without first issuing an OSC and conducting an evidentiary hearing. (People v. Drayton (2020) 47 Cal.App.5th 965, 980-982.)
While the record might support a finding Peterson was the actual killer, the trial court had to engage in factfinding to reach such conclusion. Given the jury instructions given at trial, it is not possible to find, as a matter of law, that Peterson was not convicted on a theory, which is now prohibited by new legislation. Such a determination will require an evidentiary hearing. (People v. Strong (2022) 13 Cal.5th 698, 720).
DISPOSITION
The order denying Peterson's petition for resentencing under section 1172.6 is reversed. The matter is remanded to the superior court with directions to issue an OSC and conduct an evidentiary hearing as required by section 1172.6.
WE CONCUR: McCONNELL, P. J., IRION, J.