Opinion
A164372
12-16-2022
THE PEOPLE, Plaintiff and Respondent, v. SEAN WAYNE PIERCE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 5-940925-1)
POLLAK, P. J.
Sean Wayne Pierce, who is serving a sentence of 35 years to life after his 1994 conviction of first degree murder (Pen. Code, § 187), appeals an order denying his petition for resentencing under section 1172.6 based on recent changes to the law governing accomplice liability for murder. The trial court ruled that Pierce could not make a prima facie showing of entitlement to relief under section 1172.6 because the jury found him guilty as an actual killer. Pierce contends the court erred by basing its ruling on the statement of facts in this court's opinion affirming his conviction (People v. Pierce (Nov. 30, 1995, A068354 [nonpub. opn.] (Pierce I). He contends that this approach conflicts with a 2021 amendment that modified section 1172.6 to state that, at an evidentiary hearing on such a petition, a court may "consider the procedural history of the case recited in any prior appellate opinion" (§ 1172.6, subd. (d)(3), italics added).
All statutory references are to the Penal Code.
At the time of the proceedings below, the provision was codified as section 1170.95. The Legislature renumbered the provision earlier this year without substantive change as section 1172.6. (Stats. 2022, ch. 58, § 10.) All references in this opinion are to the current section number.
We agree with the Fifth Appellate District about the import of that amendment: Because a factual summary in an appellate opinion "may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage." (People v. Flores (2022) 76 Cal.App.5th 974, 988 (Flores).) Nevertheless, the trial court's error in relying on the statement of facts in our prior opinion was harmless, and its order denying the petition must be affirmed. As in People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden), the jury instructions in this case establish, as a matter of law, that the jury could have found Pierce guilty of murder only if it found that he was the actual killer.
Factual and Procedural History
An information filed in 1994 charged Pierce, alone, with the murder of Robert Kelly, Jr. (§ 187), with an enhancement for having personally used a firearm during the offense (§ 12022.5, subd. (a)).
The information also charged Pierce with possession of a firearm by a convicted felon (§ 12021, subd. (a)), a count that also had a personal-firearm-use enhancement (§ 969f). Other allegations supported enhancements based on his having committed serious felonies while having a prior conviction of a serious felony (§ 667, subd. (a)) and having committed the offenses within five years of serving a prior prison term for other felonies (id., subd. (b)).
At Pierce's trial, the court instructed the jury on two theories of first degree murder: deliberate, premeditated malice murder, and felony murder during the course of a robbery. The court gave several standard instructions on those theories. CALJIC No. 8.00 defined "homicide" as "the killing of one human being by another, either lawfully or unlawfully" and explained that it "includes murder and manslaughter, which are unlawful, and the acts of excusable and justifiable homicides, which are lawful." CALJIC No. 8.10 said that Pierce was "accused . . . of having committed the crime of murder" and that "[e]very person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of robbery is guilty of the crime of murder" (brackets omitted). CALJIC No. 8.11 explained that "[m]alice is express when there is manifested an intention unlawfully to kill a human being," while CALJIC No. 8.20 stated that "[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree." Finally, CALJIC No. 8.21 stated that "[t]he unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery is murder of the first degree when the perpetrator had the specific intent to commit such crime" (brackets omitted). The court did not instruct on the natural and probable consequences doctrine or on liability as an aider and abettor.
The jury found Pierce guilty of first degree murder using a verdict form that did not specify whether it relied on a theory of express malice murder or felony murder. It found true the allegation that, in committing the murder, Pierce personally used a firearm.
The court imposed an aggregate sentence of 35 years to life. This court affirmed the conviction but remanded for adjustments to parts of the sentence not relevant to this appeal (see fn. 4, ante). (Pierce I, supra, A068354.)
The sentence is composed of a term of 25 years to life for murder, with five-year enhancements for personal firearm use (§ 12022.5, subd. (a)) and a prior serious felony conviction (§ 667, subd. (a)). Pierce also pled guilty to possession of a firearm as a felon (§ 12021), for which the court imposed a three-year term that it stayed under section 654 but, on remand after Pierce's appeal, instead made concurrent. The court imposed and initially stayed a prior-prison-term enhancement (§ 667, subd. (b)) but, on remand after the appeal, struck that term.
In 2021, Pierce filed a form section 1172.6 petition in which he checked boxes alleging that he was convicted pursuant to the felony-murder rule and "was not the actual killer."
After appointing counsel and receiving briefs, the trial court issued an order taking judicial notice of its file in the case, and of this court's opinion affirming Pierce's conviction, and summarily denying the petition. Pierce timely appealed.
We appointed counsel, who filed a brief akin to a brief filed pursuant to People v. Wende (1979) 25 Cal.3d 436, 440-442 (Wende). It raised no claim of error and asked that this court independently review the record on appeal. We requested supplemental briefing on two issues: "1. Under section 1172.6, subdivision (d)(3), as amended in 2021 (Stats. 2021, ch. 551, § 2), may a court evaluating the prima facie sufficiency of a petition rely on the factual history of the case in a prior appellate opinion in that case? [¶] 2. If not, do the parts of the record properly subject to consideration establish conclusively that appellant is ineligible for relief because he was convicted as an actual killer?" We asked counsel, in discussing the latter issue, to "address the analysis in [Harden, supra, ] 81 Cal.App.5th [at pages] 52-56 along with any other pertinent authority." The parties have done so.
The Attorney General also requests that we take judicial notice of the record on appeal from Pierce's conviction. Pierce opposes the request insofar as it includes parts of the record created on appeal and not part of the trial court file (of which that court already took notice). We deny the request as unnecessary, as the jury instructions are dispositive.
Discussion
Senate Bill No. 1437" 'amend[ed] the felony murder rule . . . 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.'" (People v. Gentile (2020) 10 Cal.5th 830, 842, quoting Stats. 2018, ch. 1015, § 1, subd. (f), superseded in other part by statute, as noted in People v. Birdsall (2022) 77 Cal.App.5th 859, 866, fn. 19.) To achieve that end, Senate Bill No. 1437 added various provisions to the code. (Ibid.) As relevant here, they include a provision limiting liability under the felony-murder rule "principally to 'actual killer[s]' [citation] and those who, 'with the intent to kill,' aid or abet 'the actual killer in the commission of murder in the first degree.'" (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong), quoting § 189, subd. (e).) Defendants who do not fit in those categories "can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life.'" (Ibid.) Senate Bill No. 1437 also added section 1172.6 "to provide a procedure for those convicted of felony murder . . . to seek relief." (Gentile, supra, at p. 843.)
Senate Bill No. 1437 also eliminated murder liability on a theory of natural and probable consequences by adding section 188, subdivision (a)(3):" 'Except [for felony murder liability], 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.'" (Gentile, supra, 10 Cal.5th at p. 846.) The Legislature later expanded section 1172.6 to afford relief to those convicted of murder "under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a); Stats. 2021, ch. 551, § 2.) Pierce's jury was not instructed on a natural-and-probable-consequences theory or any other theory under which malice is imputed based on participation in a crime; Pierce does not contend that he is entitled to relief because the jury found him guilty on any such theory.
The process "begins with the filing of a petition containing a declaration that all requirements for eligibility are met." (Strong, supra, 13 Cal.5th at p. 708.) The requirements relevant here are that the information "allowed the prosecution to proceed under a theory of felony murder" and that petitioner "could not presently be convicted of murder" because of changes to section 189 made by Senate Bill No. 1437. (§ 1172.6, subd. (a)(1), (3).) If a petition is facially sufficient, the court must determine if it makes "a prima facie case for relief." (§ 1172.6, subd. (c).) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie showing of entitlement to relief, 'the court shall issue an order to show cause.'" (Strong, supra, at p. 708, quoting § 1172.6, subd. (c).)
In assessing a prima facie showing, a court" 'can and should make use of the record of conviction.'" (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) That record includes jury instructions and verdict forms. (Harden, supra, 81 Cal.App.5th at pp. 47, 50.) The prima facie inquiry is limited. The court takes the petition's factual allegations as true and assesses whether, if they all were proven, they would entitle the petitioner to relief. However, if the record of conviction establishes facts that conclusively refute a petition's allegations, the court need not treat them as true. (Lewis, supra, at p. 971.)
In his petition, Pierce simply checked boxes next to recitals of the statutory prerequisites for relief, without alleging any specific facts. In its order summarily denying the petition, the trial court listed a "limited" set of documents that it had considered as the "record of conviction": the information, the jury instructions given at trial, the completed verdict forms; and this court's 1995 opinion affirming Pierce's conviction.
In considering this court's opinion-including its factual summary - the trial court understandably relied on a comment in Lewis, supra, 11 Cal.5th at page 972 that "[a]ppellate opinions . . . are generally considered to be part of the record of conviction," although their "probative value . . . is case-specific," they" 'might not supply all answers,'" and a court "reviewing any part of the record of conviction at [the prima-facie stage] . . . should not engage in 'factfinding.'" As noted, the Legislature superseded that aspect of Lewis when it amended section 1172.6 to state that, at an evidentiary hearing on a petition, a court may "consider the procedural history of the case recited in any prior appellate opinion" (§ 1172.6, subd. (d)(3)). The amended statute precludes reliance on a factual history in an appellate opinion to find a petition insufficient to trigger an evidentiary hearing. (Flores, supra, 76 Cal.App.5th at p. 987.) The Attorney General does not dispute that the 2021 amendment applies in this case.
The trial court thus should not have relied on the factual summary in this court's prior opinion to conclude that Pierce is ineligible for relief because he was convicted as Kelly's actual killer. Nevertheless, the parts of the record still properly subject to reliance after the 2021 amendment of section 1172.6 establish as a matter of law that the jury could have found Pierce guilty of murder only if it found that he personally killed Kelly.
Because the right to resentencing under section 1172.6 is statutory, not constitutional, we review any error using the standard set by People v. Watson (1956) 46 Cal.2d 818 (Lewis, supra, 11 Cal.5th at p. 973), which requires a petitioner to show" 'a reasonable probability that in the absence of the error he . . . would have obtained a more favorable result.'" (Id. at p. 974.) That said, the test of prejudice is irrelevant here, for the jury instructions establish as a matter of law under any possible standard of review that the jury could have found Pierce guilty only as the actual killer.
As noted, the court at Pierce's trial instructed the jury using CALJIC No. 8.00, which defined homicide as "the killing of one human being by another," and CALJIC No. 8.10, which stated that Pierce was "accused . . . of having committed the crime of murder" and that "[e]very person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of robbery is guilty of the crime of murder" (brackets omitted). No juror could have found that Pierce "committed the crime of murder" without finding that he engaged in "the killing of one human being by another" and that he "unlawfully kill[ed] a human being with malice aforethought or during the commission or attempted commission of robbery." Whether the jury relied on a theory of malice murder or felony murder, both theories remain valid under current law. (Harden, supra, 81 Cal.App.5th at p. 53.)
The situation here is indistinguishable from that in Harden, supra, 81 Cal.App.5th 45. A jury found Harden guilty of first degree murder in 2001 pursuant to an essentially identical version of CALJIC No. 8.10; the Harden jury also was not "asked to indicate whether the basis [for its verdict] was malice aforethought or felony murder." (Id. at pp. 52-53.) The trial court denied Harden's section 1172.6 petition by relying, like the court here, on the factual summary in the prior opinion affirming her conviction. (Id. at p. 49.) On appeal, the Fourth District, Division One, affirmed on the alternative basis that the jury instructions and verdict forms alone established as a matter of law that the jury found Harden guilty as an actual killer. (Id. at pp. 52-56.)
The version of CALJIC 8.10 used in the trial in Harden's case stated that" '[e]very person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of a robbery or burglary, is guilty of the crime of murder.'" (Harden, supra, 81 Cal.App.5th at pp. 52-53, quoting CALJIC (6th ed. 1996) No. 8.10.)
Pierce attempts to distinguish Harden by noting that the court there also relied on an instruction regarding special circumstances (robbery-murder and burglary-murder), whereas the prosecution here alleged no special circumstances, and the jury there found that Harden "personally inflicted great bodily injury" (Harden, supra, 81 Cal.App.5th at p. 55). But we agree with the Attorney General that those findings, made pursuant to instructions not given here, merely bolstered a conclusion fully justified by CALJIC No. 8.10, which was given here. The Harden court began its discussion of CALJIC No 8.10 with "First and foremost," and concluded it with "Thus, Harden's murder conviction necessarily means the jury determined she actually killed [the victim]." (81 Cal.App.5th at pp. 54-55.) It began its discussion of the other instructions with "Moreover, . . . ." (Id. at p. 55.) The findings pursuant to those additional instructions were not necessary to the holding.
The instruction in Harden stated," 'If you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true.'" (Harden, supra, 81 Cal.App.5th at pp. 53-54, quoting CALJIC No. 8.80.1, see id. at p. 55 & fn. 8.)
Pierce also cites People v. Lopez (2022) 78 Cal.App.5th 1 (Lopez), in which the Second Appellant District reversed an order denying a section 1172.6 petition at the prima facie stage. In that case the jury had been instructed under CALCRIM No. 540A that to find the defendant guilty of felony murder, the jury had to conclude that, while committing robbery, he "caused the death of another person," which was not necessarily the same as having been the actual killer. As the Harden court noted in distinguishing that case, "the Lopez court concluded that the record did not conclusively establish that the jury found the defendant personally killed the victim." (Harden, supra, 81 Cal.App.5th at p. 57.) In this case the trial court gave CALJIC No. 8.10, as did the trial court in Harden, and did not give any instruction referring to an "act that caused death," so the jury could have found Pierce guilty of murder only if it found that he actually killed the victim.
The Lopez court cited the example of People v. Garcia (2020) 46 Cal.App.5th 123, 151, which held that the term "actual killer" as used in a special-circumstance instruction "means someone who personally killed the victim and does not necessarily mean a person who caused the victim's death." (Lopez, supra, 78 Cal.App.5th at p. 18.) Garcia involved a home-invasion robbery in which one defendant handed a roll of duct tape to another, who taped shut the victim's mouth, causing him to suffocate. (Garcia, supra, at pp. 134-135, 145.) On those facts, the defendant who provided the roll of tape" 'committed an act that caused the death of another person'" in the sense of the CALCRIM instruction, yet was not an "actual killer" for purposes of the special circumstance. (Lopez, supra, at pp. 18-19 [discussing Garcia].)
Disposition The order denying Pierce's petition for relief pursuant to Penal Code section 1172.6 is affirmed.
WE CONCUR: STREETER, J. BROWN, J.