Opinion
A158259
06-29-2021
THE PEOPLE, Plaintiff and Respondent, v. DEMARCUS RALLS, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 146000A
STREETER, J.
DeMarcus Ralls appeals from the denial of his petition for resentencing under Penal Code section 1170.95, a provision enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which altered liability for murder under the theories of felony murder and the natural and probable consequences doctrine.
Undesignated statutory references are to the Penal Code.
Ralls's appellate counsel asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. After Ralls filed a brief on his own behalf, we asked his counsel and the Attorney General to submit briefs addressing whether the trial court erred by denying Ralls's petition without appointing counsel. We conclude any error was harmless because the jury instructions and findings at Ralls's trial establish he is ineligible for relief under section 1170.95 as a matter of law. We therefore affirm.
I. BACKGROUND
In 2006, a jury convicted Ralls of numerous offenses stemming from a crime spree, including three counts of first degree murder and one count of second degree murder (§§ 187, subd. (a), 189, subds. (a)-(b)). (People v. Ralls (May 14, 2009, A115775) [nonpub. opn.] (Ralls I).) He was sentenced to life imprisonment without the possibility of parole, plus additional indeterminate and determinate terms. (Ibid.) In a 2009 unpublished opinion, we affirmed Ralls's convictions but reversed for correction of the sentences on three of the nonhomicide counts. (Ralls I, supra, A115775.)
We grant the request of both parties that we take judicial notice of the record in Ralls's direct appeal, No. A115775. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
The murder convictions were for the second degree murder of Douglas Ware (count 8) and the first degree murders of Keith Mackey Harris (count 9), Jerry Duckworth (count 10), and Sunny Thach (count 29). (Ralls I, supra, A115775.) As we summarized in our opinion on direct appeal, the prosecution's theory was that Ralls directly aided and abetted the murders of Ware, Harris, and Duckworth. (Ibid.)
As to Ware's murder, Ralls, who was seated in the front passenger seat of a car, got out and let two armed men get out of the back seat; one of those men fired the shots that killed Ware. (Ralls I, supra, A115775.) Based on the description of this shooting in our opinion on direct appeal, it appears this was a two-door car. We stated: “During closing argument, the prosecutor argued that Ralls was guilty of aiding and abetting the first degree murder of Ware, even though he did not fire the weapon that killed the victim. Knowing that they were going to shoot into a crowd of people, Ralls got out of the car, lifted his seat out of the way and let the shooters out.” (Ibid., italics added.)
Harris and Duckworth were killed in a different incident when multiple gunmen, including Ralls, fired into an occupied apartment. (Ralls I, supra, A115775.) Evidence showed the bullets that killed Harris and Duckworth were fired from a gun used by one of the other assailants, not the one used by Ralls. (Ibid.) Finally, as to the murder of Thach (which we did not discuss in detail in Ralls I because Ralls did not challenge that conviction on appeal) (see ibid.), the jury's findings reflect that it concluded Ralls personally shot and killed Thach during a robbery.
The court instructed on general principles of aiding and abetting liability (CALCRIM No. 400), as well as the elements of direct aiding and abetting (CALCRIM No. 401), but did not instruct on the natural and probable consequences doctrine. (See Ralls I, supra, A115775.) As to murder, the court instructed on the elements of the crime, including malice aforethought, and the additional facts needed to prove first degree murder (CALCRIM Nos. 520, 521). The court explained Ralls had been prosecuted for first degree murder under two theories: (1) as to each of the four murder charges (counts 8, 9, 10, and 29), a theory that the murder was willful, deliberate, and premeditated (CALCRIM No. 521); and (2) as to count 29 only (the murder of Thach), a theory of first degree felony murder, i.e., that the murder was committed during a robbery or attempted robbery (CALCRIM Nos. 540A, 540B). No instruction was given on second degree felony murder.
Here, the court's general instruction on aiding and abetting liability (CALCRIM No. 400) included a statement that, “[u]nder some specific circumstances, ” evidence that a defendant aided and abetted one crime may support their conviction of “other crimes that occurred during the commission of the first crime.” But the court did not give the substantive instructions on the natural and probable consequences doctrine (CALCRIM Nos. 402, 403). “[U]nder the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the ‘natural and probable consequence' of the crime the accomplice aided and abetted (i.e., the nontarget offense).” (People v. Gentile (2020) 10 Cal.5th 830, 843 (Gentile).)
The jury found Ralls guilty of the second degree murder of Ware (count 8) and found he was armed with a firearm in connection with that offense (see § 12022, subd. (a)(1)). (Ralls I, supra, A115775.) As to the murders of Harris and Duckworth (counts 9 and 10), the jury found Ralls guilty of first degree murder and found he personally used a firearm and personally and intentionally discharged a firearm (see § 12022.53, subds. (b)-(c)). (See Ralls I, supra, A115775.)
Finally, the jury convicted Ralls of the first degree murder of Thach (count 29) and found true several firearm-use enhancement allegations, including that Ralls personally and intentionally discharged a firearm “which proximately caused great bodily injury and death to Sunny Thach” (see § 12022.53, subd. (d)). Also, as to Thach, the jury found true a special circumstance allegation that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)(A)). The jury also found true a special circumstance allegation that Ralls was convicted of multiple counts of murder (§ 190.2, subd. (a)(3)).
In April 2019, Ralls, proceeding in propria persona, filed in the trial court a form petition for resentencing under section 1170.95. The petition did not distinguish among Ralls's four murder convictions. Ralls checked boxes stating that a charging document was filed against him allowing the prosecution to proceed under a theory of felony murder or the natural and probable consequences doctrine; he was convicted at trial of first or second degree murder under a theory of felony murder or murder under the natural and probable consequences doctrine; and he could not now be convicted of murder in light of Senate Bill 1437's changes to the law.
Ralls also checked boxes on the form stating he was convicted of first degree felony murder and could not now be convicted in light of changes to section 189 because he was not the actual killer; he did not, with the intent to kill, aid and abet the commission of first degree murder; and he was not a major participant in the underlying felony or did not act with reckless indifference to human life. In addition, he checked a box indicating that he was convicted of second degree felony murder or second degree murder on a natural and probable consequences theory. Finally, he checked a box stating, “I request that this court appoint counsel for me during this re-sentencing process.” He did not submit any materials from the record of conviction.
In July 2019, the trial court denied the petition in a written order, without holding a hearing. The court stated it did not reach Ralls's request for counsel because Ralls is ineligible for resentencing as a matter of law. Deriving its summary of the facts and procedural history partly from this court's 2009 opinion affirming Ralls's convictions (Ralls I, supra, A115775), the court concluded Ralls is ineligible for resentencing under section 1170.95 because the jury found he actually killed Thach (count 29), and he was convicted as a direct aider and abettor of the men who murdered Ware (count 8), Harris (count 9), and Duckworth (count 10). (See §§ 188, subd. (a)(3), 189, subd. (e).) The court concluded Ralls had not made “ ‘a prima facie showing that [he] falls within the provisions of' section 1170.95.” (See § 1170.95, subd. (c).)
Ralls filed a request for an extension of time to respond to the trial court's ruling, which the court construed as a request for reconsideration. The court denied the request.
Ralls appealed, and we have received his appellate counsel's Wende brief, Ralls's brief on his own behalf, and supplemental briefs from his appellate counsel and the Attorney General.
II. DISCUSSION
A. Availability of Wende Review
We note initially that Wende review is constitutionally required only in the first appeal as a matter of right from a criminal conviction. (People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct. 14, 2020, S264278 [Wende does not apply to an appeal from the denial of postconviction relief]; People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870 [following Cole].) As explained in Cole: “Wende set forth the procedures to be followed during the defendant's ‘first appeal of right'-that is, during the direct appeal of his judgment of conviction and sentence.” (Cole, supra, at p. 1031; People v. Freeman (2021) 61 Cal.App.5th 126, 133 [Wende procedures are inapplicable to appeal from an order revoking post-release community supervision, as such an appeal is not a direct appeal from a judgment of conviction].) We will apply the reasoning of Cole, Figueras, and Freeman here, but we will exercise our discretion to address the merits briefly.
In People v. Delgadillo, review granted February 17, 2021, S266305, our Supreme Court granted review as to the following issues: “(1) What procedures must appointed counsel and the Courts of Appeal follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit? (2) Are defendants entitled to notice of these procedures?”
In addition, we agree with Cole and Freeman that, if the defendant files a supplemental brief (as Ralls did here), we should evaluate arguments presented in the brief and issue an opinion disposing of the trial court's order on the merits. (People v. Cole, supra, 52 Cal.App.5th at p. 1040, review granted; People v. Freeman, supra, 61 Cal.App.5th at p. 134.) We therefore will also address the arguments Ralls presents in his own brief.
B. Senate Bill 1437
Senate Bill 1437 “ ‘amend[ed] 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, § l, subd. (f).)” (Gentile, supra, 10 Cal.5th at p. 842.)
As outlined by our Supreme Court in Gentile, Senate Bill 1437 furthered that purpose by adding three provisions to the Penal Code: “First, to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): ‘A participant in the perpetration or attempted perpetration of [qualifying felonies] 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.'....
“Second, to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3)...: ‘Except [for felony-murder liability] 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.'
“Third, Senate Bill 1437 added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above.” (Gentile, supra, 10 Cal.5th at pp. 842-843.)
Subdivision (a) of section 1170.95 specifies the conditions that provide a basis for relief under the statute: “A person convicted of felony murder or murder under a natural and probable consequences theory may 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 when all of the following conditions apply: [¶] (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. [¶] (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.”
If a petition containing certain required information is filed (see § 1170.95, subd. (b)), the trial court must then determine whether a petitioner has made a sufficient prima facie showing to proceed to an evidentiary hearing. Subdivision (c) of section 1170.95 provides: “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['s] 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.”
If the court issues an order to show cause, the court must hold an evidentiary hearing to determine whether the petitioner is entitled to relief. (§ 1170.95, subd. (d).) At that hearing, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (Id., subd. (d)(3).)
D. Any Error in Failing To Appoint Counsel Was Harmless Because Ralls Is Ineligible for Relief as a Matter of Law
The parties dispute whether the trial court erred by summarily denying Ralls's petition under section 1170.95 without appointing counsel, and if so, whether the error requires reversal.
1. A Claimed Error in Failing To Appoint Counsel Under Section 1170.95, Subdivision (c) is Subject to Harmless-Error Review
Our Supreme Court has granted review to decide when the right to counsel arises under section 1170.95, subdivision (c). (People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598, argued May 19, 2021.) The Courts of Appeal have reached differing conclusions on this point. Some have held that section 1170.95, subdivision (c) provides for two prima facie reviews by the trial court, and that the first such review (which may be dispositive) may be conducted before the court appoints counsel for the petitioner. (E.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 328-329, 332-333, review granted Mar. 18, 2020, S260493 (Verdugo).) In contrast, Division One of this court has concluded that section 1170.95, subdivision (c) provides for just one prima facie review and requires the appointment of counsel upon the filing of a facially sufficient petition that requests appointment of counsel. (People v. Cooper (2020) 54 Cal.App.5th 106, 112-113, 115, 118, 123, review granted Nov. 10, 2020, S264684.)
The present appeal does not require us to decide which of these views to adopt. Even assuming Cooper states the correct rule and the trial court here erred by denying Ralls's petition without appointing counsel, the error was harmless, because the record of Ralls's conviction establishes he is ineligible for relief under section 1170.95 as a matter of law. In People v. Daniel (2020) 57 Cal.App.5th 666, 674-676, review granted February 24, 2021, S266336 (Daniel), the same Division One panel that decided Cooper held that an error in denying a resentencing petition without appointing counsel under section 1170.95, subdivision (c) is subject to harmless-error analysis under the test for state law error set forth in People v. Watson (1956) 46 Cal.2d 818, 836. The Daniel court held that a petitioner's right to counsel under section 1170.95, subdivision (c) is not protected by the federal Constitution, and that “a defendant like Daniel 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.' ” (Daniel, supra, at p. 676.)
Ralls contends that Daniel was incorrectly decided, and that the denial of a resentencing petition at the section 1170.95, subdivision (c) stage without appointing counsel violates federal due process protections and is per se reversible error. Analogizing this early stage of a section 1170.95 proceeding to a preliminary hearing in a criminal prosecution, he argues “assistance of counsel is required [by the federal Constitution] to aid petitioner in showing that his case potentially is entitled to constitutional relief, ” i.e., to help the petitioner develop a record that may allow him to proceed to an evidentiary hearing under subdivision (d) of the statute. (Italics added.)
We disagree. As outlined in Daniel, due process may require the appointment of counsel in the context of a defendant's collateral attack on a judgment, but “ ‘[t]hat right is a limited one... and only kicks in once the defendant makes a prima facie showing of entitlement [to] postconviction relief.' ” (Daniel, supra, 57 Cal.App.5th at p. 675, review granted.) This principle, at best, “support[s] an argument that structural error may occur when, after an order to show cause issues, a defendant is denied counsel at a hearing under section 1170.95, subdivision (d).” (Ibid.) In contrast, the right to counsel at the subdivision (c) stage is purely a state statutory right, and a violation of that right is not structural error. (Daniel, supra, at p. 675.)
2. Ralls Is Ineligible for Section 1170.95 Relief as a Matter of Law
A petitioner is ineligible for relief under section 1170.95 as a matter of law if the petitioner “was convicted on a ground that remains valid notwithstanding Senate Bill 1437's amendments to sections 188 and 189.” (Verdugo, supra, 44 Cal.App.5th at p. 330, review granted; accord, Daniel, supra, 57 Cal.App.5th at pp. 677-678, review granted [jury instructions may establish that petitioner was convicted under a valid theory of murder].) The record establishes that is the case for Ralls as to all four murder convictions.
Although the jury was instructed on direct aiding and abetting liability, it was not instructed on the natural and probable consequences doctrine. (See Ralls I, supra, A115775 [noting that the natural and probable consequences doctrine was not at issue in Ralls's trial].) And, as to the murders of Ware, Harris, and Duckworth (counts 8, 9, and 10), no felony-murder instruction was given. Accordingly, for those three counts, the instructions establish that Ralls is not “[a] person convicted of felony murder or murder under a natural and probable consequences theory, ” and he is therefore ineligible for relief as a matter of law. (§ 1170.95, subd. (a); see People v. Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481 [absence of jury instructions on felony murder or natural and probable consequences doctrine justified summary denial of petition].)
In defining implied malice, CALCRIM No. 520 (an instruction on the crime of murder that was given at Ralls's trial) mentions the concept of the “natural and probable consequence[s]” of a defendant's own act. That is distinct from the natural and probable consequences theory of vicarious liability that Senate Bill 1437 abolished as a basis for liability for murder. (Daniel, supra, 57 Cal.App.5th at p. 677, fn. 4, review granted.)
As to the murder of Thach (count 29), the jury was instructed on first degree felony murder (murder during a robbery) as one of two theories supporting first degree murder liability, along with the theory of premeditation. And the jury's true finding on the felony-murder-robbery special circumstance (§ 190.2, subd. (a)(17)(A)) in connection with this count suggests the jury did adopt the felony-murder theory (although it may also have found premeditation). But the jury's other findings establish that, even if the felony-murder theory was the sole basis for convicting Ralls of the first degree murder of Thach, Ralls was nevertheless convicted on a ground that remains valid after Senate Bill 1437's changes to sections 188 and 189. (Verdugo, supra, 44 Cal.App.5th at p. 330, review granted.)
Specifically, the jury found, as to the charged murder of Thach in count 29, that Ralls personally and intentionally discharged a firearm causing Thach's death (see § 12022.53, subd. (d)). The jury thus concluded that Ralls was the actual killer of Thach. Under section 189 as amended by Senate Bill 1437, felony murder remains a valid basis for a first degree murder conviction where the defendant is the actual killer. (§ 189, subds. (a), (e)(1); see § 188, subd. (a)(3); Verdugo, supra, 44 Cal.App.5th at p. 330, review granted [enhancement finding may establish petitioner is ineligible for relief].)
We note that, in People v. Offley (2020) 48 Cal.App.5th 588, 595, fn. 4, 597-598, where the jury was instructed on the natural and probable consequences doctrine but not felony murder, the Court of Appeal held an enhancement finding under section 12022.53, subdivision (d) (that the defendant personally discharged a firearm causing death) did not establish the defendant acted with express or implied malice, and therefore did not preclude relief under section 1170.95. It was possible the defendant there had been convicted on the basis of the natural and probable consequences doctrine, with no finding of malice. (Offley, supra, at p. 599.)
Here, in contrast, Ralls was convicted of first degree murder in count 29 on the basis of a felony-murder theory (and perhaps also a premeditation theory). As discussed, under sections 188 and 189 as amended, if a death occurs during a robbery, the actual killer is guilty of first degree felony murder without the need to prove he acted with express or implied malice. (§§ 188, subd. (a)(3) [“[e]xcept as stated in [§ 189, subd. (e)], ” malice is now required for a murder conviction], 189, subd. (e)(1) [actual killer is liable if death occurs during specified felony].) Accordingly, whatever it may or may not prove as to malice, the section 12022.53, subdivision (d) finding in connection with count 29 establishes Ralls was the actual killer of Thach and is ineligible as a matter of law for resentencing under section 1170.95.
Since the jury's firearm-enhancement finding on count 29 establishes Ralls is ineligible for relief, it is not necessary to consider whether the jury's true finding (in connection with the same count) on the felony-murder-robbery special circumstance in section 190.2, subdivision (a)(17)(A) has any impact on his ability to obtain section 1170.95 relief. (See People v. Secrease (2021) 63 Cal.App.5th 231, 235-236.)
Because Ralls is ineligible for section 1170.95 relief, any error in denying his petition before appointing counsel is harmless.
E. Ralls's Remaining Arguments Provide No Basis for Reversal
The remaining arguments presented by Ralls in his pro se supplemental brief, which relate to counts 8, 9, and 10 (the murders of Ware, Harris, and Duckworth), provide no basis for reversal. First, because no legally invalid theory of guilt was presented to the jury, the cases cited by Ralls addressing that situation-People v. Chiu (2014) 59 Cal.4th 155, 167 and In re Johnson (2016) 246 Cal.App.4th 1396, 1398, 1407-1408-are inapposite.
Ralls also states he is challenging count 11, the attempted murder of Michael Vassar, who was wounded in the same shooting in which Harris and Duckworth were killed. (See Ralls I, supra, A115775.) Ralls has forfeited this challenge. He did not seek relief as to count 11 in his section 1170.95 petition; the trial court noted that fact and did not address count 11. In any event, section 1170.95 does not provide resentencing relief for attempted murder convictions. (E.g., People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019, S258175.) And finally, because no instruction on the natural and probable consequences doctrine was given at Ralls's trial, his attempted murder conviction in count 11-like his murder convictions-is not based on that doctrine.
Ralls next contends the aiding and abetting instructions given at his trial (CALCRIM Nos. 400 and 401) were defective and did not require the jury to find he shared the same mental state as the direct perpetrators of the shootings. He also argues the evidence at trial was insufficient to support a finding that he had the requisite mental state. He states that, “[r]egardless of what [his coperpetrators] may have thought” before the victims were shot, “there is no evidence that” he, Ralls, “wanted to kill someone.”
We rejected the instructional-error argument in Ralls's direct appeal, concluding the instructions “properly required the jury to determine Ralls's guilt based on the combined acts of the participants and his own mens rea.” (Ralls I, supra, A115775.) Specifically, we noted that CALCRIM No. 401 (the instruction on direct aiding and abetting) “required that the defendant (1) knew that the perpetrator intended to commit murder or attempted murder and (2) intended to aid and abet the perpetrator in the commission of those offenses.” (Ralls I, supra, A115775.) The aiding and abetting instructions, in conjunction with the instructions on the mental state requirements for murder (including CALCRIM Nos. 520 and 521) adequately advised the jury that it had to find Ralls personally harbored the mental state of malice aforethought and (for first degree murder) premeditation and deliberation. (Ralls I, supra, A115775.)
More broadly, the challenges Ralls seeks to raise here provide no basis for relief under section 1170.95. As discussed, he is ineligible for relief under that statute because the record shows that, as to each count of murder, he was convicted on grounds that remain valid after Senate Bill 1437's amendments to sections 188 and 189. (Verdugo, supra, 44 Cal.App.5th at p. 330, review granted.)
III. DISPOSITION
The order denying Ralls's section 1170.95 petition is affirmed.
WE CONCUR: POLLAK, P. J., TUCHER, J.