Opinion
G059799
02-07-2022
THE PEOPLE, Plaintiff and Respondent, v. CHARLES MICHAEL REYNOLDS, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Cohen Butler and James H. Flaherty III, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 08NF4115, Gary S. Paer, Judge. Reversed and remanded with directions.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Cohen Butler and James H. Flaherty III, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
ZELON, J. [*]
Defendant Charles Michael Reynolds was convicted by a jury of felony murder and related offenses. Defendant's subsequent Penal Code section 1170.95 petition to vacate his murder conviction and for resentencing was denied because the trial court determined defendant was ineligible for resentencing as a matter of law, citing the jury's robbery-murder and street gang special circumstance findings. Defendant contends these special circumstance findings, which were made before the Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, do not render defendant ineligible for resentencing as a matter of law. We agree, and accordingly vacate the trial court's order denying defendant's petition and remand for a hearing on the merits.
PROCEDURAL HISTORY
In 2011, a jury convicted defendant of first degree murder, attempted murder, two counts of second degree robbery, and street terrorism. The jury also found true several special circumstance allegations, including a robbery-murder special circumstance and a street gang special circumstance. We affirmed the conviction on appeal. (People v. Reynolds (Sept. 5, 2013, G046212) [nonpub. opn.] (Reynolds I).)
In 2019, defendant filed a Penal Code section 1170.95 petition. Defendant averred, "I could not now be convicted of 1 st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019."
All further statutory references are to the Penal Code.
The trial court initially denied the petition, concluding section 1170.95 was unconstitutional. We reversed this decision on appeal, remanding for further proceedings. (People v. Reynolds (Sept. 21, 2020, G058582) [nonpub. opn.] (Reynolds II).)
On remand, the trial court denied the petition for failure to state a prima facie case for resentencing, concluding defendant could not prevail under section 1170.95 because the jury found true a robbery-murder special circumstance and a street gang special circumstance. Defendant timely appealed.
DISCUSSION
Defendant argues neither the robbery-murder special circumstance finding nor the street gang special circumstance finding are sufficient to render him ineligible for resentencing as a matter of law. Defendant contends the robbery-murder special circumstance finding is insufficient because it was rendered before the Supreme Court's decisions in People v. Banks, supra, 61 Cal.4th 788, and People v. Clark, supra, 63 Cal.4th 522, which changed the standard for a "major participant" in an underlying felony. As for the street gang special circumstance, defendant argues this finding is also insufficient because, by its terms, it permitted the jury to find it true even if defendant merely aided and abetted the murder, which could be proven solely by virtue of his status as a coconspirator in an uncharged conspiracy to commit robbery.
The Attorney General contends (1) defendant cannot raise Banks and Clark now, and must separately raise them through a habeas corpus petition; (2) even if defendant can raise Banks and Clark, the trial court and this court can both independently perform this analysis at the prima facie analysis stage, and upon doing so, should conclude that defendant's actions meet the standard under Banks and Clark for a major participant acting with reckless indifference to human life; and (3) the trial court's failure to conduct this analysis should be excused as harmless error. The Attorney General does not rely upon or directly address the street gang special circumstance.
In order to be resentenced "[pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: '(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, subds. (a)(1)-(3); see also § 1170.95 subd. (b)(1)(A).)" (People v. Lewis (2021) 11 Cal.5th 952, 959-960.) "Where the petition complies with subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief." (Id. at p. 960.) "Like the analogous prima facie inquiry in habeas corpus proceedings, '"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. If so, the court must issue an order to show cause."'" (Id. at p. 971.) In making this determination, the trial court may review and rely upon the record of conviction, including, as appropriate, any appellate opinion in the underlying case. (Id. at pp. 971-972.) However, the court may not at this stage "engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
The changes to sections 188 and 189 discussed in section 1170.95 eliminated murder liability for any 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." (§§ 188, 189, as amended by Stats. 2018, ch. 1015, § 1, subd. (f).) To properly deny a defendant's petition, the trial court must conclude the record of conviction demonstrates as a matter of law: (1) defendant was the actual killer; (2) defendant acted with the intent to kill; or (3) defendant was a major participant in the underlying felony and acted with reckless indifference to human life.
1. The Robbery-Murder Special Circumstance
The jury found true a robbery-murder special circumstance allegation against defendant. The jury instruction required the jury to find, among other things, that the defendant either intended to kill the victim, or was a major participant in the underlying felony and acted with reckless indifference to human life. The Attorney General contends, and the trial court concluded, that this finding tracked precisely with the new requirements for a conviction of murder under the amended sections 188 and 189.
Before this court, defendant argues that, in 2011, when this instruction was given, the words "major participant" carried a different legal significance and imposed a lesser burden on the prosecution than they do now, after the Supreme Court's decisions in Banks and Clark. In response, the Attorney General contends any challenge to the special circumstance finding based on Banks and Clark must be made through a petition for habeas corpus.
There is a present split of authority on this issue, and the Supreme Court has granted review of several cases in which the issue was raised but has not yet issued a decision. (People v. Harris (2021) 60 Cal.App.5th 939, review granted Apr. 28, 2021, S267802 (Harris); People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954 (York); People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith); People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres); People v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978 (Murillo); People v. Galvan (2020) 52 Cal.App.5th 1134, review granted Oct. 14, 2020, S264284 (Galvan); People v. Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14, 2020, S264033 (Gomez).)
Our court addressed this issue in People v. Gonzalez (2021) 65 Cal.App.5th 420, 429-432, review granted August 18, 2021, S269792 (Gonzalez). We agreed with the Harris, York, Smith, and Torres courts that a pre-Banks-and-Clark robbery-murder special circumstance finding was not sufficient to show the defendant is ineligible for section 1170.95 resentencing as a matter of law, and that no habeas corpus petition is necessary for such a defendant's 1170.95 petition to survive prima facie review and proceed to an evidentiary hearing. (Gonzalez, supra, 65 Cal.App.5th at p. 430-431.) We disagreed with the Gomez, Galvan, and Murillo courts, which held otherwise. (Ibid.) While the Supreme Court has granted review of our decision in Gonzalez, depriving it of present precedential value because of California Rules of Court, Rule 8.1115, subdivision (e)(1), we continue to find its analysis persuasive, and adopt its reasoning and conclusions.
For the same reasons, we also reject the Attorney General's argument that we should conduct Banks and Clark analysis for the first time in connection with this appeal, under the guise of harmless error analysis. As we said in Gonzalez, "any evidence supporting the robbery special circumstance finding has never been reviewed under the Banks and Clark standards. Because the trial court may not engage in factfinding at this early stage, any analysis under Banks and Clark [would be] improper without first conducting an evidentiary hearing pursuant to section 1170.95, subdivision (d)." (Gonzalez, supra, 65 Cal.App.5th at p. 431.)
2. The Street Gang Special Circumstance
In addition to the robbery-murder special circumstance, the jury also found true a street gang special circumstance allegation against defendant. The relevant jury instruction, required the jury to find, among other things, that "The defendant intentionally killed or aided and abetted another in the killing of Armand Jones [the victim]." The trial court concluded this finding satisfied the intent requirement for a conviction of murder under amended sections 188 and 189.
Defendant contends other jury instructions on the definitions of aiding and abetting, uncharged conspiracy, liability for coconspirators' acts, and felony murder allowed the jury to find true this special circumstance without finding defendant himself intended to kill the victim. While the Attorney General does not address this argument, we evaluate it in light of our determination to remand this matter.
This issue turns on the meaning of the portion of the jury instruction requiring a finding that the defendant intentionally killed or "aided and abetted another" in the killing. If "aided and abetted another" could only mean direct aiding and abetting of murder, as the trial court concluded, then the finding would bar resentencing, because direct aiding and abetting of a murder requires a finding of intent to kill. However, the jury was instructed on a theory of aiding and abetting that incorporated the doctrines of accomplice liability, coconspirator liability, and natural and probable consequences as they existed at the time. As a result, the finding in this case does not bar resentencing as a matter of law, as the jury was not required to find intent to kill.
Moreover, in closing argument, the prosecutor said "When this murder took place, were each of those elements established? Well, we know that Mr. Jones [the victim] was either shot by the defendant or somebody with him that he was aiding and abetting during the robbery." (Italics added) The prosecutor did not argue to the jury that it must find intent to kill to find true the street gang special circumstance, but instead allowed the jury reasonably to conclude that it could find that defendant aided and abetted the shooter during the robbery, without the intent to kill. If the jury could so find, resentencing under section 1170.95 is not barred as a matter of law.
DISPOSITION
The trial court's postjudgment order denying defendant's petition for resentencing is reversed. The matter is remanded to the court for further proceedings on the merits of defendant's petition under section 1170.95.
WE CONCUR: MOORE, ACTING P. J., FYBEL, J.
[*] Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.