Opinion
C093177
10-19-2021
THE PEOPLE, Plaintiff and Respondent, v. KENNETH DUANE ROY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 076386)
Blease, Acting P. J.
Defendant Kenneth Duane Roy appeals orders denying his petition for resentencing under Penal Code section 1170.95. Defendant argues the trial court erred by denying his section 1170.95 petition after conducting a factual analysis at the prima facie stage; the People concede the error. For the reasons stated below, we accept the People's concession. We will reverse and direct the trial court to issue an order to show cause under section 1170.95, subdivision (c).
Undesignated statutory references are to the Penal Code.
I
LEGAL BACKGROUND
"Under prior California law, a defendant who aided and abetted a crime, the natural and probable consequence of which was murder, could be convicted not only of the target crime but also of the resulting murder. (People v. Chiu (2014) 59 Cal.4th 155, 161.) This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed' "for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion." [Citations.]' (Id. at pp. 164-165, italics omitted.)" (In re R.G. (2019) 35 Cal.App.5th 141, 144.)
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.). Senate Bill No. 1437 was enacted to "amend 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).) Effective January 1, 2019, the legislation amended sections 188 and 189 and added section 1170.95 to the Penal Code.
Senate Bill No. 1437 "redefined 'malice' in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer 'be imputed to a person based solely on [his or her] participation in a crime.' (§ 188, subd. (a)(3).)" (In re R.G., supra, 35 Cal.App.5th at p. 144.)
The new section 1170.95 permits those convicted of felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts where: "(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." (§ 1170.95, subd. (a).)
Once a complete petition is filed, section 1170.95, subdivision (c) sets out the trial court's responsibilities: "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. . . . 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."
II
FACTUAL AND PROCEDURAL BACKGROUND
In 1983, a jury convicted appellant of the first degree murder of A.M. (§ 187- count II), robbery (§ 211-count IV), and possessing a knife during these offenses (§ 12022, subd. (b)-counts II & IV). (People v. Roy (1989) 207 Cal.App.3d 642, 644 (Roy).) In addition, the jury convicted him of the second degree murder of J.C. (§ 187- count I) and found he personally used a knife during that killing (§ 12022, subd. (b)), but acquitted appellant of J.C.'s robbery (§ 211-count III). (Roy, at p. 644.) The jury returned true findings on special circumstances that were alleged for felony murder as to A.M. (§ 190.2, subd. (a)(17)(i)) and multiple murder (§ 190.2, subd. (a)(3)). (Roy, at p. 644.)
The statement of facts is taken from our prior opinion in defendant's direct appeal.
"On September 13, 1981, defendant and a friend, Jesse McHargue, were hitchhiking near Gridley. In Gridley, they went to a liquor store where they met the victims, [J.C.] and [A.M.]. The men struck up a conversation and drank beer together near [A.M.]'s truck. [¶]
"At approximately 9:00 p.m. that evening, Gridley Police Officer Stan Massey saw [A.M.]'s truck backing up near the liquor store, almost hitting a utility pole and some signs. He stopped the truck to talk to the driver, McHargue. The four men were occupants. Defendant and McHargue appeared to be sober, but neither had a driver's license. Because [A.M.] and [J.C.] were visibly intoxicated, Officer Massey advised all four men not to drive. Massey noticed two backpacks in the bed of the truck. [¶]
"At approximately 11:15 p.m. that same night, as Marie Koehler Smart drove through the intersection of Block Road and Evans-Reimer Road near Gridley, she noticed two silhouettes and also saw a truck in the ditch. Smart turned her car around so it was heading south on Block Road and then stopped with her high beams illuminating the area where the truck was resting. She saw two men standing on the ditch bank to the left side of the truck. When she asked if they needed help, the two men approached the car. One of the men, later identified as McHargue, went up to the car window and told Smart they had already summoned help. As Smart made a U-turn to leave, she noticed a man lying on the ground to the left side of the truck at the location she had first observed McHargue and his companion. The man was shirtless and appeared to be hurt; he moved his hands 'up towards his stomach, then back down.' Smart saw McHargue and the other man walk back over to where the man was lying and stand over him. [¶]
"Early the next morning, officers found [A.M.]'s truck 'nosed' into a six-foot-deep ditch. Although there were 12 inches of water in the ditch, no part of the truck was submerged because both ends rested on the opposite walls of the steeply sloped ditch. The front end rested against the south bank. Fifty-feet-long skid marks were found on 'Block Road south.' [J.C.]'s body was found in an empty field on the south side of the ditch in front of the pickup. His clothing was wet and muddy. One of his pants pockets was turned inside out and his shirt was open. A dime was found about four feet from his foot. [A.M.]'s body was found in the ditch partially under the truck. His body was partly submerged in the water. The only clothing remaining on his body was a pair of pants pulled down to his thighs. Both men had stab wounds. [¶]
"Blood was found on the blackberry bushes on the embankment directly behind the truck above the spot where [A.M.]'s body was discovered. A wallet and some papers were found scattered 10 to 15 feet down the road, east of the truck. The wallet and papers were dry. [A.M.]'s shirt was later found in the ditch. [¶]
"After the bodies were discovered, Officers Massey and Dustin commenced a search for defendant and McHargue and found them in a restaurant. Both men were carrying buck knives. McHargue's pants were completely wet, either from the thighs or the waist down. Defendant's pantlegs were wet to the calf. After they had been informed of their Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86]), defendant and McHargue authorized a search of their backpacks. In McHargue's backpack, [A.M.]'s water-soaked moccasins and vest were found. Defendant's backpack and its contents were also wet. [¶]
"Defendant at first denied being in the truck with [A.M.] and [J.C.], claiming he and McHargue left the two men at the liquor store. During questioning, he admitted being in the truck when McHargue lost control while making a turn. Defendant said that after he and [J.C.] left the truck, [J.C.] began hitting him; defendant then stabbed [J.C.] once in the chest. Defendant said he then told [J.C.] he 'was sorry he had to do that.' He retrieved his backpack and crossed the ditch to the place where McHargue was standing. At that point, he said, [A.M.] was already in the ditch. [¶]
"After defendant's arrest, [A.M.]'s watch was found among defendant's personal belongings. Defendant also had $170 in his wallet. [¶]
"The medical examiner testified that [J.C.] died from a single stab wound to the chest and that [A.M.] had multiple stab wounds and scratches on his body and had drowned. [A.M.] was stabbed in the left chest, in the upper left portion of his abdomen, and five times on his lower left flank. The cause of death was either the stab wound to the chest or the drowning. The examiner also testified that five wounds to the lower flank were inflicted after death. [¶]
"Sidney Hall, a county jail inmate with defendant, testified that defendant told him [J.C.] and [A.M.] 'got mad' after McHargue wrecked the truck when he took a turn too quickly and ended up in the ditch. He admitted stabbing [J.C.] after [J.C.] hit him in the head with a stick. Defendant said that [A.M.] and McHargue were also fighting and, seeing that McHargue 'was getting the worst of it,' defendant went over to help him. Defendant did not say in what manner. [¶]
"Another jail inmate, William Hudspeth, testified that defendant admitted to him that he and McHargue planned to rob and kill both [J.C.] and [A.M.], that they 'went on with their plans' and killed [J.C.] first because he was the 'easy one.' Defendant then assisted McHargue who was having a 'hard time' with [A.M.]. Hudspeth testified that defendant admitted coming up from behind, stabbing [A.M.] in the lower part of the body, pulling him off McHargue, stabbing him again in the abdomen, and then shoving his head in the water to make certain he was dead. Defendant said that they took between $150 and $160 from the two men; as well as [A.M.]'s vest. After the incident, they got in the pickup and left. [¶]
"Evidence was presented by the prosecution that a small stain of dried blood found on the base of the blade of defendant's knife was ABO type A blood, matching that of [A.M]'s blood type. [J.C.]'s blood type is ABO type O. [¶]
"The defense introduced evidence that defendant's blood type is also ABO type A. Defendant's witness, a forensic serologist, testified that if the antigens from the saliva or perspiration of an individual with one blood type are mixed with the blood of another, an incorrect reading of the blood type may result." (Roy, supra, 207 Cal.App.3d at pp. 645-647.)
On January 5, 1984, the trial court sentenced defendant to 46 years to life in prison, calculated as the five-year upper term on the robbery, life imprisonment on the A.M. murder plus one year for the knife-possession enhancement, and 15 years to life on the J.C. murder. (Roy, supra, 207 Cal.App.3d at p. 644.) The special circumstance findings were reversed on appeal due to instructional error. (Id. at pp. 644, 656.) On remand, the prosecution elected not to retry the special circumstance allegations. Defendant was resentenced to a minimum term of 46 years to life: 25 years to life on the A.M. murder, 15 years to life on the J.C. murder, five years for the robbery and one year for the knife-use enhancement.
Defendant's Section 1170.95 Petition
On May 17, 2018, defendant filed a petition for resentencing under section 1170.95 and requested the appointment of counsel. The court appointed counsel to represent defendant. Counsel filed a petition for resentencing on March 27, 2019.
The prosecution filed an informal response on August 19, 2019. Supplemental briefs were filed by counsel for defendant. The brief filed on September 3, 2019 disputed that defendant was a major participant in the robbery who acted with reckless indifference to human life and raised a section 1111.5 objection to the prosecutor's reliance on preliminary hearing testimony of two jail house informants that was allegedly uncorroborated. The brief filed on October 23, 2020 argued that the jury's failure to find that defendant used a knife in connection with [A.M.]'s murder proved that they found he was not the actual killer. It also contended defendant did not aid and abet [A.M.]'s murder or act with reckless indifference to [A.M.]'s life.
On October 27, 2020, the prosecutor filed supplemental points and authorities, arguing that defendant was not entitled to relief under section 1170.95 because this court's 1989 opinion proved beyond a reasonable doubt that defendant aided and abetted the murder of [A.M.] and or was a major participant and acted with reckless indifference in the murder of [A.M.]. The prosecutor urged the superior court to review, determine credibility and weigh the evidence that was presented at trial and summarized in this court's 1989 opinion on appeal.
On October 30, 2020, the trial court held a hearing on whether defendant had made a prima facie showing for relief under section 1170.95. On November 20, 2020, the court issued a written ruling denying defendant's request for an order to show cause. The trial court noted numerous "factual possibilities and inferences" to be drawn from the evidence. The trial court also "consider[ed] the many inferences," "many" of which were "at times contradictory." Resolving these conflicting inferences, the trial court drew the "conclusion that the Defendant was the actual killer of [A.M.] (by drow[n]ing), or that Defendant directly aided and abetted McHargue in the killing, or 'was a major participant in the underlying felony and acted with reckless indifference to human life.' "
Defendant filed a notice of appeal.
III
DISCUSSION
Defendant contends he made a prima facie showing for relief and his petition contained the necessary allegations to require the issuance of an order to show cause. He also contends the court erred in applying a substantial evidence standard of review to determine he was not entitled to relief. The People agree defendant made a prima facie showing. The People do not concede, however, that defendant will eventually be entitled to relief. The People contend the trial court's "written ruling does not expressly state whether it is applying a substantial evidence or beyond a reasonable doubt standard." The People further note that the California Supreme Court is currently deciding whether the People meet their burden of establishing a petitioner's ineligibility for resentencing under section 1170.95, subdivision (d)(3) by presenting substantial evidence of the petitioner's liability for murder under amended sections 188 and 189, or must prove every element of liability for murder under the amended statutes beyond a reasonable doubt. (People v. Duke (2020) 55 Cal.App.5th 113, review granted on Jan. 13, 2021, S265309.)
We need not reach the issue of whether the trial court applied the proper standard of review because we agree with defendant and the People that the trial court must issue an order to show cause and conduct further proceedings.
If a petitioner files a facially sufficient petition, the trial court shall appoint counsel, if requested, and determine whether the petitioner has made a prima facie case for relief under section 1170.95, subdivision (c). (People v. Lewis (2021) 11 Cal.5th 952, 960-961 (Lewis).) In making this decision, the court should accept the petitioner's allegations as true and "should not make credibility determinations or engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 974.) The court may, however, consider the record of the petitioner's conviction and," 'if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Id. at p. 971.)
"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 [(OSC)]." (§ 1170.95, subd. (c).) In that event, the court must hold a hearing within 60 days to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d)(1).) At this third and final stage of the proceeding, the prosecution has the burden of proving "beyond a reasonable doubt[ ] that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3).)
"Whether a petitioner has made the requisite prima facie showing [under section 1170.95] is a predominantly legal question," which we review de novo. (People v. Garcia (2020) 57 Cal.App.5th 100, 110, review granted Feb. 10, 2021, S265692; accord, People v. Duchine (2021) 60 Cal.App.5th 798, 811.)
Here, defendant filed a facially sufficient petition alleging the essential facts required for relief under section 1170.95, subdivision (a). The court appointed counsel for defendant and received a response from the People and a reply from defendant. An examination of the record of conviction and briefing by counsel did not indisputably show as a matter of law that defendant could not be convicted of first degree murder under the amended versions of sections 188 and 189. But to the extent the trial court ruled this court's opinion and the preliminary hearing transcript showed that defendant was the actual killer, aided and abetted A.M.'s murder with intent to kill, or was a major participant who acted with reckless indifference, its resolution of disputed facts was not appropriate at this preliminary stage. The trial court erred. "While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. 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."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Lewis, supra, 11 Cal.5th at p. 971.)
Here, the trial court should have issued an order to show cause and reserved its evaluation of the evidence for the next phase of the process, at which point the parties could rely on the record of conviction or offer additional evidence at a hearing. (See § 1170.95, subds. (c), (d)(3).) The court would then be in a position to determine whether the prosecution has met its burden. We note that the error here was not in the conclusion but in the process. We do not decide whether defendant is eligible for relief. Instead, we find that defendant is not ineligible as a matter of law based on the record of conviction and therefore has made a prima facie showing for relief. We will reverse and remand for the court to issue an order to show cause and conduct a hearing in accordance with section 1170.95, subdivision (d) to determine defendant's eligibility.
We therefore need not address defendant's argument regarding whether the trial court erred in applying a purported substantial evidence standard of review.
DISPOSITION
For the foregoing reasons, we reverse the trial court's order denying defendant's section 1170.95 petition and remand with directions to issue an order to show cause under section 1170.95, subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d) to determine whether to vacate defendant's murder conviction and recall his sentence and resentence him.
We concur: Hull, J., Krause, J.