Opinion
E072539
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMAR LEVEAL THOMAS, Defendant and Appellant.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF058881) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
In June 2007, defendant and appellant Jamar Leveal Thomas and three other men, Jerret Lewis, Akil Williams and Dairus Lee, robbed and beat security guard Wallace Brown. Brown died due to his injuries. Defendant was convicted of premeditated and deliberate first degree murder, a gang crime and allegations, robbery, and the special circumstance that the murder was committed during the commission of a robbery. Defendant was sentenced to life without the possibility of parole. In 2012, defendant's convictions were affirmed on appeal (People v. Thomas (Mar. 29, 2012, D058369) [nonpub. opn.]; hereafter, Opinion).
We grant defendant's request to take judicial notice of the Opinion and his opening brief on direct appeal in case No. D058369.
On December 31, 2018, defendant filed his petition for resentencing pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Penal Code section 1170.95 (petition). The petition was summarily denied by the trial court without a hearing. Defendant appeals, contending that (1) the trial court's summary denial of his petition for resentencing was erroneous and remand is necessary for a hearing in accordance with the statutory requirements of section 1170.95; and (2) his due process rights to a meaningful opportunity to be heard under the Fourteenth Amendment and under the California Constitution were violated by the trial court's summary denial of his petition without allowing for his appointed counsel to file a reply brief Both claims essentially attack the trial court's decision to summarily deny the petition. We conclude that although the trial court erred by summarily denying the petition based solely on the true finding on the robbery-murder special circumstance, remand is unnecessary as the facts in the record support that defendant committed the first degree murder based on being a major participant and acting with reckless indifference to human life during the commission of the robbery. Defendant is not entitled to resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
The facts are taken from the Opinion.
On June 9, 2007, the victim was working the graveyard shift as a security guard at a construction site. The construction site was near a Valero gas station located at the intersection of Rosa Parks and North Indian Hill Canyon in Palm Springs. At around 2:00 a.m., defendant, Lewis, Williams and Lee all arrived together in an SUV at the gas station. They went inside the store and then emerged. They reentered the SUV and drove off in the direction of the construction site.
Approximately 20 minutes later, the victim was discovered lying on the pavement near a van close to the Valero gas station. The victim was bleeding. He had significant injuries to his head and left arm. The victim vomited and pieces of his teeth came out. He was unresponsive and eventually died from his injuries. An autopsy revealed he had a fractured nose, broken teeth, lacerations on his hands, and bruising on his head. He died of an internal head injury due to blunt force trauma.
The front passenger and driver's side windows of the victim's vehicle were smashed out. A rock was found in the van and there was blood on the steering wheel. There was blood on the undercarriage of the van and the driver's side door.
The morning after the incident, defendant voluntarily went to the Palm Springs Police Department. Defendant initially told police he was with Lee and Williams earlier in the evening when they ran into Lewis. Defendant went home and went to sleep. Defendant then admitted he was with Lee, Williams and Lewis when they saw the victim in his van. Lewis said something about needing money. They stopped and Lewis pulled the victim from the van and beat him. They all ran away because they thought that the victim was dead.
Defendant changed his story again, after being told about what his cohorts had said in their statements. He admitted that he tried to pull the victim from the driver's seat of the van, but Lewis pushed him aside, pulled the victim from the van and then beat him up. Defendant told the police that at one point he saw Lewis repeatedly kicking the victim, describing the kicking as "bam, bam, bam"; that he tried to get Lewis to stop but could not stop him due to Lewis's size. Lewis took the victim's wallet and cellular telephone.
Lewis weighed 296 pounds at the time.
Lewis was interviewed and stated that he and defendant had thrown rocks into the victim's van and broken the windows. While the victim was still sitting in the driver's seat, defendant grabbed the victim with one hand and hit him with his other hand. Defendant was unable to pull the victim from the van so Lewis helped him. Lewis hit the victim twice in the back and ribs.
Defendant and Lee were put into the same room and their conversation was monitored. They both discussed that Lewis was a snitch. Defendant said that Lewis "know what he did . . . . Cause he kicked that nigga so many times, man just Poom, poom, poom Cuz." Defendant denied hitting the victim and told Lee that Lewis had dropped his shoes off at his house and they were covered in blood.
B. PROCEDURAL HISTORY
Defendant was tried under a theory of aiding and abetting and that he was a major participant and acted with reckless indifference to human life during the commission of the robbery. The jury was instructed on aiding and abetting. They were also instructed that they must determine as to the robbery-murder special circumstance that defendant acted with the intent to kill or with reckless indifference to human life. As for reckless indifference to human life, they had to determine whether defendant engaged "in criminal activity that he knows involves great risk of death."
Defendant was convicted of the premeditated and deliberate murder of the victim (§ 187, subd. (a); count 1); active participation in a criminal street gang (§ 186.22, subd. (a); count 2); and robbery (§ 211; count 3). In addition, for count 1, the jury found true the special circumstance that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)). For counts 1 and 3, the jury also found true the allegations that the crimes were committed for the benefit of and in association with a criminal street gang (§ 186.22, subd. (b)). Defendant was sentenced to life without the possibility of parole, plus the determinate term of two years.
In the Opinion, it was stated that defendant was also convicted of other enhancements, including inflicting great bodily injury on the victim within the meaning of section 12022.7, subd. (a). However, according to the probation report, defendant's opening brief and the transcript from sentencing, the only enhancements for which he was found guilty were the gang enhancements.
Defendant filed an appeal. His sole claim was that there was insufficient evidence presented to support that he acted with reckless indifference to human life to support the robbery-murder special circumstance. The claim was rejected with the court concluding that substantial evidence supported that defendant was a major participant and acted with reckless indifference to human life.
On December 31, 2018, defendant filed his petition. In his petition, he stated that he had been convicted of first or second degree murder based on the felony murder rule. He declared that he was not the actual killer, he did not have the intent to kill and was not a "major participant" nor acted with "reckless indifference to human life during the course of the crime or felony." No other documents were provided to the trial court.
On February 26, 2019, the trial court set a status conference for March 8, 2019. On March 1, 2019 the People filed their response to the petition and opposition to the issuance of an order to show cause. The People contended that Senate Bill No. 1437 was unconstitutional. In addition, the People contended that defendant was not entitled to relief because he was convicted of the special circumstance of robbery murder, which required a finding by the jury that he acted with reckless indifference to human life and was a major participant. The People attached the Opinion and the jury verdict on the first degree murder and the true finding on the special circumstance. The jury instructions were also attached, including the instruction on aiding and abetting, and on the special circumstance (CALCRIM No. 703), which required that it find defendant was a major participant and acted with reckless indifference to human life.
On March 8, 2019, defendant was appointed counsel. Defense counsel was not given the opportunity to file a reply to the People's opposition to the petition. On March 15, 2019, the trial court conducted a hearing during which the People and defense counsel were present. The trial court expressed that it had reviewed its own records. It noted that the jury was instructed on aider and abettor liability. Further, it was instructed with CALCRIM No. 703, which instructed them that they must find, in determining if the special circumstance was true, that defendant acted with reckless indifference to human life and was major participant in the robbery of the victim. The trial court concluded, "In reviewing the verdict forms, the jury found that allegation, the special allegation of a felony murder special circumstance true. They were appropriately instructed under theories that would survive a [Senate Bill No.] 1437 analysis. This matter is summarily denied." Defendant's counsel objected for the record.
DISCUSSION
"[Senate Bill No.] 1437 modified California's felony murder rule and natural and probable consequences doctrine to ensure murder liability is not imposed on someone unless they were the actual killer, acted with the intent to kill, or acted as a major participant in the underlying felony and with reckless indifference to human life." (People v. Cervantes (2020) 46 Cal.App.5th 213, 220.) Senate Bill No. 1437 added section 189, subdivision (e) which provides that "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [which includes robbery] 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."
Senate Bill No. 1437 also added section 1170.95 which provides, "(a) 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 . . . . [¶] (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).)
" 'If the petition contains all required information, section 1170.95, subdivision (c), prescribes a two-step process for the court to determine if an order to show cause should issue.' " (People v. Torres (2020) 46 Cal.App.5th 1168, 1176 (Torres).) "If it is clear from the record of conviction that the petitioner cannot establish eligibility as a matter of law, the trial court may deny the petition. [Citation.] If, however, a determination of eligibility requires an assessment of the evidence concerning the commission of the petitioner's offense, the trial court must appoint counsel and permit the filing of the submissions contemplated by section 1170.95." (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. omitted.) The superior court can properly consider the record of conviction and the appellate opinion affirming conviction in deciding at the initial step if a prima facie case has been made. (People v. Verdugo (2020) 44 Cal.App.5th 320, 327, 329, review granted Mar. 18, 2020, S260493.)
Section 1170.95, subdivision (c), provides for a second step as follows: "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."
After the issuance of an order to show cause the trial court shall conduct a hearing to determine whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subd. (d)(1).) At the hearing, the burden is on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing and may rely "on the record of conviction or offer new or additional evidence" (§ 1170.95, subd. (d)(3).)
Here, the parties dispute whether the trial court followed the correct procedure in denying defendant's petition. Defendant contends that the trial court could not summarily deny the petition because defendant had made a prima facie case of eligibility, he was denied his right to file a reply to the prosecutor's opposition and the trial court could not rely upon its own records in summarily denying the petition.
Further, on the merits, defendant insists his counsel should have been given the opportunity to argue that the California Supreme Court in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) had narrowed the definition of major participant and reckless indifference to human life subsequent to his conviction of the robbery-murder special circumstance. He further contends that failure to allow him an opportunity to file a reply brief violated his due process and statutory rights to counsel. In response, the People contend the trial court properly followed the procedures in section 1170.95 in summarily denying the petition; he was not denied his due process rights, and any conceivable error was harmless.
This court recently addressed nearly identical issues in People v. Law (2020) 48 Cal.App.5th 811 (Law). In Law, the defendant and a codefendant committed a home invasion robbery during which one of them shot and killed one of the residents. In 2006, the defendant was found guilty of first degree murder and the robbery-murder special circumstance pursuant to section 190.2, subdivision (a)(17)(A). The defendant was found not to be the shooter but was found guilty based on him being a major participant and acting with reckless indifference to human life. The defendant filed a petition for resentencing pursuant to section 1170.95. The People filed a response attaching the appellate court opinion and the jury instructions. The defendant's petition was summarily denied by the trial court without appointment of counsel or the filing of a reply based on the true finding on the special circumstance. (Law, at pp. 815-816, 818.) On appeal, the defendant argued that (1) the trial court had no discretion to review the record of conviction when determining whether the defendant had stated a prima facie case as it was limited to review of the allegations in the petition; (2) the record did not support, after Banks and Clark, that the defendant was a major participant and acted with reckless indifference to human life; and (3) the trial court erred by not appointing counsel to help him respond to the prosecutor's response. (Law, at pp. 818-819.)
This court first concluded that the trial court could consider the record of conviction in determining whether the petition made a prima facie case for relief. It found, "[A] trial court may consider the record of the petitioner's conviction, including documents in the court's own file and the appellate opinion resolving the defendant's direct appeal." (Law, supra, 48 Cal.App.5th at p. 821; see also People v. Verdugo, supra, 44 Cal.App.5th at p. 323.) Hence, the trial court was not restricted to only the allegations in the petition for resentencing when determining whether a prima facie case had been made. (Law, at p. 820-821.)
This court then noted the change in the law since the defendant had been convicted of the robbery-murder special circumstance. We recognized that in Banks and Clark, "[O]ur high court clarified that participation in an armed robbery, on its own, is insufficient to support a finding that the defendant acted with reckless indifference to human life. 'A sentencing body must examine the defendant's personal role in the crimes leading to the victim's death and weigh the defendant's individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime.' [Citation.] 'The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' thereby, 'demonstrating reckless indifference to the significant risk of death his or her actions create.' " (Law, supra, 48 Cal.App.5th at pp. 817-818; see also People v. Torres, supra, 46 Cal.App.5th at pp. 1179-1180 [recognizing the change in the law in Banks and Clark].)
This court found that such determination as to whether there was sufficient evidence under the new law to deny the petition for resentencing could be made for the first time on appeal. It found, "The 'claim does not require resolution of disputed facts; the facts are a given.' " (Law, supra, 48 Cal.App.5th at p. 822.)
This court then recognized that in Banks the high court reversed the defendant's robbery-murder special circumstance based on the defendant only being the getaway driver. In Banks, the court "articulated several factors" in determining whether a party was a major participant and acted with reckless indifference to human life. This included, " 'What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?' " (Law, supra, 48 Cal.App.5th at pp. 823-824, quoting Banks, supra, 61 Cal.4th at p. 803.)
The Law court also reviewed the findings in Clark. In Clark, the defendant planned a burglary of a computer store and his codefendant was to execute the burglary while carrying an unloaded firearm. Unbeknownst to the defendant, the codefendant loaded the firearm and shot an employee he encountered while codefendant was in another location. The Clark court reversed the robbery-murder special circumstance, finding that the defendant was not present when his codefendant killed the employee so he could not intervene; the defendant did not know the codefendant was predisposed to be violent; and the defendant had planned for the burglary to occur after store hours and the defendant did not intend that the gun be loaded. (Law, supra, 48 Cal.App.5th at p. 824.) "In sum, the court believed there was 'nothing in [Clark's] plan that one can point to that elevated the risk to human life beyond those inherent in any armed robbery.' " (Law, at p. 824.)
This court distinguished its facts from Banks and Clark. It found that the defendant was "willingly involved in the violent manner" in which the home invasion robbery occurred. The court noted that the defendant was at the scene and watched as his codefendant pistol whipped the victim. The defendant did nothing to stop the codefendant and did not render aid to the victim once the victim had been shot. It found that the defendant's behavior was "clearly distinguishable" from Banks and Clark. The court concluded, "Although the trial court erred by concluding the special circumstance finding, on its own, rendered [the defendant] ineligible for relief—that is the court erred by failing to determine whether [the defendant] qualified as a major participant who acted with reckless indifference to human life under Banks and Clark—we conclude the error was harmless because the record demonstrates the answer to that question is yes. As a result, we conclude the denial of [the defendant]'s petition was proper." (Law, supra, 48 Cal.App.5th at p. 825; but see People v. Smith, supra, 49 Cal.App.5th at p. 96 [disagreeing with Law, finding that such error requires remand for a hearing in the trial court].)
Finally, this court addressed the failure of the trial court to appoint the defendant counsel to file a reply brief to the People's response. We found any conceivable error was harmless beyond a reasonable doubt. We concluded, "Given the trial evidence, counsel would not have been able to demonstrate in a reply brief or otherwise that Law was not a major participant who acted with reckless indifference to human life." (Law, supra, 48 Cal.App.5th at p. 826.)
In Torres, supra, 46 Cal.App.5th 1168, that court also acknowledged the change in the law under Banks and Clark. It concluded that the California Supreme Court had significantly changed the meaning of "major participant" and "reckless indifference to human life." It found, "[O]ur Supreme Court's decisions, clarifying what it means for an aiding and abetting defendant to be a 'major participant' in an underlying felony and to act with 'reckless indifference to human life,' construed section 190.2 in a significantly different, and narrower manner than courts had previously construed the statute. . . . Banks, supra, 61 Cal.4th 788 [], which elucidated the meaning of 'major participant,' was decided in 2015, and Clark, supra, 63 Cal.4th 522, [], which addressed the meaning of 'reckless indifference to human life,' was decided in 2016. Accordingly, in determining if Torres could be convicted today of first-degree murder, we cannot simply defer to the jury's pre-Banks and Clark factual findings that Torres was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time." (Torres, at p. 1179.) The Torres court concluded, "We conclude that the trial court erred in ruling that the pre-Banks and Clark robbery-murder special circumstance findings preclude Torres from relief as a matter of law." (Id., at p. 1180.)
We reach the same conclusions as in Law. First, the trial court could review the record of conviction and records in its file in determining whether a prima facie case had been made by defendant. It was not restricted to the allegations in the petition.
Moreover, it is clear that the trial court erred by finding that as a matter of law the record on appeal and the record of conviction precluded defendant from showing that he was not a major participant or acted with reckless indifference to human life based solely on the true finding on the special circumstance. While the trial court stated it had reviewed its own records, and it recounted the theory of murder in the trial court, it exclusively relied on the true finding on the special circumstance in summarily denying the petition. However, such error was harmless as even after Banks and Clark, the evidence supports that defendant was a major participant and acted with reckless indifference to human life.
Defendant was present in the van with Lewis when he spotted the victim and stated he needed money. At that point, the jury reasonably could believe that defendant tried first to pull the victim from the van but was unsuccessful, or watched as Lewis pulled him from the van. At that point, Lewis began kicking the victim. Defendant described to police that Lewis kicked the victim, "Bam, bam, bam, bam." He told Lee that Lewis kicked him many times "Poom, poom, poom." Defendant did nothing to intervene and he ran off with the others because they believed that the victim was dead. Defendant was present at the scene with three other gang members; he was in a position to prevent the actual murder; his own actions and inaction played a role in the victim's death; and he left the victim for dead. This was sufficient evidence that he was a major participant and acted with reckless indifference to human life even under newly enacted section 189, subdivision (e).
Finally, even if the trial court erred by appointing counsel and then failing to allow a reply brief to be filed, defendant is not entitled to remand. As in Law, counsel would not have been able to demonstrate that defendant was not a major participant or failed to act with reckless indifference to human life based on the trial evidence.
Based on the foregoing, any error made by the trial court in relying upon the robbery-murder special circumstance was harmless. Defendant was not entitled to resentencing as the facts support he was a major participant and acted with reckless indifference to human life.
DISPOSITION
We affirm the order denying defendant's petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.