David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. A622049 APPEAL from an order of the Superior Court of Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In August 1982 a jury convicted defendant and appellant Larry Donllen Hines of the first degree murder of Rebecca Booker. The jury found true the allegation that Hines personally used a deadly and dangerous weapon—a knife—in the commission of the crime. According to the testimony at Hines's preliminary hearing, in March of 1981 a man named Calvin Wallace was living with Booker. On the evening of March 26, 1981, Wallace was arrested for drunk driving. Hines and his girlfriend were passengers in Wallace's car. Wallace gave Hines his key ring and asked him to take the car "home to Rebecca." On the ring was a key to the metal security door at the back of Booker's house.
Because Hines's trial took place 37 years ago, the record on appeal does not contain any trial transcripts.
A neighbor visited Booker on the evening of March 31, 1981. The neighbor left around 9:15 p.m. Booker was fine at the time. At 2:00 p.m. the next day, April 1, 1981, paramedics and police were called to Booker's home. They found Booker on the floor of the living room "in a prone position, face down, and there was no sign of life." She had a deep laceration on the left side of her throat. Draped over the victim's leg was a black Cal State LA jacket. Police saw no "evidence of forced entry to the outside of the house." "All the windows and doors were intact" and "secured by iron bars."
A number of items were found missing from Booker's home: two television sets, two cameras (a Polaroid and a small "pocket camera"), binoculars, a Sturdy 10-speed bicycle belonging to Wallace, a .38 revolver, and Booker's coin purse. On the morning of April 1, Hines arrived at the home of his friend Leon Hughes. Hines was riding a Sturdy 10-speed bike. He had a pair of binoculars around his neck and a Polaroid camera. Hines asked Hughes if he was interested in buying any of the items and Hughes declined. Later that day, Hughes saw Hines "c[o]me from around the side of [a] truck" with a television set in his arms. Hines sold Hughes the television for $20.
Hines's sister-in-law Pamela Pitts testified she saw Hines wearing a Cal State LA jacket on the evening of March 31, 1981 between 7:00 and 8:00 p.m. Hines left, then returned around 10:30 or 11:00 p.m. He wasn't wearing the jacket; he had a Polaroid camera and some binoculars in his hands. Hines also had some change; he gave it to Pitts and her sister.
The next morning, Pitts noticed bloodstains on Hines's shirtsleeve and a scratch on his upper lip. When Pitts asked Hines about the bloodstains, he rolled his shirtsleeve up. Later that day, Pitts saw Hines riding a bicycle she recognized as Calvin Wallace's.
On February 19, 2019, Hines filed a Petition for Resentencing under Penal Code section 1170.95. Hines checked boxes stating: "I was convicted of 1st degree felony murder and I could not now be convicted because of changes to Penal Code § 189, effective January 1, 2019, for the following reasons . . . : I was not the actual killer." Hines added, "Petitioner is totally innocent of this murder. The evidence on record was insufficient to prove murder one." Hines attaches to his petition several pages, apparently from the prosecutor's closing argument at his trial and from the jury instructions, reflecting the court's instruction that the jurors could find Hines guilty of first degree murder if they found he killed Booker while "engaged in the commission of attempted rape, burglary, or robbery."
The trial court appointed counsel for Hines. The District Attorney requested an extension of time to file an informal response to Hines's petition, noting "it does not appear that LARRY HINES is eligible for Resentencing pursuant to Penal [C]ode section 1170. as he is the actual killer." On May 24, 2019, Hines appeared with counsel before the trial court. The court stated it was denying Hines's petition because "he is the actual killer." The court asked Hines's court-appointed attorney if he wished to be heard, and counsel answered, "No, Your Honor."
The record on appeal does not include a copy of whatever informal response the District Attorney eventually filed. --------
Hines appealed and we appointed counsel to represent him. After examining the record, counsel filed an opening brief raising no issues and asking this court independently to review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). On October 14, 2019, counsel sent Hines a letter notifying him that he could file a supplemental brief within 30 days. On November 27, 2019, Hines's supplemental brief—postmarked November 14—was filed.
Senate Bill No. 1437 (SB 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 [was] not the actual killer . . . .' " (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, quoting Stats. 2018, ch. 1015, § 1, subd. (f); Pen. Code, § 189, subd. (e)(1).) Hines checked the box in his petition that he was not the actual killer and added that he is "totally innocent." In his supplemental brief, Hines writes that he was "wrongfully convicted" and the prosecutor "never, ever proved" he "was the actual killer in this case."
The evidence is to the contrary. Hines had the key to Booker's house, he was seen later that night and the next day with Booker's and Wallace's belongings, he had blood on his shirt, and his jacket was found lying on the victim's body. There was no suggestion whatsoever at the preliminary hearing that Hines somehow aided and abetted someone else, who actually killed Booker. The trial court instructed the jury on the felony murder doctrine that applied if Hines killed Booker while Hines was engaged in burglary, rape, or robbery. The jury not only convicted Hines of first degree murder; it found beyond a reasonable doubt that Hines personally used a knife in Booker's murder.
Hines's supplemental brief borders on the unintelligible. He seems—nearly four decades after the fact—to attempt to challenge what he perceives as procedural errors in his case and the evidence presented at his trial. For example, he talks about indictments, even though his case proceeded by felony complaint and a preliminary hearing. He seems to believe the prosecution was required to plead its felony murder theory in the information. He is wrong. "California courts have uniformly held that an information charging murder generally provides constitutionally adequate notice to the defendant that the prosecution might rely on theories other than malice aforethought or premeditation and deliberation, such as felony murder . . . ." (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2017) § 7.7, p. 146; People v. Gurule (2002) 28 Cal.4th 557, 629 ["[a]n information or indictment need not specify the theory of murder on which the prosecution will rely"]; People v. Loza (2012) 207 Cal.App.4th 332, 362-364 [same; felony murder and premeditated murder are not distinct crimes; "a pleading charging murder as a Penal Code section 187, subdivision (a) violation is proper"].)
We have examined the entire record, and we are satisfied that Hines's counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.) Hines is not eligible for resentencing under SB 1437 because he is the person who cut Booker's throat, killing her.
We affirm the trial court's denial of Larry Donllen Hines's petition for resentencing under Penal Code section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.