People v. Thomas CA2/4 ( 2021 )

Filed 4/30/21 P. v. Thomas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B302335
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA281894)
v.
SEAN THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Lisa B. Lench, Judge. Reversed and remanded.
Edward H. Schulman, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Idan Ivri and J. Michael Lehmann, Deputy Attorneys General,
for Plaintiff and Respondent.
This appeal is from the trial court’s summary denial of defendant
and appellant Sean Thomas’s motion for resentencing under Penal Code
section 1170.95.1
By amended information in May 2006, appellant and codefendants
Wilbur Lawson and Dontae Ray Williams were charged with murder
(§ 187, subd. (a), count 1) and robbery (§ 211, count 2).2 The information
also alleged, inter alia, that the murder had been committed during the
commission of the robbery (§ 190.2, subd. (a)(17)), that a principal
personally used a firearm (§ 12022.53, subds. (b)–(d)), and that appellant
had suffered two prior convictions within the meaning of the Three Strikes
law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
Williams’s trial was severed from that of Lawson and appellant. A
jury found appellant guilty of first degree felony murder and second degree
robbery, and found true the allegation that a principal had been armed
with a firearm. Because the jury returned no verdict on the special
circumstance allegation, the trial court declared a mistrial as to that
allegation. In a bifurcated proceeding, the trial court found that appellant
had suffered one prior strike and sentenced appellant to a term of 50 years
to life plus one year for murder, and a stayed four-year term for robbery.3
In 2019, appellant filed a petition for resentencing under section
1170.95, which provides that persons who were convicted under
1 Undesignated statutory references are to the Penal Code.
2 Neither codefendant is a party to this appeal.
3 At the prosecutor’s request, the trial court dismissed the allegation that
appellant had suffered a conviction constituting a second strike.
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theories of felony murder or murder under the natural and probable
consequences doctrine, and who could no longer be convicted of murder
following the enactment of Senate Bill No. 1437 (S.B. 1437), may
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).) Following
the appointment of counsel, briefing by the parties, and a hearing to
determine whether appellant had established a prima facie case for
relief, the court summarily denied the petition after weighing the facts
as set forth in appellant’s direct appeal in People v. Thomas (Nov. 20,
2008, B200471) [nonpub. opn.] (Thomas I).
In this appeal, the parties agree that the trial court committed
error when it summarily denied appellant’s petition. However,
appellant contends that the People should be barred from relitigating
his eligibility for resentencing under principles of due process and
double jeopardy.
We agree that the trial erred in making factual findings in its
summary denial of appellant’s petition. We remand the matter with
directions to issue an order to show cause and proceed consistent with
subdivision (d) of section 1170.95. In light of our conclusion, we do not
consider appellant’s alternative contentions, which he may choose to
assert on remand.
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FACTUAL BACKGROUND4
At approximately 6:45 p.m. on February 24, 2005, Brandin
Brinkley encountered Lawson outside a 99¢ Store near Vermont and
61st Street. Lawson asked Brinkley where he could purchase gloves.
After Brinkley directed him to the 99¢ Store, Brinkley saw Lawson
select a pair of black gloves and a pair of red and black gloves inside the
store. Brinkley left the store and went home.
Heng Bou testified that he was working in a doughnut store at
60th Street and Vermont on February 24, 2005. Approximately 20 to 30
minutes before he heard sirens and saw an ambulance, Bou saw two
young, Black men purchase doughnuts and sit inside the store; the men
left before Bou heard sirens.
Guadalupe Rivera testified that around 7:15 p.m. the night of the
shooting, she drove to pick up her brother, Osman Alvarado, near a
Dollar Warehouse located at Vermont and 60th Street. As she passed
by, Rivera saw two men standing outside the store, together with a
third man wearing a mask. At least one of the men was wearing a
hooded sweatshirt. Rivera parked her car and watched the masked
man—the shortest of the three men outside the store—follow Alvarado
4 We granted defendant’s request to take judicial notice of the appellate
record in Thomas I, and of the appellate record in People v. Williams et al. (May
20, 2008, B198076 [nonpub. opn.].) We recite the factual and procedural
background from our opinion in Thomas I, which “in large measure tracks the
facts stated in [Williams I].” (Thomas I, supra, at p. 1, fn. 5.) Appellant did not
present any evidence at trial.
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into the Dollar Warehouse.5 Rivera saw the masked man point a gun
inside the store while the other men stood outside, watching him
through a glass window. When the two men entered the store, the
masked man abruptly left, and Rivera heard gunshots. After the three
men ran away, another man emerged from the store holding his back
and said he had been shot.
Alvarado testified that he saw three men standing outside the
Dollar Warehouse when he approached the store. One of the men wore
a mask, and the others had hoods over their heads. While inside the
store, Alvarado heard the masked man, accompanied by one of the other
men, demand money, and a cashier responded, “Okay.” The third man
stood in the store’s doorway as a lookout. When a struggle broke out
involving the cashier, one of the men fired a gun, and Alvarado sought
cover. After the three men left, Alvarado saw money on the floor near
the store entrance. Alvarado never saw the robbers’ faces, and he was
unsure whether the masked man or the other accomplices held the gun.
Los Angeles Police Department officers responded and discovered
the victim (Avila Rodriguez) wounded and lying on the ground.
Rodriguez later died of a gunshot wound to his back. Officers found a
gun in front of the store, a pair of gloves 200 feet away from the store,
and sales tags for gloves in the doughnut shop’s trash bin. The gun,
which belonged to Rodriguez’s friend, was kept in the store for
Rodriguez’s protection. Appellant’s fingerprints were identified on the
5 Investigating officers later established that Lawson was several inches
shorter than appellant and Williams.
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sales tags, and his DNA matched DNA collected from one of the
recovered gloves.
Investigating officers obtained video surveillance tapes from the
99¢ Store and the Dollar Warehouse, which were played for the jury.
Brinkley selected Lawson in a photographic lineup as the person
shopping for gloves in the 99¢ Store. When Rivera was shown a
photographic lineup, she identified Williams and appellant as the two
men with visible faces outside the Dollar Warehouse. Footage of the
Dollar Warehouse showed the shooter wearing red gloves, a hooded
sweater, and something covering his face. When Williams was arrested
on March 6, 2005, he attempted to discard a firearm. A criminalist
could not determine whether the discarded gun had fired the bullet
recovered from Rodriguez’s body.
When Lawson and appellant were interviewed in April 2005, both
initially denied being around the area during the robbery and shooting.
After appellant learned that police had recovered his DNA from a
recovered glove, he stated that he intended to participate in the
robbery, but later changed his mind and stood across the street from the
Dollar Warehouse while the robbery occurred. When he heard a
gunshot, he ran away, and his glove fell off his hand when he jumped
over a bush. When Lawson was shown photographs from video
surveillance of the 99¢ Store, he admitted that he had purchased the
gloves, but stated that he returned to his grandmother’s house a half-
mile away from the Dollar Warehouse. Lawson stated that he decided
not to participate in the robbery because he did not want to get shot.
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Lawson denied giving anyone the red gloves, though he could not recall
what he had done with them.
PROCEDURAL BACKGROUND
On January 7, 2019, appellant filed a petition for resentencing
pursuant to section 1170.95, claiming entitlement to relief because he
was convicted of first degree murder under a felony-murder theory or
the natural and probable consequences doctrine. Appellant requested
that counsel be appointed on his behalf.
After the court appointed counsel for appellant, the prosecution
filed an opposition to the petition, and appellant filed a reply.
At a hearing to determine whether the court should issue an order
to show cause, the People argued that despite the jury’s inability to
reach a verdict on the special circumstance allegation (§ 190.2, subd.
(a)(17)), appellant could still be convicted of murder under the current
law. Specifically, the People asserted that appellant could be guilty of
first degree felony murder as a major participant who acted with
reckless indifference to human life, or he could be convicted under a
new theory of second degree implied malice murder. In response,
appellant argued that any assessment of the evidence with respect to
either theory of liability should occur only after the court issued an
order to show cause. Following argument, the court found that based
on the facts as set forth in our prior opinion, appellant had failed to
establish a prima facie case for relief, as he could be convicted of first
degree murder “or even potentially second degree murder.” The court
summarily denied the petition.
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Appellant timely filed a notice of appeal.
DISCUSSION
Appellant contends, and the Attorney General agrees, that the
trial court erred by summarily denying appellant’s petition. We agree.
1. Governing Law
The legislature enacted S.B. 1437 “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); accord,
§ 189, subd. (e).)
S.B. 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted,
S260493, Mar. 18, 2020.) Under the revised section 188, subdivision
(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43
Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony-murder or murder under the natural and
probable consequences doctrine, but who could not be convicted of
murder following S.B. 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and resentence on
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any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he or
she is eligible for relief under section 1170.95 based on all the
requirements of subdivision (a), the superior court case number and
year of the petitioner’s conviction, and a request for appointment of
counsel, should petitioner seek appointment. (§ 1170.95, subd. (b)(2).)
If the petition includes the required information, subdivision (c) of
section 1170.95, prescribes “a two-step process” for the court to
determine if it should issue an order to show cause. (Verdugo, supra, 44
Cal.App.5th at p. 327.) The court first “review[s] the petition and
determine[s] if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section.” (§ 1170.95, subd.
(c).) The court then appoints counsel, if requested, and reviews the
petition a second time after briefing by the parties to determine if
petitioner has established a prima facie case for relief. (Ibid.; see Lewis,
supra, 43 Cal.App.5th at p. 1140.) The petitioner makes a prima facie
showing so long as the assertions in his or her petition are not
conclusively refuted by facts in the record of conviction as a matter of
law. (Verdugo, supra, at p. 327; see People v. Drayton (2020) 47
Cal.App.5th 965, 968, 980 (Drayton); see also People v. Duchine (2021)
60 Cal.App.5th 798; but see People v. Garcia (2020) 57 Cal.App.5th 100,
116, rev. granted, Feb. 10, 2021, S265692.)
If the court concludes that the petitioner has made a prima facie
showing, it must issue an order to show cause. (§ 1170.95, subd. (c);
Verdugo, supra, 44 Cal.App.5th at p. 328.) “Once the order to show
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cause issues, the court must hold a hearing to determine whether to
vacate the murder conviction and to recall the sentence and resentence
the petitioner on any remaining counts.” (Verdugo, supra, 44
Cal.App.5th at p. 327, citing § 1170.95, subd. (d)(1).) At the order to
show cause hearing, the parties may rely on the record of conviction or
present new or additional evidence to support their positions.
(§ 1170.95, subd. (d)(3).)
2. Analysis
Here, the parties agree that the trial court erred by weighing the
facts of appellant’s record of conviction to determine whether he made a
prima facie case for relief. As observed by the Attorney General, “there
is no indication in the record that appellant was ineligible for relief as a
matter of law.” (See Drayton, supra, 47 Cal.App.5th at p. 980 [authority
to make determinations of ineligibility under § 1170.95, subd. (c) “is
limited to readily ascertainable facts from the record (such as the crime
of conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining whether the
petitioner showed reckless indifference to human life in the commission
of the crime”].)
We agree with the parties, and we reverse the order summarily
denying the petition. On remand, the court is directed to issue an order
to show cause and proceed consistent with subdivision (d) of section
1170.95. We express no opinion as to the merits of appellant’s petition,
or on his alternative contentions with respect to whether the People
should be barred from litigating major participation and reckless
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indifference under the new law (§§ 188, subd. (a)(3), 189, subd. (e)(3)).
Those arguments should be raised, if appellant so chooses, in the first
instance at the order to show cause hearing.
DISPOSITION
The judgment is reversed. The matter is remanded with
directions to issue an order to show cause and proceed consistent with
section 1170.95, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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