People v. Flint ( 2022 )

Filed 1/28/22 Certified for Publication 2/24/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B310238
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA071779)
v.
JUSTIN ASHLEY FLINT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Gary J. Ferrari, Judge. Reversed.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Michael J. Wise, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
In 2018, the Legislature enacted Senate Bill No. 1437
(2017−2018 Reg. Sess.) (Senate Bill No. 1437), which, among other
changes, restricted the application of the felony murder doctrine.
Prior to the enactment of the law, if a defendant committed one of
certain serious felonies in which an accomplice killed someone, the
defendant was liable for first degree murder even if the killing was
inadvertent and unforeseeable. (1 Witkin & Epstein, Cal. Criminal
Law (4th ed. 2021) Crimes Against the Person, § 163; People v.
Stamp (1969) 2 Cal.App.3d 203, 210.) Under the new law, this is
no longer the case. To obtain a conviction for felony murder, the
prosecution must prove the defendant was the actual killer, acted
with the intent to kill in aiding, abetting, counseling, or soliciting
the killing, or was “a major participant in the underlying felony
and acted with reckless indifference to human life.” (Stats. 2018,
ch. 2015, § 3, p. 6675, enacting Pen. Code,1 § 189, subd. (e)(3).) The
statute created a single exception to these requirements, for cases
where “the victim is a peace officer who was killed while in the
course of his or her duties, where the defendant knew or reasonably
should have known that the victim was a peace officer engaged in
the performance of his or her duties.” (Stats. 2018, ch. 2015, § 3,
p. 6675, enacting § 189, subd. (f).) In such a case, the felony murder
doctrine applies as it did before the enactment of Senate Bill
No. 1437, with no requirement to show that the defendant was a
major participant in the felony or acted with reckless indifference
to human life. (People v. Hernandez (2021) 60 Cal.App.5th 94,
105-109 (Hernandez).)
Senate Bill No. 1437 also created a mechanism for defendants
previously convicted of felony murder who “could not be convicted
of first or second degree murder because of changes” in the law to
1 Subsequent statutory references are to the Penal Code.
2
petition to vacate their convictions and be resentenced. (Stats.
2018, ch. 2015, § 4, p. 6676, enacting § 1170.95, subd. (a)(3).)2
The Legislature included a provision to “streamline the process”
(People v. Ramirez (2019) 41 Cal.App.5th 923, 932 (Ramirez)) for
petitioners who are clearly eligible for resentencing. “If there was
a prior finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major participant
in the felony, the court shall vacate the petitioner’s conviction and
resentence the petitioner.” (§ 1170.95, subd. (d)(2).) This provision
in section 1170.95 makes no reference to the peace officer exception.
Defendant and appellant Justin Ashley Flint was convicted
of murder for his role in an attempted robbery in which his
codefendant shot and killed Los Angeles County Sheriff ’s
Department Deputy Maria Cecilia Rosa. Flint and the Attorney
General agree, as do we, that the trial court erred by denying Flint’s
petition for resentencing under section 1170.95 at the first stage of
review, where a petitioner is required to make only a prima facie
case of eligibility. Flint argues further that he is entitled to
immediate resentencing under section 1170.95, subdivision (d)(2)
because the jury at his trial rejected a felony-murder special
circumstance allegation (§ 190.2, subd. (a)(17)). According to
Flint, by finding the allegation untrue, the jury implicitly found
that he was not a major participant in the robbery who acted
with reckless indifference to human life. We disagree that Flint
is entitled to immediate resentencing. Although section 1170.95,
subdivision (d)(2) does not refer to the peace officer exemption, it
2 The Legislature has subsequently amended this portion
of the law in ways not relevant to this opinion. (See Sen. Bill
No. 775 (2021−2022 Reg. Sess.); Stats. 2021, ch. 551, § 2, italics
added.)
3
would be absurd to infer that the Legislature intended to guarantee
resentencing for defendants who could still be convicted of murder
under current law.3
FACTUAL AND PROCEDURAL SUMMARY
In 2006, Flint and his codefendant, Frank Gonzalez,
attempted to rob Maria Cecilia Rosa outside Rosa’s home in
Long Beach. Rosa, a deputy in the Los Angeles County Sheriff ’s
Department, drew her service weapon. Gonzalez, who was armed
with a revolver, shot Rosa twice, killing her. Because neither we
nor the trial court may engage in factfinding at this stage of the
proceedings (see People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis)),
it is not necessary to describe the facts of the case in detail.4 We
note, however, that there was at least some evidence that Flint
knew or should have known Rosa was a peace officer: At the trial,
a police officer testified that Flint told him that he saw Rosa’s
badge.
A jury convicted Flint of one count of first degree murder
(§ 187, subd. (a)) and one count of attempted robbery (§§ 211,
664), and found that a principal was armed with a firearm in
the commission of both counts. The prosecution alleged that a
felony-murder special circumstance (§ 190.2, subd. (a)(17)) applied
3 On February 4, 2021, Flint filed a petition for writ of
mandate. On March 26, 2021, his petition was deemed to be a
petition for writ of habeas corpus and was ordered to be considered
concurrently with this appeal (In re Justin Ashley Flint, case
No. B3102). Flint’s petition for writ of habeas corpus is denied by
separate order filed concurrently herewith.
4 Our opinion in Flint’s direct appeal (People v. Flint (July 30,
2010, B205374) [nonpub. opn.]) describes the evidence in more
detail.
4
to the murder, but the jury found this allegation “not true.” The
trial court sentenced Flint to 29 years to life in prison. We affirmed
the conviction but stayed the sentence on the attempted robbery
conviction, reducing the sentence to 26 years to life. (See People v.
Flint, supra, B205374).)
Flint filed a petition for resentencing under section 1170.95
on January 4, 2019, shortly after Senate Bill No. 1437 became
effective. The trial court appointed counsel to represent him
and obtained briefing from both sides. The court found that
Flint had failed to make a prima facie case that he was entitled
to resentencing and denied the petition. The court reasoned that
Flint was a direct aider and abettor to the murder, and that he
knew or should have known that Rosa was a peace officer engaged
in the performance of her duties.
DISCUSSION
A. Flint Made a Prima Facie Case That He Is
Eligible for Resentencing
Flint contends that he made a prima facie case that he
is eligible for resentencing under section 1170.95, and that the
trial court erred by finding to the contrary. The Attorney General
agrees, as do we.
When a defendant files a facially sufficient petition for
resentencing under section 1170.95, the trial court must first
determine whether the petitioner has made a prima facie showing
for relief. (§ 1170.95, subd. (c).) At the time of Flint’s hearing, the
standards for determining whether a petitioner has made a prima
facie case for resentencing under section 1170.95, subdivision (c)
were unsettled. Recently, however, the Supreme Court in Lewis
clarified this issue. The court explained that “the prima facie
inquiry under [section 1170.95,] subdivision (c) is limited. Like
5
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.” ’ ([People v.]
Drayton [(2020)] 47 Cal.App.5th [965,] 978, quoting Cal. Rules
of Court, rule 4.551(c)(1).) ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted,
citing In re Serrano (1995) 10 Cal.4th 447, 456 . . . .) ‘However, 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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) The court
cautioned further that, at this stage, “a trial court should not
engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at p. 972, quoting Drayton, supra,
47 Cal.App.5th at p. 980.)
As both parties agree, the trial court exceeded the bounds
established in Lewis for prima facie review. The statement of
decision shows that the court reviewed “the trial transcript, the
court file, the Court of Appeal opinion, and the moving papers
filed by the parties” and determined that Flint was ineligible
for resentencing because he was a direct aider and abettor in the
murder and that he knew or should have known that Rosa was a
peace officer engaged in the performance of her duties. To reach
this conclusion the court weighed the evidence and exercised its
discretion in a manner forbidden by Lewis.
Nor may we affirm the trial court’s decision as harmless
error. In Lewis, the Supreme Court held that, in order to
demonstrate prejudice, a petitioner need not show that he is likely
6
to succeed in having his conviction vacated in the end; instead,
“a petitioner ‘whose petition is denied before an order to show
cause issues has the burden of showing “it is reasonably probable
that if [not for the error] . . . his [or her] petition would not have
been summarily denied without an evidentiary hearing.” ’ ” (Lewis,
supra, 11 Cal.5th at p. 974.) Flint has done this much—we have
seen nothing in the record of conviction refuting his claim of
eligibility as a matter of law. We must therefore reverse the denial
of his petition.
B. Flint Is Not Entitled to Automatic Relief under
Section 1170.95, Subdivision (d)(2)
In most cases where the petitioner has made a prima facie
case for relief, the trial court must issue an order to show cause
and hold a hearing to determine whether the petitioner is entitled
to resentencing. (See § 1170.95, subd. (d)(3).) Subdivision (d)(2) of
section 1170.95 provides a mechanism for avoiding such a hearing
in cases where both sides waive the hearing and stipulate that
the petitioner is eligible, or “[i]f there was a prior finding by a court
or jury that the petitioner did not act with reckless indifference
to human life or was not a major participant in the felony.” In the
latter instance, “the court shall vacate the petitioner’s conviction
and resentence the petitioner.” (Ibid.) When this provision
applies, it “impos[es] a mandatory duty on the court to vacate [the
petitioner’s] sentence and resentence him.” (Ramirez, supra, 41
Cal.App.5th at p. 932.)
Flint contends that he is entitled to immediate resentencing
under section 1170.95, subdivision (d)(2) because the jury at his
trial rejected the prosecution’s allegation of a felony murder special
circumstance (§ 190.2, subd. (a)(17)), which required proof that
Flint at a minimum was a major participant in the robbery and
acted with reckless indifference to human life. (See § 190.2,
7
subd. (d).) The Attorney General makes two arguments to the
contrary. First, the Attorney General contends that the jury’s
verdict does not constitute “a prior finding . . . that the petitioner
did not act with reckless indifference to human life or was not a
major participant in the felony.” (§ 1170.95, subd. (d)(2).) Second,
the Attorney General argues that even if the jury’s verdict meets
the literal requirements of section 1170.95, subdivision (d)(2), the
prosecutor must have an opportunity to show Flint is not eligible
for resentencing because he knew or should have known that Rosa
was a peace officer acting within the course of her duties. We
disagree with the Attorney General’s first argument but agree with
the second and therefore do not order the trial court to resentence
Flint under subdivision (d)(2).
1. The jury’s verdict on the special
circumstance is a “finding” as described
in section 1170.95, subdivision (d)(2)
To prove a felony-murder special circumstance, the
prosecution must show that the defendant “actually killed the
victim (. . . [§] 190.2, subd. (b)); acted with the intent to kill in
aiding, abetting, counseling, commanding, inducing, soliciting,
requesting, or assisting in the killing (. . . [§] 190.2, subd. (c));
or [was] a major participant in the underlying felony and acted
with reckless indifference to human life (. . . [§] 190.2, subd. (d)).”
(People v. Galvan (2020) 52 Cal.App.5th 1134, 1141, review granted
Oct. 14, 2020, S264284; accord, In re Ramirez (2019) 32 Cal.App.5th
384, 393.) Flint argues that, by finding the special circumstance
allegation not true, the jury necessarily made a “finding . . . that
[he] did not act with reckless indifference to human life or was not
a major participant in the felony.” (§ 1170.95, subd. (d)(2).)
The Attorney General disagrees, arguing that the jury’s
“not true” verdict shows only that the jury had a reasonable doubt
8
as to the requirements for the special circumstance. In general,
“a jury verdict acquitting a defendant of a charged offense does not
constitute a finding that the defendant is factually innocent of the
offense or establish that any or all of the specific elements of the
offense are not true.” (In re Coley (2012) 55 Cal.4th 524, 554.)
According to the Attorney General, if the Legislature had meant
for a jury verdict like the one in this case to be sufficient for
resentencing under section 1170.95, subdivision (d)(2), it would
have used the term “acquittal” in the statute, rather than “finding.”
Two published cases have considered this question: People v.
Clayton (2021) 66 Cal.App.5th 145 and People v. Harrison (Dec. 30,
2021, A159115) ___ Cal.App.5th ___ [2021 WL 6144005] (Harrison).
Both agreed with Flint’s position, as do we. The Attorney General
is correct that the jury’s verdict is an expression of reasonable doubt
as to the prosecution’s allegation, and falls short of a finding of
actual innocence. But as the majority in Clayton noted, at the final
eligibility hearing under section 1170.95, subdivision (d)(3), the
prosecution bears the burden to prove the defendant’s ineligibility
for resentencing beyond a reasonable doubt. (Clayton, supra,
66 Cal.App.5th at p. 155.) By finding the special circumstance
allegation not true, the jury necessarily “found the evidence
insufficient to prove beyond a reasonable doubt that the petitioner
was an aider and abettor with the intent to kill or a major
participant in the robbery who acted with reckless indifference to
human life. In that case, the prosecution cannot sustain its burden
of proving ineligibility under subdivision (d)(3) without invalidating
the jury’s finding.” (Ibid.)
As we have explained previously, the purpose of proceedings
under section 1170.95 is to decide “issues not previously
determined, not to [retry] . . . disputes that have already been
resolved.” (People v. Allison (2020) 55 Cal.App.5th 449, 461.)
9
Subdivision (d)(2) serves to “streamline the process” (Ramirez,
supra, 41 Cal.App.5th at p. 932) in instances where the record
clearly demonstrates the defendant’s eligibility. The prosecution
had an opportunity at the original trial to prove that Flint
was a major participant in the robbery who acted with reckless
indifference to human life. In enacting section 1170.95,
subdivision (d)(2), the Legislature has determined that it
should not have a second bite at the apple.
Finally, although “courts may be called upon to establish
factual innocence[ ] (e.g., § 851.8, subd. (e)), juries do so rarely,
if ever.” (Harrison, supra, ___ Cal.App.5th at p. ___ [2021
WL 6144005, at p. *17].) If a jury’s “not true” verdict on a special
circumstance allegation did not constitute “a prior finding by
a . . . jury that the petitioner did not act with reckless indifference
to human life or was not a major participant in the felony”
(§ 1170.95, subd. (d)(2)), it is difficult to conceive of a scenario in
which a jury in a criminal trial could make such a finding. We
must avoid statutory interpretations “ ‘that lead to absurd results
or render words surplusage.’ ” (People v. Loeun (1997) 17 Cal.4th
1, 9 (Loeun).)
The Attorney General argues that its interpretation of
the law does not in fact render the language of section 1170.95,
subdivision (d)(2) surplusage. According to the Attorney General,
the jury’s verdict in this case was simply too ambiguous to allow for
a specific conclusion on the jury’s findings. The Attorney General is
correct that a jury’s general verdict does not always imply specific
factual findings about the case. (See People v. Towne (2008) 44
Cal.4th 63, 86.) For example, a jury may convict a defendant of
murder even if the jurors do not unanimously agree as to whether
the defendant was the actual perpetrator or an aider and abettor.
(People v. Santamaria (1994) 8 Cal.4th 903, 918.) In this case, the
10
jury could have found the felony-murder special circumstance
true even if some jurors believed that Flint acted with the intent
to kill in aiding and abetting Gonzalez in the murder (see § 190.2,
subd. (c)), while other jurors believed Flint was a major participant
in the robbery who acted with reckless indifference to human life
(see § 190.2, subd. (d)). As long as each juror found at least one
of the requirements true beyond a reasonable doubt, the jury could
correctly find the allegation true. (See People v. Grimes (2016)
1 Cal.5th 698, 726–727.)
It does not follow, however, that the jury’s rejection of the
felony murder special circumstance is equally ambiguous. The
jury instructions told the jurors to find the special circumstance
allegation true if they were satisfied beyond a reasonable doubt
that either of two possibilities was true: Flint “with the intent
to kill [aided,] [abetted,] [counseled,] [commanded,] [induced,]
[solicited,] [requested,] [or] [assisted] any actor in the commission
of the murder in the first degree . . . or with reckless indifference
to human life and as a major participant, [aided,] [abetted,]
[counseled,] [commanded,] [induced,] [solicited,] [requested,] [or]
[assisted] in the commission of the crime of attempted robbery . . .
which resulted in the death of a human being.” (Italics added.) If
either theory alone was sufficient to prove the special circumstance,
then in order to find the allegation not true, the jurors must have
had a reasonable doubt as to both theories. The Attorney General
contends that the jury could have voted the special circumstance
not true even “if some jurors believed that the victim was killed
unintentionally, while others believed [Flint] was a major
participant who acted with reckless indifference to human life.”
But the jury instructions stated that, “[i]n order to find the special
circumstance alleged in this case to be true or untrue, you must
agree unanimously.” The jury’s “not true” verdict thus signifies
11
that the jurors unanimously believed the prosecution had failed to
prove beyond a reasonable doubt that Flint was a major participant
who acted with reckless indifference to human life.
2. Nevertheless, Flint is not entitled to
resentencing under section 1170.95,
subdivision (d)(2) because the peace
officer exception may apply
The Attorney General argues that Flint is not entitled to
immediate relief under section 1170.95, subdivision (d)(2) because
the prosecution must have an opportunity to show that Flint knew
or should have known that Rosa was a peace officer engaged in
the performance of her duties at the time of the murder. Flint
disagrees, arguing that no such exception applies. We agree with
the Attorney General.
In enacting Senate Bill No. 1437, the Legislature created
an exception to the new requirements for felony murder, providing
that they do “not apply to a defendant when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have known
that the victim was a peace officer engaged in the performance of
the peace officer’s duties.” (§ 189, subd. (f).) When this exception
applies, a defendant may be convicted of felony murder even if he
was not a major participant in the felony who acted with reckless
indifference to human life. (See Hernandez, supra, 60 Cal.App.5th
at p. 108.) But section 1170.95, subdivision (d)(2) makes no
provision for the peace officer exemption.
Flint argues that the absence of any reference to the peace
officer exception in section 1170.95, subdivision (d)(2) is decisive.
“ ‘If the statutory language is unambiguous, then its plain
meaning controls’ ” (People v. Ruiz (2018) 4 Cal.5th 1100, 1106),
and the only requirement for relief in the text of section 1170.95,
12
subdivision (d)(2) is that “there was a prior finding by a court or
jury that [he] did not act with reckless indifference to human life
or was not a major participant in the felony.” Flint has done so,
and he contends that the trial court must therefore “vacate [his]
conviction and resentence” him.
We disagree. Although we must defer to the plain language
of a statute, “the language of a statute should not be given a
literal meaning if doing so would result in absurd consequences
that the Legislature did not intend. To this extent, therefore,
intent prevails over the letter of the law and the letter will be read
in accordance with the spirit of the enactment.” (In re Michele D.
(2002) 29 Cal.4th 600, 606; see also Loeun, supra, 17 Cal.4th at p. 9
[“ ‘[i]nterpretations that lead to absurd results or render words
surplusage are to be avoided’ ”].)
The legislative history shows that the Legislature intended
to maintain broader liability for felony murder in cases where the
victim was a peace officer. A report of the Senate Rules Committee5
explained that, although the new law restricted the application of
the felony-murder doctrine, “the provisions of the bill do not apply
when the decedent is a peace officer” (Sen. Rules Com., Off. of
Sen. Floor Analyses, Analysis of Sen. Bill No. 1437 (2017−2018
Reg. Sess.) as amended Aug. 20, 2018, p. 2). Moreover, the
committee explained that the bill “[a]llows a defendant to be
convicted of first degree murder if the victim is a peace officer
who was killed in the course of duty, where the defendant was a
participant in certain specified felonies and the defendant knew,
or reasonably should have known, that the victim was a peace
5 “ ‘[R]eports of legislative committees and commissions are
part of a statute’s legislative history and may be considered when
the meaning of a statute is uncertain.’ ” (People v. Cruz (1996) 13
Cal.4th 764, 773, fn. 5.)
13
officer engaged in the performance of duty, regardless of the
defendant’s state of mind.” (Id. at p. 4, italics added.)
The Legislature’s purpose in enacting section 1170.95 as
the retroactive component of Senate Bill No. 1437 is also clear, and
is stated in the preamble to the bill itself: to “provide a means of
vacating the conviction and resentencing a defendant” convicted
of murder where “the defendant could not be charged with murder
after the enactment of this bill.” Indeed, one of the criteria for
resentencing is that the petitioner “could not presently be convicted
of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).)
Under section 189, subdivision (f), a defendant convicted of felony
murder who knew or should have known that the victim was a
peace officer engaged in the performance of her duties fails to meet
this requirement regardless of whether or not he was a major
participant in the felony who acted with reckless indifference to
human life. (Hernandez, supra, 60 Cal.App.5th at pp. 105–109.)
Flint’s interpretation of the statute would make subdivision (d)(2)
into a backdoor to guarantee resentencing for certain defendants
who are not eligible, rather than a mechanism to “streamline the
process” of resentencing (Ramirez, supra, 41 Cal.App.5th at p. 932)
in cases where it is clear that the defendant is eligible. This is an
absurd result, which we will not infer the Legislature intended.
C. Section 1170.95 Does Not Implicate Double
Jeopardy Concerns
Finally, Flint contends that the double jeopardy clauses of
the federal and state constitutions preclude the prosecution from
introducing new theories of his guilt that it did not raise at trial.
We disagree.
“An evidentiary hearing under section 1170.95 . . . does not
implicate double jeopardy because section 1170.95 ‘involves a
14
resentencing procedure, not a new prosecution.’ [Citation.]
The retroactive relief provided by section 1170.95 is a legislative
‘act of lenity’ intended to give defendants serving otherwise final
sentences the benefit of ameliorative changes to applicable criminal
laws and does not result in a new trial or increased punishment
that could implicate the double jeopardy clause.” (Hernandez,
supra, 60 Cal.App.5th at p. 111.)
DISPOSITION
The trial court’s order denying Flint’s petition for
resentencing is reversed. On remand, the court shall issue an
order to show cause pursuant to section 1170.95 and hold further
proceedings in conformance with this opinion.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
15
Filed 2/24/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B310238
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA071779)
v.
CERTIFICATION AND
JUSTIN ASHLEY FLINT, ORDER FOR PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on January 28,
2022 was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published in
the Official Reports and it is so ordered.
_______________________________________________________________
ROTHSCHILD, P. J. CHANEY, J. CRANDALL, J.*
*Judge of the San Luis Obispo Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.