People v. Thomas CA2/3 ( 2022 )

Filed 2/28/22 P. v. Thomas CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306983
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA417741
v.
MARKELL THOMAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Reversed and
remanded with directions.
Elizabeth K. Horowitz, 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, Idan Ivri, Amanda V. Lopez and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 2014, defendant Markell Thomas and a codefendant
were charged with murder, attempted murder, and 11 counts of
robbery, with gang and gun enhancements. The following year,
after agreeing to testify against his codefendant, Thomas pled
guilty to one count of manslaughter and two counts of robbery. In
2019, after the Legislature amended the law of accomplice
liability for felony murder, Thomas petitioned for recall and
resentencing under Penal Code section 1170.95. The trial court
denied the petition because section 1170.95 applied only to
defendants convicted of murder. While Thomas’s appeal was
pending, however, the Legislature passed Senate Bill No. 775
(2020–2021 Reg. Sess.) (S.B. 775), which amended section
1170.95 to apply to defendants, like Thomas, who had been
charged with murder or attempted murder but convicted of
manslaughter. The People concede, and we agree, that Thomas
may be eligible for relief under the amended statute. We
therefore reverse and remand for further proceedings.
BACKGROUND1
By information filed December 31, 2014, Thomas and
codefendant Ryan Cetris Michael Roth were charged with murder
(Pen. Code,2 § 187, subd. (a); count 1); attempted murder
(§ 664/187, count 2); and 11 counts of robbery (§ 211; counts 3–
13). As to count 1, the information alleged that the murder was
committed in the commission of a robbery (§ 190.2, subd. (a)(17)).
1Because the facts of this case are unnecessary to our resolution of this
appeal, we do not address them.
2 All undesignated statutory references are to the Penal Code.
2
The information also alleged, as to counts 1–4 and 6–10, that the
crimes were committed for the benefit of a criminal street gang
(§ 186.22, subds. (b)(5) & (b)(1)(C)) and, as to counts 1–7 and 11–
13, alleged various firearm enhancements (§§ 12022.53,
subds. (b), (c), (d) & (e), 12022, subd. (a)(1)).
On July 8, 2015, pursuant to a plea agreement, Thomas
pled guilty to one count of voluntary manslaughter (§ 192) and
two counts of robbery (§ 211). For all three counts, Thomas
admitted personally using a firearm (§ 12022.5, subd. (a)) and
committing the crime for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)). On May 26, 2016, after complying with
his leniency agreement by testifying against Roth, Thomas was
sentenced to an aggregate term of 26 years in prison: six years for
the manslaughter count plus 10 years for the gun enhancement
and 10 years for the gang enhancement, to run consecutively. The
court imposed 13 years for each of the robbery counts, to run
concurrently.
On January 31, 2019, Thomas filed a petition for recall and
resentencing under section 1170.95 stating he had been charged
with murder under a theory of felony murder, pled guilty to first
or second degree murder in lieu of going to trial because he
believed he could be convicted of felony murder,3 and could not be
convicted of murder under present law because he was not the
actual killer, a direct aider and abettor, or a major participant
who acted with reckless indifference to human life, as described
in section 190.2, subdivision (d). At Thomas’s request, the court
3Because Thomas filled out a standardized form before section 1170.95
was amended, there was no option for him to check a box stating that
he pled guilty to manslaughter.
3
appointed counsel to represent him; the prosecution filed an
opposition; and Thomas filed a reply and a supplemental brief.
On August 4, 2020, the court denied the petition, holding
that Thomas had failed to set forth a prima facie case for relief.
Specifically, the court held that Thomas was not eligible for
resentencing because he had not been convicted of murder:
The court finds that petitioner is ineligible for recall
and resentencing pursuant to Penal Code 1170.95
because he pled guilty to manslaughter.
The plain language of Penal Code 1170.95 makes it
clear it only applies to defendants convicted of first
and second degree murder. For example,
subdivision (a)(1) of section 1170.95 allows “a person
convicted of felony murder or murder under a natural
and probable consequence theory” to file a petition to
have his murder conviction vacated and to be
resentenced on any remaining counts.
The appellate courts which have considered the issue
of whether a person convicted of manslaughter can
obtain relief under Penal Code 1170.95 have all
denied relief. People v. Cervantes (2020) 44
Cal.App.5th 884, People v. Turner (2020) 45
Cal.App.5th 428, People v. Paige (2020) 51
Cal.App.5th 194.
In the Turner decision, the appellate court reviewed
the legislative history of Penal Code 1170.95 and
determined the Legislature was focused on changing
accomplice liability in murder cases. The Turner
court also emphasized that the Legislature
4
understood the distinction between murder and
manslaughter and chose to focus its efforts on
revising accomplice liability under a felony murder or
natural and probable consequence theory.
This legislative history confirms that a defendant like
petitioner who pled guilty to manslaughter is not
eligible under Penal Code 1170.95. In People v.
Cervantes, the appellate court also rejected the claim
that Penal Code 1170.95 violates the equal protection
clause. The court in Cervantes held that “the decision
not to include manslaughter in section 1170.95 falls
within the Legislature’s ‘line-drawing’ authority as a
rational choice that is not constitutionally prohibited.
(People v. Chatman (2018) 4 Cal.5th 277, 283.)”
This court recognizes the Legislature has broad
discretion in drafting laws and that its decision not to
include manslaughter within Penal Code 1170.95 is a
proper exercise of that discretion.
Based on the foregoing reasons, the court summarily
denies the Penal Code 1170.95 petition and finds that
petitioner has not made a prima facie showing that
manslaughter falls within the provisions of Penal
Code 1170.95.
The petition is denied.
Thomas filed a timely notice of appeal.
5
DISCUSSION
Thomas contends that based on the amendments S.B. 775
made to section 1170.95, the court erred by finding him ineligible
for relief. The People concede the point, and we agree.
1. The Law of Murder and Senate Bill No. 1437
Murder is “the unlawful killing of a human being … with
malice aforethought.” (§ 187, subd. (a).) Malice may be express or
implied. (§ 188.) Express malice is the intent to kill, whereas
implied malice exists “where the defendant … acted with
conscious disregard that the natural and probable consequences
of [his or her] act or actions were dangerous to human life.
[Citation.]” (People v. Gonzalez (2018) 5 Cal.5th 186, 197.)
Although malice is an element of murder, when Thomas was
convicted, the law allowed defendants who did not act with
malice to be liable for murder under certain circumstances.
“First, under the natural and probable consequence[s]
doctrine, a defendant who aids and abets a confederate in
committing a crime (the target offense) is liable for other crimes
committed by the confederate if those further crimes were
natural and probable consequences of the target offense.
[Citation.] Thus, under prior law, if the direct perpetrator of the
target offense committed murder, and the murder was a natural
and probable consequence of the target offense, then an aider and
abettor of the target offense would be liable for the murder even
if the aider and abettor did not act with malice. (People v. Gentile
(2020) 10 Cal.5th 830, 845 [‘until recently, when a person aided
and abetted a nonhomicide crime that then resulted in a murder,
the natural and probable consequences doctrine allowed him or
her to be convicted of murder without personally possessing
6
malice aforethought’].)” (People v. Eynon (2021) 68 Cal.App.5th
967, 973 (Eynon).)
Second, under prior California law, every accomplice to an
enumerated felony could be convicted of first degree murder if a
death occurred during the commission of that felony—regardless
of whether the accused killed or intended to kill. (See People v.
Dillon (1983) 34 Cal.3d 441, 462–472.)
Senate Bill No. 1437 (S.B. 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); People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).) It accomplished this “ ‘by amending
sections 188 and 189 to restrict the scope of first degree felony
murder and to eliminate murder liability based on the natural
and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–
3.)’ [Citation.]
“Amended section 188 provides that, except for first degree
felony murder, ‘in order to be convicted of murder, a principal in
a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.’ (§ 188, subd. (a)(3).) The requirement that the principal
act with malice eliminates all murder liability under the natural
and probable consequences doctrine. [Citation.]
“Amended section 189 limits the first degree felony-murder
rule by imposing new requirements for its application. The
statute provides that, unless the victim is a peace officer killed in
the line of duty, a defendant cannot be liable for first degree
7
felony murder unless the defendant was the actual killer, acted
with intent to kill, or was a major participant in the underlying
felony and acted with reckless indifference to human life.
[Citations.]” (Eynon, supra, 68 Cal.App.5th at pp. 973–974.)
2. Section 1170.95
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted under one of the
now-invalid theories of murder the opportunity to petition for
resentencing under newly-enacted section 1170.95. (Stats. 2018,
ch. 1015, § 4.) As enacted, section 1170.95 applied only to people
convicted of murder, but on October 5, 2021, the Governor signed
S.B. 775, which expanded eligibility under the statute to people,
like Thomas, who had been charged with either murder or
attempted murder but convicted of manslaughter. (Stats. 2021,
ch. 551, § 2.)4
Section 1170.95, subdivision (a)(3), describes who may
petition for resentencing under the statute. Subdivision (b)
explains what information the petition must contain, where the
petitioner must file it, who the petitioner must serve, and what
the court should do if it’s incomplete. Subdivision (c) describes the
process the court uses to determine whether the petitioner is
entitled to an evidentiary hearing: Appoint counsel, if requested;
wait for the prosecutor’s required response and the petitioner’s
optional reply; if the petitioner makes a prima facie showing that
he or she is entitled to relief, issue an order to show cause.
(Lewis, supra, 11 Cal.5th at p. 966.)
4 The parties agree that the amendments made by S.B. 775, which took
effect on January 1, 2022, apply retroactively to this case. (See, e.g.,
People v. Montes (2021) 71 Cal.App.5th 1001, 1006.)
8
As relevant here, under section 1170.95, as amended by
S.B. 775, a petitioner makes a prima facie showing that he is
entitled to relief by demonstrating:
(1) A complaint, information, or indictment was
filed against the petitioner that allowed the
prosecution to proceed under a theory of murder
under the natural and probable consequences
doctrine or attempted murder under the natural
and probable consequences doctrine.
(2) The petitioner was convicted of manslaughter
following a trial or accepted plea offer in lieu of
a trial at which the petitioner could have been
convicted of murder or attempted murder.
(3) 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); Stats. 2021, ch. 551, § 2.)
“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.” (Lewis,
supra, 11 Cal.5th at p. 971.) The court may deny a petition at this
stage only if the petitioner is ineligible for relief as a matter of
law. A petitioner is ineligible for relief as matter of law if the
record of conviction shows that he or she could not have been
convicted under any theory of liability affected by S.B. 1437—
such as where malice aforethought was the only theory presented
to the jury.
9
“In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 972.)
Instead, the record should be consulted at the prima facie stage
only to determine “ ‘readily ascertainable facts,’ ” such as the
crime of conviction and findings on enhancements. (People v.
Duchine (2021) 60 Cal.App.5th 798, 815; Lewis, at p. 972.) “ ‘[T]he
prima facie bar was intentionally and correctly set very low.’ ”
(Lewis, at p. 972.)
If the petitioner establishes a prima facie entitlement to
relief, the court must issue an order to show cause. Subdivisions
(d)–(g) describe the procedures for holding an evidentiary
hearing, the type of evidence that may be admitted, the burden of
proof, and the requirements for resentencing an eligible
petitioner.
We independently review the trial court’s determination
that Thomas’s record of conviction refuted his allegations that he
is eligible for relief under section 1170.95. (See Eynon, supra, 68
Cal.App.5th at p. 975.)
3. Because S.B. 775 expanded section 1170.95, Thomas
may now be eligible for relief.
Here, Thomas was charged with murder and attempted
murder. He pled guilty to manslaughter in lieu of going to trial
on those charges. As the People acknowledge, “the record
presently before this Court does not contain evidence showing as
a matter of law that [Thomas] admitted to a factual basis
establishing that he personally acted with malice, or to any facts
that conclusively establish liability under a felony murder theory.
10
[Citation.] Accordingly, the record does not show that [Thomas] is
ineligible as a matter of law. [Citation.]”
To be sure, when the court below ruled on Thomas’s
petition, the appellate courts had uniformly held that
section 1170.95 did not apply to defendants convicted of
manslaughter. Thus, in the proceedings below, the court
concluded Thomas had not made a prima facie showing for relief
because he had not been not convicted of murder. Likewise, the
prosecution’s brief focused only on whether section 1170.95
applied to petitioners convicted of manslaughter. But that is no
longer the law.
Now that the law has now changed, and in light of the trial
court’s summary denial of Thomas’s petition on the grounds he
was not convicted of murder, remand is appropriate to allow the
court to hold a hearing to determine whether Thomas has made a
prima facie case for relief under amended section 1170.95. “If
[Thomas] makes a prima facie showing that [he] is entitled to
relief, the court shall issue an order to show cause. If the court
declines to make an order to show cause, it shall provide a
statement fully setting forth its reasons for doing so.” (§ 1170.95,
subd. (c).) In the event the court issues an order to show cause,
the court shall conduct further proceedings in accordance with
section 1170.95, subdivision (d), as amended.
11
DISPOSITION
The order denying Thomas’s section 1170.95 petition is
reversed and the matter is remanded with directions to conduct
new eligibility proceedings under section 1170.95, subdivision (c).
If the court concludes the record of conviction does not establish
Thomas’s ineligibility as a matter of law, the court shall issue an
order to show cause and proceed with a hearing at which the
parties may present evidence and the court acts as the trier of
fact. (§ 1170.95, subds. (c)–(d).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
12