People v. Collins CA3 ( 2023 )

Filed 1/13/23 P. v. Collins CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093043
Plaintiff and Respondent, (Super. Ct. No. 98F10648)
v. OPINION ON TRANSFER
JOHNNY PAUL COLLINS,
Defendant and Appellant.
A jury found petitioner Johnny Paul Collins guilty of first degree murder and
robbery. The jury also found true a robbery-murder special-circumstance allegation.
Petitioner petitioned the trial court for resentencing under Penal Code1 section 1172.62
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 as
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the
statute. Although petitioner filed his petition under former section 1170.95, we cite to
section 1172.6 throughout this opinion.
1
based on changes made to the felony-murder rule by Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Stats. 2018, ch. 1015, § 4). The trial court denied the petition, finding the
record established petitioner was ineligible for resentencing as a matter of law because
the jury found true the special-circumstance enhancement allegation. On appeal,
petitioner argued the trial court erred in relying on the special-circumstance finding to
disqualify him for relief. Originally, finding no error, we affirmed the trial court’s order
with a correction to the abstract of judgment. (People v. Collins (Jan. 6, 2022, C093043)
[nonpub. opn.].)
Our Supreme Court granted review but deferred further action pending the
disposition in People v. Strong (2022) 13 Cal.5th 698 (Strong). Following its decision,
our Supreme Court transferred the matter back to us with directions to vacate our
decision and reconsider the matter in light of Strong.
Upon reconsideration, we conclude the trial court’s denial of the petition was
inconsistent with section 1172.6 and Strong. We accordingly reverse and remand for
further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
We take the basic, relevant facts of petitioner’s case from our opinion in his
original appeal. (People v. Collins (Jan. 13, 2003, C035384) [nonpub. opn.] (Collins).)3
On October 22, 1998, at about 7:00 p.m., Robert Yee and his wife Sim were
closing their market in Rio Linda, the business they had owned for 37 years. The Yees
lived next door to the market. At around 7:15 p.m., three robbers (petitioner, Shaun
Edward Anderson, and James M.) wearing ski masks entered the store. Petitioner carried
3 We provide this summary of facts from the prior opinion in petitioner’s direct
appeal solely for context and do not rely on these facts for our analysis or disposition
here. (See § 1172.6, subd. (d)(3).)
2
a .38-caliber pistol. He and Anderson forced Mr. Yee into the back of the store while
James M. went to the cash register area where Mrs. Yee was standing behind the counter.
Petitioner and Anderson forced Mr. Yee to lie down; they taped his hands, mouth,
and feet with duct tape. Petitioner obtained Mr. Yee’s house keys. He and Anderson
went to the Yee residence.
Mr. Yee was on the floor for 10 to 15 minutes. At about the time he had worked
himself free from the duct tape, he heard his across-the-street neighbor call for him.
The neighbor testified he entered the store and found Mrs. Yee lying face down on
the floor, behind the counter, bound with duct tape. Mrs. Yee was not moving or
breathing. Mr. Yee, who was “real distraught,” started ripping all the tape off of Mrs.
Yee and hollering at her. The neighbor spoke to Mrs. Yee but got no response. He was
unable to feel a pulse.
Dr. Robert Anthony performed an autopsy on Mrs. Yee. She had the autoimmune
disease scleroderma, which caused her to lose a fair amount of lung tissue. Her impaired
lungs stressed and enlarged her heart. Her lung disease had reached a plateau and
stabilized, and she had begun the occasional use of oxygen. Dr. Anthony and Mrs. Yee’s
attending physician both testified that she would have been at great risk of death by being
unable to breathe if she had been placed face down on the floor, or had her mouth
covered with duct tape. Dr. Anthony expressed the opinion that Mrs. Yee’s death may
have been caused by positional asphyxia, in which being placed prone prevented her from
breathing effectively.
Well after the robbery, petitioner was found and arrested in Arkansas. During his
extradition hearing, petitioner was overheard blurting out in a loud voice that he “did not
murder that woman, that there was [sic] three of them. And that they had only tied the
woman up, and that she was on oxygen and he did not kill her.” (Collins, supra,
C035384.)
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In instructing the jury, the trial court included CALJIC No. 8.80.01, which states
to the jury that unless petitioner was the actual killer, “you cannot find the special
circumstance to be true [as to that petitioner] unless you are satisfied beyond a reasonable
doubt that such [petitioner] . . . 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 [r]obbery which resulted in
the death of a human being, namely Sim Yee. [A [petitioner] acts with reckless
indifference to human life when that [petitioner] knows or is aware that [his, her, or their]
. . . acts involve a grave risk of death to an innocent human being.]”
In 2000, the jury found petitioner guilty of second degree robbery of Robert and
Sim Yee, and first degree murder of Sim Yee. An allegation that the murder was
committed during the robbery was found true. An allegation that petitioner was armed
with a firearm was found not true. Petitioner was sentenced for the murder to state prison
for life without the possibility of parole.
Petitioner appealed and we affirmed the judgment.
In January 2019, petitioner filed a petition for resentencing under section 1172.6
alleging he could not now be convicted of murder because of the changes made to
sections 188 and 189. Counsel was appointed for petitioner. The prosecution filed a
response and moved to dismiss the petition on the basis that petitioner failed to make a
prima facie showing he was eligible for relief. Petitioner filed a reply brief. In October
2020, the trial court denied petitioner’s petition, stating that in “its verdict the jury
determined [petitioner] was aiding and abetting the robbery, acted in a capacity of a
major participant, and conducted himself with reckless disregard for human life knowing
his acts involved a grave risk of death to an innocent human being. These findings, under
case law as it has recently developed, make it clear that the [petitioner] could still be
prosecuted for murder under current felony murder law.”
Petitioner appealed.
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DISCUSSION
I
Applicable Law
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised
the felony-murder rule in California “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).) The bill amended the definition of malice in
section 188, revised the definition of the degrees of murder to address felony-murder
liability in section 189, and added section 1172.6, “which provides a procedure by which
those convicted of murder can seek retroactive relief if the changes in the law would
affect their previously sustained convictions.” (People v. Gutierrez-Salazar (2019)
38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)
Section 1172.6, subdivision (a) states a person convicted of felony murder or
murder under a natural and probable consequences theory may file a petition with the
court for resentencing “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 or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of murder,
attempted murder, or manslaughter following a trial or accepted a 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.”
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Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that
avers eligibility for relief under the statute (based on the requirements of subdivision (a))
and states the superior court case number, the year of conviction, and whether the
petitioner requests appointment of counsel. (§ 1172.6, subd. (b).) Section 1172.6,
subdivision (c), which dictates how the court must handle the petition, reads: “Within 60
days after service of a petition that meets the requirements set forth in subdivision (b), the
prosecutor shall file and serve a response. The petitioner may file and serve a reply
within 30 days after the prosecutor’s response is served. These deadlines shall be
extended for good cause. After the parties have had an opportunity to submit briefings,
the court shall hold a hearing to determine whether the petitioner has made a prima facie
case for relief. If the petitioner makes a prima facie showing that the petitioner 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.”
Section 1172.6, subdivision (d)(1) provides that a hearing to determine whether to
vacate the murder conviction, recall the sentence, and resentence the petitioner as needed
should be held within 60 days after the order to show cause. The prosecution bears the
burden of proving beyond a reasonable doubt that the petitioner is ineligible for
resentencing. (§ 1172.6, subd. (d)(3).) At the hearing, “[t]he admission of evidence in
the hearing shall be governed by the Evidence Code, except that the court may consider
evidence previously admitted at any prior hearing or trial that is admissible under current
law, including witness testimony, stipulated evidence, and matters judicially noticed.
The court may also consider the procedural history of the case recited in any prior
appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing
pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay,
unless the evidence is admissible pursuant to another exception to the hearsay rule.”
(Ibid.)
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II
Special Circumstances After Banks and Clark
Section 190.2, subdivision (d) provides that special-circumstance findings based
on the enumerated felonies in paragraph (17) of subdivision (a)⸺which includes
robbery⸺require that an aiding and abetting defendant must have been a “major
participant” and have acted “with reckless indifference to human life.” (§ 190.2,
subd. (d); see People v. Banks (2015) 61 Cal.4th 788.) Thus, on its face, a special-
circumstance finding satisfies the requirements for accomplice murder liability even after
Senate Bill No. 1437. (See § 189, subd. (e) [providing where “[a] participant in the
perpetration” of a robbery “in which a death occurs is liable for murder” if proven to have
been “a major participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2”].) Since petitioner’s
conviction, however, our Supreme Court has refined the analysis for determining who
qualifies as a major participant acting with reckless indifference to human life in Banks
and People v. Clark (2016) 63 Cal.4th 522.
In People v. Banks, supra, 61 Cal.4th at page 803, our Supreme Court identified a
series of considerations, none of which are “necessary, nor is any one of them necessarily
sufficient,” for determining whether a defendant was a major participant. These include
the defendant’s role in planning the crime and in “supplying or using lethal weapons”; the
defendant’s awareness of “particular dangers posed by the nature of the crime”; whether
the defendant was “present at the scene of the killing, in a position to facilitate or prevent
the actual murder”; whether the defendant’s own “actions or inaction play[ed] a particular
role in the death,” and what the defendant did “after lethal force was used.” (Ibid.)
Similarly, in People v. Clark, supra, 63 Cal.4th at page 617, our Supreme Court
found reckless indifference to “encompass[] a willingness to kill (or to assist in another
killing) to achieve a distinct aim.” It provided a nonexhaustive list of factors to consider
in making this determination, including use or awareness of the presence of a weapon or
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weapons, physical presence at the scene and opportunity to restrain confederates or aid
victims, duration of the crime, knowledge of any threat the confederates might represent,
and efforts taken to minimize risks. (Id. at pp. 618-623.)
In Strong, supra, 13 Cal.5th 698, our Supreme Court addressed the impact of
Banks and Clark on section 1172.6 petitions for defendants with special-circumstance
findings. The Court found “Banks and Clark both substantially clarified the law
governing findings under Penal Code section 190.2, subdivision (d)” as they “represent
the sort of significant change that has traditionally been thought to warrant reexamination
of an earlier-litigated issue.” (Strong, at pp. 706, 717.) Thus, prior special-circumstance
findings made “before Banks and Clark do not preclude a defendant from making out a
prima facie case for relief under Senate Bill [No.] 1437. This is true even if the trial
evidence would have been sufficient to support the findings under Banks and Clark.” (Id.
at p. 710.) A defendant with a special-circumstance finding who files a section 1172.6
petition may ultimately be found to be ineligible for relief, but it must be determined
beyond a reasonable doubt the defendant was a major participant who acted with reckless
indifference to human life under the Banks/Clark analyses. (Strong, at p. 720.) Though a
special-circumstance finding may be challenged through a habeas corpus petition,
“nothing in section 1172.6 says that a defendant must always do so before seeking
resentencing.” (Id. at p. 713, italics omitted.)
III
Petitioner Is Not Barred From Relief As A Matter Of Law
Petitioner argues the trial court erred in relying on the jury’s special-circumstance
finding to establish he was a major participant who acted with reckless indifference to
human life because the law changed considerably when, after his conviction, our
Supreme Court clarified the special circumstances analysis in Banks and Clark.
Petitioner asserts we must reverse and order the trial court to issue an order to show
cause. The People concede in supplemental briefing that the order denying petitioner’s
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petition must be reversed and the matter remanded to the trial court for the trial court to
issue an order to show cause.
We originally concluded petitioner failed to make a prima facie showing and
failed to demonstrate error in the trial court’s reliance on the jury’s special-circumstance
findings. In light of Strong, the second conclusion is no longer valid.
Although the requirements for the felony-murder special circumstance did not
change as a part of Senate Bill No. 1437, and are identical to the new requirements for
felony murder following the enactment of Senate Bill No. 1437, petitioner is not barred
from making a prima facie case for relief based on the pre-Banks/Clark special-
circumstance finding and was not required to first challenge the finding via habeas corpus
proceedings. (Strong, supra, 13 Cal.5th at pp. 710, 713.) The trial court’s statements to
the contrary are inconsistent with section 1172.6 as clarified by Strong, and it was thus
error to deny the petition without issuing an order to show cause.
Having made a prima facie case for relief, petitioner now is entitled to an
evidentiary hearing under section 1172.6, subdivision (d)(3). We shall, therefore, remand
this matter to the trial court with instructions to issue an order to show cause and hold an
evidentiary hearing on the petition.
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DISPOSITION
The order denying the petition is reversed. The case is remanded to the trial court
for issuance of an order to show cause and to hold an evidentiary hearing on the petition.
/s/
Robie, Acting P. J.
We concur:
/s/
Duarte, J.
/s/
Renner, J.
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