People v. Tinsley CA3 ( 2022 )

Filed 12/20/22 P. v. Tinsley CA3
On transfer
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C089528
Plaintiff and Respondent, (Super. Ct. Nos.
STKCRFE19940007582,
v. SC058087A)
DONALD EUGENE TINSLEY, OPINION ON TRANSFER
Defendant and Appellant.
In 1995, a jury found defendant Donald Eugene Tinsley guilty of first degree
murder and other charges and enhancements not material to this appeal. (Pen. Code,
§ 187; statutory section citations that follow are to the Penal Code.) We affirmed the
judgment in 1997. (People v. Adams et al. (Aug. 27, 1997, C022618) [nonpub. opn.]
(Slip Opinion).)
In May 2019, defendant filed a petition for resentencing under a then newly
enacted special procedure. The trial court summarily denied the petition without
appointing counsel, concluding defendant was not eligible for resentencing as a matter of
law, because the Slip Opinion established defendant “had the intent to kill and with that
intent aided, abetted, and assisted the actual killer in the commission of murder.” This
court affirmed the trial court’s order.
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The California Supreme Court granted defendant’s petition for review and
deferred further action pending disposition in a related case. After issuing its opinion in
People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the Supreme Court transferred the matter
back to us with directions to vacate this court’s decision and reconsider the cause in light
of Lewis. We vacated the prior decision and reconsidered the matter in light of Lewis and
the defendant’s supplemental brief.
Although the trial court should have appointed counsel to represent defendant
when he filed a facially sufficient petition containing a request for counsel, the error was
harmless. Accordingly, we will affirm the trial court’s order.
FACTS AND PROCEDURAL HISTORY
Senate Bill No. 1437
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018
Reg. Sess.). Senate Bill No. 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).) Effective January 1,
2019, the legislation amended sections 188 and 189 and added a special procedure for
certain eligible persons to petition for resentencing in light of those amendments.
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) made some
changes to the special resentencing procedure, formerly section 1170.95, including
clarifying the scope of admissible evidence in determining a petitioner’s eligibility for
relief. (Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, the Legislature renumbered
the special resentencing procedure to section 1172.6. (Stats. 2022, ch. 58, § 10.) Though
defendant filed his petition under section 1170.95, for purposes of clarity, we will refer to
the section by its new numbering.
2
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, 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).) Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [defining first degree murder] in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2)
The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree. [¶] (3) The person was a major participant in the
underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
Section 1172.6 provides that a resentencing petition “shall include all of the
following: [¶] (A) A declaration by the petitioner that the petitioner is eligible for relief
under this section, based on all the requirements of subdivision (a). [¶] (B) The superior
court case number and year of the petitioner’s conviction. [¶] (C) Whether the petitioner
requests the appointment of counsel.” (§ 1172.6, subd. (b)(1).)
“Upon receiving a petition in which the information required by . . . subdivision
[(b)] is set forth . . . if the petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner.” (§ 1172.6, subd. (b)(3).) Consistent with the current
legislative language, the Supreme Court in Lewis held a trial court must appoint counsel
to represent the petitioner when the petitioner files a facially sufficient petition containing
a request for the appointment of counsel, and the appointment of counsel does not hinge
on a prima facie showing that the petitioner is eligible for relief under the special
resentencing procedure. (Lewis, supra, 11 Cal.5th at pp. 962-963, 966-967, 970.)
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A petitioner demonstrates eligibility for relief under subdivision (a) by showing:
“(1) A complaint, information, or indictment was filed against the petitioner that allowed
the prosecution to proceed under a theory of felony murder, 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.”
(§ 1172.6, subd. (a)(1)-(3).)
“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.” (§ 1172.6, subd. (c).)
The California Supreme Court held the petitioner must make one prima facie
showing that he or she is entitled to relief under the special resentencing procedure
(Lewis, supra, 11 Cal.5th at pp. 961-967), and the prima facie bar is set very low, as “the
prima facie inquiry . . . is limited. Like 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.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing’ ” (id. at p. 971). At
this stage, the trial court should also not engage in factfinding involving the weighing of
evidence or the exercise of discretion. (Id. at p. 972.)
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After an order to show cause has issued, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or
attempted murder under California law as amended by the changes to Section 188 or 189
made effective January 1, 2019. The 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. . . .
The prosecutor and the petitioner may also offer new or additional evidence to meet their
respective burdens.” (§ 1172.6, subd. (d)(3).)
Defendant’s Petition
In April 2019, defendant filed a petition to vacate his murder conviction pursuant
to the special resentencing procedure. The petition included a form declaration that he
completed. In his declaration, defendant stated (1) a complaint, information, or
indictment was filed against him that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable consequences doctrine, (2) at
trial, he was convicted of first or second degree murder pursuant to the felony murder
rule or the natural and probable consequences doctrine, and (3) he could not be convicted
of first or second degree murder under the changes to sections 188 and 189. Defendant
also requested the trial court appoint counsel. He did not include any attachments or
exhibits to his form petition and declaration.
The record does not contain a response to defendant’s petition, and the parties
agree in their briefing that the People did not respond.
Trial Court Order
In May 2019, the trial court summarily denied defendant’s petition, after
conducting a “review of the [p]etition and court file,” including the Slip Opinion. The
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court concluded that defendant was ineligible for relief, because “he could be convicted
of first degree murder despite the changes to” murder liability enacted by Senate Bill
No. 1437. This was so, the trial court explained, because the “statement of facts” in the
Slip Opinion affirming defendant’s criminal judgment on direct appeal indicated
defendant “had the intent to kill and with that intent aided, abetted, and assisted the actual
killer in the commission of murder.”
The trial court recited some of the salient facts from the Slip Opinion, including
defendant’s participation in an hours-long assault of the victim, and defendant’s
statement that he was going to kill the victim when he pulled him out of a van by his hair,
shortly before he was fatally shot.
The trial court further explained: “While it was not entirely clear who the shooter
was,” one codefendant’s testimony “pointed to” someone other than defendant as the
shooter. “It was not proven beyond a reasonable doubt that [defendant] was the actual
killer. However, based on the statement of facts cited above, [defendant] had an intent to
kill and did aid, abet, and assist the actual killer in the commission of murder. In
addition, [defendant] was a major participant in the underlying felony (kidnapping) and
acted with reckless indifference to human life.” (Italics added.)
DISCUSSION
I
Summary Denial of Resentencing Petition Without the Appointment of Counsel
Defendant first contends the trial court erred by summarily denying his petition
before appointing counsel. We agree. Because defendant filed a facially sufficient
petition, the trial court should have appointed counsel to represent defendant. (Lewis,
supra, 11 Cal.5th at pp. 962-963, 966-967, 970.)
The failure to appoint counsel at the prima facie stage of review is state law error
and is reviewed for prejudice under the People v. Watson (1956) 46 Cal.2d 818 harmless
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error test. (Lewis, supra, 11 Cal.5th at pp. 973-974.) Defendant must demonstrate there
is a reasonable probability that the appointment of counsel or receipt of briefing would
have changed the outcome of his petition. (See People v. Watson, supra, 46 Cal.2d at
p. 836.) He does not meet that burden, because he was not eligible for relief under the
special resentencing procedure as a matter of law. This is so because, as the trial court
reasoned, our Slip Opinion established that defendant acted with intent to kill when he
participated in the murder. (Slip Opinion, supra, C022618 at p. 18, fn. 11.)
Thus, the trial court correctly ruled that defendant is statutorily ineligible for
section 1172.6 relief. (See §§ 189, subds. (e)(1) [actual killer], (e)(2) [defendant “was
not the actual killer, but, with the intent to kill, aided, abetted . . . or assisted the actual
killer in the commission of murder in the first degree”]; 1172.6, subd. (a)(3) [case for
relief requires a showing the petitioner could not be convicted of murder because of
changes to sections 188 or 189 made by Senate Bill No. 1437].) Therefore, no argument
by counsel properly could have resulted in a different outcome, and any conceivable error
in failing to appoint counsel is harmless.
II
The Trial Court’s Reliance on the Slip Opinion
Defendant’s remaining claims challenge the propriety of the trial court’s reliance
on the Slip Opinion to summarily deny defendant’s petition.
First, noting that the trial court “did not give [him] any notice that it [would] rely[]
on” the Slip Opinion, “nor did it give him the opportunity to respond to the allegations
and legal analyses in that opinion,” defendant contends “the trial court had no right to”
rule him “ineligible for relief as a matter of law” “without soliciting briefing from the
prosecution and [defendant].”
Second, defendant contends the trial court violated due process principles by
“erroneously relying” on the “materially inadequate” Slip Opinion “to reach unsupported
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or inadequately supported findings,” because “[n]o issue” in his direct appeal “required
[us] to determine or even address whether [defendant] harbored an intent to kill.”
Relatedly, defendant argues in his supplemental brief that the trial court “engaged in
improper fact-finding” to deny his petition.
We note that defendant does not challenge the trial court’s legal conclusion that
defendant aided and abetted Wadsworth’s killing. Accordingly, we do not address the
issue.
We conclude any error by the trial court in considering the Slip Opinion to
summarily deny defendant’s petition was harmless, as we determined in the Slip Opinion
that defendant harbored an intent to kill when he participated in the murder.
In the Slip Opinion, we rejected defendant’s argument that section 654 precluded
imposition of multiple punishments for his multiple criminal acts. (Slip Opinion, supra,
C022618 at pp. 17-18.) In making that ruling, we observed that the jury at defendant’s
trial “did not expressly find felony murder; rather, it hung on the felony-murder special
circumstance. Thus we infer that it found against defendant[] on count I [murder] on the
alternative theory of premeditation.” (Slip Opinion, supra, C022618 at p. 18, fn. 11,
italics added.)
Accordingly, we were called upon to decide whether defendant harbored intent to
kill; and we decided the jury found that defendant acted with premeditation when he
participated in the murder. That holding -- which did not weigh any facts, but merely
considered the legal effect the jury’s findings (and lack thereof) had on the case (cf.
People v. Merritt (2017) 2 Cal.5th 819, 830 [jury instruction harmless error analysis not
“appellate factfinding” when it assesses “what effect the error had on the verdict”]) --
conclusively refuted the allegation in defendant’s petition that he could not presently be
convicted of murder because of changes made to sections 188 and 189 effective
January l, 2019.
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Contrary to defendant’s contention, changes made to the special resentencing
procedure by Senate Bill No. 775 do not compel a different result. Defendant contends
section 1172.6, subdivision (d)(3), precludes the trial court from considering appellate
opinions for facts beyond the procedural history of a case. To the extent the trial court
considered such facts in the Slip Opinion, the error was harmless in light of the Slip
Opinion’s legal conclusions regarding the jury’s verdict, which conclusions render
defendant ineligible for resentencing relief as a matter of law. (Compare People v. Flores
(2022) 76 Cal.App.5th 974, 988-989 [quoting language from section 1172.6, subd. (d)(3),
as standing for the proposition that “the factual summary in an appellate opinion is not
evidence that may be considered at an evidentiary hearing to determine a petitioner’s
eligibility for resentencing,” and reasoning that “[i]f such evidence may not be considered
at an evidentiary hearing to determine a petitioner’s ultimate eligibility for resentencing,
[the court] fail[ed] to see how such evidence could establish, as a matter of law, a
petitioner’s ineligibility for resentencing at the prima facie stage”], italics added.)
DISPOSITION
The order denying defendant’s petition is affirmed.
HULL, J.
We concur:
MAURO, J.
KRAUSE, J.
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