People v. Olson CA2/1 ( 2022 )

Filed 12/20/22 P. v. Olson CA2/1
On transfer
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B300206
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA018677)
v.
ERICA DAWN OLSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Reversed and
remanded with directions.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Noah P. Hill,
Charles S. Lee and Scott A. Taryle, Deputy Attorneys General,
for Plaintiff and Respondent.
______________________
In our previous opinion, we affirmed the trial court’s
summary denial of defendant Erica Dawn Olson’s petition for
resentencing under Penal Code1 former section 1170.95.2 We
held Olson was ineligible for relief because the jury had found
true a felony murder special circumstance indicating Olson was a
major participant in a burglary and robbery who acted with
reckless indifference to human life. We rejected Olson’s
argument that the special circumstance finding was invalid
under the Supreme Court’s later decisions in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522, concluding such a challenge must be brought
through a petition for a writ of habeas corpus, not a resentencing
petition under former section 1170.95. Given Olson’s statutory
ineligibility for resentencing, we further held the trial court did
not err by denying her petition without appointing counsel.
The Supreme Court granted review of our decision. The
high court subsequently decided People v. Strong (2022)
13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952(Lewis), which disapproved or reversed the case law upon which
our decision relied. The court directed us to vacate our opinion
and reconsider the cause in light of this new authority.
1 All unspecified statutory references are to the Penal
Code.
2Olson’s petition, and our prior opinion, were based on the
original version of former section 1170.95, effective January 1,
2019. (Stats. 2018, ch. 1015, § 4.) Since that time, the
Legislature has amended the statute (see Stats. 2021, ch. 551,
§ 2) and renumbered it as section 1172.6 (Stats. 2022, ch. 58,
§ 10). In this opinion, reference to “former section 1170.95” is to
the original 2019 version.
2
The Attorney General concedes, and we agree, that the
denial of Olson’s resentencing petition was improper under
Strong and Lewis.3 We therefore reverse that denial and remand
for further proceedings.
BACKGROUND4
1. Conviction, Direct Appeal, and Habeas Corpus
Proceedings
In 1995, a jury convicted Olson of first degree murder and
found true a special circumstance allegation that, with reckless
indifference to human life, she was a major participant in the
commission of a residential burglary and residential robbery that
resulted in a person’s death. (See § 190.2, subd. (d).) The jury
also convicted Olson of burglary and two counts of robbery. For
the murder, the trial court sentenced Olson to life in prison
without the possibility of parole. In 1997, we affirmed the
judgment on direct appeal.
In 2015, the Supreme Court decided Banks, supra,
61 Cal.4th 788, in which the court clarified under what
circumstances a defendant could be deemed a major participant
in an underlying felony who acted with reckless indifference to
human life. (See Strong, supra, 13 Cal.5th at pp. 705–706.)
Thereafter, Olson filed a petition for writ of habeas corpus in the
3
Olson did not file a supplemental brief following the
Supreme Court’s remand.
4 The facts of Olson’s underlying offenses are not relevant
to our resolution of this matter, and we therefore do not
summarize them.
3
trial court.5 She argued that under Banks, the evidence at trial
was insufficient to establish the felony murder special
circumstance.
Upon reviewing the parties’ filings, the trial court
determined an evidentiary hearing was not necessary. In a
written order, the trial court considered the Banks factors and
stated, “In this court’s opinion, [Olson] was a major participant in
the crime,” and “[h]er reckless indifference to her co-participants
being in the process of killing during the events in the apartment,
and in getting away, were greater than the actions of an ordinary
aider and abettor to an ordinary felony murder.” The trial court
denied the habeas petition.
Olson’s habeas petition, and the order denying it, did not
address Clark, which the Supreme Court decided the same year
Olson filed her petition. Clark further clarified the reckless
indifference element of the felony murder special circumstance.
(See Strong, supra, 13 Cal.5th at p. 706.)
After the trial court denied her habeas petition, Olson
filed a habeas petition in this court, which we denied on
December 22, 2016.
2. Petition for Resentencing
In 2018, the Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.), effective January 1, 2019, “to amend the
5 Notwithstanding Olson’s efforts to obtain the pleadings
or the trial court’s order relating to the habeas petition, these
documents were not included in the record on appeal. We
obtained a copy of Olson’s appellate habeas petition, which
attached the traverse and the trial court’s October 28, 2016
written order and minute order denying Olson’s habeas petition.
4
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); see § 189, subd. (e).)
Senate Bill No. 1437 amended sections 188 and 189, and enacted
former section 1170.95, which allowed persons to petition for
resentencing if they no longer could be convicted of murder
“because of changes to Section 188 or 189 made” under Senate
Bill No. 1437. (Former § 1170.95, subd. (a).)
On May 10, 2019, Olson filed a petition under former
section 1170.95 for resentencing relief. In her petition, she
contended that “proper application of the new law to her case
would mean that she could not be convicted of murder under the
newly amended sections 188 or 189. This is because of the
clarification of the applicable special circumstance provided by
the court in Banks . . . reveals that there was insufficient
evidence to support the jury finding that the special circumstance
alleged in her case was true.”
On May 24, 2019, the trial court summarily denied Olson’s
resentencing petition without appointing counsel or holding a
hearing. The court found that “[t]he facts of the case [as
summarized in the opinion from Olson’s direct appeal], the jury
finding as to the special circumstance allegation and the trial
court’s previous ruling on Habeas regarding the special
circumstance allegation, supports the conclusion that [Olson]
intended to kill, aid, abet, or assist the actual killer or killers in
the commission of murder in the first degree, and or, was a major
participant in the murder and acted with reckless indifference to
5
human life during the course of the murder.” (Fn. omitted.)
Thus, “[Olson’s] murder conviction meets the requirements of the
new provisions of [section] 189[, subdivision ](e). [¶] [Olson] is
not entitled to relief under section 1170.95 as a matter of law.”
The trial court further found that Olson “has not alleged facts
establishing an exception to the rule barring reconsideration of
[habeas] claims previously rejected.”
3. Appeal and Supreme Court Decision
Olson appealed the denial of her resentencing petition.
Relying on our opinion in People v. Galvan (2020) 52 Cal.App.5th
1134, disapproved of by Strong, supra, 13 Cal.5th 698, we held
that the true finding on the felony murder special circumstance
established Olson was a major participant who acted with
reckless indifference to human life, thus precluding relief under
former section 1170.95. As we explained, “Olson cannot
demonstrate the initial prima facie showing required under
[former] section 1170.95, subdivision (a)(3), that she now could
not be convicted of first or second degree murder because of the
changes to section 188 or 189. A defendant may still be convicted
of felony murder under amended section 189, subdivision (e), if
she was a major participant who acted with reckless indifference
to human life. (See § 189, subd. (e).) Thus, Olson’s petition
does not depend on Senate Bill No. 1437’s changes to the felony
murder doctrine. Rather, as in Galvan, her petition depends on
‘the clarification of the requirements for a special circumstance
finding in Banks and Clark.’ [Citation.] The proper vehicle for
such a challenge is a petition for writ of habeas corpus.” (People
v. Olson (Aug. 26, 2020, B300206) [nonpub. opn.], some italics
omitted.)
6
Citing our opinion in People v. Lewis (2020) 43 Cal.App.5th
1128, 1140, reversed by Lewis, supra, 11 Cal.5th 952, we further
held that given Olson’s statutory ineligibility for resentencing,
the trial court did not err by summarily deciding the petition
without appointing counsel. (People v. Olson, supra, B300206).)
The Supreme Court granted Olson’s petition for review.
The high court subsequently reversed our Lewis decision
(Lewis, supra, 11 Cal.5th at p. 975), and issued Strong, which
disapproved of Galvan (Strong, supra, 13 Cal.5th at p. 718, fn. 3).
The court directed us to vacate our decision in the instant case
and reconsider the cause in light of Strong and Lewis.
DISCUSSION
We agree with the Attorney General’s concession that, in
light of Strong and Lewis, the trial court erred in summarily
denying Olson’s resentencing petition.
Former section 1170.95, as well as the current statute,
provide that a petitioner may seek resentencing by filing a
petition averring that the petitioner could not be convicted of
murder (or, under the current statute, attempted murder or
manslaughter) because of changes to the Penal Code enacted
under Senate Bill No. 1437. (§ 1172.6, subds. (a), (b); former
§ 1170.95, subds. (a), (b).)
Both the former and current statutes require the trial court
to appoint counsel for the petitioner and determine if the petition
makes a prima facie showing for relief. (§ 1172.6, subds. (b)(3),
(c); former § 1170.95, subd. (c).) Upon a finding the petitioner has
made a prima facie showing of eligibility, both the former and
current statute direct the trial court to issue an order to show
cause. (§ 1176.2, subd. (c); former § 1170.95, subd. (c).) Unless
the parties stipulate that the petitioner is eligible for relief, the
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trial court shall then hold an evidentiary hearing to determine
whether to vacate the conviction and resentence the petitioner.
(§ 1176.2, subd. (d); former § 1170.95, subd. (d).)
The Courts of Appeal initially were split as to whether the
trial court could make the prima facie determination under
former section 1170.95, subdivision (c) before appointing counsel.
(See People v. Coley (2022) 77 Cal.App.5th 539, 543–544.) The
Supreme Court resolved that split in Lewis, reversing our
decision in that case and holding a petitioner is entitled to
counsel “upon the filing of a facially sufficient petition.” (Lewis,
supra, 11 Cal.5th at p. 957.) “[O]nly after the appointment of
counsel and the opportunity for briefing may the superior court
consider the record of conviction to determine whether ‘the
petitioner makes a prima facie showing that he or she is entitled
to relief.’ [Citation.]” (Ibid.)6 Lewis further held that when
assessing whether the petition makes a prima facie showing of
relief, “a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ [Citation.]”
(Id. at p. 972.) Such determinations may be made only following
an evidentiary hearing. (See id. at p. 971.)
The Supreme Court later held in Strong that a felony
murder special circumstance finding “issued by a jury before
Banks and Clark do not preclude a defendant from making out a
prima facie case for relief under Senate Bill 1437.” (Strong,
supra, 13 Cal.5th at p. 710.) The court disapproved the reasoning
of Galvan that a Banks/Clark challenge to a defendant’s murder
conviction is unrelated to changes to the Penal Code enacted
6 This holding is codified in the current statute. (§ 1172.6,
subd. (b)(3).)
8
under Senate Bill No. 1437. (Strong, at p. 711.) This is because
it was only through Senate Bill No. 1437 that the Banks/Clark
factors were applied to the elements of felony murder, as
opposed to merely special circumstance findings. (See Strong,
at pp. 711–712.) Further, the decisions in Banks and Clark
“represent the sort of significant change that has traditionally
been thought to warrant reexamination of an earlier-litigated
issue.” (Strong, at p. 717.)
In the instant case, the trial court denied Olson’s
resentencing petition without appointing counsel. We affirmed
on the basis that the pre-Banks felony murder special
circumstance rendered Olson ineligible for relief, and further held
the trial court properly could make that determination without
appointing counsel. Our prior holding is contrary to Strong and
Lewis.
There is no alternative basis to affirm the trial court. To
the extent the trial court made its own factual determination that
Olson was a major participant who acted with reckless
indifference, this was improper under Lewis in the absence of
appointment of counsel and an evidentiary hearing. (Lewis,
supra, 11 Cal.5th at pp. 971–972.)
The earlier denial of Olson’s petition for a writ of habeas
corpus is not a bar to resentencing relief. As Olson argued in her
original briefing, the summary denial of a habeas petition does
not establish law of the case or have a res judicata effect on
future proceedings. (Gomez v. Superior Court (2012) 54 Cal.4th
293, 305, fn. 6.) The trial court relied upon the general rule that
a court will not consider successive petitions for habeas corpus
“ ‘ “based upon grounds urged in a prior petition which has been
denied.” ’ ” (In re Reno (2012) 55 Cal.4th 428, 455.) Olson has
9
not filed a subsequent habeas petition, however, but a
resentencing petition under former section 1170.95. Former
section 1170.95, like the current statute, offers broader rights
than a habeas corpus proceeding, including the right to counsel
and an evidentiary hearing. We cannot conclude the rule barring
subsequent habeas petitions bars an entirely different proceeding
granting greater protections.7
Accordingly, we conclude, as does the Attorney General,
that Olson is entitled to the appointment of counsel and an
evidentiary hearing. We express no opinion on how the trial
court should rule at the evidentiary hearing.
7 In the original briefing in this matter, the Attorney
General agreed with Olson that the bar to successive habeas
petitions did not apply to resentencing petitions under former
section 1170.95.
10
DISPOSITION
The order denying Erica Dawn Olson’s petition under
Penal Code former section 1170.95 is reversed, and the matter
remanded. The trial court is directed to appoint counsel and
issue an order to show cause under subdivision (c) of section
1172.6. The trial court shall then hold an evidentiary hearing
under section 1172.6, subdivisions (d)(1) and (3), unless the
parties waive the hearing and stipulate to Olson’s eligibility for
resentencing (§ 1172.6, subd. (d)(2)).
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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