People v. Davis CA2/1 ( 2023 )

Filed 2/27/23 P. v. Davis CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B306417
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA026317)
v.
STEPHEN EDMOND DAVIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Reversed and
remanded with directions.
Patricia J. Ulibarri, 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, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
In April 2020, the trial court summarily denied, under
Penal Code1 former section 1170.95, Stephen Edmond Davis’s
petition for resentencing on his first degree murder conviction.2
In an opinion in a prior appeal, we affirmed the order, concluding
the jury’s true finding on a felony-murder special circumstance
(§ 190.2, subd. (a)(17)) rendered Davis ineligible for resentencing
as a matter of law and, therefore, the trial court’s error in
prematurely denying his petition without appointing counsel was
harmless.
The Supreme Court granted Davis’s petition for review and
transferred the matter back to this court with directions to vacate
our opinion and reconsider the matter in light of People v. Strong
(2022) 13 Cal.5th 698 (Strong). Having done so, we agree with
Davis and the Attorney General that we must reverse the order
denying Davis’s petition and remand the matter for further
proceedings under section 1172.6, based on the rationale in
Strong.
BACKGROUND
I. The Offense and the Trial
An April 9, 1996 information charged Davis and
codefendant John Patrick Winkleman with the murder (§ 187,
subd. (a)) and second degree robbery (§ 211) of Willie Yen. The
information also alleged the special circumstance that Davis and
Winkleman committed the murder while they were accomplices
1 Undesignated statutory references are to the Penal Code.
2 Davis filed his petition under the original version of
former section 1170.95, effective January 1, 2019. (Stats. 2018,
ch. 1015, § 4.) Since that time, the Legislature amended the
statute (Stats. 2021, ch. 551, § 2) and then renumbered it as
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
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in the commission of a robbery (§ 190.2, subd. (a)(17)), and that
they each personally used a firearm in the commission of the
murder and robbery. (§ 12202.5, subd. (a).)
In an unpublished opinion in Davis’s direct appeal of his
convictions (People v. Davis (Sept. 24, 1998, B113832 [nonpub.
opn.] (Davis)),3 this court described the facts of the case as
follows:
“Davis and Winkleman (who lived together) planned to rob
Willie Yen, a crystal methamphetamine dealer. Davis and
Winkleman arranged to meet Yen at a park, then armed
themselves and went to the park. Davis and Winkleman both
shot at Yen, who died from one gunshot wound that pierced his
aorta. Davis and Winkleman were arrested the next day.
“Davis confessed. He told the police he and Winkleman
were both involved in the incident, and said that he shot at the
back of Yen’s car as Yen was fighting with Winkleman and trying
to drive off with Winkleman in the car. Davis placed most of the
blame on Winkleman. After he confessed, Davis called his
girlfriend from the police station (the call was recorded). He told
her where to find the two guns that he and Winkleman had
discarded and asked her to get his friend, Christian Budnic, to
3 In his petition for resentencing, Davis stated, “he agrees
that the Court of Appeal’s statement of the evidence [in the
opinion in his direct appeal] is generally accurate,” although he
noted “it was composed without the benefit of the California
Supreme Court’s opinions in [People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)].”
Banks clarified the meaning of the major participant element of
the felony-murder special circumstance; and Clark clarified the
meaning of the reckless indifference to human life element of the
felony-murder circumstance.
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‘get rid of whatever he finds.’ The two guns were recovered by
the police but the ballistics experts could not determine which
one had fired the fatal shot. Yen’s pager was found in the room
shared by Davis and Winkleman.
“At trial, an eyewitness (Adam Asbury) identified
Winkleman as one of the shooters and testified to Winkleman’s
jury that Winkleman (not Davis) had walked up to Yen’s car and
fired into the driver’s side at Yen. The tape of Davis’s confession
was played to his jury but not to Winkleman’s jury. In defense,
Davis blamed Winkleman. Winkleman blamed Budnic.” (Davis,
supra, B113832, at pp. 2-3.) “To Winkleman’s jury, the
prosecutor argued in favor of a conviction if the jury found
Winkleman was the actual killer or if it found he aided and
abetted the killer, with the emphasis on the latter rather than
the former. To Davis’s jury, the prosecutor emphasized Davis’s
confession but also argued that Davis could be convicted on an
aiding and abetting theory.” (Id. at p. 3, fn. 1.)
The opinion in the direct appeal also states Davis and
Winkleman “were convicted of felony murder with robbery special
circumstance findings and gun use enhancements found true. In
addition, Winkleman was convicted of attempted armed robbery,
Davis of robbery. Both men were sentenced to state prison for
life without the possibility of parole. Both appeal[ed].” (Davis,
supra, B113832, at p. 2.)4 We affirmed the judgments.
In 2018, the Legislature enacted Senate Bill No. 1437 “to
amend the felony murder rule and the natural and probable
4 In connection with his petition for resentencing under
former section 1170.95, Davis submitted documents indicating
that in August 2018, the Governor commuted his sentence to 25
years to life.
4
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.” (Sen. Bill No. 1437 (2017-2018 Reg.
Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &
189, subd. (e).) Senate Bill No. 1437 amended sections 188
(defining malice) and 189 (felony murder) and added former
section 1170.95, now renumbered section 1172.6, which
established a procedure for vacating murder convictions and
resentencing defendants who could no longer be convicted of
murder in light of the amendments to sections 188 and 189 made
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4, pp. 6675–
6677.)
II. Petition for Writ of Habeas Corpus
On February 15, 2019, Davis, as a self-represented litigant,
filed a petition for writ of habeas corpus in the trial court,
arguing the true finding on the felony-murder special
circumstance must be reversed under Banks, supra, 61 Cal.4th
788 and Clark, supra, 63 Cal.4th 522 because “the evidence does
not prove that he was a major participant in the shooting itself,
and does not prove that he acted with reckless indifference to
human life.” In the petition for writ of habeas corpus, Davis also
referenced the enactment of Senate Bill No. 1437.
After the district attorney filed an informal response and
Davis filed a reply, the trial court summarily denied the petition
for writ of habeas corpus. In an eight-page written order, after
discussing Banks and Clark, the trial court found: “The facts of
the case clearly support the conclusion that [Davis] was a major
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participant in the murder with reckless indifference to human
life.”
III. Petition for Resentencing Under Former Section
1170.95
On April 7, 2020, Davis, representing himself, filed a
petition for resentencing under former section 1170.95. Therein,
he referenced the facts set forth in this court’s opinion from his
direct appeal, as quoted above. He also asserted: “The
particulars of the Banks and Clark findings are at the heart of
petitioner’s claim that the special circumstances true finding in
this case cannot withstand constitutional scrutiny.”
Davis’s petition for resentencing included all information
necessary for a facially sufficient petition under former section
1170.95, subdivision (b) (and current section 1172.6, subd. (b)).
He attached a declaration stating he was convicted of first degree
felony murder, and he could not now be convicted of murder
because of changes to sections 188 and 189 made effective
January 1, 2019. He requested appointment of counsel in
connection with his petition.
On April 25, 2020, the trial court summarily denied Davis’s
petition for resentencing, without appointing counsel for him. In
its two-page ruling, the court stated, in pertinent part:
“His petition is denied for the same reasons his writ of
February 15, 2020 was denied. The facts of the case support the
conclusion that [he] was a major participant in the murder.
Substantial evidence supports the special circumstance allegation
because petitioner was a major participant in the murder
exhibiting a reckless indifference to life. Petitioner was at the
scene of the murder and in a position to prevent violence, but
instead he participated in the robbery and fled the scene of the
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crime without a single attempt to render aid to the victim. His
actions before, during and after the killing were those of a
murderer who was clearly invested in the killing. His role in
assisting the shooter in the planning and execution of the robbery
and murder played a significant role in the victim’s death. He
admitted to running behind the vehicle in which the victim was
seated, firing several rounds at the victim’s vehicle.”
IV. Appeal
Davis appealed from the order denying his petition for
resentencing under former section 1170.95. After the parties
filed their appellate briefs, our Supreme Court issued its opinion
in People v. Lewis (2021) 11 Cal.5th 952, 960-970 (Lewis), holding
the trial court must appoint counsel to represent the petitioner in
all cases where the petition is facially sufficient. The Attorney
General conceded, and we agreed, that the trial court erred in
failing to appoint counsel for Davis, as he had filed a facially
sufficient petition.
We concluded the error was harmless under the standard
set forth in People v. Watson (1956) 46 Cal.2d 818, which, in the
context of a petition for resentencing under former section
1170.95 (and current section 1172.6), specifies that a defendant
“ ‘whose petition is denied before an order to show cause issues
has the burden of showing “it is reasonably probable that if [he or
she] had been afforded assistance of counsel his [or her] petition
would not have been summarily denied without an evidentiary
hearing.” ’ ” (Lewis, supra, 11 Cal.5th at p. 974.) We reasoned
Davis could not meet this burden because, in order to find the
felony-murder special circumstance true under section 190.2,
subdivision (a)(17), the jury must have found Davis either was
the actual killer, that he was not the actual killer but acted with
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the intent to kill in aiding, abetting, soliciting, or assisting in the
murder, or, at a minimum, he was a major participant in the
felony and acted with reckless indifference to human life.5 We
noted this is the same finding required today for a conviction of
felony murder under amended section 189. (See § 189, subd. (e).)
Therefore, we concluded Davis was ineligible for resentencing as
a matter of law because he was precluded from showing he “could
not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective” in Senate Bill No.
1437. (Former § 1170.95, subd. (a)(3); see also § 1172.6, subd.
(a)(3).)
Davis filed a petition for review and the Supreme Court
granted it. Thereafter, the Supreme Court decided Strong, supra,
13 Cal.5th 698 and transferred Davis’s case back to this court
with directions to vacate our opinion and reconsider the matter in
light of Strong. We vacated our prior opinion affirming the trial
court’s order denying Davis’s petition for resentencing.
DISCUSSION
Davis contends, and the Attorney General concedes, that in
light of Strong, the trial court erred in summarily denying
Davis’s petition for resentencing, the error cannot be deemed
harmless, and the matter must be remanded to the trial court for
further proceedings under section 1172.6. We agree with the
parties.
5 The 1995 murder in this case postdated approval of
Proposition 115, which amended section 190.2 to allow for felony-
murder special circumstance findings where the defendant was a
major participant in the felony and acted with reckless
indifference to human life. (See Prop. 115, § 10, as approved by
voters, Primary Elec. (June 5, 1990).)
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When a defendant files a facially sufficient petition under
section 1172.6, the trial court must appoint counsel to represent
the petitioner, allow briefing from both sides, and hold a hearing
to determine whether the petitioner has made a prima facie
showing for relief. (§ 1172.6, subds. (b)-(c).)6 As our Supreme
Court explained: “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 [1172.6]
relief, the prima facie inquiry under subdivision (c) 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.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘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.)
If the trial court issues an order to show cause, the final
step in the process (unless the parties have already stipulated
that the petitioner is entitled to relief) is a hearing to determine
6 We note that at the time Davis filed his petition in April
2020, former section 1170.95, subdivision (c) did not require a
hearing at the prima facie stage of the proceedings. We cite to
and quote from the current version of 1172.6. Any amendments
to the statute since Davis filed his petition are not material to
Davis’s contentions on appeal or our analysis of same.
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if the petitioner is entitled to relief, where the trial court must
vacate the petitioner’s murder conviction and resentence him or
her on any remaining counts unless the prosecution can “prove,
beyond a reasonable doubt, that the petitioner is guilty of murder
. . . under California law as amended by the changes to Section
188 or 189 made effective January 1, 2019.” (§ 1172.6, subd.
(d)(3).)
In Strong, the Supreme Court held felony-murder special
circumstance findings made before the Supreme Court’s decisions
in Banks and Clark—like the felony-murder special circumstance
finding against Davis—do not preclude a defendant from making
a prima facie showing of eligibility for relief under section 1172.6.
(Strong, supra, 13 Cal.5th at p. 703.) A court, in evaluating
whether a defendant has made a prima facie case, may not
“independently examine[] the record and determine[], applying
the Banks and Clark standards, that sufficient evidence supports
the earlier findings.” (Id. at pp. 719, 720.)
Here, the trial court erred in failing to appoint counsel for
Davis after he filed a facially sufficient petition for resentencing.
(Lewis, supra, 11 Cal.5th at pp. 960-970.) The error was
prejudicial because Davis made a prima facie case for relief: He
alleged that he was convicted of felony murder, and he could not
presently be convicted of murder because of changes to Section
188 or 189 made effective January 1, 2019. (See § 1172.6, subd.
(a).) As our Supreme Court explained in Strong, “A pre-Banks
and Clark [felony-murder] special circumstance finding does not
negate that [prima facie] showing because the finding alone does
not establish that the petitioner is in a class of defendants who
would still be viewed as liable for murder under the current
understanding of the major participant and reckless indifference
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requirements.” (Strong, supra, 13 Cal.5th at p. 717.) Because
Davis has made a prima facie case for relief, the trial court must
issue an order to show cause and conduct further proceedings on
Davis’s petition under section 1172.6. We express no opinion on
the outcome of those proceedings.
The earlier denial of Davis’s petition for writ of habeas
corpus is not a bar to resentencing relief under section 1172.6.
The “summary denial of a habeas corpus petition does not
establish law of the case and does not have a res judicata effect in
future proceedings.” (Gomez v. Superior Court (2012) 54 Cal.4th
293, 305, fn. 6.)
DISPOSITION
The trial court’s order denying the petition for resentencing
is reversed. On remand, the trial court shall appoint counsel to
represent Davis, issue an order to show cause under section
1172.6, subdivision (c), and conduct further proceedings as
specified in section 1172.6.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. BENDIX, J.
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