People v. Washington CA3 ( 2023 )

Filed 3/2/23 P. v. Washington 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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THE PEOPLE, C092937
Plaintiff and Respondent, (Super. Ct. No. 08F04720)
v. OPINION ON TRANSFER
JAMES WASHINGTON,
Defendant and Appellant.
On May 21, 2010, a jury found defendant James Washington guilty of first degree
felony murder (Pen. Code, § 187, subd. (a)) (statutory section citations that follow are to
the Penal Code), second degree robbery (§ 211), and torture (§ 206). The jury also found
true the special circumstances allegations that defendant used a deadly weapon in
connection with the murder and torture (§ 12022, subd. (b)(1)) and that the murder
happened during the course of a robbery (§ 190.2, subd. (a)(17)).
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In pertinent part, defendant received a sentence of life without the possibility of
parole for the murder, plus one year. We affirmed this judgment on appeal. (People v.
Washington (Jan. 3, 2013, C065636) [nonpub. opn.] (Washington).)
We granted defendant’s request to incorporate the record of this prior appeal by
reference here.
Defendant, acting in propria persona, petitioned the trial court for resentencing
based on changes to the felony-murder rule under recently enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.)
The trial court summarily denied his petition before appointing him counsel after finding,
in pertinent part, that given the jury’s true finding on the robbery-murder special
circumstance under section 190.2, subdivision (a)(17), defendant was not entitled to
relief.
On appeal, defendant originally argued that because his petition complied with the
statutory requirements, he was entitled to appointment of counsel, briefing, and a hearing
on the merits of his petition before the trial court’s denial. He further argued that even if
the record of conviction could be properly considered in the trial court’s prima facie
determination, the jury’s true finding on the robbery-murder special circumstance could
not preclude his petition for relief because that finding predated the California Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark).
In accordance with the Supreme Court’s decision in People v. Lewis (2021)
11 Cal.5th 952 (Lewis) and the legislature’s codification of that decision in Senate Bill
No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) (Stats. 2021, ch. 551, §§ 1-2.), we
issued an unpublished decision concluding the trial court erred in summarily denying
defendant’s petition without the benefit of the appointment of counsel and briefing.
However, we found any error was harmless under the circumstances of this case, and
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accordingly, we affirmed the trial court’s postjudgment order. (People v. Washington
(Apr. 20, 2022; C092937 [unpub. opn.].)
Defendant appealed to the California Supreme Court, which directed this court to
vacate its previous decision and reconsider the matter in light of People v. Strong (2022)
13 Cal.5th 698 (Strong). Having done so, we agree with the parties that the trial court’s
postjudgment order must be reversed and the matter remanded for further proceedings
consistent with this decision.
FACTS AND HISTORY OF THE PROCEEDINGS
A. The Underlying Robbery-Murder
We take the facts from the unpublished opinion we issued in 2013 affirming
defendant’s convictions in Washington:
“During the early morning hours of June 7, 2008, defendant and Abella were
hanging out together at an apartment complex in Rancho Cordova where Abella’s mother
lived. At the time, defendant was dating Abella’s sister, E.G, who was also present.
“At approximately 2:40 a.m., defendant and Abella walked to a nearby 7-Eleven
store. The events that occurred thereafter were captured in large part on surveillance
cameras mounted at the 7-Eleven and at an adjacent check-cashing store.
“At approximately 2:50 a.m., defendant and Abella left the 7-Eleven and
approached 50-year-old William Deer, who was sitting on a curb outside the check-
cashing store drinking coffee he had just purchased at the 7-Eleven. Deer was both
mentally and physically handicapped due to a motorcycle accident more than 20 years
earlier.
“Earlier that evening, Deer’s mother had dropped him off at a bus stop in
Sacramento so he could visit friends in Rancho Cordova. At the time, Deer wore a fanny
pack around his waist in which he carried various personal items, including a cell phone
charger, a toothbrush, cigarettes, and money. He also carried with him a cell phone.
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Deer was wearing the fanny pack in the 7-Eleven approximately 30 minutes before he
was approached by defendant and Abella.
“What transpired during the initial encounter with Deer is not altogether clear.
However, what is clear is that, at some point, defendant and Abella beat, kicked and
stomped on Deer and then ran from the scene.
“Approximately 30 minutes later, defendant returned to the area with E.G. By that
time, defendant had changed his shirt. The two approached Deer, who was still lying
where defendant and Abella had left him following the beating. E.G. could see that Deer
was hurt but he was still alive. Defendant and E.G. departed.
“Seven minutes later, defendant and Abella returned to where they had left Deer.
Less than a minute later, they again ran from the scene.
“Defendant and Abella returned a third time approximately 30 minutes later, this
time with a BB gun. They shot Deer 19 times in the face and abdomen and then fled the
scene.
“Police were eventually dispatched to the 7-Eleven and found Deer still alive.
They did not find a fanny pack or cell phone in the area; nor did they find any
identification for the victim. Deer was taken to the hospital, where he later died. The
cause of death was determined to be multiple blunt force head injuries plus multiple BB
pellet injuries.
“Five days later, defendant and Abella were arrested. They were charged with
murder, robbery and torture and were tried separately. Defendant was ultimately
convicted and sentenced as previously indicated.” (Washington, supra, C065636.)
B. The Legislation
Senate Bill 1437, which became effective on January 1, 2019, 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
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underlying felony who acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1, subd. (f).) The legislation accomplished this by amending sections 188 and
189 and adding section 1170.95 to the Penal Code. Effective June 30, 2022, the
Legislature renumbered section 1170.95 to section 1172.6 without substantive change.
(Stats. 2022, ch. 58, § 10.) We will refer to the section by its new numbering where
possible.
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.”
Senate Bill 1437 also added section 1172.6, which allows “those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief . . . .” (People v. Gentile (2020) 10 Cal.5th 830, 843.) Section 1172.6, subdivisions
(b) and (c) create a two-step process for evaluating a petitioner’s eligibility for relief.
(Lewis, supra, 11 Cal.5th at pp. 960-962.) First, the trial court determines whether the
petition is facially sufficient under section 1172.6, subdivision (b). (Lewis, at p. 960.) If
the petition is facially sufficient, then, the trial court moves on to subdivision (c),
appointing counsel (if requested) and following the briefing schedule set out in the
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statute. (Lewis, at p. 966.) Following the completion of this briefing, the trial court then
determines whether the petitioner has made a prima facie showing they are entitled to
relief. (Ibid.)
As our Supreme Court explained, “[w]hile 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 117[2.6] 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.” ’ [Citation.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citation.] ‘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.)
As relevant here, Senate Bill 775 (2021-2022 Reg. Sess.), which took effect on
January 1, 2022, amended section 1172.6 to codify the holdings of Lewis regarding
petitioners’ right to counsel and the standard for determining the existence of a prima
facie case, as well as to clarify the burden of proof at the resentencing hearing as proof
beyond a reasonable doubt and address what evidence may be presented at the
resentencing hearing. (Cal. Const. art. IV, § 8; Stats. 2021, ch. 551, § 1.)
C. The section 1172.6 Proceedings
On September 20, 2020, defendant filed a petition in propria persona requesting
resentencing under section 1172.6. Defendant did not use a form petition, instead
averring in pertinent part and in paragraph form, that he had been charged and convicted
of first degree murder under either felony murder or murder under the natural and
probable consequences doctrine. However, because of changes brought about by Senate
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Bill 1437 to sections 188 and 189, defendant could not now be convicted of first or
second degree murder. Finally, defendant requested appointment of counsel.
On October 14, 2020, the trial court summarily denied defendant’s petition in an
ex parte written order. This order noted the court’s review of defendant’s file, that
defendant’s jury had been instructed with special circumstances as defined in CALCRIM
No. 703 (the substance of which the court recounted), that the jury had determined this
special circumstance to be true, and finally, that defendant had also committed robbery
and torture and that the jury had found the personal use of a BB gun enhancement true.
Accordingly, the court concluded, “It is abundantly clear that the defendant could still be
prosecuted for murder under current murder theories including as the actual killer, direct
aiding and abetting, or under current felony murder law.” Therefore, the court denied
relief. Defendant timely appealed.
DISCUSSION
As noted, supra, our original unpublished decision in this matter found the trial
court erred in summarily denying defendant’s petition without the benefit of the
appointment of counsel and briefing. However, we found any error was harmless in light
of the jury’s special circumstances finding under 190.2, subdivision (a)(17), which had
predated the Supreme Court’s decisions in Banks, supra, 61 Cal.4th 788 and Clark,
supra, 63 Cal.4th 522. (People v. Washington (Apr. 20, 2022; C092937 [unpub. opn.].)
Following the issuance of our opinion, the California Supreme Court decided
Strong, which held that: “Findings 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. This is true even if the trial evidence would have been sufficient to support the
findings under Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 710.) Accordingly, our
conclusion that any trial court error was harmless in light of the jury’s pre-Banks and
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Clark finding cannot survive Strong. We will therefore reverse the trial court’s
postjudgment order and remand for further proceedings consistent with this opinion.
DISPOSITION
The trial court’s postjudgment order is reversed, and the matter remanded for
further proceedings consistent with this opinion.
HULL, J.
We concur:
ROBIE, Acting P. J.
KRAUSE, J.
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