People v. Tate CA5 ( 2021 )

Filed 10/20/21 P. v. Tate CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081403
Plaintiff and Respondent,
(Super. Ct. No. 03CM3281)
v.
LEROY TATE, JR., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Stephanie A. Mitchell, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Peña, J.
INTRODUCTION
In 2003, petitioner Leroy Tate, Jr., pled no contest to the second degree murder of
his infant stepson (Pen. Code,1 § 187, subd. (a)), and admitted having suffered a prior
strike conviction (§§ 667, subds. (b)-(i), 1170.12).2 For this offense, the trial court
sentenced petitioner to a term of 30 years to life.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The court denied the petition without issuing an order to show cause after reviewing the
probation report and determining that petitioner was the actual killer and acted with at
least implied malice, disqualifying factors pursuant to section 1170.95, subdivision (a)(3).
On appeal, petitioner asserts he established a prima facie claim for resentencing
relief, and the court therefore erred in denying the petition without issuing an order to
show cause or holding an evidentiary hearing. The People concede the court engaged in
improper factfinding at the prima facie stage, but argue the record nonetheless
demonstrates petitioner was prosecuted as the actual killer and is therefore ineligible for
relief as a matter of law. We agree with petitioner that the record does not establish his
ineligibility as a matter of law, and we therefore reverse.
FACTUAL AND PROCEDURAL HISTORY
On September 2, 2003, the Kings County District Attorney filed a complaint
charging petitioner with the murder of T.T. (§ 187, subd. (a); count I), child abuse of T.T.
(§ 273a, subd. (a); count II), and assault of minor John Doe with force likely to produce
great bodily injury (§ 245, subd. (a)(1); count III). Petitioner’s codefendant, Jennifer
Marie Bickett-Tate,3 also was charged on count II, as well as on an additional charge of
being an accessory to the murder of T.T. (§ 32; count IV). On September 3, 2003, the
1 Undesignated statutory references are to the Penal Code.
2 Petitioner originally was charged with additional offenses as described below.
3 Bickett-Tate appears to be T.T.’s mother.
2.
People filed an amended complaint, which added against petitioner the charge of assault
of T.T. with force likely to produce great bodily injury and resulting in the death.
(§ 273ab; count V).
On October 15, 2003, petitioner waived his statutory right to a preliminary hearing
and was held to answer on counts I, II, III, and V. On October 21, 2003, the People filed
an information, charging petitioner with the murder of T.T. (§ 187, subd. (a); count 1),
child abuse of T.T. (§ 273a, subd. (a); count 2), assault of John Doe with force likely to
produce bodily injury (§ 245, subd. (a)(1); count 3), and assault of T.T. with force likely
to produce great bodily injury and resulting in the death (§ 273ab; count 4). The
information also alleged petitioner suffered a prior strike conviction. Bickett-Tate was
not charged in the information.
On December 15, 2003, petitioner pled no contest to second degree murder on
count 1 pursuant to People v. West (1970) 3 Cal.3d 595. He also admitted the prior strike
conviction. The court noted no factual basis was required for the plea and none was
taken. The remaining counts were dismissed.
On January 14, 2004, the court sentenced petitioner to a term of 30 years to life.
On February 8, 2019, petitioner, in propria persona, filed a petition for
resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a
complaint, information, or indictment was filed against him that allowed him to be
prosecuted under a theory of felony murder or murder under the natural and probable
consequences doctrine; he pled no contest to first or second degree murder in lieu of
going to trial; and he could not now be convicted of first or second degree murder
because of changes made to sections 188 and 189, effective January 1, 2019.
On April 25, 2019, the People filed an opposition to the petition on the merits.
Therein, the People relied on facts set out in the probation report to argue petitioner was
3.
the actual killer and acted with at least implied malice, and he therefore was ineligible for
resentencing.4 The People also argued section 1170.95 is unconstitutional.
On May 30, 2019, the court appointed counsel to represent petitioner on the
petition. Despite seeking, and receiving, an extension of time to do so, counsel did not
file a reply to the People’s opposition.
On June 3, 2020, the court denied the petition. The court stated it had considered
the facts set forth in the probation report and transcripts of petitioner’s plea and
sentencing. After summarizing facts derived from the probation report, the court stated:
“It is clear from the record that [p]etitioner was the actual killer who acted with – at a
minimum – implied malice.” On that basis, the petition was denied.
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “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).) The bill accomplished this task by adding three
separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile).) First, to amend the natural and probable consequences doctrine, the bill added
4 Very briefly stated, the probation report described petitioner as T.T.’s stepfather,
and explained that T.T. was approximately nine months old when he was taken to an
emergency room with multiple injuries and was pronounced dead. Petitioner and
Bickett-Tate gave conflicting stories of how the injuries occurred. Petitioner’s minor son
and other witnesses reported seeing petitioner abuse T.T. and Bickett-Tate’s older son.
According to the probation report, petitioner later admitted to police that he abused
Bickett-Tate’s older son and also grabbed T.T. by the face and kicked him.
4.
section 188, subdivision (a)(3), which requires a principal to act with malice aforethought
before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at
pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189,
subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] 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.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.”6 (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “an offender
must file a petition in the sentencing court averring that: ‘(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[;] [¶] (2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
5 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)
6 The Legislature recently passed, and the Governor signed, a bill amending section
1170.95. (Sen. Bill No. 775 (2021-2022 Reg. Sess.).) The amendments are not yet
effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our
analysis. We quote from the version of section 1170.95 presently in effect.
5.
convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could
not be convicted of first or second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.’ (§ 1170.95, subd[]. (a)(1)-(3); see also § 1170.95,
subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests
the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952,
959-960 (Lewis).)
Where the petition complies with the requirements of section 1170.95, subdivision
(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and
the petitioner may file a reply. The trial court must then review the petition to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this
determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
6.
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. The Trial Court Erred in Failing to Issue an Order to Show Cause
The trial court denied petitioner’s petition for resentencing on the ground he was
the actual killer and therefore ineligible for relief. Thus, the court did not issue an order
to show cause or conduct an evidentiary hearing. We conclude the court erred in denying
the petition at the prima facie stage because the record does not establish petitioner is
ineligible for resentencing as a matter of law.
The court relied on facts set out in the probation report to conclude petitioner was
the actual killer and acted with at least implied malice. The People concede this
determination required fact finding that was impermissible at the prima facie stage.
(Lewis, supra, 11 Cal.5th at pp. 971-972; People v. Duchine (2021) 60 Cal.App.5th 798,
815 (Duchine) [holding that, where the record is not dispositive of factual issues, “the
time for weighing and balancing and making findings on the ultimate issues arises at the
evidentiary hearing stage rather than the prima facie stage”].) Petitioner did not stipulate
to a factual basis for the plea and there was therefore no factual record for the court to
rely on in determining the theory on which the prosecution was based. (Cf. People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1161-1162, 1166-1168 [affirming denial of petition
where the petitioner stipulated to a factual basis for the plea based on the preliminary
hearing transcript].)
Nonetheless, the People argue the petition was properly denied because the charge
and plea demonstrate petitioner is ineligible for resentencing as a matter of law. The
People first rely on the charge as stated in the information. The information alleged that
petitioner committed murder, in that petitioner “did unlawfully, and with malice
aforethought murder [T.T.], a human being.” However, this language does not exclude
the possibility that petitioner would be prosecuted under a theory of felony murder or
7.
murder under the natural and probable consequences doctrine. (People v. Rivera (2021)
62 Cal.App.5th 217, 232-233, review granted June 9, 2021, S268405.) Rather, the charge
allowed the prosecution “to proceed on any theory of murder,” including the imputed
malice theories eliminated by Senate Bill No. 1437 (2017-2018 Reg. Sess.). (Rivera, at
p. 233.) Furthermore, petitioner’s plea of no contest to second degree murder admitted
the elements of that crime, but not that the crime was committed via any particular
theory. (People v. Saez (2015) 237 Cal.App.4th 1177, 1206 [a guilty plea is an admission
of the elements of the charged offense, and nothing more].) Thus, neither the information
nor the plea excludes the possibility that petitioner could have been convicted under the
felony-murder rule or natural and probable consequences doctrine.7
The People also point out that no other coprincipal was accused of T.T.’s murder
in either the complaint, amended complaint, or information and, additionally, petitioner
was the only individual charged with assault of T.T. with force likely to produce great
bodily injury resulting in death. We decline to rely on the charges as stated in any
superseded charging instruments, as well as any charges that were dismissed, to reach
any conclusions regarding petitioner’s culpability. While the nature of the charges
certainly suggests the prosecution intended to proceed on the theory that petitioner was
the actual killer, the charges do not conclusively establish that petitioner engaged in the
requisite acts with the requisite intent. (See Duchine, supra, 60 Cal.App.5th at p. 815
[“[A]bsent a record of conviction that conclusively establishes that the petitioner engaged
in the requisite acts and had the requisite intent, the trial court should not question [the
petitioner’s] evidence.”]; accord, Lewis, supra, 11 Cal.5th at p. 971.)
7 The People also argue the information did not permit the prosecution to proceed
under a felony-murder theory because the underlying felonies of child abuse and assault
on a child resulting in death would merge with the homicide. Accepting, without
deciding, the merit of the foregoing argument, the record does not establish petitioner
nonetheless could not have been convicted under the natural and probable consequences
doctrine.
8.
Finally, the People point out petitioner made no offer of proof to show he was not
the actual killer, does not name the actual killer, does not identify a target offense he
allegedly aided and abetted, and does not provide a factual scenario under which he was
not the actual killer. Petitioner was not required to bring forth additional evidence or
provide an offer of proof supporting his claim for relief at the prima facie stage.
(§ 1170.95, subd. (c); see § 1170.95, subd. (d); accord, Lewis, supra, 11 Cal.5th at
pp. 967, 974, fn. 7.) At the prima facie stage, “a court must make all factual inferences in
the petitioner’s favor [citation]; thus, there is no danger the court will find ineligibility
based upon an unclear or missing record.” (People v. Tarkington (2020) 49 Cal.App.5th
892, 909, review granted Aug. 12, 2020, S263219, abrogated on another ground by
Lewis, at pp. 962-963.) The prima facie stage merely affords the People an opportunity
to bring forth record evidence to establish petitioner is ineligible for relief as a matter of
law. (Lewis, at pp. 966-967, 970-971.) Ultimately, the bare record in the instant case is
insufficient to support the People’s claim of ineligibility.
Based on the foregoing, we cannot conclude, as a matter of law, that petitioner is
ineligible for resentencing relief. Because petitioner adequately alleged a prima facie
claim for relief and the record does not rebut his allegations as a matter of law, the court
was required to issue an order to show cause (§ 1170.95, subd. (c)), and to hold a hearing
at which the prosecution bears the burden of proving petitioner’s ineligibility for
resentencing relief beyond a reasonable doubt, unless such hearing is waived (§ 1170.95,
subd. (d)). The court erred in failing to follow these procedures. Neither party argues the
error was harmless, and we cannot say it is reasonably probable the petition properly
could have been denied without an evidentiary hearing on any other basis. (Lewis, supra,
11 Cal.5th at pp. 972-974.) Accordingly, we must reverse.
DISPOSITION
The June 3, 2020 order denying petitioner’s section 1170.95 petition is reversed.
On remand, the trial court is directed to issue an order to show cause and to conduct
9.
further proceedings as required under section 1170.95, subdivision (d), in light of the
principles set forth herein.
10.