People v. Fox CA2/1 ( 2021 )

Filed 10/21/21 P. v. Fox CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B307236
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA039277)
v.
JESSE FOX,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Joseph R. Porras, Judge. Reversed.
Eric R. Larson, 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, Idan Ivri and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Petitioner Jesse Fox appeals from an order denying his
Penal Code1 section 1170.95 petition for resentencing. The trial
court summarily denied Fox’s resentencing petition because Fox
pleaded guilty to a felony murder special circumstance. We
reverse the order. Although Fox pleaded guilty, the sentencing
court struck the felony murder special circumstance allegation in
arriving at defendant’s sentence. Because the record of
conviction does not demonstrate Fox is ineligible for sentencing
relief as a matter of law, and Fox’s allegations constitute a prima
facie showing of entitlement to such relief, we reverse the order
denying his petition and remand with directions for the trial
court to issue an order to show cause under section 1170.95,
subdivision (c).
BACKGROUND
On October 31, 1996, shortly before Fox’s 17th birthday,
the People charged Fox with the murder of Richard Vargas,
occurring on or about June 4, 1996. The People further alleged
that the murder was committed while Fox and his confederate
were engaged in the commission or attempted commission of a
robbery within the meaning of section 190.2, subdivision (a)(17).
The People charged Fox with attempted robbery occurring on the
same day as the murder and with an additional robbery occurring
in April 1996.
1. Preliminary hearing
The preliminary hearing was held October 17, 1996.
Maria Krauter, an employee of the San Gabriel Valley
Credit Union (the credit union), testified that, on April 24, 1996,
1 Undesignated statutory citations are to the Penal Code.
2
two men entered the credit union, and one jumped over a gate.
The man who jumped over the gate pushed Krauter aside and
took approximately $2,000 from her cash drawer. Luz Amador,
another employee of the credit union, testified that Fox
“probably” was one of the credit union robbers.
Detective Edward Pawasarat testified that he spoke to Fox,
who admitted participating in the credit union robbery. Fox
reported that his confederate carried a semi-automatic pistol.
According to Pawasarat, Fox said that Fox’s confederate pointed
his gun at people inside the credit union and instructed Fox to
jump over the counter and take the money. Fox jumped over the
counter, retrieved money from a cash drawer, jumped back over
the counter and started to walk out of the credit union. As Fox
was exiting, the money Fox was holding exploded.
Sheriff’s Deputy Joseph Martinez testified that he
investigated a shooting in the course of a robbery at Lifestyle
Pager, a retail pager store in Whitter. The victim died the night
after the shooting. Employee Marla Garcia told Martinez that
two men entered the store and one brandished a firearm and
demanded money. The other jumped over the counter. Garcia
heard gunshots and learned that Richard Vargas was shot. Two
guns were used during the attempted robbery. One belonged to
the victim.
Deputy Martinez testified that he spoke to Fox, who
reported: “[A]long with two other individuals, [he] went into a
pager store in Pico Rivera, and they went there to rob the store.
He and one other individual got out of the car while the third
remained in the car. The two of them walked into the pager
store. He said that there were two people in the store, male and
female, and one of them said something. At that point he [Fox]
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jumped over the counter to see what he [could] steal. [¶] The
male who was behind the counter grabbed him. There was a
struggle. He heard a gunshot. He turned around and saw the
male was armed with a gun and began wrestling with that
individual. Then he heard more gunshots. At that point he
broke away, jumped back over the counter, and left one of his
tennis shoes behind. He and his companion left the store.” Fox
told Deputy Martinez that his confederate, Jeffery Rosas, was
armed with a .25 caliber pistol.
2. Fox’s plea and sentence
Fox entered an open plea for which he was offered no
promises. (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4.)
Fox pleaded guilty to murder with the special circumstance that
the murder was committed while Fox was engaged in the
attempted commission of a robbery. (§ 190.2, subd. (a)(17).) Fox
admitted he “and Jeff Rosa[s] entered with the intent to commit
robbery and did start to commit a robbery and Mr. Vargas died in
the course and commission of that attempt.” Fox agreed with the
prosecutor’s following description: “You and Rosa[s] entered
together with the intention to commit robbery. He [Rosas] had a
gun; you jumped over the counter and a gun fight erupted and
Mr. Vargas died.” The prosecutor continued: “So that . . . would
be more than enough to be able to prove the special circumstance[
], even though you may not have intended to injure or kill
anybody; do you understand the allegation?” Fox answered
affirmatively.
In response to the prosecutor’s questions, Fox indicated he
understood that the special circumstance did not require he
harbor the intent to kill and did not require that he was “the man
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with the gun . . . .” Fox also pleaded guilty to attempted
robbery.2
In the course of the plea, Fox answered the following
question posed by the prosecutor affirmatively: “[O]ne of the
reasons that you are pleading guilty, is there’s a hope on your
part that a judge will even give you more consideration to strike
the special circumstance.”
In contrast to his statement to defendant at the plea
hearing, at sentencing, the prosecutor argued that the court
lacked discretion to strike a special circumstance.
Notwithstanding the prosecutor’s argument, the sentencing court
struck the special circumstance allegation. The sentencing court
stated that it was “satisfied” Fox was not the shooter and was
“strik[ing] the special circumstance allegation, therefore, making
this a first-degree murder.” The sentencing court sentenced Fox
to an indeterminate term of 25 years to life for murder. The
sentencing court stayed the sentence on the attempted robbery
and sentenced Fox to five years on the April 1996 robbery. In its
nonpublished opinion following the judgment, this court stated:
“At sentencing, the [sentencing] . . . court granted Fox’s motion to
strike the special circumstance allegation and sentenced Fox to
state prison for a term of 30 years to life.”3 (People v. Fox
(Oct. 22, 1998, B117937) [nonpub. opn.] (Fox I).)
2 It appears the day before, Fox had pleaded guilty to the
robbery alleged in the information, but a transcript of that plea
is not in our record. In any event, the felony murder special
circumstance was based on the murder occurring during the
attempted robbery.
3 In a footnote, respondent states that the trial court
lacked discretion to strike the special circumstance despite the
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3. Section 1170.95 petition
On March 6, 2019, Fox filed a petition for resentencing
pursuant to section 1170.95. Fox alleged that he pleaded guilty
to murder in lieu of going to trial because he believed he could
have been convicted of murder based on the felony murder rule.
He alleged that he could not now be convicted of murder because
of changes to section 189. Fox alleged that he was not the actual
killer, did not harbor intent to kill, and either was not a major
participant in the felony or did not act with reckless indifference
to human life during the felony.
4. The trial court denies the petition
Relying on the fact that Fox pleaded guilty to the felony
murder special circumstance, the trial court found Fox ineligible
for resentencing. The trial court cited People v. Galvan (2020)
52 Cal.App.5th 1134, review granted October 14, 2020, S264284,
in which this court held that a felony murder special
circumstance finding rendered a defendant ineligible for
resentencing under section 1170.95. (Galvan, at p. 1137.) Fox
timely appealed.
prosecution’s representation to the contrary when the prosecutor
took defendant’s plea. Respondent also fails to acknowledge that
the reason Fox pleaded guilty was his “hope” that the judge
would strike the special circumstance. Respondent did not
challenge the trial court’s decision to strike the special
circumstance either in the trial court or on appeal from the
judgment of conviction and cites no authority supporting the
proposition that it can do so over two decades later by means of a
footnote.
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DISCUSSION
A. Background on Section 1170.95
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437) amended section 188 to provide that “[e]xcept 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.” (Stats. 2018, ch. 1015, § 2.) The
amendment effectively “eliminates natural and probable
consequences liability for first and second degree murder.”
(People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile).) In
addition, Senate Bill No. 1437 enacted section 189,
subdivision (e), which restricted felony murder liability to cases
in which the defendant was the actual killer, acted with the
intent to kill, or was a major participant in the underlying felony
and acted with reckless indifference to human life. (Stats. 2018,
ch. 1015, § 3; see Gentile, at pp. 842–843.)
A person convicted of murder under a felony murder or
natural and probable consequence theory may petition to have
the murder conviction vacated. (§ 1170.95, subd. (a).) The
petitioner’s prima facie case consists of the following three
elements:
“(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 convicted for first degree
or second degree murder.
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“(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).)
At the prima facie stage, the trial court “should not engage
in ‘factfinding involving the weighing of evidence or the exercise
of discretion.’ [Citation.]” (People v. Lewis (2021) 11 Cal.5th 952,
971–972.) The trial court however, may reject facts if the record
of conviction “ ‘ “contain[s] facts refuting the allegations made in
the petition[.]” . . . ’ [Citation.]” (Id. at p. 971.)
“If the petitioner makes a prima facie showing that he or
she is entitled to relief, the court shall issue an order to show
cause.” (§ 1170.95, subd. (c).) In that event, the court must hold
a hearing within 60 days to determine whether to vacate the
murder conviction. (Id., subd. (d)(1).) At this third and final
stage of the proceeding, the prosecution has the burden of proving
“beyond a reasonable doubt[ ] that the petitioner is ineligible for
resentencing.” (Id., subd. (d)(3).)
B. Fox Established a Prima Facie Case for
Resentencing
Only the third prerequisite for a prima facie case is
disputed. Fox argues that because the murder special
circumstance finding preceded People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), he
remains eligible for resentencing. Respondent argues that Fox is
ineligible as a matter of law because he admitted the felony
murder special circumstance.
In Banks and Clark, our Supreme Court clarified the
definitions of major participant and reckless indifference to
human life. (In re Scoggins (2020) 9 Cal.5th 667, 676.) There is a
split of authority whether a pre-Banks and Clark special
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circumstance finding renders a defendant ineligible for relief
under section 1170.95. This court has held three times that a
defendant with a pre-Banks/Clark felony-murder special
circumstance finding is not eligible for resentencing under
section 1170.95. (People v. Galvan (2020) 52 Cal.App.5th 1134,
review granted Oct. 14, 2020, S264284; People v. Murillo (2020)
54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978;
People v. Allison (2020) 55 Cal.App.5th 449.)4
The parties’ focus on the split of authority whether a pre-
Banks-and-Clark special circumstance finding renders a
petitioner ineligible for resentencing relief is misplaced.
Although Fox pleaded guilty to a special circumstance, the trial
4 Opinions reaching the same conclusion include People v.
Nunez (2020) 57 Cal.App.5th 78, 83, review granted January 13,
2021, S265918; People v. Gomez (2020) 52 Cal.App.5th 1, 17,
review granted October 14, 2020, S264033; People v. Jones (2020)
56 Cal.App.5th 474, 484–485, review granted January 27, 2021,
S265854; and People v. Simmons (2021) 65 Cal.App.5th 739, 749–
750, review granted September 1, 2021, S270048. Other courts
have disagreed. (See People v. Torres (2020) 46 Cal.App.5th
1168, 1179–1180, review granted June 24, 2020, S262011;
People v. Smith (2020) 49 Cal.App.5th 85, 93–96, review granted
July 22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250,
260–262, review granted Nov. 18, 2020, S264954; People v. Harris
(2021) 60 Cal.App.5th 939, 956–959, review granted, Apr. 28,
2021, S267802; People v. Secrease (2021) 63 Cal.App.5th 231, 256,
262, review granted June 30, 2021, S268862; People v. Pineda
(2021) 66 Cal.App.5th 792, 801–802, review granted Sept. 29,
2021, S270513; People v. Gonzalez (2021) 65 Cal.App.5th 420,
431, review granted Aug. 18, 2021, S269792; and People v. Arias
(2021) 66 Cal.App.5th 987, 1005–1006, review granted Sept. 29,
2021, S270555.)
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court subsequently struck the special circumstance allegation
and this court noted that the sentencing “court granted Fox’s
motion to strike the special circumstance allegation . . . .” (Fox I,
supra, B117937.) The trial court thus erred in relying on a plea
to an allegation subsequently stricken by the sentencing court.
(People v. Barboza (2021) 68 Cal.App.5th 955 (Barboza).)
In Barboza, the appellate court considered whether a trial
court’s decision to reduce a jury verdict from first degree murder
to second degree murder and strike a special circumstance
rendered the jury’s findings a nullity. (Supra, 68 CalApp.5th at
pp. 963–965.) The court concluded, “Reducing the degree of a
crime and striking a special circumstance means that in the eyes
of the law, the original findings never existed. Once a jury’s
finding is stricken, it is stricken.” (Id. at p. 965.)
Barboza relied on the following authority: “In People v.
Park (2013) 56 Cal.4th 782 [156 Cal.Rptr.3d 307, 299 P.3d 1263],
the trial court held that a felony, after it was properly reduced to
a misdemeanor under section 17, subdivision (b), did not qualify
as a ‘prior serious felony’ for purposes of imposing a five-year
sentence enhancement under section 667, subdivision (a), even
when the defendant had initially pleaded guilty to the felony.
[Citation.] ‘[G]iven that it was well established at the time
section 667(a) was enacted that when a trial court reduced a
wobbler to a misdemeanor under section 17(b) the offense was not
thereafter to be considered a felony conviction for purposes of a
recidivist statute, and given the absence of any indication in
section 667(a) of an intention to depart from this general rule,
we conclude that when a wobbler has been reduced to a
misdemeanor the prior conviction does not constitute a prior
felony conviction within the meaning of section 667(a).’
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[Citation.] Thus, the court found it was improper to revive a
felony reduced to a misdemeanor for the purpose of imposing a
harsher sentence on a defendant in the future.” (Barboza, supra,
68 Cal.App.5th at pp. 964–965.) “Also in the context of
sentencing enhancements, in People v. Flores (2021)
63 Cal.App.5th 368, 383 [277 Cal.Rptr.3d 698], the appellate
court held it was error for the trial court to use an enhancement
stricken under section 1385 to calculate a defendant’s minimum
indeterminate sentence.” (Barboza, at p. 965.)
The same principles apply to this case even though it
involved striking a special circumstance allegation that was part
of a plea rather than striking a jury finding. The special
circumstance no longer existed because the sentencing court
struck the special circumstance allegation. The trial court
therefore erred in relying on Fox’s plea of guilty to the felony
murder special circumstance to conclude that he was ineligible
for resentencing under section 1170.95.
C. Respondent Does Not Show Ineligibility as a Matter
of Law
Respondent argues that “[i]n cases where the petitioner
was convicted of special circumstance felony murder, the facts are
settled, and the only question is whether the record shows as a
matter of law that his crime satisfies the Banks and Clark
factors.” Respondent further argues that “[b]ased on the record of
conviction appellant’s actions did indeed meet the Banks and
Clark standard, rendering him ineligible for section 1170.95 relief
as a matter of law.”5
5 Banks enumerated the following factors as relevant, but
not dispositive, to determine whether a defendant was a major
11
Respondent’s arguments are not persuasive. First, the
trial court struck the special circumstance allegation. As a
result, this case does not involve the determination of whether a
pre-Banks and Clark special circumstance satisfies the new
standard.
Second the “facts” underlying Fox’s plea do not show as a
matter of law that Fox acted as a major participant with reckless
indifference to human life. Fox admitted only that he entered the
pager store with the intention to commit a robbery, his
confederate had a gun, Fox “jumped over the counter and a gun
fight erupted and Mr. Vargas died.” A defendant’s knowledge
that he was participating in an armed robbery does not show the
defendant “knew his own actions would involve a grave risk of
participant in a felony: “What role did the defendant have in
planning the criminal enterprise that led to one or more deaths?
What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?” (Banks, supra,
61 Cal.4th at p. 803, fn. omitted.) Clarks’ nonexhaustive list of
factors to consider to determine if a defendant acted with reckless
indifference to human life include: “knowledge of weapons, and
use and number of weapons”; “physical presence at the crime and
opportunities to restrain the crime and/or aid the victim”;
“duration of the felony; “defendant’s knowledge of cohort’s
likelihood of killing”; defendant’s efforts to minimize the risks of
the violence during the felony.” (Clark, supra, 63 Cal.4th at
pp. 618–623, capitalization & italics omitted.)
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death.” (Banks, supra, 61 Cal.4th at p. 807.) The fact that a
“robbery involves a gun,” standing alone “is not sufficient to
support a finding of reckless indifference to human life for the
felony-murder aider and abettor special circumstance.” (Clark,
supra, 63 Cal.4th at p. 617.)
Third, respondent relies primarily on evidence that was not
found true by a trier of fact beyond a reasonable doubt. For
example, respondent’s reliance on testimony from the
preliminary hearing is misplaced. “Being held to answer on an
allegation does not constitute a factual finding that the allegation
is true (and the allegation itself does not establish its own truth).
Being held to answer does not even constitute a determination
that the allegation is supported by substantial evidence.”
(People v. Eynon (2021) 68 Cal.App.5th 967, 969–970.) For all of
these reasons, we reject respondent’s argument that this court
may uphold the denial of Fox’s resentencing order on the ground
that Fox as a matter of law acted as a major participant with
reckless indifference to human life.
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DISPOSITION
The order denying Fox’s Penal Code section 1170.95
petition is reversed. The case is remanded for the trial court to
issue an order to show cause pursuant to section 1170.95,
subdivision (c).
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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