People v. Crecy CA1/5 ( 2021 )

Filed 12/1/21 P. v. Crecy CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
A161419
Plaintiff and Respondent,
v. (San Mateo County
Super. Ct. No. SC043393A)
ANTOINE MAURICE CRECY,
Defendant and Appellant.
Antoine Maurice Crecy (appellant) appeals from the trial court’s denial
of his petition for resentencing pursuant to Penal Code section 1170.95.1 We
reverse and remand.
BACKGROUND
Appellant’s Record of Conviction
In 1999, appellant was convicted, following a jury trial, of two counts of
first degree murder (§ 187), and one count each of robbery (§ 212.5, subd. (a)),
attempted robbery (§§ 212.5, subd. (a), 664), and burglary (§ 460, subd. (a)).
The jury found true felony-murder special-circumstance allegations that the
1 All undesignated section references are to the Penal Code.
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murders were committed while appellant was engaged in a robbery or
burglary. (§ 190.2, subd. (a)(17)(A) & (G).) The jury also found true that
appellant was armed with a firearm while committing each offense (§ 12022,
subd. (a)(1)), but found not true an allegation that appellant personally used
a firearm in the commission of the crimes (§ 12022.5, subd. (a)).
The underlying summary of the facts is taken from the Court of Appeal
opinion affirming the judgment. (People v. Crecy (Feb. 4, 2002, A091674)
[nonpub. opn.].) In September 1997, Diane McClanahan deposited an
inheritance of approximately $50,000 in her bank account. Two days later,
her boyfriend, Winferd Flewellen, drove appellant to Flewellen’s Daly City
apartment, where McClanahan was visiting. Appellant was acquainted with
the couple because he sold them drugs. Appellant left the apartment that
afternoon. In the early morning hours of the next day, neighbors heard
gunshots from Flewellen’s apartment. Later that morning, McClanahan’s car
was found a few blocks from appellant’s grandmother’s house, where
appellant sometimes stayed. Flewellen and McClanahan were found dead in
Flewellen’s apartment. Both had been shot at close range and the apartment
had been ransacked. The following month, a store clerk who knew appellant
as a regular customer witnessed him holding a gun and saying he had killed
two people in Daly City.
In November, appellant was arrested and made a statement to the
police. He said that, during the September drive to Flewellen’s apartment,
Flewellen told him about McClanahan’s inheritance and indicated the money
was in his bedroom. After appellant left Flewellen’s apartment that
afternoon, he told two men about a robbery they could commit. The three
went to Flewellen’s apartment, each with a gun. The other two men guarded
the victims while appellant unsuccessfully looked for the money in the
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bedroom. When appellant returned to where the others were, the victims
were covered on the ground and appellant heard McClanahan beg not to be
killed. Appellant left the apartment because he no longer wanted to be part
of the crime. He waited for the others downstairs and did not hear any
gunshots. When the men joined him, they gave him some of $1,000 they had
found in the apartment. Appellant left with one of the men while the other
took McClanahan’s car.
After making this statement, appellant was placed in a holding cell.
Another inmate in the cell testified appellant said he was present when the
victims were shot. At trial, appellant testified he and one other person
committed the burglary and, when they left together, both victims were alive
on the floor.
Banks/Clark
The felony-murder special-circumstance statute provides a penalty of
death or life imprisonment without the possibility of parole for a defendant
who was “not the actual killer” but who, “with reckless indifference to human
life and as a major participant,” aids and abets the commission of an
enumerated felony, including robbery and burglary, which resulted in the
death of a person. (§ 190.2, subds. (a)(17)(A) & (G), (d).)
After appellant’s conviction was final, People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) “clarified the
meaning of the special circumstances statute.” (In re Scoggins (2020)
9 Cal.5th 667, 671 (Scoggins).) Under Banks and Clark, “ ‘Awareness of no
more than the foreseeable risk of death inherent in any [violent felony] is
insufficient’ to establish reckless indifference to human life; ‘only knowingly
creating a “grave risk of death” ’ satisfies the statutory requirement. (Banks,
at p. 808 [189 Cal.Rptr.3d 208, 351 P.3d 330].) Notably, ‘the fact a
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participant [or planner of] an armed robbery could anticipate lethal force
might be used’ is not sufficient to establish reckless indifference to human
life. (Ibid.; see Clark, at p. 623 [203 Cal.Rptr.3d 407, 372 P.3d 811].)”
(Scoggins, at p. 677.)
Defendants for whom “Banks and Clark clarified the meaning of the
special circumstances statute after [their] conviction[s] became final,” such as
appellant, are “entitled to habeas corpus relief ‘ “if there is no material
dispute as to the facts relating to [the defendant’s] conviction and if it
appears that the statute under which [the defendant] was convicted did not
prohibit [the defendant’s] conduct.” ’ ” (Scoggins, supra, 9 Cal.5th at p. 676.)
Appellant’s Habeas Petition
In November 2016, appellant filed a petition for writ of habeas corpus
in the superior court, challenging the felony-murder special-circumstance
finding in light of Banks and Clark. The superior court (a different bench
officer from those who presided at appellant’s prior trial and heard his
subsequent resentencing petition) summarily denied the petition.
Section 1170.95
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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).) In
addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for
convicted murderers who could not be convicted under the law as amended to
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retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).)
“Pursuant to section 1170.95, 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 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, subds. (a)(1)–(3); see also § 1170.95
subd. (b)(1)(A).) . . . [¶] Where the petition complies with subdivision (b)’s
three requirements, then the court proceeds to subdivision (c) to assess
whether the petitioner has made ‘a prima facie showing’ for relief.
(§ 1170.95, subd. (c).) [¶] If the trial court determines that a prima facie
showing for relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to vacate the
murder conviction and to recall the sentence and resentence the petitioner on
any remaining counts in the same manner as if the petitioner had not . . .
previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, supra,
11 Cal.5th at pp. 959–960.)
Appellant’s Resentencing Petition
In 2020, appellant filed a section 1170.95 resentencing petition.
Appellant averred that he “was not a major participant in the felony” or “did
not act with reckless indifference to human life during the course of the crime
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or felony.” The People submitted with their opposition the jury instructions
from appellant’s trial, the Court of Appeal opinion affirming his conviction,
and the order denying his habeas petition.
The trial court found appellant failed to establish a prima facie case.
This appeal followed.
DISCUSSION
“While the trial court may look at the record of conviction . . . to
determine whether a petitioner has made a prima facie case for section
1170.95 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.” ’ [Citation.] [¶] . . . In reviewing any part of the record of
conviction at this preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’
[Citation.] . . . [T]he ‘prima facie bar was intentionally and correctly set very
low.’ ” (Lewis, supra, 11 Cal.5th at pp. 971–972.)
We agree with appellant that the jury’s felony-murder special-
circumstance finding alone does not preclude section 1170.95 resentencing
relief. “[A] murder defendant facing a pre-Banks and Clark felony-murder
special circumstance may properly allege that the murder conviction is no
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longer valid ‘because of changes to Section 188 or 189 made effective January
1, 2019.’ (§ 1170.95, subd. (a)(3).) Those changes include the addition of
section 189, subdivision (e)(3), which provides that to be liable for felony
murder (subject to exceptions not here relevant), a defendant must be ‘a
major participant in the underlying felony [who] . . . acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.’
[¶] While it is true that the language of section 189, subdivision (e)(3) tracks
language that has always been a part of section 190.2, subdivision (d), Banks
and Clark placed new limits on its meaning. Because we must presume the
Legislature knows and acts against the backdrop of existing case law
[citations], the language of section 189, subdivision (e)(3) as enacted by the
Legislature in 2018 necessarily carries the meaning announced in Banks and
Clark, since both cases were on the books when Senate Bill 1437 was passed
and signed by the Governor.” (People v. Secrease (2021) 63 Cal.App.5th 231,
254 (Secrease), review granted June 30, 2021, S268862.)
The parties next dispute whether appellant’s Banks/Clark challenge
can only be brought by means of a habeas corpus petition, as the People
contend, or instead can be raised in a section 1170.95 proceeding, as
appellant contends. This issue has divided courts of appeal (see Secrease,
supra, 63 Cal.App.5th at p. 247, fn. 11 [citing cases]) and is currently pending
before the Supreme Court (People v. Strong, review granted March 10, 2021,
S266606). We agree with those courts holding a Banks/Clark challenge can
be brought in a section 1170.95 petition: “First, the statutory text suggests
the Legislature saw the new section 1170.95 statutory remedy it created as
cumulative to other available remedies, including habeas corpus, given its
express statement in section 1170.95, subdivision (f), that ‘[t]his section does
not diminish or abrogate any rights or remedies otherwise available to the
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petitioner.’ Second, section 1170.95 explicitly contemplates that, upon
showing a right to relief, a successful petitioner’s ‘prior [murder] conviction,
and any allegations . . . attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges’ (§ 1170.95, subd.
(d)(3)), which suggests the Legislature understood that vacatur of a special
circumstance finding may occur as a consequence of a successful section
1170.95 proceeding. [Citation.] [¶] Third, we find it significant that section
1170.95, subdivision (d)(2) expressly provides that ‘[i]f there was a prior
finding by a court or jury that the petitioner did not act with reckless
indifference to human life or was not a major participant in the felony, the
court shall vacate the petitioner’s conviction and resentence the petitioner,’
while omitting any reference to a felony-murder special-circumstance true
finding being ‘an automatic statutory bar’ to resentencing eligibility.”
(Secrease, at pp. 256–257.)
We also agree with appellant that the superior court’s previous
summary denial of his habeas petition does not impact the instant
proceedings. “[T]he 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.)
For this reason, courts of appeal considering section 1170.95 resentencing
petitions presenting this issue have reasoned, “The fact we previously
summarily denied [the resentencing petitioner’s] habeas corpus petition
arguing the evidence was insufficient to support the special circumstances
finding under Banks and Clark is irrelevant.” (People v. Law (2020)
48 Cal.App.5th 811, 821, fn. 3, review granted July 8, 2020, S262490; accord,
People v. Torres (2020) 46 Cal.App.5th 1168, 1180, fn. 4, review granted
June 24, 2020, S262011 [summary denial “on the merits” of habeas petition
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raising Banks/Clark challenge was not preclusive on the issue in
section 1170.95 proceeding].)
Appellant urges us to direct the trial court to issue an order to show
cause; the People do not argue the current record—apart from the arguments
above—supports affirmance. We decline to decide the matter on the current
record. (See Secrease, supra, 63 Cal.App.5th at p. 261 [“There may be aspects
of the record the prosecution had no need to bring forward when it opposed
relief solely on the ground that the special circumstance finding, without
examination of the evidence behind it, justified denial as a matter of law.”].)
Instead, we will remand to the trial court, where “the court’s task will be
narrowly focused on whether, without resolving conflicts in the evidence and
making findings, the evidence presented at trial was sufficient to support the
felony-murder special-circumstance finding under Banks and Clark.”
(Secrease, at p. 264.)
DISPOSITION
The order denying appellant’s section 1170.95 petition is reversed and
remanded.
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SIMONS, J.
We concur.
JACKSON, P. J.
NEEDHAM, J.
(A161419)
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