People v. Chapman CA2/7 ( 2021 )

Filed 12/8/21 P. v. Chapman CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B310488
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA009550)
v.
RONALD CHAPMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Reversed with
directions.
California Appellate Project, Richard B. Lennon, Executive
Director and Olivia Meme, Staff Attorney, 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, Senior
Assistant Attorney General, Amanda V. Lopez and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 1992 a jury convicted Ronald Chapman and Haiji
Whitsey of first degree murder, robbery, and burglary and found
true the allegation a principal was armed in the commission of
the offenses.1 The trial court sentenced Chapman to a prison
term of 26 years to life for the murder conviction, plus additional
terms for the robbery and burglary convictions. Chapman
appealed, and we affirmed the judgment in most respects.2
(People v. Whitsey et al. (Sept. 22, 1993, B070694) [nonpub. opn.].)
In 2019 Chapman filed a petition under section 1170.95,
which allows certain defendants convicted of murder under a
felony murder or natural and probable consequences theory to
petition the court to vacate their convictions and for resentencing.
Following briefing, the superior court held a hearing, found
Chapman failed to make a prima facie showing for relief, and
denied the petition. Chapman appeals, contending the court
erred in making factual findings to conclude he had not
established a prima facie case and in not issuing an order to show
cause and holding an evidentiary hearing. The People concede
1 The jury also found true the special-circumstance
allegation Whitsey committed murder during the commission of
residential burglary and robbery and the allegation he personally
used a firearm in the commission of the offenses. (Pen. Code,
§§ 190.2, subd. (a)(17), 12022.5, subd. (a).) Statutory references
are to the Penal Code.
2 We modified the judgment to stay under section 654 the
prison term the trial court imposed for Chapman’s burglary
conviction. (People v. Whitsey et al. (Sept. 22, 1993, B070694)
[nonpub. opn.].)
2
the superior court erred. We agree and reverse the order denying
Chapman’s petition under section 1170.95 and direct the court to
issue an order to show cause under section 1170.95,
subdivision (c), and to conduct an evidentiary hearing in
accordance with section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Chapman of First Degree Murder,
Chapman Appeals, and This Court Affirms
In December 1991 Chapman and Whitsey went to the
apartment of Frank Jackson, the boyfriend of Whitsey’s sister, to
rob him. In the course of the robbery, Whitsey shot and killed
Jackson. The People charged Chapman with first degree murder
(§ 187, subd. (a)), first degree residential burglary (§§ 459, 460),
and residential robbery (§§ 211, 212.5, subd. (a)), and alleged a
principal was armed in the commission of the offenses (§ 12022,
subd. (a)(1)). (People v. Whitsey et al., supra, B070694.)3
At trial, the deputy sheriff who interviewed Chapman
testified about statements Chapman made after his arrest.
Chapman stated that, on the night of the murder, he drove
Whitsey to Jackson’s apartment and Jackson invited them inside.
Chapman, who had been drinking, began to play a video game.
He heard Whitsey and Jackson arguing in the bedroom. Whitsey
came out of the bedroom and told Chapman to take the stereo
equipment from a wall unit in the apartment, which Chapman
did. Chapman made several trips to the car to carry the
3 “Appellate opinions . . . are generally considered to be part
of the record of conviction.” (People v. Lewis (2021) 11 Cal.5th
952, 972.)
3
equipment. Returning to the apartment, Chapman saw Whitsey
point a gun at Jackson and heard Whitsey ask, “‘[W]here’s the
money? Why won’t you tell me? I’ll just blow your head off.’”
Chapman repeatedly told Whitsey not to kill Jackson. Whitsey
responded, “‘This fool got some money. He won’t tell me where it
is.’ . . . ‘I’ll have to kill him.’” Chapman told Whitsey, “‘We’ve got
all the stuff. I’ve got everything. . . . Let’s get out of here.’”
Chapman struck Jackson in the face to prove to Whitsey that
Jackson was too scared to report what happened and that there
was no need to kill Jackson. (People v. Whitsey et al., supra,
B070694.)
Chapman’s cousin testified that, the day after the murder,
Chapman told him that he and Whitsey went to Jackson’s
apartment to “‘jack’”4 him, that Chapman took some property
from Jackson, and that Whitsey directed him to wait in the car.
Chapman told his cousin that, while Chapman was waiting in the
car, Whitsey shot Jackson. (People v. Whitsey et al., supra,
B070694.)
The trial court instructed the jury on murder (with CALJIC
No. 8.10), first degree felony murder (CALJIC No. 8.21), and
aiding and abetting first degree felony murder (CALJIC
No. 8.27). The jury convicted Chapman as charged and found
true the allegation a principal was armed in the commission of
the offenses. The trial court sentenced Chapman to 25 years to
life for the murder conviction, plus one year for the enhancement
under section 12022, subdivision (a)(1). The court imposed
additional terms for the robbery and burglary convictions.
Chapman appealed the judgment, and with a minor modification,
we affirmed. (People v. Whitsey et al., supra, B070694.)
4 Chapman’s cousin testified “jack” meant to rob someone.
4
B. Chapman Files a Petition Under Section 1170.95
In May 2019 Chapman, representing himself, filed a
petition under section 1170.95. Checking boxes on a form
petition, Chapman alleged that a complaint, information, or
indictment was filed against him that allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; that he had been
convicted of first or second degree murder under the felony
murder rule or the natural and probable consequences doctrine,
and that he could not now be convicted of first or second degree
murder because of legislative changes to sections 188 and 189,
effective January 1, 2019. Chapman also alleged that he was
convicted of first degree felony murder and that, as a result of
changes to section 189, effective January 1, 2019, he could not
now be convicted because he was not the actual killer; he did not,
with the intent to kill, aid or abet the actual killer in the
commission of murder in the first degree; and he was not a major
participant in the felony or act with reckless indifference to
human life during the course of the crime or felony. The superior
court appointed counsel to represent Chapman and ordered
briefing.
The People filed an opposition to the petition, arguing that
Chapman was ineligible for resentencing under section 1170.95
because he “could still be found guilty of murder on several bases
including: as a principal, as a direct aider and abettor, felony
murder, and finally, implied malice, a second degree murder
theory.” Chapman filed a reply in support of his petition, arguing
that he stated a prima facie case of eligibility for relief because he
was not the actual killer, that the court gave jury instructions on
felony murder, that the prosecutor argued the theory of felony
5
murder to the jury, and that evidence from the trial showed
Chapman tried to stop Whitsey from killing the victim.
Chapman asked the superior court to issue an order to show
cause because whether he was a major participant and acted with
reckless indifference to human life was “an issue of entitlement
and not eligibility.”5
At the hearing Chapman argued that he stated a prima
facie case for relief under section 1170.95 and that the superior
court should issue an order to show cause to resolve “factual
questions,” such as whether Chapman was a “major participant.”
The prosecutor argued Chapman did not establish a prima facie
case because he had not shown “he could not now be convicted on
[the] facts” of the case. The prosecutor asserted that, not only
was Chapman a “major participant” who acted “with reckless
indifference,” but that he also had the “specific intent for the
victim to die, given the circumstances.” The prosecutor pointed
out that Chapman “made repeated trips from the apartment to
the car and back to steal everything” and that, when Chapman
saw Whitsey point a gun at Jackson, Chapman hit Jackson in the
face. According to the prosecutor, determining whether
Chapman was a major participant did not require a “factual
analysis,” but entailed “simply just looking at the facts as
contained in the record and assign[ing] them to the law.”
Chapman argued that, deciding whether he was a major
participant who acted with reckless indifference to human life
under the factors set forth in People v. Banks (2015) 61 Cal.4th
788 and People v. Clark (2016) 63 Cal.4th 522 were “issues for an
5 Chapman argued he was a “minor player,” did not have a
weapon, did not supply any weapons, “tried to stop any killing,”
and was not in the apartment when Whitsey shot Jackson.
6
order to show cause.”6 The superior court asked whether
Chapman’s statement that he told Whitsey, “‘Man, don’t.
Whatever you do, don’t shoot him,’” was “self-serving.” Counsel
for Chapman stated that whether the statement was self-serving
or “the truth” was “exactly why we need to set it for an order to
show cause.”
The superior court acknowledged that Chapman was “not
the actual killer” and that “the jury was instructed on felony
murder.” But the court ruled that, under People v. Bascomb
(2020) 55 Cal.App.5th 1077,7 Chapman was not entitled to relief
6 In People v. Banks, supra, 61 Cal.4th 788 the Supreme
Court held the special-circumstance allegation of section 190.2,
subdivision (d), which prescribes increased punishment for
certain aiders and abettors of first degree felony murder, requires
that “[t]he defendant must be aware of and willingly involved in
the violent manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of
death his or her actions create.” (Id. at p. 801.) The Supreme
Court also held the defendant’s “personal involvement must be
substantial” and listed several factors to help determine whether
a defendant is a “major participant” in a crime. (Id. at
pp. 802-803.) In People v. Clark, supra, 63 Cal.4th 522 the
Supreme Court described factors to “aid [the] analysis” of
whether the defendant “exhibited ‘“‘reckless indifference to
human life’”’ within the meaning of section 190.2,
subdivision (d).” (Id. at p. 618; see In re Scoggins (2020)
9 Cal.5th 667, 676 [“Banks and Clark clarified the meaning of the
special circumstances statute”].)
7 In People v. Bascomb, supra, 55 Cal.App.5th 1077 the court
held that the defendant, who planned a robbery, used a gun to
subdue the occupants of the apartment he entered, and was
7
under section 1170.95 because he knew what he and Whitsey
were going to do and “he knew that they were going to ‘jack’ the
victim, [and] he did punch [him].” The court stated that, even
though Chapman explained why he hit Jackson in the face, “he
did participate in [the crimes]. He was continuing to take the
equipment [on] multiple trips.” “Most notably,” the superior
court concluded, Chapman “could have left,” “called 911,” or
“abandoned the whole operation.” The court found that Chapman
did not make a prima facie case because “he could still be
convicted under current law [for] . . . murder.” Chapman timely
appealed.
DISCUSSION
A. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) “eliminated natural and probable
consequences liability for murder as it applies to aiding and
abetting, and limited the scope of the felony-murder rule.”
(People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); see §§ 188,
subd. (a)(3), 189, subd, (e); People v. Gentile (2020) 10 Cal.5th
830, 846-847 [Senate Bill 1437 was enacted “‘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.’”].) “Senate Bill 1437 also added
section 1170.95 to the Penal Code, which creates a procedure for
present when his accomplice shot the victim, acted with reckless
indifference to human life. (Id. at pp. 1087-1090.)
8
convicted murderers who could not be convicted under the law as
amended to retroactively seek relief.” (Lewis, at p. 957,
fn. omitted; see Gentile, at p. 853.)
“Section 1170.95 envisions three stages of review of a
petition for resentencing.” (People v. Wilson (2021)
69 Cal.App.5th 665, 675; see Lewis, supra, 11 Cal.5th at
pp. 959-960.) First, the petitioner “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.’” (Lewis, at
pp. 959-960; see § 1170.95, subd. (a)(1)-(3).)
Second, if a petition under section 1170.95 contains all the
required information, including a declaration by the petitioner
that he or she was convicted of murder and is eligible for relief
(§ 1170.95, subd. (b)(1)(A)), the court, after appointing counsel,
must “assess whether the petitioner has made a ‘prima facie
showing’ for relief.” (Lewis, supra, 11 Cal.5th at pp. 960, 962; see
§ 1170.95, subd. (c); People v. Wilson, supra, 69 Cal.App.5th at
p. 675; People v. Barboza (2021) 68 Cal.App.5th 955, 962.) “In
determining whether the petitioner has carried the burden of
making the requisite prima facie showing he or she falls within
the provisions of section 1170.95 and is entitled to relief, the
superior court properly examines the record of conviction,
9
‘allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.’” (People v. Mancilla (2021)
67 Cal.App.5th 854, 863.) The prima facie inquiry, however, is
limited. 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.”’” (Lewis, at p. 971; see Barboza, at
p. 962; People v. Duchine (2021) 60 Cal.App.5th 798, 813, 815;
People v. Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton),
disapproved on another ground in Lewis, at p. 963.)
The court’s authority to resolve the petition at the prima
facie stage “is limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).”
(Drayton, supra, 47 Cal.App.5th at p. 980; see Lewis, supra,
11 Cal.5th at p. 972 [“at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion’”]; People v. Clayton (2021)
66 Cal.App.5th 145, 153 [same]; People v. Harris (2021)
60 Cal.App.5th 939, 958 [same], review granted Apr. 28, 2021,
S267802.) “‘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, at p. 971;
accord, People v. Jenkins (2021) 70 Cal.App.5th 924, 932; see
People v. Duchine, supra, 60 Cal.App.5th at p. 815 [“absent a
record of conviction that conclusively establishes that the
10
petitioner engaged in the requisite acts and had the requisite
intent, the trial court should not question his evidence”].)
Third, 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.’” (Lewis, supra, 11 Cal.5th at
p. 960; see § 1170.95, subd. (d)(1); People v. Wilson, supra,
69 Cal.App.5th at p. 675.) “At the hearing to determine whether
the petitioner is entitled to relief, the burden of proof shall be on
the prosecution to prove, beyond a reasonable doubt, that the the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3);
see Lewis, at p. 960.) The prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence.
(§ 1170.95, subd. (d)(3); see Lewis, at p. 960.)8
8 In October 2021 the Legislature amended section 1170.95.
Among other changes, the amendments (1) apply section 1170.95
to convictions for voluntary manslaughter and attempted
murder; (2) state the requirement to appoint counsel, if
requested, in new subdivision (b)(3), rather than in
subdivision (c); (3) affirm that the standard of proof at the
hearing on the order to show cause is proof beyond a reasonable
doubt; and (4) clarify that “a finding that there is substantial
evidence to support a conviction for murder, attempted murder,
or manslaughter is insufficient to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.” (See
Stats. 2021, ch. 551, § 2 (Sen. Bill No. 775).) Because the
Legislature did not pass these amendments as urgency
11
B. The Trial Court Erred in Denying Chapman’s Petition
Under Section 1170.95 at the Prima Facie Stage
Chapman contends that he stated a prima facie case for
relief and that the superior court erred in making factual findings
at this stage of the proceedings under section 1170.95,
subdivision (c). Both contentions have merit.
Chapman filed a petition alleging all the essential facts
required under section 1170.95, subdivision (a)(1)-(3). He alleged
that he was convicted of first degree murder (an undisputed fact)
and that the People filed an information against him that allowed
the prosecution to proceed under a theory of felony murder
(another undisputed fact, which the superior court
acknowledged). (See § 1170.95, subd. (a)(1), (2).) And, as
required by section 1170.95, subdivision (a)(3), Chapman alleged
he could not now be convicted of first degree murder under the
current definition of felony murder because he was neither a
major participant in the felony nor acted with reckless
indifference to human life. Assuming, as we must (Lewis, supra,
11 Cal.5th at p. 971), these allegations are true, and because, as
the People concede, nothing in the record refuted them “as a
matter of law,” Chapman stated a prima facie case for relief. (See
People v. Jenkins, supra, 70 Cal.App.5th at p. 933 [petitioner
stated a prima facie case for relief because the court “had to
assume the truth of” the defendant’s factual allegation that “he
could not now be convicted of murder because of changes to
section 188”]; People v. Eynon (2021) 68 Cal.App.5th 967, 971
[petitioner made a prima facie showing of eligibility for relief
because “[n]othing in [his] record of conviction refutes the
legislation, they will become effective on January 1, 2022. (See
Cal. Const., art. IV, § 8, subd. (c).)
12
allegation in his section 1170.95 petition that he is eligible for
relief”]; Drayton, supra, 47 Cal.App.5th at pp. 981-982 [petitioner
made a prima facie showing of eligibility for relief by alleging the
facts specified under section 1170.95, subdivision (a)(1)-(3),
“which, if accepted as true, fulfilled the requirements for relief”].)
The superior court should have issued an order to show
cause and conducted an evidentiary hearing. (See People v.
Clayton, supra, 66 Cal.App.5th at p. 154 [superior court “should
have issued an order to show cause and followed the procedures
mandated by section 1170.95, subdivision (d),” because the
defendant’s petition “satisfied the requirements of section
1170.95, subdivisions (a) and (b),” and the “record does not
establish ineligibility as a matter of law.”].) Instead, the superior
court did precisely what the Supreme Court has stated courts
may not do in determining whether a petitioner has established a
prima facie case for relief: weigh the evidence and make
credibility findings against Chapman. (See Lewis, supra,
11 Cal.5th at pp. 971-972.) Specifically, the superior court
questioned the credibility of Chapman’s “self-serving” statement
he hit Jackson in the face so that Whitsey would not shoot
Jackson; credited a witness’s statement that Chapman said he
and Whitsey went to Jackson’s house to rob him; discounted
Chapman’s statement that he told Whitsey not to shoot Jackson;
and put particular emphasis on Chapman’s failure to leave the
premises or call 911 after Whitsey shot Jackson.
The superior court also erred in making findings of fact to
conclude Chapman could still be convicted of murder under
section 189, subdivision (e). (See People v. Clayton, supra,
66 Cal.App.5th at pp. 150, 154 [superior court erred by engaging
“in judicial factfinding based on its analysis of the evidence under
13
People v. Banks[, supra, 61 Cal.4th 788] and People v.
Clark[, supra, 63 Cal.4th 522] to conclude that [the defendant]
was a major participant in the robbery who acted with reckless
indifference to human life”]; Drayton, supra, 47 Cal.App.5th at
p. 982 [superior court erred in making a factual finding at the
prima facie stage that the defendant’s conduct “‘blatantly’”
showed he acted with reckless indifference to human life].) The
court can make such findings of fact only after issuing an order to
show cause and conducting an evidentiary hearing under section
1170.95, subdivision (d). (See People v. Harris, supra,
60 Cal.App.5th at p. 960 [“determining whether [the defendant]
could now be found to have been a major participant within the
meaning of section 189, subdivision (e)(3), requires factfinding
following an evidentiary hearing pursuant to section 1170.95,
subdivision (d)”], review granted; People v. Duchine, supra,
60 Cal.App.5th at p. 816 [“The major participant and reckless
indifference findings the trial court made based solely on the
record evidence entail the weighing of evidence, drawing of
inferences, and assessment of credibility that should be left to the
factfinding hearing process contemplated by section 1170.95,
subdivision (d).”]; see also In re Parrish (2020) 58 Cal.App.5th
539, 542 [“Supreme Court decisions prescribe a fact-intensive and
individualized inquiry to determine whether the defendant’s
culpability [under section 190.2, subdivision (d)] was major or
minor”].)
14
DISPOSITION
The order denying Chapman’s section 1170.95 petition is
reversed. The superior court is directed to issue an order to show
cause and to conduct an evidentiary hearing in accordance with
section 1170.95, subdivision (d).
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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