People v. Talmadge CA2/7 ( 2021 )

Filed 12/13/21 P. v. Talmadge CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B310726
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA039399-02)
v.
DAVID EMANUEL
TALMADGE,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Stephen A. Marcus, Judge. Reversed and
remanded.
J. Kahn, 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, David E. Madeo
and John Yang, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________
David Emanuel Talmadge, convicted in 2002 with
codefendant Nathan Sheard, of first degree murder with true
findings the murder had been committed during the commission
of a residential burglary and robbery, appeals the superior court’s
denial of his petition for resentencing pursuant to Penal Code
section 1170.951 without issuing an order to show cause and
holding an evidentiary hearing to determine his eligibility for
relief. We agree the superior court erred in holding Talmadge’s
petition was precluded as a matter of law by the jury’s felony-
murder special-circumstance finding, made more than a decade
before the Supreme Court’s identification in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) of the factors properly considered to assess
whether a defendant had been a major participant in an
underlying serious felony and acted with reckless indifference to
human life. The superior court also committed prejudicial error
by prematurely engaging in factfinding when it determined, as
alternate bases for its denial of the petition, that the record of
conviction, viewed in light of the Banks/Clark factors, supported
the jury’s major participant and reckless indifference findings
and further that it supported a finding Talmadge had aided and
abetted the murder with the specific intent to kill. We reverse
the order denying Talmadge’s petition and remand with
directions to issue an order to show cause and to conduct further
proceedings in accordance with section 1170.95, subdivision (d).
1 Statutory references are to this code.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Talmadge’s Felony-murder Conviction
Our opinion affirming with minor modifications of the
sentence Talmadge’s judgment of conviction describes the
evidence presented at his joint trial with Sheard for the murder
of Sheard’s elderly aunt, Gertrude Mills. (People v. Sheard
(Dec. 3, 2003, B160886) [nonpub. opn.].)
Talmadge and Sheard shared a bedroom in the home of
Sheard’s father. In March 1999 the three men painted the
interior of Mills’s house in Altadena. During the project Sheard
discovered a collection of guns in a hall closet.
On April 29, 1999 Sheard’s father heard Sheard, who was
speaking on the telephone to Talmadge, say “What is she going to
give you that for? What does she want to loan you that for?
Don’t make me come all the way up there if she’s not going to
give it to you.” Sheard then left the house, telling his father he
was going to meet Talmadge at Mills’s house. Sheard and
Talmadge returned home after midnight.
The following day Sheard was driving Mills’s automobile.
At the home of a neighbor Sheard opened the car’s trunk, which
contained shotguns and rifles. Sheard said he had obtained the
firearms from an old lady whose husband had passed away.
Talmadge, who had arrived on foot, Sheard and the neighbor
then drove to the home of another man, where Talmadge sold
two of the shotguns.
Several days later Sheard, still driving Mills’s automobile,
failed to stop at a stop sign on his way to a car wash. A Burbank
police officer approached Sheard at the car wash and asked for
his license, registration and proof of insurance. Sheard said he
did not have a driver’s license and told the officer the car
3
belonged to a friend. The officer performed a pat search and
asked for permission to search the car, which Sheard granted.
The officer found a receipt from an automobile mechanic made
out to Mills. A second officer, who had arrived to provide backup,
discovered through a check of state records that the car belonged
to Mills. Questioned about Mills, Sheard said she was his aunt,
lived in Pasadena and was “on a little vacation.” Sheard was
arrested for driving without a license and taken into custody.
Following Sheard’s arrest Los Angeles County Sheriff’s
deputies went to Mills’s home, where they found her in the
bathtub, bound and fully clothed, submerged in water with a
portable heater on top of her body. An autopsy revealed Mills
had sustained head injuries from multiple strikes with a blunt
object and multiple rib fractures consistent with having been
repeatedly kicked or stomped. The report indicated the blows
may not have been immediately fatal; Mills may have drowned
after being placed in the bathtub with the weight of the heater on
her chest.
One of Talmadge’s fingerprints was found on a glass mug in
the residence. Partially smoked cigarettes with Talmadge’s and
Sheard’s DNA were found in the house. The gun collection was
missing. A safe in the kitchen was empty. In a search of
Sheard’s father’s home officers found a pair of pants and a boot in
the room Talmadge and Sheard shared that were stained with
Mills’s blood. A ball peen hammer, normally kept in the room,
was not found during the search.
The jury at Talmadge and Sheard’s joint trial convicted
both men of first degree murder, first degree residential burglary
and first degree residential robbery. The jury found true the
special circumstance allegations the murder had occurred during
4
the commission of the burglary and robbery. The jury also found
true the allegations Talmadge and Sheard had personally used a
deadly and dangerous weapon in the commission of the murder,
but found that allegation not true as to the burglary and robbery.
Each man was sentenced to an indeterminate state prison term
of life without parole, plus one year for the weapon enhancement.
(Sentences on the burglary and robbery counts were stayed
pursuant to section 654.)
We affirmed the judgments of conviction on appeal, as
modified to correct minor sentencing errors, 2 holding any error in
the admission of Sheard’s statement during the traffic stop was
harmless beyond a reasonable doubt in light of the
“overwhelming evidence of Sheard’s guilt,” which, we explained,
included that, when Sheard was questioned at the car wash,
printed in the dust on Mills’s car was the statement, “Gertrude, I
appreciate you leaving me a car”; Sheard’s DNA was found on a
cigarette on the floor next to the sofa where Mills had bled
profusely; and Sheard and Talmadge were selling guns stolen
from Mills’s house shortly after the murder. In a footnote we
added, “The lack of conclusive evidence as to which defendant
was the actual killer does not make the admission of Sheard’s
patrol-car statements prejudicial, as Sheard asserts. The People
did not argue the statements were evidence that Sheard was the
2 We modified the judgment to strike one-year sentence
enhancements for use of a deadly weapon on the robbery and
burglary convictions that had been improperly imposed and
stayed because the jury had found the allegations not true and
struck the parole revocation fine because Sheard and Talmadge
had been sentenced to life without parole.
5
actual killer, only that his lies to the police were evidence of
unspecified ‘guilt.’” (People v. Sheard, supra, B160886, fn. 6.)
We also rejected Talmadge and Sheard’s argument the
evidence did not support the jury’s finding they had murdered
Mills in the commission of the burglary and robbery, holding,
“the record amply supports an inference Talmadge and Sheard
formed the intent to steal Mills’s property before they killed her,
thus justifying the special circumstances finding.”
2. Talmadge’s Petition for Resentencing
On August 26, 2020 Talmadge, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Talmadge checked boxes on the printed form
petition to establish his eligibility for resentencing relief,
including the boxes stating he had been convicted under a felony-
murder theory and could not now be convicted of first or second
degree murder because of changes made to sections 188 and 189
by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437). The superior court appointed
counsel to represent Talmadge.
The prosecutor filed a response to the resentencing petition
contending Talmadge was ineligible for resentencing under
section 1170.95 because, based on the jury’s special circumstance
findings, he was the actual killer, had the specific intent to kill or
was a major participant who had acted with reckless indifference
to human life during the underlying felonies. Talmadge’s
appointed counsel filed a reply, which emphasized there was no
evidence of what actually had occurred inside Mills’s home the
night of the murder and argued Talmadge had made a
prima facie showing of eligibility for resentencing relief and the
6
court, therefore, should issue an order to show cause and conduct
an evidentiary hearing.
Following a hearing on February 4, 2021 at which counsel
presented argument, the court denied Talmadge’s petition. The
court ruled, “Penal Code section 1170.95 is not the proper vehicle
to attack the special circumstance finding by a jury in felony
murder cases. . . . Petitioner must file a petition for a writ of
habeas corpus in order to challenge the validity of the felony
murder special circumstance finding by the jury.” The court
stated its legal reasoning was contained in the 10-page
memorandum of decision it had issued when denying codefendant
Sheard’s section 1170.95 petition, an order we also reverse today.
(People v. Sheard (Dec. 13, 2021, B308523) [nonpub. opn.].)
In addition, the court ruled, based on its review of the court
record in the case, which included our opinion affirming
Talmadge and Sheard’s convictions on direct appeal and the trial
transcript,3 that it had determined Talmadge was factually a
major participant who had acted in reckless indifference to life
using the Banks/Clark factors and further that the court record
supported a finding Talmadge aided and abetted the murder with
the specific intent to kill. During the hearing the court explained
it had reviewed the record “to make the argument that, factually
speaking, Mr. Talmadge is actually someone who is a major
participant who acted with reckless indifference to life, keeping
in mind the difficulty of doing this because we don’t know exactly
what each person did, but I‘m going to draw some inferences.” 4
3 The court stated, “I read a lot, if not most, of the trial
transcript, at least 70 or 80 percent of it.”
4 At one point, as the court described the multiple inferences
it was making—that is, the factfinding in which it was engaged—
7
The court then identified in some detail various items of evidence
as they arguably related to one of the Banks/Clark factors and
concluded they supported a finding, as a matter of law, that
Talmadge was ineligible for resentencing. Justifying its
approach, the court observed, “I don’t believe I’m making rulings
on credibility, but people, I suppose, could argue about that. The
court does not have to make credibility calls on witnesses to reach
this conclusion. I’m instead relying on circumstantial evidence
and reasonable inferences from that evidence.”
Talmadge filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
it stated, “I am prepared to infer—I don’t know if an appellate
court is going to agree with me without actual evidence but—that
the reasonable inference . . . .”
8
the definition of the crime. (See Lewis, at p. 957; Gentile, at
p. 843.)
If the section 1170.95 petition 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)), section 1170.95, subdivision (c), requires the
court to appoint counsel to represent the petitioner, if requested; 5
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
petitioner has made a prima facie showing that he or she is
entitled to relief. (See Lewis, supra, 11 Cal.5th at pp. 962-963.)
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, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “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. . . . 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
5 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2), effective January 1, 2022, the
requirement to appoint counsel is set forth in new
subdivision (b)(3) of section 1170.95, rather than subdivision (c).
9
credibility determination adverse to the petitioner.” (Id. at
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)6 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See Gentile, supra, 10 Cal.5th at
pp. 853-854.)
2. Section 189, Subdivision (e)(3), and the Narrowed
Felony-murder Rule
At the time of Talmadge and Sheard’s trial section 189
permitted a conviction for felony murder by imputing malice to a
participant in an inherently dangerous felony, including
residential burglary and robbery, that resulted in a homicide.
(See People v. Chun (2009) 45 Cal.4th 1172, 1184.) As amended
by Senate Bill 1437, section 188, subdivision (a)(3), now prohibits
imputing malice based solely on an individual’s participation in a
crime and requires proof of malice to convict a principal of
murder except under the revised felony-murder rule as set forth
6 As amended by Senate Bill No. 775, section 1170.95,
subdivision (d)(3), clarifies 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.”
10
in section 189, subdivision (e), which requires proof of specific
facts relating to the defendant’s individual culpability: The
defendant was the actual killer (§ 189, subd. (e)(1)); although not
the actual killer, the defendant, with the intent to kill, assisted in
the commission of the murder (§ 189, subd. (e)(2)); or the
defendant was a major participant in an underlying felony listed
in section 189, subdivision (a), and acted with reckless
indifference to human life, “as described in subdivision (d) of
Section 190.2,” the felony-murder special-circumstance provision
(§ 189, subd. (e)(3)).
The overlapping factors for assessing whether a defendant
was a major participant in an underlying serious felony and acted
with reckless indifference to human life for purposes of
section 190.2, subdivision (d), and thus for new section 189,
subdivision (e)(3), were identified by the Supreme Court in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,
and reiterated most recently in In re Scoggins (2020) 9 Cal.5th
667 (Scoggins). As to whether the defendant was a major
participant in one of the specified felonies, the Banks Court listed
the following factors: “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, at p. 803,
fn. omitted.)
11
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court has enumerated the following
factors: “Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used?
Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim?
What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,
supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.”’” (Scoggins, at p. 677; accord, Banks, supra,
61 Cal.4th at p. 803.)
As the Scoggins Court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins, supra,
9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that
death as the outcome of his actions.’” (Scoggins, at pp. 676- 677,
quoting Clark, supra, 63 Cal.4th at p. 617.)
12
3. The Superior Court Erred in Denying Talmadge’s
Petition Without Issuing an Order To Show Cause
a. The jury’s pre-Banks/Clark felony-murder special-
circumstance finding does not preclude relief as a
matter of law
In People v. Harris (2021) 60 Cal.App.5th 939, 954-958,
review granted April 28, 2021, S267802, we rejected the
argument a jury’s pre-Banks/Clark felony-murder special-
circumstance finding precludes relief under section 1170.95
absent a successful challenge to the evidentiary support for the
finding through a petition for writ of habeas corpus, the principal
ground for the superior court’s denial of Talmadge’s petition for
resentencing. We also held in Harris, although a pre-
Banks/Clark jury would have been instructed it had to find the
defendant was a major participant in the underlying felony that
led to the victim’s death while acting with reckless indifference to
human life to find the felony-murder special-circumstance
allegations true, the elements now found in section 189,
subdivision (e)(3), such a pre-Banks/Clark finding, without more,
does not preclude relief under section 1170.95. (Harris, at p. 957;
see Scoggins, supra, 9 Cal.5th at pp. 673-674 [“[w]here a decision
clarifies the kind of conduct proscribed by a statute, a defendant
whose conviction became final before that decision ‘is entitled to
post-conviction relief upon a showing that his [or her] conduct
was not prohibited by the statute’ as construed in the decision”];
People v. Secrease (2021) 63 Cal.App.5th 231, 256, review granted
June 30, 2021, S268862 [“[A] jury’s pre-Banks and Clark special
circumstance determination cannot, by itself, defeat the
allegations of Secrease’s petition as a matter of law. There must
also be a judicial determination of the sufficiency of the evidence
13
to support that determination, and Secrease is entitled to have it
made in a section 1170.95 proceeding—under current law”].) The
Attorney General contends Harris was incorrectly decided but
has presented no persuasive reason for us to modify our view on
this issue.7
b. The record of conviction does not establish Talmadge
is ineligible for resentencing as a matter of law
Although the jury’s pre-Banks/Clark felony-murder special-
circumstance findings, standing alone, does not preclude
resentencing under section 1170.95, before it issued an order to
show cause, the superior court was authorized to review the
record of conviction to determine whether Talmadge was
ineligible for resentencing under section 1170.95 as a matter of
law. (See Lewis, supra, 11 Cal.5th at p. 971.) As a general
matter, however, determining whether an aider and abettor was
a major participant in the underlying felony who acted with a
reckless indifference to human life is a fact-intensive inquiry,
properly performed by the trier of fact following issuance of an
order to show cause and an evidentiary hearing. (Cf. Scoggins,
supra, 9 Cal.5th at p. 683 [determining whether a defendant was
a major participant in an underlying felony who acted with
reckless indifference to life within the meaning of the special-
circumstance statute “requires a fact-intensive, individualized
inquiry”]; In re Parrish (2020) 58 Cal.App.5th 539, 542 [Supreme
7 Whether a felony-murder special-circumstance finding
made before Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522 precludes a defendant from making a prima facie
showing of eligibility for relief under section 1170.95 is pending
before the Supreme Court in People v. Strong, review granted
March 10, 2021, S266606.
14
Court has prescribed “a fact-intensive and individualized inquiry”
to determine whether the evidence demonstrates reckless
indifference and major participation].)
Here, contrary to the superior court’s finding and the
Attorney General’s argument on appeal, although there is
evidence Talmadge could still be convicted of murder under the
felony-murder rule, the record of conviction does not establish as
a matter of law—that is, without weighing the evidence and
engaging in factfinding—that he is ineligible for resentencing as
a major participant in the residential burglary and robbery who
acted with reckless indifference to human life. (See Lewis, supra,
11 Cal.5th at p. 974 [“at the prima facie stage, a petitioner’s
allegations should be accepted as true, and the court should not
make credibility determinations or engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion’”];
People v. Duchine (2021) 60 Cal.App.5th 798, 815 [“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, at least where the record is not dispositive on
the factual issues”].)8
As we noted in our opinion on direct appeal, the trial record
lacked evidence as to whether Sheard or Talmadge was the
actual killer. Nor does the record reveal what actually happened
inside Mills’s house on the night of her murder. Indeed, the
superior court repeatedly stated, as Talmadge’s counsel had
8 The Attorney General does not contend the superior court’s
additional ground for denying the petition—that “the court record
supports a finding that petitioner aided and abetted the murder
with the specific intent to kill”—was properly made at the
prima facie stage of a section 1170.95 proceeding.
15
argued, we simply do not know. Both men may have been
directly involved in beating Mills and then placing her in the
bathtub with a heavy weight on top of her; one may have done
the actual killing while the other assisted him in a less direct
manner; or one of the men may have killed Mills while the other
was elsewhere in the house searching for valuables or attempting
to unlock the safe or outside loading the firearms into the trunk
of Mills’s car. Yet the superior court, in what it characterized as
a reasonable inference, made a finding on this question, as it did
on the other points necessary to support its decision that
Talmadge was ineligible for resentencing relief: “[O]ne of the
reasonable inferences that we can draw from this fact pattern is
it took two of them to carry this woman to the bathtub and then
drown her and then ultimately take a portable heater and put
that on top of her. I believe that required the working together of
two people, and so that is the inference I’m drawing.” Although a
moment later the court acknowledged it had no information
about the victim’s weight, rather than giving it pause, the court
just added conjecture to its inference, speculating, “if there was a
weight issue and she weighed a certain amount, 150, 160, 200,
whatever it could be, that would add to the court’s conclusion
that a reasonable inference is that it would normally require
two people to carry a woman from the place by the bloodstained
sofa all the way into the bathroom.”
Simply put, determining the forensic evidence together
with circumstantial evidence are sufficient to support a finding
beyond a reasonable doubt that, even if not the actual killer or an
aider and abettor acting with express malice, Talmadge was a
major participant in the burglary and robbery who engaged in
those underlying felonies with reckless indifference to Mills’s life,
16
requires a weighing of the evidence—factfinding—not permitted
at the prima facie stage of the section 1170.95 process.
Inferences from the evidence, even if reasonable, are not properly
made before issuance of an order to show cause and an
evidentiary hearing pursuant to section 1170.95, subdivision (d).
DISPOSITION
The postjudgment order denying Talmadge’s section
1170.95 petition is reversed. On remand the superior court is to
issue an order to show cause and to conduct further proceedings
in accordance with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
17