People v. Lee CA3 ( 2021 )

Filed 12/13/21 P. v. Lee CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093754
Plaintiff and Respondent, (Super. Ct. No. CR56910)
v.
DARREN LEE,
Defendant and Appellant.
In 1980, defendant Darren Lee was convicted of two counts of murder with
firearm enhancements found true, three counts of robbery, one count of burglary, and one
count of assault. The jury instructions allowed for conviction under either the natural and
probable consequences doctrine of conspiracy liability for first degree murder and/or the
first degree felony-murder rule as it existed in 1980, without any finding that defendant
was the actual killer, intended to kill, or was a major participant in the underlying felony
who acted with reckless indifference to human life. In 2019, defendant filed a petition
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for resentencing pursuant to Penal Code 1 section 1170.95. The trial court denied the
petition on the basis that defendant is ineligible for section 1170.95 relief as he failed to
set forth a prima facie showing. Defendant appeals, arguing he demonstrated prima facie
entitlement to relief, and that the trial court should have issued an order to show cause
and conducted an evidentiary hearing. We conclude defendant did make a prima facie
showing and will reverse for the trial court to issue an order to show cause under section
1170.95, subdivision (c).
BACKGROUND
For the reasons established in our discussion, we need not provide considerable
detail of the factual background of defendant’s crime.
In 1979, defendant, Marty Spears (aka Marty Jackson), Ron Anderson, and Daniel
Geisler planned and executed the robbery and assault of Leonard L. Defendant was
familiar with the residence where the crimes took place, and prior to their commission
defendant explained to Geisler and Jackson how to best carry out the crime, including by
directing them to bring firearms.
Also, in 1979, defendant and Jackson went to the home of a man and woman and
gained entry by asking for gasoline. They then engaged in a burglary, robbery, and
double homicide. Defendant claimed that Jackson had “gone crazy” and hit the man with
a baseball bat and stabbed both the man and the woman, and that they had only gone to
the home for the robbery. Defendant claimed that when Jackson began attacking the
woman, defendant ran from the home.
The jury instructions included conspiracy liability for “first degree” murder, based
on a conspiracy to commit robbery or burglary and an act in furtherance of that
conspiracy for which first degree murder is “an ordinary and probable result,” the
1 Undesignated statutory references are to the Penal Code.
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equivalent of the natural and probable consequences doctrine applicable to a conspiracy
theory of liability. The jury was instructed on malice aforethought murder and on first
degree felony-murder based on robbery-murder and burglary-murder. The jury was also
instructed on the three charged special circumstances, and at the time the instructions
contained only generic language of the charges, and the felony-murder instructions did
not include a requirement for intent to kill, nor that the defendant be found to either be
the actual killer, acted with intent to kill, or was a major participant in the underlying
felony who acted with reckless indifference to human life.
The jury found defendant guilty of two counts of murder (§ 187), that the murders
occurred during the commission of a robbery, three counts of robbery (§ 211), one count
of burglary (§ 459), one count of assault (§ 245, subd. (a)(1)), and that he committed his
crimes while armed with a firearm in violation of section 12022, subdivision (a). After
modification on appeal, defendant was sentenced to two concurrent 25-year-to-life terms
for the murders, consecutive terms of three years for the robbery of Leonard L., and one
year for the firearm enhancement. No time was imposed on the other counts pursuant to
section 654.
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95.
Defendant declared he could not be convicted of two counts of first degree murder
because of the changes made to section 188 or 189, and that he did not act with reckless
indifference to human life or was not a major participant in the murders.
The trial court issued a written ruling, acknowledging that the jury instructions at
defendant’s trial had, “allowed for conviction under either the natural and probable
consequences doctrine of conspiracy liability of first degree murder and/or the first
degree felony-murder rule as the first degree felony-murder rule existed in 1980, without
any finding that the defendant was the actual killer, intended to kill, or was a major
participant in the underlying felony who acted with reckless indifference to human life.”
Accordingly, the trial court would “determine whether the trial evidence as a matter of
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law is sufficient for a reasonable trier of fact to now find, beyond a reasonable doubt, that
[defendant] is guilty of first or second degree murder based on a theory that has survived
[Senate Bill No.] 1437. This is a type of sufficiency of the evidence review that is akin to
that undertaken by the reviewing courts on appeal of judgment.”
“This type of review has been approved of at the prima facie stage, by the Second
District Court of Appeal, Division Six, in People v. Garcia (2020) 57 Cal.App.5th 100,
petition for review pending (Docket No. B300163), which has held that when the record
of conviction contains substantial evidence based on which a reasonable trier of fact
could find the defendant guilty of murder beyond a reasonable doubt under current law
despite the changes made by [Senate Bill No.] 1437, the defendant fails to carry his or her
burden of making a prima facie showing that he or she could not presently be convicted
of murder because of changes made by [Senate Bill No.] 1437.”
The trial court denied the petition prior to issuing an order to show cause,
concluding: “At this stage . . . it is [defendant’s] burden to set forth a prima facie
showing of eligibility for relief . . . [Defendant] has not met his burden of setting forth a
sufficient prima facie case for relief, as this court has determined, as set forth above, that
the trial evidence is sufficient for a jury to conclude, beyond a reasonable doubt, that
[defendant], in committing robbery-murder and burglary-murder, acted as a major
participant in the robbery and burglary and acted with reckless indifference to human life
in doing so, a theory of first degree murder that is allowed under the [Senate Bill No.]
1437 changes made to Penal Code §§ 188 and 189.”
DISCUSSION
Applicable Law
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised
the felony-murder rule in California “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.”
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(Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended the definition of malice in
section 188, revised the definition of the degrees of murder to address felony-murder
liability in section 189, and added section 1170.95, “which provides a procedure by
which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions.” (People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)
Section 1170.95, subdivision (a) states that a person convicted of felony-murder or
murder under a natural and probable consequences theory may file a petition with the
court for resentencing: “when all of the following conditions apply: [¶] (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. [¶] (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.”
Subdivision (b) requires the petitioner to submit a declaration that avers eligibility
for relief under the statute (based on the requirements of subdivision (a)) and states the
superior court case number, the year of conviction, and whether petitioner requests
appointment of counsel. (§ 1170.95, subd. (b).) Subdivision (c), which dictates how the
court must handle the petition, reads: “The court shall review the petition and determine
if the petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner. The prosecutor shall file and serve a response within
60 days of service of the petition and the petitioner may file and serve a reply within 30
days after the prosecutor’s response is served. These deadlines shall be extended for
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good cause. 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.” (Id., subd. (c).)
Section 1170.95, subdivision (d) provides that a hearing to determine whether to
vacate the murder conviction, recall the sentence, and resentence the petitioner as needed
should be held within 60 days after the order to show cause; and the prosecution bears the
burden of proving beyond a reasonable doubt that the petitioner is ineligible for
resentencing. At the hearing, “[t]he prosecutor and the petitioner may rely on the record
of conviction or offer new or additional evidence to meet their respective burdens.” (Id.,
subd. (d)(3).)
Defendant Has Made a Prima Facie Showing
Defendant argues the trial court erred in denying his section 1170.95 petition on
the basis that defendant could be convicted of murder under a still-valid theory based on
substantial evidence. Defendant asserts the correct standard at the prima facie stage of
review is whether the record conclusively establishes, as a matter of law, that defendant is
ineligible for relief. The People agree with defendant that use of a substantial evidence
test at the prima facie stage was error.
Our Supreme Court recently clarified that section 1170.95, subdivision (c) requires
only a single prima facie showing and entitles the petitioner to the appointment of
counsel upon the filing of a facially sufficient petition. (People v. Lewis (2021)
11 Cal.5th 952 (Lewis).) Once the court has appointed counsel and received briefing
from the parties, it may rely on the record of conviction in determining whether that
single prima facie showing has been made. (Id. at p. 971.)
“While the trial court may look at the record of conviction after the appointment of
counsel 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.” (People v.
Lewis, supra, 11 Cal.5th at p. 971.) “In reviewing any part of the record of conviction at
this preliminary juncture, a trial court should not engage in ‘factfinding involving the
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weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972; People v. Drayton
(2020) 47 Cal.App.5th 965, 980 (Drayton).)
“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.” ’ ” (Lewis, supra,
11 Cal.5th at p. 971; Drayton, supra, 47 Cal.App.5th at p. 978.) Once the trial court
issues an order to show cause, it must then conduct a hearing pursuant to the procedures
and burden of proof set out in section 1170.95, subdivision (d) unless the parties waive
the hearing or the petitioner’s entitlement to relief is established as a matter of law by the
record. (§ 1170.95, subd. (d)(2); Drayton, at pp. 980-981.)
Although a court should not reject a petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing (Lewis, supra, 11 Cal.5th at
p. 971), the court need not credit factual assertions that are untrue as a matter of law.
(Drayton, supra, 47 Cal.App.5th at p. 980). Thus, “ ‘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; Drayton, at p. 979.)
Defendant’s petition pled the facts required by section 1170.95, subdivision (a),
and the record of conviction here does not conclusively establish defendant is ineligible
for relief as a matter of law. There are no jury findings, prior findings by this court, or
any other finding related to defendant’s conviction that necessarily found he was the
actual killer, had the intent to kill and aided and abetted the actual killer, or was a major
participant who acted with reckless indifference to human life.
For defendant to be ineligible for relief then, it must be determined defendant was
a major participant acting with reckless indifference to human life. This is a fact-
intensive inquiry not appropriate at the prima facie stage. For example, whether the
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defendant acted with reckless indifference to human life relies on factors such as personal
use of any weapons, physical presence at the crime scene and opportunities to restrain the
crime and/or aid the victim, and the duration of the felony. (People v. Clark (2016)
63 Cal.4th 522, 618-623; People v. Banks (2015) 61 Cal.4th 788, 803 [detailing analysis
to determine whether a defendant was a major participant].) No one factor “ ‘is
necessary, nor is any one of them necessarily sufficient.’ ” (Clark, at p. 618.)
DISPOSITION
The trial court’s order denying the petition for resentencing is reversed. The case
is remanded for the trial court to issue an order to show cause and hold a hearing to
determine whether defendant is entitled to relief under section 1170.95.
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
ROBIE, J.
\s\ ,
MAURO, J.
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