People v. Harrison ( 2021 )

Filed 12/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159115
v.
LEMAR HARRISON, (Contra Costa County
Super. Ct. No. 5-96-21954)
Defendant and
Appellant.
Lemar Harrison appeals from the trial court’s order
denying his petition under Penal Code1 section 1170.95. That
statute allows a defendant convicted of felony murder to have his
conviction vacated and be resentenced if the conviction would not
be valid under the recent amendments to sections 188 and 189.
(§ 1170.95, subd. (a); Stats. 2018, ch. 1015, §§ 2–3.)2 Those
amendments changed the law so that a participant in certain
felonies in which a death occurs is generally liable for murder
only if the participant was the actual killer, aided and abetted
1 Undesignated statutory references are to the Penal Code.
The Legislature recently amended section 1170.95 in
2
several respects. (Stats. 2021, ch. 551, § 2.) Because the
amendments to section 1170.95 were not in effect during the trial
court proceedings on Harrison’s section 1170.95 petition, we do
not consider them. All citations in this opinion to section 1170.95
are therefore to the version in effect during the trial court
proceedings in 2019.
1
the murder with the intent to kill, or was a major participant in
the underlying felony who acted with reckless indifference to
human life. (§ 189, subd. (e).)
Harrison contends the trial court erred when it found his
petition failed to state a prima facie case for relief and refused to
issue an order to show cause. He further argues the proper
remedy is to remand the case with instructions to vacate his
murder conviction and resentence him, asserting such relief is
mandatory because the record shows that the court that
convicted him in a 2000 bench trial made a finding that he did
not act with reckless indifference to human life. (§ 1170.95,
subd. (d)(2).) The Attorney General agrees that the court that
decided Harrison’s section 1170.95 petition erred by denying it at
the prima facie stage and not issuing an order to show cause, but
he disagrees that Harrison is entitled to relief on his petition.3
We agree with Harrison and the Attorney General that the
resentencing court erred in denying Harrison’s petition at the
prima facie stage. We further agree with Harrison that he is
entitled to relief on his petition as a matter of law, so we will
remand with instructions to grant his petition, vacate his
conviction, and resentence him.
3There were two trial courts in this case: the one that
convicted Harrison after a bench trial in 2000 and the one that
denied Harrison’s section 1170.95 petition seeking resentencing
in 2019. For clarity, we may use the terms “first trial court” and
“resentencing court” to distinguish between the two courts.
2
BACKGROUND
I. Senate Bill No. 1437
“Effective January 1, 2019, the Legislature passed Senate
Bill [No.] 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 [No.] 1437 added section
1170.95, which provides a procedure for convicted murderers who
could not be convicted under the law as amended to retroactively
seek relief. (See [People v.] Gentile [2020] 10 Cal.5th [830,] 843.)
“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).)
Additionally, the petition shall state ‘[w]hether the petitioner
3
requests the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to comply with subdivision (b)(1), ‘the court may
deny the petition without prejudice to the filing of another
petition.’ (§ 1170.95, subd. (b)(2).)
“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).) ‘The
prosecutor and the petitioner may rely on the record of conviction
or offer new or additional evidence to meet their respective
burdens.’ (§ 1170.95, subd. (d)(3).) At the hearing stage, ‘the
burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.’ (§ 1170.95, subd. (d)(3).)” (People v. Lewis (2021)
11 Cal.5th 952, 959–960 (Lewis).)
“The parties may waive a resentencing hearing and
stipulate that the petitioner is eligible to have his or her murder
conviction vacated and for resentencing. If there was a prior
finding by a court or jury that the petitioner did not act with
4
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.” (§ 1170.95, subd. (d)(2).)
II. Harrison’s trial and conviction
Like both Harrison and the Attorney General, we rely on
our opinion in Harrison’s direct appeal from his conviction, People
v. Harrison (Aug. 22, 2002, A092690) [nonpub. opn.] (Harrison I),
for the facts of Harrison’s offense. “On May 28, 1996, defendant
and Lamont Johnson met Stephen Harless (‘Snoo’) at Briones
Park for the ostensible purpose of buying marijuana from
Harless. The plan that day, however, was to rob Harless.
“Defendant and Johnson arrived in defendant’s car; Harless
arrived in his own car. After the three had spent some time
smoking marijuana in a parking area, defendant and Harless
walked down a trail while Johnson lingered behind. Defendant
and Harless eventually turned back and met up with Johnson.
They were still on the trail, a short distance from the parking lot.
Johnson took out a gun, pointed it at Harless, and told him to
take off his clothes. Johnson then asked for his money. Harless
told Johnson his money was in his pants.
“Defendant took Harless’s clothes and keys and walked to
the parking lot. He put the clothes in Harless’s car. Defendant
then walked back down the trail, where Johnson was holding
Harless. With the robbery accomplished, Johnson shot Harless
several times. Johnson then handed the gun to defendant and
told him to shoot Harless. Defendant fired a shot at Harless, who
was lying on the ground.
5
“Defendant and Johnson ran back to the parking lot, where
they came upon a water district ranger sitting in his truck.
Defendant fired at the truck, striking it three times. At least one
shot went through the cab of the truck. The ranger managed to
get out of the cab and hide behind a rear wheel of the truck.
“Defendant and Johnson fled—defendant in Harless’s car
and Johnson in defendant’s car. The robbery netted a substantial
amount of marijuana and several hundreds of dollars in cash.
“After he was apprehended by the police, defendant
admitted he shot at Harless and the ranger’s truck. At trial
defendant testified that he did not know Johnson was going to
rob Harless. Defendant was afraid of Johnson. When Johnson
handed him the gun, defendant believed his only choice was to
comply with Johnson’s orders.” (Harrison I, supra, A092690.)
The information charged Harrison with robbery of Harless
(§§ 211–212.5 (count 1)); evading a police officer while driving in
willful disregard of others (Veh. Code, § 2800.2 (count 2));
attempted murder of the ranger (§§ 187, 664 (count 3)); and
murder of Harless (§ 187 (count 4)). As to the robbery, attempted
murder, and murder charges (counts 1, 3, and 4), the information
alleged Harrison personally used a firearm (former § 12022.5,
subd. (a)). As to the charge of murder of Harless (count 4), the
information alleged the special circumstance under section 190.2,
subdivision (a)(17) that Harrison murdered Harless while
Harrison was committing robbery.4
4Section 190.2, subdivision (a) provides, in pertinent part,
“The penalty for a defendant who is found guilty of murder in the
6
The parties stipulated to a court trial. At the trial in
January 2000, after the conclusion of the prosecution’s case in
chief, the court entered a judgment of acquittal pursuant to
section 11185 on the charge of evading a police officer (count 2)
and a qualified acquittal on the charge of attempted murder
(count 3). The court also entered judgment that the firearm
allegations in counts 1 and 4 were not true and the personal use
of a firearm (former § 12022.5, subd. (a)) and special
circumstance (§ 190.2, subd. (a)(17)) allegations attached to count
4 were not true.
As to the special circumstance allegation based on section
190.2, subdivision (a)(17), the court found the prosecution’s
evidence failed to establish beyond a reasonable doubt that
Harrison (1) was the actual killer of Harless, (2) aided and
abetted Johnson in the murder with the intent to kill Harless, or
first degree is death or imprisonment in the state prison for life
without the possibility of parole if one or more of the following
special circumstances has been found under Section 190.4 to be
true: [¶] . . . [¶] (17) The murder was committed while the
defendant was engaged in, or was an accomplice in, the
commission of, attempted commission of, or the immediate flight
after committing, or attempting to commit, the following felonies:
[¶] (A) Robbery in violation of Section 211 or 212.5.”
5 Section 1118 states, in pertinent part, “In a case tried by
the court without a jury, a jury having been waived, the court on
motion of the defendant or on its own motion shall order the
entry of a judgment of acquittal of one or more of the offenses
charged in the accusatory pleading after the evidence of the
prosecution has been closed if the court, upon weighing the
evidence then before it, finds the defendant not guilty of such
offense or offenses.”
7
(3) was a major participant in the robbery and acted with a
reckless indifference to human life.6 On the third point, the trial
court found the evidence was strong that Harrison was a major
participant and that he acted with reckless indifference, but it
found the prosecution’s evidence insufficient because it viewed
section 190.2, subdivision (d) as requiring proof that Harrison
acted with reckless indifference to an innocent human life. The
trial court reached this conclusion based on language in a pattern
jury instruction, CALJIC 8.80.17, which it viewed, like the “major
participant” and “reckless indifference” elements in section 190.2,
subdivision (d), as being based on Tison v. Arizona (1987)
481 U.S. 137, 154–155. The court found Harrison did not act
with reckless indifference to innocent human life because at the
time of the robbery, victim Harless was engaged in the
transportation and sale of marijuana.
At the conclusion of trial, the court found Harrison guilty of
robbery of Harless (count 1), found true the allegation that
6 It appears that the court made these findings pursuant to
subdivisions (b)–(d) of section 190.2, which establish that a
defendant may be subjected to the heightened punishment set
forth in subdivision (a)(17)(A) only if he or she was the actual
killer, aided and abetted the murder with the intent to kill, or
aided and abetted the robbery as a major participant and with
reckless indifference to human life.
7 The relevant portion of CALJIC 8.80.1 stated, “A
defendant acts with reckless indifference to human life when that
defendant knows or is aware that [his] [her] acts involve a grave
risk of death to an innocent human being.” (CALJIC No. 8.80.1
(1997 rev.) (6th ed. 1996).) An essentially identical version of the
full instruction can be found at People v. Clayton (2021)
66 Cal.App.5th 145, 156, fn. 6 (Clayton).
8
Harrison personally used a firearm in the robbery, and found him
guilty of felony murder of Harless (count 4) because Harrison
aided, abetted, and facilitated the commission of the robbery. In
September 2000, the court sentenced Harrison to three years in
prison on the robbery count and four years on the personal use of
a firearm allegation, with execution of that sentence stayed
pursuant to section 654. The court sentenced Harrison to 25
years to life on the murder count. This court affirmed the
judgment. (Harrison I, supra, A092690.)
III. Harrison’s Section 1170.95 Petition for Resentencing
In April 2019, Harrison filed a petition for resentencing
under section 1170.95. He alleged the information filed against
him allowed the prosecution to proceed based on a theory of
felony murder or murder under the natural and probable
consequences doctrine, he was convicted at trial of first or second
degree murder pursuant to the felony murder rule or the natural
and probable consequences doctrine, and he could not now be
convicted of first or second degree murder because of the changes
to sections 188 and 189. At Harrison’s request, the trial court
appointed counsel for him.
The prosecutor initially conceded that Harrison had stated
a prima facie case for relief. The court therefore issued an order
to show cause. The prosecution later decided its concession was
ill-advised and argued Harrison had not made the required prima
facie showing.
The resentencing court agreed with the prosecution that
Harrison had not established a prima face case for resentencing
9
because he could be convicted of first degree felony murder under
the amended versions of sections 188 and 189, subdivision (e). As
relevant here, the amended version of section 189, subdivision (e)
requires the prosecution to prove Harrison was the actual killer,
aided and abetted the murder with the intent to kill, or was a
major participant in the underlying robbery and acted with
reckless indifference to human life. (Stats. 2018, ch. 1015, § 3,
eff. Jan. 1, 2019.) The resentencing court recognized that it was
not permitted to reopen the first trial court’s findings that
Harrison was not the actual killer and did not have the intent to
kill. But the resentencing court found it could re-examine the
question of whether Harrison was a major participant and acted
with reckless indifference in the robbery of Harless, despite the
first trial court’s acquittal of Harrison on the special
circumstance under section 190.2, subdivision (a)(17) on such a
theory.
The resentencing court recognized that section 1170.95,
subdivision (d)(2) states in part, “If 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.” The resentencing court concluded
that the first trial court’s acquittal of Harrison on the special
circumstance allegation was not equivalent to a finding that
Harrison had not acted with reckless indifference or had not been
a major participant in the robbery. The resentencing court began
with the premise that the first trial court had acquitted Harrison
10
of the special circumstance only because it believed section 190.2,
subdivision (d) required proof that Harrison had acted with
reckless indifference to an innocent human life, not just any
human life. Later decisions rejected that interpretation of the
statute. (People v. Briscoe (2001) 92 Cal.App.4th 568, 597–598.)
Because the first trial court had made clear that it believed the
evidence was otherwise strong that Harrison had been a major
participant in the robbery and had acted with reckless
indifference, the resentencing court found that the acquittal on
the special circumstance did not entitle Harrison to relief.
Based on its own review, the resentencing court also
determined that the evidence from the trial was sufficient to
prove beyond a reasonable doubt that Harrison had been a major
participant in the robbery who had acted with reckless
indifference. The court therefore concluded the prosecution could
convict Harrison of felony murder under the amended versions of
sections 188 and 189.
DISCUSSION
I. Summary denial of section 1170.95 petition at prima
facie stage
Harrison first argues the resentencing court erred when it
concluded he had not pled a prima facie case. He argues the
court was required to assume the truth of the factual allegations
in his petition, rather than undertaking its own analysis of the
evidence to determine whether he was a major participant in the
robbery of Harless and acted with reckless indifference to human
life. The Attorney General agrees that the resentencing court
11
erred by going beyond the face of Harrison’s petition and
reviewing the evidence to determine whether Harrison was
entitled to relief. We are not bound by the People’s confession of
error (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021), but
after performing our own independent review, we agree that the
resentencing court erred.
Whether the court conducted a proper inquiry under
section 1170.95, subdivision (c) is a question of statutory
interpretation, which we review de novo. (Lewis, supra,
11 Cal.5th at p. 961.) Our Supreme Court’s recent decision in
Lewis addressed the scope of such an inquiry. Lewis explained
that “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.” ’ ” (Id. at p. 971.) Lewis made clear that “the parties
can, and should, use the record of conviction to aid the trial court
12
in reliably assessing whether a petitioner has made a prima facie
case for relief under subdivision (c).” (Id. at p. 972, fn. omitted.)8
The first trial court convicted Harrison of felony murder as
an accomplice to robbery without finding that he was the actual
killer, an aider and abettor of the actual killer with the intent to
kill, or a major participant in the robbery who acted with reckless
indifference to human life. We thus agree with Harrison and the
Attorney General that the record of Harrison’s conviction did not
conclusively refute Harrison’s allegation that he could not now be
convicted of first or second degree murder. The resentencing
court stated that the record of conviction showed that the
evidence at Harrison’s trial was sufficient to prove beyond a
reasonable doubt that Harrison had acted as a major participant
with reckless indifference to the life of Harless, so that Harrison
could still be convicted of felony murder under current law. To
reach these conclusions, the resentencing court necessarily had to
weigh the evidence from Harrison’s trial. This was improper.9
8 The Legislature’s recent amendments to section 1170.95,
among other things, codify Lewis’s holding regarding the
standard for determining the existence of a prima facie case.
(Stats. 2021, ch. 551, §§ 1, subd. (b), 2.)
9 Harrison further argues that the trial court applied the
wrong standard when it weighed the evidence, looking at
whether substantial evidence in the record could support a
conviction under current law, rather than sitting as an
independent factfinder and deciding whether the prosecutor
proved beyond a reasonable doubt that he was guilty of felony
murder under current law. Because we conclude the trial court
erred in weighing the evidence at all at the prima facie stage, we
need not decide whether it weighed the evidence under the
correct standard.
13
(People v. Drayton (2020) 47 Cal.App.5th 965, 982 [trial court
erred by engaging in factfinding at the prima facie stage when it
reviewed the preliminary hearing transcript and determined that
petitioner was a major participant who acted with reckless
indifference to human life], abrogated on other grounds by Lewis,
supra, 11 Cal.5th 952.)
II. Necessity of remand
Though the parties agree that the resentencing court erred
by denying Harrison’s section 1170.95 petition at the prima facie
stage, they disagree as to the proper remedy for the error.
Harrison contends a remand is unnecessary because the first
trial court’s acquittal on the special circumstance alleged under
section 190.2, subdivision (a)(17) entitles him to resentencing
under the second sentence of section 1170.95, subdivision (d)(2).
Section 1170.95, subdivision (d)(2) states in full, “The parties may
waive a resentencing hearing and stipulate that the petitioner is
eligible to have his or her murder conviction vacated and for
resentencing. If 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.”
The Attorney General contends the case must be remanded
for a hearing at which both parties may present new evidence
and the prosecution will need to prove beyond a reasonable doubt
that Harrison could be convicted of murder under current law.
(§ 1170.95, subds. (d)(1) & (d)(3).) He argues that subdivision
(d)(2) would dispense with the need for a hearing only if there
14
were an affirmative finding that Harrison did not act as a major
participant with reckless indifference, akin to a finding of factual
innocence, and an acquittal is not such a finding. The Attorney
General asserts the first trial court’s acquittal on the special
circumstance allegation reflects only its misinterpretation of the
law.
To determine the effect of section 1170.95,
subdivision (d)(2), we start, as we must, with the statutory
language. (People v. Ledesma (1997) 16 Cal.4th 90, 95.) The
reference in the second sentence to a “prior finding by a court or
jury” indicates the Legislature intended to give effect to findings
from trials, because if the Legislature intended to give effect only
to rulings on appeal or in habeas petitions, it would have referred
only to court findings. Additionally, the grouping of the two
sentences in subdivision (d)(2) “suggests that both sentences are
meant to streamline the process [of ruling on a resentencing
petition], one with a waiver, the other with a presumption.”
(People v. Ramirez (2019) 41 Cal.App.5th 923, 932 (Ramirez).)
Thus, we discern from the statutory language an intent to
expedite the process of ruling on resentencing petitions by
“honor[ing] prior jury findings in the context of a section 1170.95
petition.” (Clayton, supra, 66 Cal.App.5th at p. 157.) The
streamlining of resentencing proceedings must also be
understood in light of the Legislature’s purposes in changing the
felony murder rule, which were in part to ensure that defendants’
punishments matched their individual levels of culpability and to
assist in the reduction of prison overcrowding by eliminating
15
lengthy sentences that were not commensurate with the
defendants’ culpability. (Stats. 2018, ch. 1015, § 1, subds. (d) &
(e).)
With this understanding of the statute in mind, we reject
as too narrow the Attorney General’s view that section 1170.95,
subdivision (d)(2) applies only when a factfinder has made an
affirmative finding of innocence on the elements of major
participant and reckless indifference, akin to a finding of factual
innocence. Subdivision (d)(2) gives preclusive effect to a finding
“by a court or jury,” so the type of finding that satisfies the
statute must be one that either a court or jury could make. This
is significant because while courts may be called upon to
establish factual innocence, (e.g., § 851.8, subd. (e)), juries do so
rarely, if ever. Section 1150 requires a jury in most cases to
render a general verdict of guilty or not guilty, or true or not true
on special allegations. (§§ 1150–1151, 1158, 1158a.) Even when
a jury returns a hybrid verdict that addresses the theories for a
murder (e.g., People v. Hardy (2018) 5 Cal.5th 56, 95) or a special
verdict that establishes only facts (§§ 1150, 1152), the placement
of the burden of proof on the prosecution will usually mean only
that the jury was or was not convinced beyond a reasonable doubt
of a theory or fact advanced by the prosecution. (U.S. v. Watts
(1997) 519 U.S. 148, 155 [“ ‘acquittal on criminal charges does not
prove that the defendant is innocent; it merely proves the
existence of a reasonable doubt as to his guilt’ ”]; In re Coley
(2012) 55 Cal.4th 524, 554 [“numerous federal and California
decisions . . . uniformly hold that a jury verdict acquitting a
16
defendant of a charged offense does not constitute a finding that
the defendant is factually innocent of the offense or establish that
any or all of the specific elements of the offense are not true”].)
Because juries seldom, if ever, determine actual innocence,
it is more natural to interpret section 1170.95, subdivision (d)(2)’s
reference to “prior finding[s] by a court or jury” as applying to the
acquittals that juries commonly render. This reading of
subdivision (d)(2) is unremarkable, as it suggests the Legislature
simply intended to prevent the prosecution in a resentencing
hearing from trying to re-prove a theory that a factfinder had
already rejected, which is consistent with the Legislature’s
purpose of using section 1170.95, subdivision (d) to “streamline”
the process of reducing prison overcrowding. (Ramirez, supra,
41 Cal.App.5th at p. 932.) Contrary to the Attorney General’s
narrow interpretation of subdivision (d)(2), that goal suggests the
Legislature intended the provision to apply more widely than to
those few defendants who, though imprisoned for murder, might
have somehow been able to obtain a finding of factual innocence
as to some aspect of their conviction.
Our interpretation of section 1170.95, subdivision (d)(2) is
in accord with the results and reasoning in Ramirez, supra,
41 Cal.App.5th 923 and Clayton, supra, 66 Cal.App.5th 145, on
which Harrison relies. In Ramirez, the Court of Appeal had
previously held in a habeas proceeding that the evidence from the
defendant’s trial was insufficient to support the major participant
and reckless indifference elements of a jury’s robbery-murder
special circumstance finding. (Ramirez, at pp. 926–927.)
17
Ramirez held it was “beyond dispute” that the habeas decision
constituted a prior finding under section 1170.95, subdivision
(d)(2) that the defendant did not act as a major participant or
with reckless indifference, which made relief mandatory on the
defendant’s resentencing petition. (Ramirez, at p. 933.)
Clayton, decided by the same panel as Ramirez but with a
dissent, held that a jury’s acquittal of the defendant on a robbery-
murder special circumstance allegation constituted a prior
finding under section 1170.95, subdivision (d)(2) that made relief
mandatory on the defendant’s resentencing petition. (Clayton,
supra, 66 Cal.App.5th at pp. 150, 154–155.) The majority
reasoned that the prosecution could not, in a hearing under
section 1170.95, subdivision (d)(1) & (d)(3), meet its burden of
proving beyond a reasonable doubt that the defendant acted as a
major participant with reckless indifference to human life
without invalidating the jury’s finding that the evidence was
insufficient to prove the defendant had the intent to kill or acted
as a major participant with reckless indifference to human life.
(Clayton, at p. 155.) Clayton also noted that “in light of existing
statutory procedures for obtaining relief for a factually innocent
defendant (§ 851.8; People v. McCann (2006) 141 Cal.App.4th
347, 352–353),” requiring proof of factual innocence “would mean
that subdivision (d)(2) would apply only in cases where it is not
needed.” (Clayton, at p. 157.) Justice Chavez dissented. (Id. at
pp. 158–162 (dis. opn. of Chavez, J.).) She believed that unlike
the habeas ruling at issue in Ramirez, a jury’s acquittal on a
special circumstance allegation does not necessarily mean a jury
18
believes a defendant did not act as a major participant with
reckless indifference to human life. (Id. at p. 159.)
Ramirez and Clayton demonstrate that acquittal can
satisfy section 1170.95, subdivision (d)(2) even though it does not
rise to a finding of factual innocence. Neither the Attorney
General nor Justice Chavez’s dissent in Clayton takes issue with
Ramirez’s holding. (Clayton, supra, 66 Cal.App.5th at p. 159
(dis. opn. of Chavez, J.) [distinguishing Ramirez].) But a habeas
ruling that there is insufficient evidence to establish the major
participant and reckless indifference elements beyond a
reasonable doubt is, in effect, simply an acquittal. It does not
constitute a finding of factual innocence or an affirmative finding
that the defendant did not act in a certain way. There is thus no
reason to treat the habeas finding in Ramirez differently than an
acquittal—either a jury acquittal as in Clayton or a court
acquittal as in this case.
The Attorney General, like Justice Chavez’s dissenting
opinion in Clayton, relies on People v. Santamaria (1994)
8 Cal.4th 903. (Clayton, supra, 66 Cal.App.5th at pp. 160–162
(dis. opn. of Chavez, J.).) In Santamaria, a jury convicted a
defendant of murder and acquitted him on a knife-use allegation.
(Santamaria, at p. 909.) The Supreme Court held that after the
original conviction was overturned on appeal and the case was
remanded for retrial, the acquittal on the knife-use allegation did
not collaterally estop the prosecution from pursuing a murder
conviction on a theory that the defendant either used a knife in
the killing or aided and abetted the one who did. (Id. at pp. 917,
19
926.) The Court reasoned that the split verdict did not mean the
jury had necessarily found that the defendant was not the direct
perpetrator who used a knife and had convicted him only as an
aider and abettor. (Ibid.) Rather, because of the principle that
the jury need not decide unanimously on the theory of guilt for
murder, the acquittal on the knife-use allegation and finding of
guilt on the murder charge could have reflected the jury’s
uncertainty on the specific theory of guilt but firm belief that the
defendant was nonetheless guilty of murder: “Sometimes, as
probably occurred here, the jury simply cannot decide beyond a
reasonable doubt exactly who did what. There may be a
reasonable doubt that the defendant was the direct perpetrator,
and a similar doubt that he was the aider and abettor, but no
such doubt that he was one or the other.” (Id. at p. 919.) The
Supreme Court concluded that the acquittal on the knife-use
allegation did not mean the jury had found that the defendant
did not use the knife, and it therefore rejected the defendant’s
argument that on retrial, the prosecution should be precluded
from presenting any evidence that the defendant used the knife.
(Id. at pp. 920, 926.)
Santamaria, which addressed the applicability of collateral
estoppel principles when a murder conviction is reversed on
remand, is inapplicable here. As discussed above, an acquittal,
meaning a finding of reasonable doubt, on the issue of reckless
indifference satisfies section 1170.95, subdivision (d)(2) and
mandates resentencing, and the first trial court unequivocally
delivered such an acquittal. The first trial court specifically
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found that Harrison was not the actual killer, did not have the
intent to kill Harless, did not act with reckless indifference to
human life, and was guilty of murder as an accomplice to robbery
under the felony murder rule. The precision of these findings
demonstrates that, unlike Santamaria’s interpretation of what
might be gleaned from the split jury verdict, the first trial court
was not uncertain about Harrison’s role in the robbery and
killing of Harless. The trial court ascertained precisely what
Harrison did and rendered in no uncertain terms its view of the
legal consequences that followed.
The Attorney General briefly remarks that the first trial
court’s acquittal on the special circumstance allegation was based
on a misinterpretation of law, rather than reflecting an
affirmative finding that Harrison did not act as a major
participant with reckless indifference, implying that it is not
conclusive for this reason. The Attorney General is apparently
referring to the first trial court’s belief that the prosecution had
to prove Harrison acted with reckless indifference to an innocent
human life, when in reality it had to prove only that he acted
with reckless indifference to any human life. We agree with the
resentencing court that this belief was erroneous. (See People v.
Briscoe, supra, 92 Cal.App.4th at pp. 597–598.) However,
nothing in section 1170.95, subdivision (d)(2) allows a court
considering a resentencing petition to disregard a prior court or
jury finding if the court considers it factually or legally erroneous.
Giving a resentencing court that power would defeat the purpose
behind making prior findings conclusive, since there would be
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little need to give conclusive effect to findings with which the
resentencing court agreed. Only when a finding is debatable
would subdivision (d)(2) become relevant, so that provision must
prevent trial courts from re-examining the merits of or reasoning
underlying prior court or jury determinations.
In addition, even though double jeopardy may not apply
here (People v. Hernandez (2021) 60 Cal.App.5th 94, 111), it is
significant that under state and federal law a judicial acquittal
(such as the first trial court’s grant of a section 1118 motion) is
conclusive for double jeopardy purposes even when the court
misinterprets an element of an offense or erroneously adds an
extraneous element to the offense. (§§ 1118, 1118.2; 1 Witkin,
Cal. Crim. Law 4th Defenses (2021) § 157; Evans v. Michigan
(2013) 568 U.S. 313, 315–316, 318, 322–323.) In two sentences,
the Attorney General alludes to the first trial court having
misinterpreted the law, but these brief comments provide no
reason why we should deviate from this established principle and
decline to treat a judicial acquittal—even an erroneous one—as a
prior finding under section 1170.95, subdivision (d)(2).
DISPOSITION
The order denying Harrison’s petition to vacate his murder
conviction and for resentencing under section 1170.95 is reversed.
The matter is remanded to the trial court with directions to grant
the petition, vacate Harrison’s murder conviction, and resentence
him in accordance with section 1170.95.
BROWN, J.
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WE CONCUR:
POLLAK, P. J.
STREETER, J.
People v. Harrison (A159115)
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Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Charles Burch
Counsel:
Catherine White, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney
General, René Chacón, Bruce L. Ortega, Deputy Attorneys
General for Plaintiff and Respondent.
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