People v. Gregory CA2/1 ( 2022 )

Filed 1/4/22 P. v. Gregory CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B310573
(Los Angeles County
Plaintiff and Respondent,
Super. Ct. No. A632072)
v.
VANTRAE GREGORY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Connie R. Quinones, Judge. Reversed.
Eric R. Larson, 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, Assistant
Attorney General, Daniel C. Chang and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant and appellant Vantrae Gregory challenges
the trial court’s summary denial of his petition under Penal
Code1 section 1170.95 for resentencing on his murder conviction.
He contends that the trial court engaged in improper factfinding
in determining that he was ineligible for relief because he was
the actual killer. We agree and reverse.
FACTUAL AND PROCEDURAL SUMMARY
In 1985, a jury convicted Gregory of one count of first
degree murder (§ 187, subd. (a)) and found that he personally
used a firearm in the commission of the offense (former
§ 12022.5) and that that principal was armed in the commission
of the offense (former § 12022, subd. (a)). The trial court
sentenced him to 27 years to life in prison, and we affirmed the
conviction on direct appeal. (See People v. Gregory (Dec. 5, 1986,
B019217) [nonpub. opn.].)
In our opinion, we described the facts of the case as follows:
“[O]n April 2, 1985, [Gregory] attended a birthday party where
he engaged in an altercation with Teddy Johnson. [Gregory]
suggested that he step outside with Johnson, whereupon
[Gregory] produced a gun with a distinctive handle, but did not
fire it. Johnson then departed, promising to return. When
Johnson returned approximately two hours later, he ‘shot up’ the
house where the party was taking place. [Gregory] then stated
he was ‘going to get [Johnson].’
“Pamela Hillman and Lionell Rose were also present at the
April 2 birthday party. On April 11, at approximately 6[:00] p.m.,
[Gregory] and Rose told Hillman they were going to kill Johnson.
1 Subsequent statutory references are to the Penal Code.
2
The two departed, then returned at approximately 8[:00] p.m.,
and told Hillman they had killed Johnson. The same evening,
Hillman observed [Gregory] give the gun with the distinctive
handle to Mike Smith. Ben Allen Hill, an acquaintance of
Johnson’s, received two gunshot wounds to the head between
7:30 and 8:00 p.m. on April 11 and died as a result of the wounds.
Three or four days later, [Gregory] told Hillman he had killed the
wrong person. When Rose, who was also present when [Gregory]
made the statement, suggested they ‘go back and get him,’
[Gregory] said ‘he would have to plan it out.’
“On April 17, 1985, Mike Smith and Paul Wallace were
arrested driving a stolen truck and the gun with the distinctive
handle was recovered by the police. It was later determined
to be the murder weapon. Smith testified he recognized the
gun as belonging to [Gregory]. Wallace asserted that [Gregory]
subsequently stated Smith should ‘take the rap for the gun’
and should not mention [Gregory]’s name because the gun had
been used in a murder. Jeffery Sanders testified that, while
incarcerated in the Los Angeles County jail, he overheard a
conversation between [Gregory] and Rose in which Rose accused
[Gregory] of shooting the wrong person. [Gregory] did not
respond to the accusation.” (People v. Gregory, supra, B019217,
at pp. 2–4.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases of
murder, and limited the application of the felony murder
doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843.)
Under the new law, a conviction for felony murder requires
proof that the defendant was either the actual killer, acted with
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the intent to kill, or “was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189,
subd. (e)(3).) The legislation also enacted section 1170.95, which
establishes a procedure for vacating murder convictions for
defendants who could no longer be convicted of murder because
of the changes in the law and resentencing those who were so
convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
Gregory filed a petition for resentencing under the new law
on June 11, 2020. The District Attorney filed an opposition to
the petition arguing that Gregory was ineligible for resentencing
because he was convicted as the actual killer of the victim.
Gregory’s appointed counsel filed a letter brief “submit[ting]
on the case record that [Gregory] has shown a prima facie case
justifying issuance . . . of an [o]rder to [s]how [c]ause” but making
no substantive argument. The court denied the petition on the
ground that Gregory “was found to be the actual killer and”
was not convicted “pursuant to the felony murder or natural and
probable consequences doctrine.”
DISCUSSION
Gregory contends that the trial court erred by engaging in
improper factfinding to deny his petition at the prima facie stage.
We agree.
When a defendant files a facially sufficient petition for
resentencing under section 1170.95, the trial court must first
determine whether the petitioner has made a prima facie
showing for relief. (§ 1170.95, subd. (c).) Our Supreme Court has
explained that “the prima facie inquiry under [section 1170.95,]
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
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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.” ’ ([People v.] Drayton
[(2020)] 47 Cal.App.5th [965,] 978, quoting Cal. Rules of Court,
rule 4.551(c)(1)).) ‘[A] court should not reject the petitioner’s
factual allegations on credibility grounds without first conducting
an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted, citing
In re Serrano (1995) 10 Cal.4th 447, 456 . . . .) ‘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.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971
(Lewis).)
The court may consult the record of conviction at this
stage, including any prior appellate opinions in the case, but “the
probative value of an appellate opinion is case specific, and ‘it is
certainly correct that an appellate opinion might not supply all
answers.’ ([People v. Woodell (1998) 17 Cal.4th 448,] 457.) In
reviewing any part of the record of conviction at this preliminary
juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ (Drayton,
supra, 47 Cal.App.5th at p. 980.) As the People emphasize, the
‘prima facie bar was intentionally and correctly set very low.’ ”
(Lewis, supra, 11 Cal.5th at p. 972.)2
2 The Legislature recently enacted an amendment to
section 1170.95, which took effect January 1, 2022, and which
explicitly restricted the use of prior appellate opinions at this
stage. Under the new version of the law, at the final stage of
proceedings, “[t]he court may . . . consider the procedural history
5
Gregory contends that, under this standard, he made
a prima facie case for resentencing, and the trial court erred
by finding to the contrary. We agree. Although the record of
conviction, including the original appellate opinion in the case,
suggests strongly that Gregory was the actual killer, neither we
nor the trial court may engage in factfinding at this stage. (See
Lewis, supra, 11 Cal.5th at p. 972.) The jury was instructed as
to the natural and probable consequences doctrine, and although
the prosecutor at trial apparently did not argue the doctrine to
the jury, we cannot say as a matter of law that the jury did not
rely on it in convicting Gregory. Gregory has surpassed the
“ ‘very low’ ” bar to make a prima facie case. (Ibid.)
The Attorney General concedes that, prior to the Supreme
Court’s decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu),
it was possible for a jury to convict a defendant of first degree
murder under the natural and probable consequences doctrine,
but contends that the jury instructions in this case did not allow
for such a conviction. The only instructions on first degree
murder in this case were under the heading, “deliberate and
premeditated murder.” This instruction informed the jury, “[i]f
you find that the killing was preceded and accompanied by a
clear, deliberate intent on the part of the defendant to kill, which
was the result of deliberation and premeditation, so that it must
have been formed upon pre-existing reflection and not under a
sudden heat of passion or other condition precluding the idea
of deliberation, it is murder of the first degree.” The Attorney
General argues that the jury must have relied on this instruction,
of the case recited in any prior appellate opinion,” but is bound by
the Evidence Code’s rules regarding the admission of evidence.
(Sen. Bill No. 775 (2021−2022 Reg. Sess.) § 2.)
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not the natural and probable consequences doctrine, to convict
Gregory of first-degree murder.
This argument overlooks other aspects of the instructions.
The jury was informed about the natural and probable
consequences doctrine as follows: “One who aids and abets is not
only guilty of the particular crime that to his knowledge his
confederates are contemplating committing, but he is also liable
for the natural and reasonable or probable consequences of any
act that he knowingly aided or encouraged.” The instruction on
deliberate and premeditated murder stated that “[a]ll murder
which is perpetrated by any kind of willful, deliberate and
premeditated killing with express malice aforethought is murder
of the first degree.” It also told the jury that, “[t]o constitute a
deliberate and premeditated killing, the slayer must weigh and
consider the question of killing and the reasons for and against
such a choice and, having in mind the consequences, he decides to
and does kill.” (Italics added.) We cannot rule out the possibility
that the jury relied on these instructions together and found
Gregory guilty of first degree murder under the natural and
probable consequences doctrine.
The Attorney General contends that the court’s opinion
in People v. Stevenson (2018) 25 Cal.App.5th 974 shows that
the jury could not have relied on the natural and probable
consequences doctrine to convict Gregory. In Stevenson, three
defendants were tried jointly for murder. As in this case, the jury
received instructions on both first degree murder and the natural
probable consequences doctrine. Nevertheless, the court held
that the jury could not have relied on the natural and probable
consequences doctrine to convict the defendant of first degree
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murder.3 (See id. at pp. 981–984.) But the jury instructions in
Stevenson were more limited than those Gregory’s jury received.
The instructions told the jury that “ ‘[a] defendant is guilty of
first degree murder if the People have proved that he acted
willfully, deliberately, and with premeditation. A defendant
acted willfully if he intended to kill. A defendant acted
deliberately if he carefully weighed the considerations for and
against his choice and, knowing the consequences, decided to
kill. A defendant acted with premeditation if he decided to kill
before completing the acts that caused death. [¶] . . . [¶] The
People have the burden of proving beyond a reasonable doubt
that the killing was first degree murder rather than a lesser
crime. If the People have not met this burden, you must find
the defendant not guilty of first degree murder and the murder
is second degree murder.’ ” (Id. at pp. 981–982.) There was no
instruction indicating that the jury could convict the defendant
of first degree murder if the slayer acted with premeditation.
Indeed, the court in Stevenson relied on the lack of such an
instruction to distinguish the case from Chiu. (See Stevenson,
supra, at pp. 983–984.)
The Attorney General cites two more parts of the record
to argue that the trial court correctly denied the petition. First,
the facts recited in the opinion in Gregory’s direct appeal describe
3 Stevenson was decided after the Supreme Court
disallowed first degree murder convictions under the natural
and probable consequences in Chiu, but before the Legislature
enacted Senate Bill No. 1437. Thus, at the time of the opinion,
a defendant could be found guilty of second degree murder, but
not first degree, under the natural and probable consequences
doctrine.
8
him as the actual killer, particularly his statement to Hillman
that he killed the wrong person. Second, the Attorney General
notes that the jury found true an enhancement under former
section 12022.5 indicating that Gregory personally used a firearm
in the commission of the crime.4 But the facts in the original
opinion are a summary of the trial evidence described in the
light most favorable to the verdict. The firearm enhancement
required the jury to find that Gregory personally used a firearm
in the commission of the crime, not that he killed the victim.
(See People v. Jones (2003) 30 Cal.4th 1084, 1120 [finding the
defendant personally used a firearm does “not in itself prove
defendant was the actual killer”]; see also People v. Wardell
(2008) 162 Cal.App.4th 1484, 1494 [enhancement under
section 12022.5 for personal “use of a firearm in the commission
of a crime does not encompass any specific intent”].) To deny the
petition on the basis of these points would require us to engage
in “ ‘factfinding involving the weighing of evidence or the exercise
of discretion’ ” (Lewis, supra, 11 Cal.5th at p. 972), albeit at an
4 At the time of Gregory’s trial, section 12022.5 provided
that “[a]ny person who personally uses a firearm in the
commission or attempted commission of a felony shall, upon
conviction of such felony or attempted felony, in addition and
consecutive to the punishment prescribed for the felony or
attempted felony of which he or she has been convicted, be
punished by an additional term of imprisonment in the state
prison for two years, unless use of a firearm is an element of the
offense of which he or she was convicted.” (Stats. 1982, ch. 1404,
§ 2.1, pp. 5358−5359.) The Legislature has subsequently
repealed the statute and replaced it with a new section 12022.5
that also provides for a sentence enhancement for defendants
who use a firearm in the commission of a felony. (See Stats.
2010, ch. 711, § 5, p. 4039.)
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elementary level. The Supreme Court in Lewis has forbidden
us from doing so.
Nor may we affirm the trial court’s decision as harmless
error. In Lewis, the Supreme Court held that, in order to
demonstrate prejudice, a petitioner need not show that he is
likely to succeed in the end; instead, “a petitioner ‘whose petition
is denied before an order to show cause issues has the burden of
showing “it is reasonably probable that if [not for the error] his
[or her] petition would not have been summarily denied without
an evidentiary hearing.” ’ ” (Lewis, supra, 11 Cal.5th at p. 974.)
Gregory, in making a prima facie case, has met a “ ‘bar [that]
was intentionally . . . set very low.’ ” (Id. at p. 972.) It is enough
to require us to reverse the trial court’s order. 5
5 In reaching this conclusion, we do not mean to imply that
the trial court’s decision was an unreasonable interpretation of
the case law in existence at the time of the hearing, which
predated the Supreme Court’s decision in Lewis. More than one
Court of Appeal opinion had held that trial courts could properly
rely on prior appellate opinions, without apparent limitation, as a
basis for finding that a defendant failed to make a prima facie
case for relief. (See, e.g., People v. Verdugo (2020) 44 Cal.App.5th
320, 333, review granted, Mar. 18, 2020, S260493.)
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DISPOSITION
The trial court’s order denying the petition for resentencing
is reversed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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