People v. Mallet CA2/1 ( 2022 )

Filed 7/27/22 P. v. Mallet 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B313218
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A619834)
v.
JEROME EVAN MALLET,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Judge. Reversed and
remanded with directions.
Tracy A. Rogers, 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 Chang and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Jerome Evan Mallet,1 who was convicted of first degree
murder and other offenses in 1981, appeals from an order
denying his petition for resentencing under Penal Code section
1170.95,2 after an evidentiary hearing under subdivision (d) of
that statute. He contends it was error for the trial court to rely
on the factual summary in this court’s 1983 opinion in his direct
appeal to conclude he was ineligible for resentencing under
section 1170.95. We agree with Mallet’s claim of error.
Legislative amendments to section 1170.95, subdivision (d)(3),
enacted shortly after his evidentiary hearing, prohibit a trial
court from relying on a factual summary in an appellate opinion
to determine a petitioner’s eligibility for resentencing. Here, the
trial court relied nearly exclusively on the factual summary of the
circumstances of the crimes in this court’s prior opinion in
making its findings and denying Mallet’s section 1170.95
petition. Because the trial court’s decision rests on evidence
made inadmissible by statute, and there is no evidence in the
record before us on which we may conclude the error was
harmless, we reverse the order and remand the matter for a new
evidentiary hearing under section 1170.95, subdivision (d).
1 Undesignated statutory references are to the Penal Code.
2 “Mallet” is the correct spelling of appellant’s name, and it
is the spelling the parties use in this appeal. Some court
documents, including the opinion in Mallet’s direct appeal,
however, refer to appellant as “Mallett.” We use the correct
spelling except in our citations to the opinion in the direct appeal,
which was styled as People v. Mallett.
2
BACKGROUND3
I. Trial, Sentencing, and Direct Appeal
In 1981, a jury found Mallet guilty of one count of first
degree murder under section 187 (count 1), two counts of forcible
rape in concert under sections 261 and 264.1 (counts 2 & 3), one
count of assault with intent to commit rape under section 220
(count 4), one count of burglary under section 459 (count 5), and
three counts of robbery under section 211 (counts 6 through 8).
The jury found true the allegations that Mallet personally used a
firearm and that a principal was armed with a firearm in the
commission of all offenses, except count 4, assault with intent to
commit rape. (People v. Mallett (June 29, 1983, 41449) [nonpub.
opn.], 2-3, 12.) This court’s opinion in Mallet’s direct appeal
states the murder victim died as a result of a gunshot wound.
(Id. at p. 12.) Mallet had two accomplices, but he was tried alone.
As to count 1, the jury deadlocked on the special
circumstance allegations that the murder was committed during
3 We do not set forth herein an account of the facts and
circumstances of the offenses because it is not necessary to our
resolution of the issue on appeal: whether the trial court erred in
relying on the factual summary in the opinion in Mallet’s direct
appeal to conclude he was ineligible for resentencing under
section 1170.95. Moreover, we could derive an account of the
facts and circumstances of the offenses only from the factual
summary in the opinion in the direct appeal, and we agree with
Mallet that section 1170.95, subdivision (d)(3) prohibits courts
from considering such a factual summary in determining the
merits of a section 1170.95 petition, as discussed more fully
below. We cite to the opinion in Mallet’s direct appeal in
summarizing the procedural history of the case, which section
1170.95, subdivision (d)(3) expressly permits.
3
the commission of a robbery and a burglary within the meaning
of section 190.2. The trial court declared a mistrial as to those
allegations and, at the time of sentencing, granted the
prosecution’s motion to dismiss the allegations. (People v.
Mallett, supra, 41449, p. 3.) A true finding on those allegations—
under the version of section 190.2 in effect at the time of the
killing—would have required the jury to find Mallet was the
actual killer or intentionally aided and abetted in first degree
murder. (See People v. Banks (2015) 61 Cal.4th 788, 798.) The
1980 murder in this case predated approval of Proposition 115,
which amended section 190.2 to allow for felony-murder special
circumstance findings where the defendant was a major
participant in the felony and acted with reckless indifference to
human life. (See Prop. 115, § 10, as approved by voters, Primary
Elec. (June 5, 1990).) Accordingly, to find the felony-murder
special circumstances true in Mallet’s case, the jury was not
required to find he was a major participant in the felony who
acted with reckless indifference to human life.
As to count 6, which charged Mallet with robbery of the
murder victim, the jury found not true the special allegation that
Mallet personally inflicted great bodily injury on the murder
victim. (People v. Mallett, supra, 41449, pp. 2-3.) Thus, it is
evident the jury found the prosecution did not prove beyond a
reasonable doubt that Mallet was the actual killer. This is not in
dispute here.
On the murder count, the trial court sentenced Mallet “to
state prison for the term prescribed by law,” plus two years for
the firearm enhancement, to be served consecutive to a total term
of 21 years and four months on the remaining counts. (People v.
Mallett, supra, 41449, pp. 3-5.)
4
Mallet appealed. In our opinion in Mallet’s prior appeal
from the summary denial of his section 1170.95 petition—an
appeal we discuss below—we summarized the pertinent issues in
Mallet’s direct appeal as follows:
“On [direct] appeal, Mallet argued, among other things,
that the felony-murder doctrine was unconstitutional because it
permitted a finding of malice aforethought as a matter of law
when a killing occurred during the commission of certain
enumerated felonies. We acknowledged that the issue was under
review in the California Supreme Court. Our decision recited the
current state of the law, as embodied in People v. Johnson (1974)
38 Cal.App.3d 1, 8, which held that the felony-murder rule
‘dispenses with premeditation and malice as elements of first
degree murder.’
“We noted there was no eyewitness testimony about the
actual shooting of [the murder victim]. The prosecution’s theory
was that Mallet shot and killed [the murder victim] while
perpetrating a robbery. We found there was some question ‘of the
presence of actual, rather than artificially presumed, malice.’
(People v. Mallet[t], supra, No. 41449.) Nonetheless, because
malice aforethought was not an element of felony murder, we
upheld the conviction under the existing law.” (People v. Mallet
(Jan. 28, 2021, B301369) [nonpub. opn.], p. 6.)
II. Section 1170.95 Petition and Appeal From Summary
Denial of Petition
On January 16, 2019, Mallet, representing himself, filed a
form petition for resentencing under section 1170.95, a statute
which permits a person convicted of felony murder or murder
under a natural and probable consequences theory to petition the
court to have the murder conviction vacated and to be
5
resentenced, if the person could not be convicted of murder today
in light of amendments to sections 188 and 189. Senate Bill No.
1437, which added section 1170.95 and amended sections 188 and
189, was enacted in 2018 “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.” (Sen. Bill No.
1437 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674;
§§ 188, subd. (a)(3) & 189, subd. (e).)
In his form petition, Mallet checked boxes stating, in
pertinent part, that he was convicted of first degree felony-
murder, and he could not now be convicted of that crime under
changes to section 189, effective January 1, 2019, because (1) he
was not the actual killer, (2) he did not directly aid and abet the
murder with intent to kill, and (3) he was not a major participant
in the felony, or he did not act with reckless indifference to
human life during the course of the felony. Mallet also checked
the box requesting the trial court appoint counsel to represent
him in connection with his petition.
The trial court appointed counsel to represent Mallet, and
the district attorney filed a response (opposition) to Mallet’s
petition. As we explained in our opinion in Mallet’s prior appeal
from the summary denial of his section 1170.95 petition (case No.
B301369): “The [district attorney’s] opposition attached and cited
to the information, a [1981] probation report, the abstract of
judgment, the remittitur from the direct appeal, a [2011]
comprehensive risk assessment of Mallet, a [2001] life prisoner
evaluation, and transcripts of hearings relating to [admissibility
6
of] evidence and jury selection. Mallet, via his counsel, filed a
reply.” (People v. Mallet, supra, B301369, p. 6.)
On September 10, 2019, the trial court summarily denied
Mallet’s section 1170.95 petition, and Mallet appealed. In that
appeal (case No. B301369), we granted Mallet’s motion to
augment the record with the superior court file and trial exhibits.
The file we received from the superior court did not contain a
police report, jury instructions, jury questions, verdict forms, or
transcripts of the trial testimony and arguments of counsel. The
file contained the transcript of the sentencing hearing, the
abstract of judgment, and the opinion in Mallet’s direct appeal
(case No. 41449), among other documents. (People v. Mallet,
supra, B301369, pp. 7-8.) We determined the record of conviction
did not establish as a matter of law that Mallet was ineligible for
relief under section 1170.95, and the trial court engaged in
impermissible factfinding at the prima facie stage of the
proceedings in reaching the conclusions that Mallet aided and
abetted with the specific intent to kill and that he was a major
participant in the felony who acted with reckless indifference to
human life. We reversed the trial court’s order summarily
denying Mallet’s section 1170.95 petition and remanded the
matter, directing the trial court to issue an order to show cause
under section 1170.95, subdivision (c), and conduct a hearing
under section 1170.95, subdivision (d) to determine whether
Mallet was entitled to relief. (Id. at pp. 11-12.)
III. District Attorney’s Further Briefing on Mallet’s
Section 1170.95 Petition, and Hearing Under Section
1170.95, Subdivision (d)
Upon remand, the district attorney filed a second response
to Mallet’s petition, arguing Mallet could still be convicted of
7
felony-murder today under section 189, as amended, because (1)
he acted with intent to kill, and (2) he was a major participant in
the felonies who acted with reckless indifference to human life.
In the brief, the district attorney derived his statement of the
case, including the facts and circumstances of the crimes, from
our opinion in Mallet’s appeal from the summary denial of his
section 1170.95 petition (case No. B301369). In that opinion, we
summarized the facts and circumstances of the crimes using this
court’s opinion in Mallet’s direct appeal. The district attorney did
not attach to this second response, or cite to, any other
documents. Thus, in arguing Mallet acted with intent to kill and
was a major participant in the felonies who acted with reckless
indifference to human life, the district attorney, in his second
response, relied on the factual summary first set forth in this
court’s opinion in Mallet’s direct appeal. Mallet did not file a
reply to the district attorney’s second response to the section
1170.95 petition.
The trial court set the matter for an order to show cause
hearing. At all times relevant to the proceedings below, section
1170.95, subdivision (d)(3) provided, in pertinent part: “At the
hearing to determine whether the petitioner is entitled to relief,
the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing. . . . The prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (Former § 1170.95, subd. (d)(3).)
The hearing occurred on May 18, 2021. The parties did not
introduce any new evidence at the hearing. Before the parties
presented their arguments, the trial court asked them: “[A]ny
objection to the court receiving and considering not only the
8
motions [sic] from respective counsel, but also the jury
instructions, all the appellate opinions that were published
previously on this case?”4 Neither side objected.
The prosecution argued at the hearing, consistently with its
first and second responses to the petition, that Mallet was a
major participant in the felonies and that he acted with reckless
indifference to human life. Mallet’s counsel did not dispute
Mallet was a major participant in the felonies; counsel argued the
prosecution did not prove beyond a reasonable doubt that Mallet
acted with reckless indifference to human life. In making this
argument, Mallet’s counsel referenced the factual summary in
the district attorney’s responses to the petition.
At the conclusion of the hearing, the trial court took the
matter under submission. On May 23, 2021, the court issued a
written order denying Mallet’s section 1170.95 petition, finding
“Mallet was both a major participant and acted with reckless
disregard for human life.” The court based these findings on a
factual summary it set forth in the order, explaining: “The
following summary of facts comes from the affirmed judgement
on June 29, 1983”—i.e., this court’s opinion in Mallet’s direct
appeal.
4 As set forth above, the superior court file that was
transmitted to this court in Mallet’s appeal from the summary
denial of his section 1170.95 petition (case No. B301369) did not
include jury instructions. Whether the trial court had access to
the jury instructions from Mallet’s trial is not material to the
resolution of this appeal. There is no dispute that this matter
was tried as a felony-murder case.
9
DISCUSSION5
On May 18, 2021, when the trial court held the hearing on
Mallet’s petition, section 1170.95, subdivision (d)(3) stated: “At
the hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing. If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.
The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.” (Former § 1170.95, subd. (d)(3), italics
added.) Appellate courts interpreting this provision had
concluded an appellate opinion was part of the record of
conviction, and the factual summary therein was admissible at
an evidentiary hearing on a section 1170.95 petition. (See, e.g.,
People v. Williams (2020) 57 Cal.App.5th 652, 660-663 (Williams)
[holding the trial court could consider the factual summary in an
appellate opinion at a hearing under section 1170.95, subdivision
(d)(3), because the factual summary was admissible as reliable
hearsay].)
On October 5, 2021, less than five months after Mallet’s
evidentiary hearing, the Governor signed Senate Bill No. 775 into
5 This appeal concerns the admissibility of evidence at the
hearing on Mallet’s petition under section 1170.95, subdivision
(d)(3). Accordingly, we do not set forth here the statutory
requirements for other stages of the trial court’s review of a
section 1170.95 petition (facial review under subdivision (b) and
prima facie review under subdivision (c)).
10
law, and its amendments to section 1170.95 became effective on
January 1, 2022. (Sen. Bill No. 775 (2021-2022 Reg. Sess.) Stats.
2021, ch. 551, § 2.) Senate Bill No. 775 amended section 1170.95,
subdivision (d)(3) to read: “At the hearing to determine whether
the petitioner is entitled to relief, the burden of proof shall be on
the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019. The admission of evidence in the
hearing shall be governed by the Evidence Code, except that the
court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially
noticed. The court may also consider the procedural history of the
case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to
subdivision (b) of Section 872 shall be excluded from the hearing
as hearsay, unless the evidence is admissible pursuant to another
exception to the hearsay rule. The prosecutor and the petitioner
may also offer new or additional evidence to meet their respective
burdens. 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. If the prosecution fails to
sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining
charges.” (§ 1170.95, subd. (d)(3), italics added.) As the Court of
Appeal explained in People v. Clements (2022) 75 Cal.App.5th
276, 292 (Clements), with this amendment, the “Legislature
11
limited use of prior appellate opinions [in hearings under section
1170.95, subdivision (d)], allowing trial judges to ‘consider the
procedural history of the case recited,’ ” and “the Legislature has
decided trial judges should not rely on the factual summaries
contained in prior appellate decisions when a section 1170.95
petition reaches the stage of a full-fledged evidentiary hearing.”
(See also People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9
(Cooper) [“Senate Bill 775 prevents a trial court from relying on
facts recited in an appellate opinion to rule on a petition under
section 1170.95, as the statute now provides that ‘the court may
consider evidence previously admitted at any prior hearing or
trial that is admissible under current law’ and ‘the procedural
history of the case recited in any prior appellate opinion’ ”].)
Mallet contends we must reverse the order denying his
section 1170.95 petition because the trial court relied on evidence
that is inadmissible under section 1170.95, subdivision (d)(3), as
amended by Senate Bill No. 775: the factual summary in this
court’s opinion in his direct appeal. He asserts the amendment
applies here, although its enactment was after his evidentiary
hearing. In response, the Attorney General argues Mallet
forfeited this claim of evidentiary error because he did not object
at the hearing to the trial court’s consideration of the factual
summary in the appellate opinion. The Attorney General also
argues this court need not address whether the amendment
applies retroactively, asserting the amendment does not preclude
courts from relying on factual summaries in appellate opinions in
any event. For the reasons explained below, we agree with
Mallet that we must reverse the order under the plain language
of section 1170.95, subdivision (d)(3), as amended by Senate Bill
No. 775.
12
First, we reject the Attorney General’s argument that
Mallet forfeited his claim of error on appeal by not making an
objection in the trial court. As set forth above, at the time of
Mallet’s evidentiary hearing, courts had interpreted section
1170.95, subdivision (d)(3), as then written, to allow the
admission into evidence of a factual summary in an appellate
opinion. (See, e.g., Williams, supra, 57 Cal.App.5th at pp. 660-
663.) We do not fault Mallet’s counsel for not objecting in the
trial court, given the state of the law on this issue as it stood
then. (See People v. Perez (2020) 9 Cal.5th 1, 8, 14 [holding that,
although the defendant did not make a confrontation clause
objection to gang expert testimony at trial, the defendant did not
forfeit his claim on appeal because People v. Sanchez (2016) 63
Cal.4th 665 had not yet been decided, so the objection would have
been futile].)
Second, we reject the Attorney General’s argument that
section 1170.95, subdivision (d)(3), as amended by Senate Bill No.
775, allows the consideration of the factual summary in an
appellate opinion at the evidentiary hearing. The Attorney
General argues the Legislature would have expressly stated in
the amendment that the factual summary in an appellate opinion
may not be considered if the Legislature intended that it be
excluded from evidence at the evidentiary hearing. We conclude
the plain language the Legislature drafted in the amendment
accomplishes the same result. In enacting Senate Bill No. 775,
the Legislature stated the amendment “[a]ddresses what
evidence a court may consider at a resentencing hearing
(clarifying the discussion in People v. Lewis [(2021) 11 Cal.5th
952,] 970-972).” (Sen. Bill No. 775, supra, ch. 551, § 1.) In Lewis,
our Supreme Court stated that appellate opinions “are generally
13
considered to be part of the record of conviction.” (People v.
Lewis, supra, 11 Cal.5th at p. 972.) In Senate Bill No. 775, the
Legislature deleted from section 1170.95, subdivision (d)(3) the
language stating the “prosecutor and the petitioner may rely on
the record of conviction,” and added, among other things, the
language stating a “court may also consider the procedural
history of the case recited in any prior appellate opinion.” By
making these changes, the Legislature clearly indicated that
while a court may consider the procedural history summary of a
case as set forth in an appellate opinion, the court may not
similarly consider the summary of the evidence of the facts and
circumstances of the crimes as set forth in the appellate opinion,
regardless of whether the appellate opinion is a part of the record
of conviction. We agree with other appellate courts that have
interpreted Senate Bill No. 775 to preclude courts from relying on
factual summaries in appellate opinions at an evidentiary
hearing under section 1170.95, subdivision (d). (See Clements,
supra, 75 Cal.App.5th at p. 292; Cooper, supra, 77 Cal.App.5th at
p. 400, fn. 9.)
Mallet argues the remedy for the trial court’s admission of
evidence made inadmissible by Senate Bill No. 775 is reversal of
the order denying the section 1170.95 petition, vacation of the
murder conviction, and remand for resentencing on the
remaining counts. Without conceding error, the Attorney
General argues the remedy is remand for a new evidentiary
hearing under section 1170.95, subdivision (d). We agree with
the Attorney General. The proper remedy for the erroneous
admission of evidence is a new hearing that complies with the
evidentiary rules set forth in section 1170.95, subdivision (d)(3),
as amended by Senate Bill No. 775. We cannot conclude the
14
error was harmless based on the other, limited information that
was before the trial court at the evidentiary hearing. The
Attorney General does not point to other, admissible evidence
that would have been sufficient to prove beyond a reasonable
doubt that Mallet was a major participant in the felony who acted
with reckless disregard for human life.
There is a question of the applicability of Senate Bill No.
775, given it was enacted shortly after Mallet’s evidentiary
hearing. The Attorney General argues: “The question of whether
Senate Bill No. 775 is retroactive to this case is moot because the
denial of appellant’s petition must be affirmed under the
amended law in an event.” As discussed above, we have rejected
the Attorney General’s argument that section 1170.95,
subdivision (d)(3), as amended by Senate Bill No. 775, allows the
consideration of the factual summary in an appellate opinion at
the evidentiary hearing. Nonetheless, we agree with the
Attorney General that we need not decide the question of
retroactivity, but for a different reason. Assuming for purposes of
argument we were to conclude the evidentiary rules in section
1170.95, subdivision (d)(3) are not retroactive, nothing would
prevent Mallet from filing a new petition for resentencing under
the amended law. It is in the interest of judicial economy to
remand the case for a new hearing under section 1170.95,
subdivision (d), rather than to require all parties to restart the
process with a new petition, given the trial court’s denial of the
petition is based on evidence that is inadmissible under section
1170.95, subdivision (d)(3), as amended by Senate Bill No. 775.
15
DISPOSITION
The May 25, 2021 order denying the section 1170.95
petition is reversed and the matter is remanded for a new
evidentiary hearing in accordance with section 1170.95,
subdivision (d)(3).
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
16