People v. Crenshaw CA2/4 ( 2022 )

Filed 8/30/22 P. v. Crenshaw CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B312025
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA024364)
v.
ROBERT ODELL CRENSHAW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael V. Jesic, Judge. Reversed and
remanded with instructions.
Kevin D. Sheehy, 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 John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Robert O. Crenshaw challenges the denial of his
petition for resentencing under Penal Code former section
1170.95 (now § 1172.6).1 Appellant contends the trial court erred
by denying his petition at the prima facie stage of review because
the jury instructions and findings upon which the court relied do
not foreclose relief as a matter of law. Respondent Attorney
General agrees, as do we. We accordingly reverse and remand
with directions to issue an order to show cause and proceed in
accordance with section 1172.6.
BACKGROUND
I. Convictions
In 1992, an amended information charged appellant and
codefendant Richard Whitehurst with the robbery (§ 211) and
murder (§ 187) of Timothy Ellerson, the robbery and murders of
Tracy Bolton and Derrick Turner, and the attempted willful,
deliberate, and premeditated murder of Dwayne Haley. The
amended information further alleged multiple murder and
robbery-murder special circumstances. (§ 190.2, subds. (a)(3),
(a)(17).)
At the ensuing joint trial, the court instructed the jury on
two theories of liability for the murders: willful, deliberate, and
premeditated murder, using the then-current version of CALJIC
No. 8.20; and first degree felony murder, using the then-current
versions of CALJIC No. 8.21 and 8.27. It also instructed the jury
on conspiracy principles using then-current CALJIC Nos. 6.10.5
and 6.11, the latter of which included the natural and probable
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). All further statutory references are to the Penal
Code unless otherwise indicated.
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consequences doctrine. The court used then-current CALJIC No.
8.80 to instruct on the special circumstance allegations: “If you
find beyond a reasonable doubt that the defendant was either the
actual killer, a co-conspirator, or an aider and abettor, but you
are unable to decide which, then you must also find beyond a
reasonable doubt that the defendant with the intent to kill
participated as a co-conspirator with or aided and abetted an
actor in commission of the murder in the first degree, in order to
find the special circumstance to be true. On the other hand, if
you find beyond a reasonable doubt that the defendant was the
actual killer, you need not find that the defendant intended to kill
a human being in order to find the special circumstance to be
true.”
The jury found appellant guilty of all charges: three counts
of first degree murder, two counts of second degree robbery, and
one count of attempted willful, deliberate, and premeditated
murder. The verdict forms did not specify the theory or theories
on which the jury convicted him. The jury also found the special
circumstances allegations true, again without clarifying the basis
for its decision. After a penalty phase trial, the jury rejected the
death penalty and selected life imprisonment without the
possibility of parole for the three murders.
On September 25, 1992, the court sentenced appellant to
two consecutive terms of life imprisonment without the
possibility of parole, and one concurrent term of the same, and
one concurrent term of life with the possibility of parole. The
court imposed and stayed (§ 654) two midterm sentences of three
years for the robberies. We affirmed appellant’s convictions on
direct appeal. (People v. Whitehurst (Nov. 16, 1994, B071419)
[nonpub. opn.].)
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II. Petition for Resentencing
In July 2019, appellant, acting in propria persona, filed a
petition for resentencing under section 1172.6. The AG asserts
that appellant left all the check boxes blank. The trial court
appointed counsel for appellant on August 21, 2019.
On September 30, 2019, the prosecution filed a written
response opposing the petition. As relevant here, the prosecution
argued that appellant could still be held liable for murder under
section 189, subdivision (e) because the facts recited in our
previous appellate opinion demonstrated that he was a major
participant in the robberies and acted with reckless indifference
to human life under the updated standards set forth in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark).
Appellant’s counsel filed a reply in support of the petition
on April 16, 2020. He subsequently filed a supplemental
memorandum of points and authorities, alerting the trial court to
new authorities holding that the court should not make factual
findings at the prima facie stage (People v. Drayton (2020) 47
Cal.App.5th 965 (Drayton)) and that special circumstances
findings made prior to Banks and Clark do not foreclose section
1172.6 relief as matter of law (People v. Torres (2020) 46
Cal.App.5th 1168, rev. granted and expanded, S262011; People v.
Smith (2020) 49 Cal.App.5th 85, rev. granted and expanded,
S262835).
The court heard the petition on April 13, 2021. Based
primarily upon the pre-Banks and Clark special circumstances
jury instruction that required the jury to find either that
appellant was the actual killer or acted with the intent to kill,
and the jury’s true findings on the special circumstances
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allegations, the court found appellant was ineligible for relief as a
matter of law. It concluded that appellant could not make a
prima facie showing of eligibility for relief because “the jury made
a determination in this case that the defendant was either the
actual shooter or had the intent to kill, and the defendant’s not
eligible for relief based on that.” Appellant timely appealed.
DISCUSSION
Appellant contends the trial court erred in denying his
petition because he made a prima facie case for relief and neither
the jury instructions, special circumstance findings, nor verdicts
render him ineligible as a matter of law. Respondent concedes
the matter should be remanded to the superior court to issue an
order to show cause and hold an evidentiary hearing. We agree
with the parties.
I. Governing Law
The Legislature enacted Senate Bill 1437 (SB 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);
accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) SB 1437 accomplished this task by adding three
provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th
830, 842 (Gentile).)
First, to amend the natural and probable consequences
doctrine, SB 1437 added section 188, subdivision (a)(3), which
requires a principal to act with malice aforethought before he or
she may be convicted of murder. (§ 188, subd. (a)(3); accord,
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Gentile, supra, 10 Cal.5th at pp. 842-843.) Second, to amend the
felony murder rule, SB 1437 added section 189, subdivision (e),
which provides that a participant in the perpetration or
attempted perpetration of certain felonies in which a death
occurs may be liable for murder only if (1) the person was the
actual killer; (2) the person was not the actual killer “but, with
the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree”; or (3) the person was a
major participant in the underlying felony and acted with
reckless indifference to human life. (§ 189, subd. (e).)
Finally, SB 1437 added former section 1170.95, now section
1172.6, which permits individuals who were convicted of felony
murder or murder under a natural and probable consequences
theory, but who could not be convicted of murder following SB
1437, to petition the sentencing court to vacate the conviction and
resentence on any remaining counts. (§ 1172.6, subd. (a).) A
petition for relief under section 1172.6 must include a declaration
by the petitioner that he or she is eligible for relief under section
1172.6 based on all the requirements of subdivision (a), the
superior court case number and year of the petitioner's
conviction, and whether the petitioner requests appointment of
counsel. (§ 1172.6, subd. (b)(1).)
If the petition satisfies those requirements, and the
petitioner has requested counsel, the court must appoint counsel.
(§ 1172.6, subd. (b)(3).) The prosecutor is also required to file a
response to the petition, and the petitioner may then file a reply.
(§ 1172.6, subd. (c).) The court then holds a hearing to determine
whether the petitioner has made a prima facie showing he or she
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is entitled to relief. (Ibid.; see also Lewis, supra, 11 Cal.5th at pp.
960-986.)
“[T]he ‘prima facie bar was intentionally . . . set very low.’”
(Lewis, supra, 11 Cal.5th at p. 972.) “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.’”” (Id. at p. 971, quoting
Drayton, supra, 47 Cal.App.5th at p. 978.) In assessing the
petition at the prima facie stage, the court must not engage in
“‘factfinding involving the weighing of evidence or the exercise of
discretion.’” (Lewis, supra, 11 Cal.5th at p. 972, quoting Drayton,
supra, at p. 980.) If the petitioner’s allegations are facially
sufficient to state a claim for relief, the trial court must issue an
order to show cause unless “the record of conviction contains facts
conclusively refuting the allegations in the petition,” thereby
establishing the petitioner’s ineligibility for resentencing “as a
matter of law.” (People v. Flores (2022) 76 Cal.App.5th 974, 991-
992.) The court’s authority to make factual determinations
without conducting an evidentiary hearing “is limited to readily
ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining
whether the petitioner showed reckless indifference to human life
in the commission of the crime).” (Drayton, supra, 47
Cal.App.5th at p. 980.) Facts preclusive of relief at the prima
facie stage may include the absence of jury instructions on the
felony murder theory or natural and probable consequences
doctrine. (See People v. Harden (2022) 81 Cal.App.5th 45, 52.)
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They may not include special circumstances findings made prior
to Banks and Clark. (People v. Strong (2022) 13 Cal.5th 698.)
If the court finds the petitioner has made a prima facie
showing, it must issue an order to show cause and hold an
evidentiary hearing. (§ 1172.6, subds. (c)-(d).) At that hearing,
“the burden of proof shall be on the prosecution to prove, beyond
a reasonable doubt, that the petitioner is guilty of murder . . .
under California law as amended by [SB 1437].” (§ 1172.6, subd.
(d)(3).) If the prosecution fails to meet this burden, the court
must vacate the murder conviction and resentence the petitioner
on any remaining counts. (Ibid.)
II. Analysis
Appellant and respondent agree the trial court erred by
concluding appellant was ineligible for relief as a matter of law.
We agree.
As respondent recognizes, “the record here indeed supports
the fact that appellant was charged with murder and could have
been convicted under either the felony murder rule or the natural
and probable consequences theory.” The jury was expressly
instructed on both theories, as well as on direct perpetrator and
aiding and abetting principles, and the verdict forms do not
indicate the basis on which the jury found appellant guilty. The
record accordingly does not establish as a matter of law that
appellant could be convicted of murder under the law as it
currently stands.
The instructions and findings on the special circumstances
allegation likewise leave open the possibility that appellant was
convicted under a now-impermissible theory. The special
circumstances instruction permitted the jury to find the robbery-
murder allegation true if it found appellant was a co-conspirator,
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a direct aider and abettor, or the actual killer. Per the
instructions on co-conspirator liability, however, the jury could
have applied the natural and probable consequences doctrine
instead of finding that appellant had the intent to kill. In
appellant’s words, the record is “ambiguous” as to the basis on
which appellant was convicted and the robbery-murder
allegations were found true. An ambiguous record does not
foreclose eligibility for relief as a matter of law at the prima facie
stage of review.
As respondent concedes, “there is nothing in the record
indicating the jury’s felony-murder special circumstances finding
was based on a theory that appellant was a major participant in
the robbery and acted with reckless indifference to human life. . .
. [T]he relevant instructions never referenced major participation
nor reckless indifference to human life as either a concept to
consider or as a requirement. Nor would the jury have been
required to find appellant was the actual killer or acted with
actual malice before finding the robbery-murder special
circumstance true.” Even if the jury had made those findings,
they would not foreclose relief as a matter of law. “Neither the
jury’s pre-Banks and Clark findings nor a court’s later sufficiency
of the evidence review amounts to the determination section
1172.6 requires, and neither set of findings supplies a basis to
reject an otherwise adequate prima facie showing and deny
issuance of an order to show cause.” (People v. Strong, supra, at
p. 720.)
The trial court thus erred when it concluded appellant was
ineligible for relief as a matter of law based on its special
circumstances findings. We further agree with respondent that
the only other plausible basis for the trial court’s finding “was its
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own consideration of the evidence that appellant was an actual
killer or a direct aider and abettor.” Such factfinding is not
permissible at the prima facie stage. (Drayton, supra, 47
Cal.App.5th at p. 980.)
Because the record does not show as a matter of law that
appellant was ineligible for resentencing, we must remand the
case to the trial court to issue an order to show cause under
section 1172.6, subdivision (c) and hold an evidentiary hearing
pursuant to section 1172.6, subdivision (d)(3). At the evidentiary
hearing, the trial court will not be compelled to credit appellant's
allegations. (See Lewis, supra, 11 Cal.5th at 971 [court should
not reject petitioner’s factual allegations on credibility grounds
“‘without first conducting an evidentiary hearing’”].) We express
no opinion regarding appellant’s ultimate entitlement to relief.
DISPOSITION
The order denying appellant’s section 1172.6 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause and hold an evidentiary hearing to determine
whether appellant is entitled to section 1172.6 relief. At that
hearing, “the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that [appellant] is ineligible for
resentencing.” (§ 1172.6, subd. (d)(3).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J. CURREY, J.
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