People v. Taylor CA3 ( 2022 )

Filed 9/27/22 P. v. Taylor CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C091382
Plaintiff and Respondent, (Super. Ct. No. 08F5142)
v.
CURTIS WAYNE TAYLOR et al.,
Defendants and Appellants.
Defendants Curtis Wayne Taylor and Beau Houston Gray appeal from the trial
court’s order denying their petitions for resentencing under Penal Code1 former
section 1170.95.2 Defendants contend: (1) the trial court impermissibly looked beyond
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section
1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute.
For purposes of clarity and conformity with their petitions, we will continue to refer to
the statute as section 1170.95 throughout the opinion.
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their petitions and improperly considered the record of conviction; (2) a jury could have
found defendants guilty of second degree murder under a natural and probable
consequences theory; and (3) the trial court engaged in improper factfinding in denying
their petitions. In addition, both defendants contend that Senate Bill No. 775 (2020-2021
Reg. Sess.) (Stats. 2021, ch. 551, § 2), which came into effect while defendants’ appeals
were pending, applies to their appeals. The People respond that, regardless of any errors,
the record of conviction establishes that defendants were convicted of malice murder and
are therefore ineligible for relief under section 1170.95. Even after considering section
1170.95, as amended by Senate Bill No. 775, we agree with the People and will affirm
the orders.
FACTUAL AND PROCEDURAL BACKGROUND
A
Defendants’ Case
A detailed recitation of the underlying facts is set forth in our prior opinion in this
case. In sum, defendants assaulted the victim and caused him to suffer a traumatic brain
injury. The victim was hospitalized for eight days but died within 48 hours of being
discharged. After leaving the hospital, the victim consumed alcohol and medication that
had not been prescribed to him, despite being told to avoid such substances by his
physician. (People v. Taylor et al. (Mar. 19, 2012, C064852) [nonpub. opn.].)
During the joint trial, the jury was instructed that defendants were being “prosecuted
for murder under two theor[ies]: One, malice aforethought; and two, felony murder.”
The jury was never instructed on the natural and probable consequences theory of murder
liability pertaining to vicarious liability, pursuant to CALCRIM No. 402 or 403. The jury
was instructed that it could convict defendants of first degree murder based on either (1)
malice aforethought (CALCRIM Nos. 520-521), (2) torture murder (CALCRIM No.
521), (3) felony murder with the felony being the crime of torture (CALCRIM No.
540A), or (4) felony murder as an aider and abettor to the crime of torture (CALCRIM
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Nos. 540B, 540C, 549). It was instructed that “[a]ll other murders are of the second -
degree.” It was not instructed on felony murder for second degree murder or on the
natural and probable consequences doctrine pertaining to vicarious liability.
The jury was further instructed that, if defendants unlawfully killed the victim, they
could be convicted of manslaughter or involuntary manslaughter under various theories
of guilt. The jury was also instructed on the torture/murder special circumstance
(CALCRIM Nos. 700, 733, 703, 704, 705, 706) and the charged crime of torture
(CALCRIM No. 810). The jury was instructed on causation per CALCRIM No. 240 as
follows: “An act causes injury or death if the injury or death is the direct, natural, and
probable consequence of the act and the injury or death would not have happened without
the act. A natural and probable consequence is one that a reasonable person would know
is likely to happen if nothing unusual intervenes. In deciding whether a consequence is
natural and probable, consider all the circumstances established by the evidence. [¶]
There may be more than one cause of injury or death. An act causes injury or death only
if it is a substantial factor in causing the injury or death. A substantial factor is more than
a trivial or remote factor. However, it does not have to be the only factor that causes the
injury or death.”
Mirroring the instructions, the prosecutor argued during closing argument that the jury
could find defendants guilty of first degree murder based on malice aforethought or
felony murder with the felony being torture. All other murders were second degree
murder.
The jury found defendants not guilty of first degree murder (§ 187, subd. (a)) or
torture (§ 206) but guilty of second degree murder and assault with force likely to cause
great bodily injury (§ 245, subd. (a)(1)). The jury also found true that defendants
inflicted great bodily injury during the commission of the assault. (§ 1192.7, subd.
(c)(8).) The jury found not true a special allegation that the murder involved the
infliction of torture. (§ 190.2, subd. (a)(18).) The trial court also found true that Taylor
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had a prior strike (§ 1170.12), had served two prior prison terms (§ 667.5, subd. (b)), and
was released on bail when he committed the assault (§ 12022.1). Gray was sentenced to
prison for an aggregate term of 19 years to life, and Taylor was sentenced to prison for an
aggregate term of 42 years eight months to life. (People v. Taylor, supra, C064852.) On
appeal, we modified the judgments to stay defendants’ sentences for assault with force
likely to cause great bodily injury, pursuant to section 654. (People v. Taylor, C064852.)
We otherwise affirmed the judgments. (Ibid.) The trial court subsequently resentenced
Gray to an aggregate term of 15 years to life, and Taylor to an aggregate term of 30 years
to life.
B
Defendants’ Petitions
In January 2019, Gray filed a petition for resentencing under section 1170.95. In
his petition, Gray declared that an information had been filed against him that allowed the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine, that he was convicted of first or second degree murder
pursuant to the felony-murder rule or the natural and probable consequences doctrine,
and that he could not now be convicted of first or second degree murder based on the
recent changes to sections 188 and 189. He also requested the court appoint counsel.
That same month, Taylor filed a similar petition under section 1170.95. Taylor
also declared that an information had been filed against him that allowed the prosecution
to proceed under a theory of murder under the natural and probable consequences
doctrine, that he was convicted of second degree murder pursuant to the natural and
probable consequences doctrine, and that he could not now be convicted of first or
second degree murder based on the recent changes to sections 188 and 189. He also
requested the court appoint counsel.
In March 2019, the trial court appointed counsel for defendants.
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In July 2019, the prosecution filed a response to defendants’ petitions, arguing:
(1) section 1170.95 was unconstitutional and (2) defendants were not eligible for relief
because they were the actual killers or because they were major participants in the
underlying felony of assault with force likely to cause great bodily injury. The
prosecution asked the trial court to dismiss defendants’ petitions.
In October 2019, the prosecution filed a second response to defendants’ petitions,
arguing the petitions must be dismissed because defendants had failed to establish a
prima facie showing that they were eligible for relief. The prosecution argued defendants
had been convicted based on their direct participation in the victim’s murder, because
they were major participants in the underlying felony of assault with force likely to cause
great bodily injury. Included in the prosecution’s response was a copy of our prior
opinion and the probation officer’s report for Gray.
In December 2019, Taylor filed another petition for resentencing under section
1170.95. He argued his conviction rested on the natural and probable consequences
theory. Although it was alleged that Taylor participated in the assault on the victim, it
was Gray who had stomped on the victim’s head. In addition, the victim had consumed
alcohol and fentanyl after his discharge from the hospital. Taylor also noted that the trial
court had instructed the jury on causation (CALCRIM Nos. 240, 620), since the victim
died nearly 10 days after the assault. Taylor also argued that two physicians had testified
during trial that the victim’s head trauma could have been the result of a recent fall,
especially since the victim had been suffering from acute alcohol withdrawal, but still
drank and abused controlled substances against his physician’s advice. According to
Taylor, his actions merely “amounted to the equivalent of aider and abettor.”
Gray did not file a reply to the prosecution’s brief.
During a January 2020 hearing, the trial court noted it had read the parties’ briefs
and reviewed its file. The court also noted it had a “fairly vivid recollection of the facts
of the case.” The court briefly summarized the facts and noted that “causation was a
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major issue in the case. And the jury ultimately concluded that the injuries caused by the
beating were substantial factors in causing the victim’s death, notwithstanding other
contributing factors. . . . It appeared to me from the facts that both parties were active
participants in the incident.” The court further noted it was inclined to agree with the
prosecution “that the defendants were liable, not just under a felony murder rule, the
theory that they were the actual killers in the case. [¶] They were major participants in
the underlying felony of assault, force likely to create bodily injury.” The court
announced its tentative ruling that defendants had failed to make a prima facie showing
that they were entitled to relief.
Taylor’s counsel argued that, even though Taylor might have been involved in the
beating of the victim, he was not necessarily the reason the victim died. She noted the
prosecutor argued at trial that it was unclear whether it was Taylor or Gray who dealt the
blow that ultimately killed the victim. In addition, the victim had harmed himself by
consuming alcohol and fentanyl. Also, Gray and Taylor had no meeting of the minds,
and Taylor was not present during the entire beating. In sum, Taylor only intended to
commit an assault, not second degree murder, and was therefore entitled to relief under
section 1170.95.
Gray’s counsel joined in Taylor’s argument, contending there was an ambiguity
“as to the acts and intentions,” and whether Gray was a substantial participant in the
underlying felony or the second degree murder.
After considering the arguments, the trial court adopted its tentative ruling and
dismissed defendants’ petitions. The court did not issue a written decision.
DISCUSSION
I
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January
1, 2019, “amend[ed] the felony murder rule and the natural and probable consequences
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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); People v. Gentile (2020) 10 Cal.5th 830, 842.)
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs
is liable for murder only if one of the following is proven: [¶] (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. [¶] (3) The person was a
major participant in the underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also added section 1170.95, which allows those “convicted
of felony murder or murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that sentenced the petitioner
to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the following conditions
apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder, murder under
the natural and probable consequences doctrine or other theory under which malice is
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imputed to a person based solely on that person’s participation in a crime, or attempted
murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was
convicted of murder, attempted murder, or manslaughter following a trial . . . . [¶] (3)
The petitioner could not presently be convicted of murder or attempted murder because
of changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd.
(a), as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
“After the parties have had an opportunity to submit briefings, the court shall hold
a hearing to determine whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause. If the court declines to make an order to show
cause, it shall provide a statement fully setting forth its reasons for doing so.” (§
1170.95, subd. (c), as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
The prima facie inquiry under section 1170.95 subdivision (c) is “limited.”
(People v. Lewis (2021) 11 Cal.5th 952, 971.) 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.” ’ ” (Ibid.)
Although a court may rely on the record of conviction (including a prior appellate court
opinion) in determining whether the petitioner has made a prima facie showing, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971-972.)
II
Analysis
As a preliminary matter, we first address Gray’s contention (which Taylor joins)
that the trial court erred in looking beyond his petition and considering the record of
conviction when it determined he had failed to make a prima facie showing that he was
entitled to relief under section 1170.95. This argument was rejected in Lewis, so long as
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the court has already appointed counsel and received briefing from the parties, as
happened here. (People v. Lewis, supra, 11 Cal.5th at pp. 971-972.)
Gray next argues the trial court improperly relied on its own recollection of the
case and on the summary of facts as contained in our prior opinion, which Gray argues is
inadmissible hearsay given our prior ruling in Kilroy v. State of California (2004) 119
Cal.App.4th 140, 146. In addition, argues Gray, the court failed to clarify what file it had
reviewed, calling into doubt whether the court had reviewed only admissible evidence.
Finally, Gray argues the trial court erroneously stated that both defendants were “active
participants” and were liable under the felony-murder rule and under a theory that they
were the actual killers in the case. Gray notes that the jury did not find that either of the
defendants were the actual killers or major participants, with the prosecutor even arguing
that it was unclear who struck the fatal blow. Taylor joins in these arguments.
In a related argument, both defendants contend the trial court engaged in improper
factfinding in determining that they were the “actual killers” or “major participants,”
especially since we stated in our prior opinion that it was impossible to determine which
defendant delivered the fatal blow. Taylor also contends that the jury could have found
him guilty of second degree murder under the natural and probable consequences theory.
As Taylor notes, although the trial court suggested during the January 2019 hearing that
defendants were liable for second degree murder under the felony-murder rule based on
his conviction for assault likely to cause great bodily injury (§ 245, subd. (a)), second
degree murder convictions cannot be premised on felonious assault. (People v. Ireland
(1969) 70 Cal.2d 522, 539.) According to Taylor, the jury could have misunderstood the
available theories because aiding and abetting was a “prominent theory at trial” and the
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jury was instructed pursuant to CALCRIM No. 4003 as well as other references in the
instructions to “natural consequences.” Gray joins in these additional arguments.
Finally, despite the trial court’s oral pronouncement of its reasons for denying his petition
for resentencing, Taylor further argues remand is required because the trial court failed to
provide a written order of denial.
The People contend we must reject defendants’ arguments because the record of
conviction establishes the jury found they were guilty of murder as the actual killers
under a malice theory, which is still valid after the changes enacted under Senate Bill No.
1437. We agree.
Despite defendants’ contentions, they have failed to make the requisite prima facie
showing of entitlement to relief under section 1170.95. Here, although the term “natural
and probable consequences” was presented to the jury via certain instructions, including
the causation instruction, the jury was never instructed on the natural and probable
consequences theory of murder pertaining to vicarious liability, per CALCRIM No. 402
or 403. The prosecutor further did not argue the jury could find defendants liable under a
natural and probable consequences theory of murder pertaining to vicarious liability. In
addition, although the jury was instructed on the felony-murder theory with respect to
first degree murder (with torture being the underlying felony), it was not instructed that it
could find defendants guilty of second degree murder based on a felony-murder theory.
Because the jury found defendants not guilty of first degree murder, torture, and the
torture special circumstance, it necessarily rejected the felony-murder theory. Given the
3 CALCRIM No. 400 instructs as follows: “A person may be guilty of a crime in
two ways. One, he or she may have directly committed the crime. I will call that person
the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly
committed the crime. [¶] A person is guilty of a crime whether he or she committed it
personally or aided and abetted the perpetrator. [¶] [Under some specific circumstances,
if the evidence establishes aiding and abetting of one crime, a person may also be found
guilty of other crimes that occurred during the commission of the first crime.]”
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instructions and the jury’s findings, the defendants’ convictions could not rest on either
theory of vicarious liability. The jury could only convict based on defendants’ personal
culpability. Because the jury could convict defendants of second degree murder only if it
found that they personally acted with express or implied malice, the guilty verdicts
necessarily encompass such a finding of personally harbored malice.
To the extent the trial court suggested otherwise, the trial court’s ruling is
nevertheless correct for the reasons described above. (Diaz v. Grill Concepts Services,
Inc. (2018) 23 Cal.App.5th 859, 874 [“[b]ecause we review the trial court’s ruling and
not its reasoning [citation], any missteps in its reasoning are irrelevant”].) Given our
conclusions, we need not reach Taylor’s contention that he was entitled to a written
statement of the trial court’s decision, in addition to the trial court’s explanation during
the hearing.
DISPOSITION
The trial court’s orders are affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Krause, J.
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