People v. Lloyd CA2/3 ( 2022 )

Filed 10/28/22 P. v. Lloyd CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B299456
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA019920)
v.
COREY DWIGHT LLOYD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Connie R. Quiñones, Judge. Remanded with
direction.
Allen G. Weinberg, 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, Michael C. Keller and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
In 1993, a jury convicted Corey Dwight Lloyd and two
accomplices of kidnapping, forcible rape, and murder, with true
findings on the special circumstance allegations that the murder
was committed in the course of rape and kidnapping. The jury’s
verdicts did not definitively establish which defendant was the
actual killer. In 2019, Lloyd petitioned for vacation of his murder
conviction and resentencing pursuant to Penal Code1 section
1172.6.2 The trial court summarily denied the petition,
concluding that, in light of the jury’s special circumstance finding
and the facts of the case, Lloyd was a major participant in the
underlying felony who acted with reckless indifference to human
life, and was thus ineligible for relief. We affirmed the order
denying Lloyd’s petition. (People v. Lloyd (Mar. 4, 2021,
B299456) [nonpub. opn.].) Our California Supreme Court
granted review and has now transferred to the matter back to us
with the direction to vacate our decision and to reconsider the
cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong)
and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Doing so, we
conclude that the trial court’s order must be reversed and the
matter remanded for further proceedings.
1
All further undesignated statutory references are to the
Penal Code.
2
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2
BACKGROUND
I. The murder and Lloyd’s conviction3
On May 3, 1992, 16-year-old M.H. spent the afternoon with
friends at the Mendoza residence on West 98th Street in Los
Angeles. In the early evening, she went to the nearby residence
of codefendant Ramon Lopez. Lloyd, Lopez, and codefendant Joel
Cortez, as well as other persons, were present. The group began
playing “spin the bottle.” As part of the game, M.H. removed her
pants, but refused to remove her pantyhose or underwear. When
Cortez and another person went into a bedroom, M.H. went to the
bedroom door to see what was going on inside. Cortez—armed
with a .380 firearm—pulled her into the room; Lloyd and Lopez
followed. All three defendants then “socked” M.H. in the face
repeatedly and tried to remove her underwear. Cortez hit her in
the mouth with his gun. Screaming, M.H. begged the men not to
rape her. Cortez retrieved a radio from the living room, returned
to the bedroom, and played music loudly.
Ten to 15 minutes later, Lloyd and Lopez emerged from the
bedroom. Lopez armed himself with a nine-millimeter firearm.
Lloyd retrieved a .45 handgun from under a sofa. Both men
loaded the guns. Cortez then exited the bedroom with M.H., who
was walking with her legs apart. She was bleeding and missing a
tooth, but she was clothed. Cortez socked her in the head and
told her to walk straight. All three defendants left with M.H.
They told her they would drop her off at a bus stop and she
should say she was raped by “some ‘Black guys.’ ”
3
The background is from this Division’s prior opinion, of
which we have taken judicial notice. (Evid. Code, §§ 452,
subd. (d), 459.)
3
The defendants walked M.H. into a nearby alley. She
repeatedly insisted she would not tell police what had happened.
Within minutes, multiple gunshots were fired. Seven hit M.H.,
killing her. One shot was fired into her head from close range;
three others were fired into her chest. The defendants left M.H.
lying in the alley. Her last words were, “I want my mom.”
All three defendants returned to Lopez’s house. They
formulated a plan to falsely claim that M.H. had tried to shoot
them, so they beat her up and shot her.
Police officers recovered 11 nine-millimeter cartridges from
the murder scene. All were fired from the same gun.
Lloyd eventually admitted to a detective that he had sex
with M.H., and that the story about her attempting to shoot the
defendants was a lie. He stated that she “ ‘was killed because she
would have told the police how she got fucked up.’ ” She had
pleaded with him to help her, and “ ‘begged [him] not to let her be
killed.’ ” Lloyd’s ex-girlfriend testified that Lloyd told her he
killed M.H.
Lloyd, Cortez, and Lopez were tried together. The court
instructed the jury on felony murder and direct aiding and
abetting, but not on the natural and probable consequences
doctrine. The jury convicted Lloyd and the other two defendants
of first degree murder (§ 187), forcible rape (§ 261, subd. (a)(2)),
and kidnapping (§ 207, subd. (a)). It found true special
circumstance allegations that all three defendants committed the
murder in the commission of rape and kidnapping. (§ 190.2,
subd. (a)(17).) The jury also found that during commission of the
murder and kidnapping, Lloyd personally used a firearm
(§§ 12022.5, subd. (a)) and a principal was armed with a firearm
(§ 12022, subd. (a)(1)). It found the same firearm enhancements
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true as to Cortez and Lopez. The trial court sentenced Lloyd to
life in prison without the possibility of parole, plus five years for
personal use of a firearm.
This court affirmed the judgments against Lloyd and his
codefendants. (People v. Lloyd, et al. (Apr. 25, 1996, B080005)
[nonpub. opn.].)
II. Section 1172.6 petition
In 2019, after passage of Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437), Lloyd filed a petition for vacation
of his murder conviction and resentencing. Using a preprinted
form, he checked boxes stating that he had been convicted of
murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine; he was not the actual killer; he
did not, with the intent to kill, aid and abet the actual killer; he
was not a major participant in the felony or did not act with
reckless indifference to human life; and he could not now be
convicted of murder in light of changes to sections 188 and 189
effectuated by Senate Bill 1437. He also requested that counsel
be appointed for him.
The trial court summarily denied the petition. Lloyd was
not present and was not represented by counsel. The trial court
noted that the jury had found the special circumstance
allegations true. It recited the facts of the case as described in
this Division’s 1996 opinion and concluded that Lloyd “would still
be found guilty with a valid theory of first degree murder” under
section 189, subdivision (e)(3), that is, he was a major participant
in the underlying felony and acted with reckless indifference to
human life.
Lloyd appealed the order denying his petition. We affirmed
the order, rejecting his argument that the trial court erred by
5
summarily dismissing his petition based on the jury’s special
circumstance finding, without appointing counsel for him.
(People v. Lloyd, supra, B299456.)
Thereafter, our California Supreme Court issued Strong,
supra, 13 Cal.5th 698 and Lewis, supra, 11 Cal.5th 952, both of
which clarified the scope of section 1172.6. As we now explain
and as the People concede, those cases require reversal of the
order denying Lloyd’s petition.
DISCUSSION
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843.) As relevant
here, Senate Bill 1437 amended the felony-murder rule by adding
section 189, subdivision (e), which provides that a participant in
the perpetration of qualifying felonies is liable for felony murder
only if the person: (1) was the actual killer; (2) was not the actual
killer but, with the intent to kill, acted as a direct aider and
abettor; or (3) the person was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d). (Gentile, at
p. 842.)
Senate Bill 1437 also added section 1172.6, which created a
procedure whereby persons convicted of murder under a now-
invalid felony-murder theory may petition for vacation of their
convictions and resentencing. A defendant is eligible for relief
under section 1172.6 if the defendant meets three conditions:
(1) the defendant must have been charged with murder under a
6
theory of felony murder, (2) must have been convicted of first or
second degree murder, and (3) could no longer be convicted of
first or second degree murder due to changes to sections 188 and
189 effectuated by Senate Bill 1437. (§ 1172.6, subd. (a).) If a
petitioner makes a prima facie showing of entitlement to relief,
the trial court shall issue an order to show cause (§ 1172.6,
subd. (c)) and hold an evidentiary hearing at which the
prosecution bears the burden of proving “beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder” under the law as amended by Senate Bill 1437 (§ 1172.6,
subd. (d)(3)).
Lloyd had challenged the trial court’s order denying his
petition on three grounds. First, the trial court erred by denying
his petition without appointing counsel. Second, by examining
the record of conviction prior to the appointment of counsel, the
trial court engaged in an improper ex parte “investigation.” And
third, the trial court erred by finding him ineligible based
exclusively on the jury’s special circumstance findings, which
predated our Supreme Court’s decisions in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522(Clark). Banks and Clark “substantially clarified the law”
regarding what it means to be a major participant who acts with
reckless indifference to human life for the purposes of the special
circumstance statute, section 190.2, subdivision (d). (Strong,
supra, 13 Cal.5th at pp. 706, 721.)
As to Lloyd’s first and second contentions, Lewis, supra, 11
Cal.5th at page 957, held that “petitioners are entitled to the
appointment of counsel upon the filing of a facially sufficient
petition . . . and that only after the appointment of counsel and
the opportunity for briefing may the superior court consider the
7
record of conviction to determine whether ‘the petitioner makes a
prima facie showing that he or she is entitled to relief.’ ” It is
undisputed here that Lloyd filed a facially sufficient petition.
Therefore, he was entitled to appointment of counsel.
As to Lloyd’s third contention, Strong, supra, 13 Cal.5th at
pages 719 to 720, held that a pre-Banks and Clark finding that
the defendant was a major participant who acted with reckless
indifference does not preclude the defendant from making a
prima facie case for relief under section 1172.6, even if the trial
evidence was sufficient to support the findings under Banks and
Clark. Applying that holding here, Lloyd’s jury found true two
special circumstances: that the murder was committed while he
was engaged in the crimes of rape and kidnapping. (§ 190.2,
subd. (a)(17).) It was instructed that if Lloyd was not the actual
killer (or if it could not determine whether he was), it could not
find the special circumstances true unless it was satisfied beyond
a reasonable doubt that he, with the intent to kill, directly aided
and abetted the murder; or, with reckless indifference to human
life and as a major participant, aided and abetted the underlying
offenses of rape or kidnapping.
Because that special circumstance finding predated Banks
and Clark, the finding does not preclude Lloyd’s eligibility for
possible resentencing. Therefore, Lloyd is entitled not only to
appointment of counsel but also to an evidentiary hearing under
section 1172.6, subdivision (d)(3).
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DISPOSITION
The order denying Lloyd’s petition is reversed and the
matter is remanded with the direction to the trial court to
appoint counsel for Lloyd, to issue an order to show cause, and to
conduct an evidentiary hearing in accordance with Penal Code
section 1172.6, subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
LAVIN, J.
EGERTON, J.
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