People v. Chase CA2/4 ( 2020 )

Filed 12/17/20 P. v. Chase 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B303172
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.MA064957)
v.
ERIN HOSEJOSHUA CHASE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Charles A. Chung, Judge. Reversed and
remanded.
Victoria H. Stafford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2017, appellant Erin Hosejoshua Chase pled no contest
to first degree murder, a crime that was part of an attempted
robbery. He was sentenced to 25 years to life. After the
enactment of Penal Code section 1170.95,1 appellant filed a
petition for resentencing under that statute. Appellant and the
Los Angeles County District Attorney (the People) submitted
briefing, and the trial court denied appellant’s petition. The
court found that based on the facts of the crime as stated in the
People’s opposition, appellant was a major participant in the
underlying felony and acted with reckless indifference to human
life, and was therefore ineligible for resentencing.
On appeal, appellant asserts that the trial court erred in
relying on the facts in the People’s opposition, which were not
supported by the case record or other evidence. Appellant
contends the trial court should have issued an order to show
cause and ordered an evidentiary hearing. The Attorney General
concedes that a hearing was warranted under the circumstances.
We agree, reverse the trial court’s ruling, and remand for further
proceedings consistent with section 1170.95.
FACTUAL AND PROCEDURAL BACKGROUND
According to the People’s opposition to appellant’s section
1170.95 motion, the underling crime occurred on June 28, 2014
when appellant, Jason West, and Reginald Young went to victim
Marc Spinner’s home with the intent to rob Spinner of drugs and
money. West entered the home, purchased marijuana and Xanax
from Spinner, and went back outside to where appellant and
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
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Young were waiting. Appellant and Young then entered
Spinner’s home under the guise of purchasing marijuana.
Spinner became suspicious that the men were planning to rob
him, and a struggle ensued. Young held Spinner at gunpoint
while appellant used duct tape to bind Spinner’s wrists and
ankles. Appellant then picked up Spinner’s safe and began to
leave the home; Young followed. Spinner partially broke free of
the duct tape and chased appellant and Young toward the door.
Appellant dropped the safe, and he and Young exited the home.
Spinner closed the door behind them and blocked it with his
body. Young then fired five rounds through the door, killing
Spinner. Appellant, Young, and West left the area together.
In July 2015, the People filed an information charging
appellant, Young, and West with murder (§ 187, subd. (a), count
1), attempted robbery (§§ 211, 664, count 2), and first degree
burglary (§ 459, count 3). The information alleged that as to all
three counts, the codefendants committed murder while engaged
in the commission of an attempted robbery (§ 190.2, subd. (a)(17))
and a principal was armed with a firearm (§ 12022, subd. (a)(1).)2
In June 2017, appellant pled no contest to first degree murder,
and in October 2017 the court sentenced him to 25 years to life.
The remaining charges and allegations were dismissed pursuant
to the plea negotiation.
Effective January 1, 2019, the Legislature amended “‘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
2The information included additional firearm allegations
against Young.
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with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.’” (People v. Lamoureux (2019) 42 Cal. App. 5th 241, 247.) The
Legislature enacted section 1170.95, which allows a “person
convicted of felony murder or murder under a natural and
probable consequences theory [to] file a petition . . . to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts” under certain conditions. (§ 1170.95,
subd. (a).)
On April 11, 2019, appellant filed a petition for
resentencing under section 1170.95. He checked the box on the
form stating that he pled no contest to first degree murder in lieu
of going to trial because he believed he could have been convicted
of murder pursuant to the felony-murder rule. He also checked
the boxes stating that he was not the actual killer, he did not aid
or abet the actual killer, he was not a major participant in the
felony, and he did not act with reckless indifference to human
life. Appellant included a declaration stating that he left the
scene before shots were fired, and there was no evidence showing
that killing the victim was part of the codefendants’ plan. The
court appointed counsel for appellant and set a hearing on the
petition.
The People filed a written opposition to appellant’s petition.
The opposition included a statement of facts about the underlying
crime with a footnote stating, “Because [appellant] entered a plea
before trial, these facts are taken from the police reports.” The
People did not include police reports or any other evidence with
the opposition. The People asserted that appellant was not
eligible for resentencing “because he was a major participant in a
felony murder, and acted with reckless disregard for human life.”
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The People further argued that appellant’s direct role in planning
the robbery, physically fighting with the victim, and binding the
victim while Young held him at gunpoint showed that appellant
was a major participant in the crime. In addition, the People
asserted that appellant acted with reckless indifference to human
life by participating in the armed robbery.
Appellant filed a reply, asserting that the People “failed to
produce an adequate and admissible record of conviction to meet
their statutory burden to prove [appellant] ineligible for relief.”
He argued that the People’s opposition referred only to police
reports that were not submitted to the court as evidence and
consisted of inadmissible hearsay statements. Appellant also
argued that he made a prima facie case for relief, triggering the
court’s duty to issue an order to show cause and hold a hearing.
On November 19, 2019, the court issued a written ruling
denying appellant’s motion. The court stated, “The Court denies
the Petition for Resentencing for failure to state a prima facie
case for relief. [¶] Knowing that a compatriot was armed with a
firearm, [appellant] entered the victim’s home, which had been
surveilled by another compatriot. [Appellant] entered under a
ruse and helped physically subdue a victim. Knowing the victim
was being held at gunpoint, [appellant] bound the victim with
duct tape. [Appellant] then left with the victim’s safe. When the
victim chased the suspects, he was shot and killed. [¶] Based
upon the above facts, the court finds that [appellant] was a major
participant in a felony murder and acted with reckless disregard
for human life.”
Appellant timely appealed.
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DISCUSSION
Appellant contends the trial court erred in denying his
petition without issuing an order to show cause or holding an
evidentiary hearing. The Attorney General concedes the issue,
stating that a hearing was warranted because appellant made a
sufficient prima facie showing and the record did not make clear
that appellant was ineligible for relief. We agree a hearing was
required.
The superior court considers a section 1170.95 petition
according to a three-step process. First, the court “review[s] the
petition and determine[s] if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section.” (§ 1170.95, subd. (c).) When a petition survives this
initial threshold, “[i]f the petitioner has requested counsel, the
court shall appoint counsel to represent the petitioner. The
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply.” (§ 1170.95, subd. (c).)
If, after briefing, the “petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue
an order to show cause.” (§ 1170.95, subd. (c).) The court then
must hold a hearing within 60 days to determine whether to
vacate the murder conviction. (§ 1170.95, subd. (d)(1).) “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.” (§ 1170.95, subd. (d)(3).)
Appellant argues, and the Attorney General agrees, that
the trial court erred by engaging in factfinding based on the
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People’s representation of the facts of the underlying crime,
which was unsupported by the record of conviction or other
evidence. Relying solely on the People’s opposition, the court
determined that appellant acted with reckless indifference to
human life. This was error. The court’s “authority to make
determinations without conducting an evidentiary hearing
pursuant to section 1170.95, subd. (d) 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).” (People v. Drayton (2020) 47
Cal. App. 5th 965, 980.)
Because the record before the court did not make clear that
appellant was ineligible for resentencing, the court was required
to issue an order to show cause and hold an evidentiary hearing.
We therefore reverse and remand for further proceedings
pursuant to section 1170.95.
DISPOSITION
The order denying appellant’s section 1170.95 petition is
reversed. The matter is remanded to the superior court with
directions to issue an order to show cause and hold an
evidentiary hearing pursuant to section 1170.95, subdivisions (c)
and (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J. CURREY, J.
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