People v. Ephriam CA2/7 ( 2021 )

Filed 2/8/21 P. v. Ephriam CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B301996
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA002348)
v.
KACEY GERARD EPHRIAM,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark E. Windham, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal, Lynne G. McGinnis and Elizabeth M.
Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
_________________
Kacey Gerard Ephriam appeals from a postjudgment order
summarily denying his petition for resentencing under Penal
Code section 1170.951 as to his first degree murder conviction.
Ephriam contends his petition stated the necessary elements for
eligibility for relief and the trial court erred in summarily
denying his petition. Because the record of conviction shows
Ephriam aided and abetted the commission of the murder with
the intent to kill, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Killing
In November 1989 John Long owned an apartment building
where Ephriam’s brother Kerry lived.2 Kerry owed more than
$2,000 in back rent, and Long had threatened him with eviction.
Ephriam told his cousin Michael Valentine that he wanted his
help to kill Long so Kerry could live in the apartment rent free.
Ephriam explained he could not do the job himself because Long
would recognize him. Ephriam gave Valentine a long-barreled
.38-caliber revolver and told him to hold it for him.
Valentine told his friend Glenn Ray Calhoun, whom he had
met in prison, that Valentine was planning a “jack move” (a plan
to commit a robbery) of a man he believed would be carrying
more than $5,000 in cash to an apartment building. Valentine
1 All statutory references are to the Penal Code.
2 The summary of facts is drawn from our prior nonpublished
opinion in People v. Ephriam (June 18, 1997, B093742)
(Ephriam I).
2
told Calhoun to pick him up at his home the next day,
November 8, 1989, at noon.
At 9:00 a.m. on November 8, 1989 Ephriam and Valentine
left Valentine’s apartment in an Oldsmobile that belonged to
Ephriam’s mother. Valentine took the revolver, and Ephriam
said they were going to Kerry’s apartment.
At 1:00 p.m. that day Long told his wife he was leaving to
go to the apartment building to collect rent from Kerry, and he
left his house in his Mercedes-Benz.
Calhoun went to Valentine’s apartment between 1:30 and
2:30 p.m., but neither Valentine nor Ephriam was there, so he
left and returned a little later. On his return, Calhoun saw
Valentine walk out of the alley behind the apartment building,
wearing gloves and carrying a briefcase and watch. The two
entered Valentine’s apartment, and Valentine told his girlfriend
he needed the keys to their car, a Dodge Aries. When she began
arguing, he told her not to argue with him “because he got a man
out here in the trunk of a car.” Calhoun went down to the alley
and saw Ephriam, also wearing gloves, standing by the
Oldsmobile with its engine running. A Mercedes-Benz was
parked on the other side of the alley.
When Valentine came down from the apartment with the
keys to the Dodge Aries, which was also parked in the alley,
Valentine went to the Mercedes-Benz and opened the trunk. He
removed some tools and put them in the trunk of the Dodge
Aries. When Calhoun asked Valentine how they got a man into
the trunk of a car, Valentine responded he “beat the fucking hell
out of him.” Calhoun did not see a body in the trunk of the
Mercedes-Benz; he never looked inside the trunk of the
Oldsmobile.
3
Calhoun, Valentine, and Ephriam returned to the
apartment courtyard, where Ephriam told Valentine, “[L]et’s go
and handle this.” Valentine said to Ephriam, “[Y]ou two movers
already put me up on the move when there was only $21 that was
involved.” Valentine told Ephriam to “take [Long] up in the
mountains and smoke him, pour gas on him and set his ass on
fire.” Valentine gave Ephriam the .38-caliber revolver, and
Ephriam left in the Oldsmobile. Valentine left in the Mercedes-
Benz, and Calhoun followed in his own vehicle. Valentine and
Calhoun spent the next several hours visiting friends. Valentine
gave Calhoun a wallet containing Long’s identification and credit
cards.
Ephriam returned to Valentine’s apartment that afternoon
and again between 6:00 and 7:00 that evening, but Valentine and
Calhoun were not there. On his second visit, Ephriam used the
telephone of Valentine’s sister-in-law Bridgette Sykes, who lived
next door. Sykes overheard Ephriam say to his brother, “[T]hat’s
all right, we going to go on and do it. We fixing to do it.”
Around 6:50 p.m. Clinton Harris was driving and saw a fire
on a blocked-off street west of Los Angeles International Airport.
Harris, who worked as a driver for the Los Angeles Unified
School District, approached the fire and parked behind a car with
a man inside. Another man was walking around the fire. When
Harris realized a man was on fire, he radioed the school police
and used his fire extinguisher to douse the fire. The parked car
in front of Harris’s car drove off.
Police and paramedics arrived on the scene. Through
fingerprint analysis, the body was identified as Long’s. An
autopsy showed Long had been beaten with fists or a blunt
instrument, his hands and feet had been bound, and he had been
4
gagged with duct tape. Long had suffered from asphyxiation, was
shot at close range through the right upper back, and had been
set on fire.
The next day Sykes overheard Ephriam say that he and
Valentine had tied up a landlord, they “kidnapped the man away
from the apartment,” and Ephriam put the man in the trunk of
his mother’s car. Ephriam further boasted that he had shot and
set the man on fire and “Kerry ain’t got to worry about paying no
rent for about another six or seven months.” When later asked
about the Mercedes-Benz, Ephriam responded, “If it ain’t [got] no
fingerprints, how they gonna find out. . . . I had on gloves. . . . I
always wear gloves when I do something.” Sykes later called the
police, and Ephriam and Valentine were arrested.
B. The Jury Instructions, Verdict, and Sentencing
Ephriam was charged with first degree murder (§ 187,
subd. (a); count 1), kidnapping for robbery (§ 209, subd. (b); count
2), second degree robbery (§ 211; count 3), and grand theft of an
automobile (§ 487; count 4.)3 The information also specially
alleged the murder was committed while Ephriam was engaged
in a robbery or kidnapping (§ 190.2, former subd. (a)(17)(i), (ii));
Ephriam was personally armed with a firearm (§ 12022.5, subd.
(a)); and a principal was armed with a firearm (§ 12022, subd.
(a)(1)).
The trial court instructed the jury on three theories:
premeditated murder, felony murder committed in the course of a
robbery, and felony murder committed in the course of a
3 The trial court dismissed the count for grand theft of an
automobile.
5
kidnapping. The court provided the jury with verdict forms for
each of the crimes and special allegations, including as to the
kidnapping-felony-murder special circumstance, whether “in the
murder of John Long the defendant . . . was the actual killer or,
with the intent that John Long be killed, was a co-conspirator
with, or aided and abetted the actual killer, while the said
defendant was engaged in the commission of the crime of
kidnapping in violation of Penal Code Section 207 . . . .”
The court instructed the jury as to the sequence of its
findings that as to the murder count its first task was to decide
on Ephriam’s guilt or innocence; then if guilty, whether the
killing was first or second degree; then if it found the murder was
first degree murder, to make findings on the kidnapping and
robbery special-circumstance allegations. The court instructed
the jury, “So, again, if you follow the instructions in sequence,
you will get instructions that tell you under what circumstances
you stop or under what circumstances you continue on.”
The trial court also provided the jury with an additional
“special findings” verdict “[t]o to be completed ONLY if the
defendant has been found guilty of murder of the first
degree . . . .” This verdict form stated as follows: “We the jury
fixed the murder as of the first degree based on our unanimous
finding: [¶] 1) That the killing was wil[l]ful, deliberate and
premeditated. [yes or no] [¶] 2) That the killing occurred in the
perpetration of a kidnapping . . . . [yes or no] [¶] 3) That the
killing occurred in the perpetration of a robbery . . . . [yes or no].”
The court instructed the jury as to this verdict form, “Now,
with respect to that special findings, in the event you find the
defendant guilty of murder of first degree, it can be found to be
murder of the first degree on one, two, or three different theories.
6
That is, it may be only on the basis of one, it may be only on the
basis of two, or it may be on the basis of all three. [¶] The first
theory being that it was willful, deliberate and premeditated as
covered in the instructions. The second, that it occurred in the
perpetration of a kidnapping as covered in the instructions. And
third that the killing occurred in the perpetration of a robbery as
covered in the instructions.”
The jury found Ephriam guilty of first degree murder and
found true the kidnapping special circumstance allegation. In
making its kidnapping-felony-murder special-circumstance
finding, the jury found true Ephriam “was the actual killer or,
with the intent that John Long be killed, was a co-conspirator
with, or aided and abetted the actual killer.”4 The jury found the
4 When Ephriam committed the murder in 1989, in order to
find the kidnapping-felony-murder special circumstance true, the
jury had to find the defendant had the intent to kill. (§ 190.2,
former subd. (b); People v. Solis (2020) 46 Cal.App.5th 762, 773.)
As the Court of Appeal explained in People v. Solis, in 1990
“Proposition 115 amended section 190.2 to require a sentence of
death or life in prison without the possibility of parole for a
person who is not the actual killer as follows: ‘(c) Every person,
not the actual killer, who, with the intent to kill, aids, abets,
counsels, commands, induces, solicits, requests, or assists any
actor in the commission of murder in the first degree shall suffer
death or confinement in state prison for a term of life without the
possibility of parole, in any case in which one or more of the
special circumstances enumerated in subdivision (a) of this
section has been found to be true under Section 190.4. [¶] (d)
Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a
major participant, aids, abets, counsels, commands, induces,
solicits, requests, or assists in the commission of a felony
7
robbery special-circumstance allegation not true. On the special
findings verdict form the jury answered “yes” that “the killing
was wil[l]ful, deliberate and premeditated,” but it answered “no”
to the questions whether “the killing occurred in the perpetration
of a kidnapping” and “the killing occurred in the perpetration of a
robbery.” The jury also convicted Ephriam of simple kidnapping
and second degree robbery. The jury found as to all counts a
principal was armed with a firearm during the commission of the
crimes, but it found not true that Ephriam personally used a
firearm.
The trial court sentenced Ephriam for special circumstance
murder to a life term without the possibility of parole, plus one
year for the principal armed enhancement. The court imposed
and stayed an aggregate 11-year term on the kidnapping and
robbery counts.
C. Ephriam I
On appeal Ephriam argued the jury’s verdict was
inconsistent because the jury found the kidnapping-felony-
murder special-circumstance finding true but answered “no” on
the special findings verdict form to the question whether the
killing occurred in the perpetration of a kidnapping. We rejected
this contention, explaining, “The jury followed the instructional
enumerated in paragraph (17) of subdivision (a) which felony
results in the death of some person or persons, who is found
guilty of murder in the first degree therefor, shall suffer death or
confinement in state prison for life without the possibility of
parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.’”
(Ibid.)
8
sequence imposed by the court and determined appellant guilty of
first degree murder before it answered special questions as to the
basis for its finding of guilt. It answered the questions in a
manner which was consistent with a determination of first degree
murder. The jury’s true finding on the kidnap-murder special
circumstance was not impaired because the special questions
were not intended nor structured to test the application of the
felony murder doctrine. That determination was made in the
manner provided by law through the submission of special
circumstance findings to the jury as part of the general verdict.
The sentencing consequence imposed by law thus followed upon
the jury’s true finding on the kidnap-murder special circumstance
which was returned on the verdict form.” (Ephriam I, supra,
B093742, fn. omitted.) We also found substantial evidence
supported the special circumstance finding. (Ibid.)
D. Ephriam’s Petition for Resentencing
On January 8, 2019 Ephriam, representing himself, filed a
form petition for resentencing and supporting declaration seeking to
vacate his murder conviction and to be resentenced in accordance
with recent statutory changes relating to accomplice liability for
murder. In his petition, Ephriam declared he “could not now be
convicted of 1st or 2nd degree murder because of changes made to
Penal Code §§ 188 and 189, effective January 1, 2019”; he “was
not the actual killer”; he “did not, with the intent to kill, aid,
abet, counsel, command, induce, solicit, request, or assist the
actual killer in the commission of murder in the first degree”; he
“was not a major participant in the felony or . . . act with
reckless indifference to human life during the course of the crime
or felony” (underscoring and boldface omitted); and “[t]here has
been a prior determination by a court or jury that [he] was not a
9
major participant and/or did not act with reckless indifference to
human life . . . .”
In their response, the People argued Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437) was unconstitutional,
and in any event, Ephriam was ineligible for relief because in
finding the special circumstance allegation true, the jury found
Ephriam was either the actual killer or acted with the intent to
kill. The trial court appointed an attorney for Ephriam, and the
attorney filed a reply arguing Senate Bill 1437 was constitutional
and the People had not met their burden to prove Ephriam was
ineligible for relief because the verdicts and special findings were
inconsistent.
On October 2, 2019 the superior court summarily denied
Ephriam’s petition for resentencing.5 The trial court stated in its
order, “The court has no obligation to hold an evidentiary hearing
where the petitioner’s eligibility or ineligibility for relief is
evident as a matter of law. [Citation.] Petitioner is not eligible
for relief under Penal Code § 1170.95 because the jury found a
specific intent to kill with its ‘True’ verdicts on the special
circumstances allegations. The purported inconsistency of the
verdicts was dispelled by the [o]pinion of the Court of Appeal in
this case, filed June 18, 1997 . . . .”
5 Judge Mark E. Windham ruled on the petition. Judge
Leslie W. Light presided over the trial but retired in 2009.
10
DISCUSSION
A. Senate Bill 1437
On September 30, 2018 Senate Bill 1437 was signed into
law, effective January 1, 2019. Senate Bill 1437 was enacted 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 1437 (2017-2018 Reg.
Sess.) § 1; see People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile); People v. Verdugo (2020) 44 Cal.App.5th 320, 325
(Verdugo), review granted Mar. 18, 2020, S260493.)
To accomplish this purpose, the Legislature added section
188, subdivision (a)(3), and section 189, subdivision (e). (Gentile,
supra, 10 Cal.5th at pp. 842-843.) New section 188, subdivision
(a)(3), effectively “eliminates natural and probable consequences
liability for murder regardless of degree.” (Gentile, at pp. 847-
848.) New section 188, subdivision (a)(3), provides, “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.” New section 189, subdivision (e), in
turn, limits the exception to the malice requirement under the
felony-murder rule to circumstances where the People prove the
defendant “was a major participant in the underlying felony and
11
acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”6
Senate Bill 1437 also provides a procedure in new section
1170.95 for an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder under Senate Bill 1437’s changes to sections 188 and
189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4; see Gentile,
supra, 10 Cal.5th at p. 847.) Section 1170.95, subdivision (b)(1),
provides that the petition “shall be filed with the court that
sentenced the petitioner.” The petition must include a
declaration by the petitioner stating he or she is eligible for relief
under the section, providing the superior court case number and
year of the conviction, and indicating whether he or she requests
the appointment of counsel. (§ 1170.95, subd. (b)(1).)
“If the petition contains all required information, section
1170.95, subdivision (c), prescribes a two-step process for the
court to determine if an order to show cause should issue: ‘The
court shall review the petition and determine if the petitioner has
6 New section 189, subdivision (e), provides, “A participant in
the perpetration or attempted perpetration of a felony listed in
subdivision (a) 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.”
12
made a prima facie showing that the petitioner falls within the
provisions of this section. If 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 . . . . If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.’” (Verdugo, supra, 44 Cal.App.5th
at p. 327, review granted; accord, People v. Perez (2020)
54 Cal.App.5th 896, 903 (Perez), review granted Dec. 9, 2020,
S265254; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165
(Nguyen); People v. Tarkington (2020) 49 Cal.App.5th 892, 900-
901 (Tarkington), review granted Aug. 12, 2020, S263219; but see
People v. Cooper (2020) 54 Cal.App.5th 106, 123, review granted
Nov. 10, 2020, S264684 [once the trial court determines the
petition contains the required information, the court performs a
single prima facie review, and if the defendant makes a prima
facie showing of entitlement to relief, the court issues an order to
show cause].)
“In determining whether the petitioner has made a prima
facie showing that he or she is entitled to relief under section
1170.95, subdivision (c), ‘[t]he trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record “contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.” [Citation.]
However, this authority to make determinations without
13
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 . . . .’” (Perez, supra, 54 Cal.App.5th at pp. 903-904,
review granted, quoting People v. Drayton (2020) 47 Cal.App.5th
965, 980; accord, Nguyen, supra, 53 Cal.App.5th at p. 1166.)
After issuing an order to show cause, the trial court must
hold a hearing “to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) If
a hearing is held, “[t]he 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); see
Tarkington, supra, 49 Cal.App.5th at pp. 898-899, review
granted; People v. Lewis (2020) 43 Cal.App.5th 1128, review
granted Mar. 18, 2020, S260598.)7 The prosecution has the
burden of proving beyond a reasonable doubt the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
7 The Supreme Court in People v. Lewis limited briefing and
argument to the following issues: “(1) May superior courts
consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)[?]” (Supreme Ct. Minutes, Mar. 18, 2020, p. 364;
People v. Lewis, supra, 43 Cal.App.5th 1128, review granted.)
14
B. Ephriam Is Ineligible for Relief as a Matter of Law
Ephriam contends the trial court erred in relying on the
kidnapping-felony-murder special-circumstance finding to
summarily deny his petition for resentencing because it was
inconsistent with the jury’s special finding “specifically reject[ing]
the allegation of special circumstances.” According to Ephriam,
the alleged inconsistency in the jury’s verdict shows the jury
found “the intent to kill was formed early on, then dissipated by
the time the victim was accosted by the perpetrators; then re-
formed contemporaneous with or after the killing.” Ephriam
contends the trial court should have therefore set an order to
show cause “at which the prosecution would have been required
to prove beyond a reasonable doubt, [Ephriam’s] ineligibility for
relief . . . i.e. that he was not found guilty on a ‘natural, direct
and probable consequences’ theory.”
Contrary to Ephriam’s contention, the jury verdicts were
not inconsistent in light of the order in which the jury was
instructed to approach the guilty verdict, special circumstance
findings, and special findings. As discussed, the jury was
instructed first to decide whether Ephriam was guilty of murder,
and if so, to determine whether it was first degree murder; then if
it found the murder was first degree, to make a finding whether
the robbery and kidnapping special circumstance allegations
were true. Consistent with these instructions, the jury found
Ephriam guilty of first degree murder, and it found the
kidnapping-felony-murder special-circumstance allegation true,
finding Ephriam “was the actual killer or, with the intent that
John Long be killed” was a coconspirator or aider and abettor.
The jury was instructed further that if it found Ephriam guilty of
first degree murder, it had to return a special finding whether it
15
based its first degree finding on premeditation, felony
kidnapping, or felony robbery. The jury responded in the special
findings verdict form that it based its first degree murder finding
on a unanimous finding “[t]hat the killing was wil[l]ful,
deliberate and premeditated.” The fact the jury explained it
based its first degree murder finding on the premeditation theory
did not mean the jury could not have based its finding on an
alternative theory—felony murder—but it did not. As we
concluded in Ephriam I in rejecting Ephriam’s argument the
verdict forms were inconsistent, “We do not find in the jury’s
response to the special questions that it intended to undo its
kidnap-murder special circumstance finding nor that it viewed its
special finding as inconsistent with its kidnap-murder special
circumstance finding. The jury, as permitted by the instructions,
simply discontinued further deliberations when it answered
affirmatively on one of the available bases for a first degree
murder determination.” (Ephriam I, supra, B093742.) Further,
“[t]he jury’s true finding on the kidnap-murder special
circumstance was not impaired because the special questions
were not intended nor structured to test the application of the
felony murder doctrine.” (Ibid.)
As we explained in Verdugo, supra, 44 Cal.App.5th at page
333, review granted, “[a] court of appeal opinion, whether or not
published, is part of the appellant’s record of conviction.
[Citations.] Accordingly, it was proper for the superior court to
consider this court’s opinion . . . in determining whether
[defendant] had made a prima facie showing of eligibility for
relief under section 1170.95 or whether he was ineligible for relief
as a matter of law.” (See Morohoshi v. Pacific Home (2004)
34 Cal.4th 482, 491 [“‘The decision of an appellate court, stating a
16
rule of law necessary to the decision of the case, conclusively
establishes that rule and makes it determinative of the rights of
the same parties in any subsequent retrial or appeal in the same
case.’”].)8
Further, the Supreme Court observed in People v. Anderson
(1987) 43 Cal.3d 1104, 1142, superseded by statute as stated in
People v. Mil (2012) 53 Cal.4th 400, 408-409, that the 1978
version of section 190.2, former subdivision (b) (in effect in 1989),
provided “a special rule for a certain class of first degree
murderers: if the defendant is guilty as an aider and abet[o]r, he
must be proved to have acted with intent to kill before any
special circumstance (with the exception of a prior murder
conviction) can be found true.”9 Consistent with this section, in
8 Ephriam’s reliance on People v. Martinez (2019)
31 Cal.App.5th 719 is misplaced. The Martinez court did not
address the conclusive effect of a Court of Appeal opinion,
deciding only that a defendant may only obtain the ameliorative
benefits of Senate Bill 1437 by filing a section 1170.95 petition in
the trial court seeking retroactive relief. (Martinez, at p. 722.)
9 Section 190.2, former subdivision (b), as codified in 1989,
provided, “Every person whether or not the actual killer found
guilty of intentionally aiding, abetting, counseling, commanding,
inducing, soliciting, requesting, or assisting any actor in the
commission of murder in the first degree shall suffer death or
confinement in state prison for a term of life without the
possibility of parole, in any case in which one or more of the
special circumstances enumerated in paragraph[] . . . (17) . . . of
subdivision (a) of this section has been charged and specially
found under Section 190.4 to be true.” Section 190.2, former
subdivision (a)(17)(ii), provided as to the kidnapping-felony-
murder special circumstance, “The murder was committed while
17
finding the kidnapping-felony-murder special-circumstance
allegation true, the jury specifically found Ephriam was the
actual killer or acted with the intent Long be killed. The superior
court therefore properly found the jury’s finding Ephriam had the
intent to kill Long precludes relief as a matter of law. (Verdugo,
supra, 44 Cal.App.5th at p. 325, review granted.)
DISPOSITION
The order denying Ephriam’s petition for resentencing
under section 1170.95 is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J
the defendant was engaged in or was an accomplice in the
commission of, attempted commission of, or the immediate flight
after committing or attempting to commit the following felonies:
[¶] . . . [¶] (ii) Kidnapping in violation of Sections 207 and 209.”
18