People v. Wright CA2/2 ( 2020 )

Filed 9/30/20 P. v. Wright CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B299933
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A383951)
v.
EDWARD JUDSON WRIGHT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Laura F. Priver, Judge. Reversed and
remanded with directions.
Corona & Peabody and Jennifer Peabody, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Idan Ivri and
Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Edward Judson Wright
(defendant) appeals from the summary denial of his petition to
vacate his 1983 murder conviction and to resentence him, filed
pursuant to Penal Code section 1170.95.1 He contends that that
he made a prima facie showing of entitlement to relief, which
triggered the trial court’s obligation to appoint counsel, permit
briefing, and then to issue an order to show cause. Respondent
agrees that defendant made a prima facie showing of eligibility
for relief, and that the matter should be remanded for
appointment of counsel and briefing, but contends that the court
should then determine whether defendant has made a prima
facie showing of entitlement to relief, and if so, issue an order to
show cause. We are persuaded by respondent, and reverse and
remand with directions.
BACKGROUND
In 1983, defendant was charged with the 1982 murder of
Donald Houts, while engaged in the commission or attempted
commission of robbery, in violation of section 211 and within the
meaning of section 190.2, subdivision (a)(17). The allegations
against defendant under section 190.2 were dismissed after the
preliminary hearing, pursuant to section 995.2 Also, defendant
1 All further statutory references are to the Penal Code,
unless otherwise indicated. All references to subdivisions
without reference to a code section are to subdivisions of section
1170.95.
2 As relevant here, section 190.2, subdivision (d) defines a
special circumstance calling for death or imprisonment for life
without the possibility of parole for aiders and abettors who were
not actual killers but who acted with reckless indifference to
2
and Curtis Duane Wright (Curtis) were charged with the robbery
of Houts, and the burglary of Houts’s residence. As to all three
counts it was alleged that a principal, Curtis, was armed with a
firearm within the meaning of section 12022, subdivision (a) and
that Curtis personally used a firearm within the meaning of
section 12022.5.3
After defendant’s trial was severed from Curtis’s trial,
defendant waived his right to a jury and agreed to a court trial, in
which defendant was found guilty of murder in the first degree,
and true, the allegation that a principal used a firearm.
Defendant was also found guilty of the robbery and burglary
relating to Houts, as well as the two unrelated robberies.
Defendant’s sentence for the murder was 25 years to life in
prison, plus a total of seven years for the unrelated crimes. The
trial court stayed the sentences for the Houts robbery and
burglary pursuant to section 654. The judgment was affirmed by
the Court of Appeal and by the California Supreme Court in
People v. Wright (1987) 43 Cal. 3d 487 (Wright). The Supreme
Court’s decision summarized the trial evidence at pages 497 and
498 as follows:
“The preliminary hearing evidence on which the case was
submitted was that defendant had proposed the burglary of the
residence of one Mr. Houts, defendant’s former employer, to his
human life and as a major participant in enumerated crimes,
including robbery.
3 Defendant was also charged with two unrelated robberies
and an allegation that defendant had served prior prison terms
and had one prior serious felony.
3
brother Curtis. While defendant waited in the car, Curtis found
Mr. Houts, struck him with a sawed-off shotgun, forced him to
sign two blank checks, tied him up, and shot him in the back.
When Curtis came out and asked defendant what to do next,
defendant threw up his hands and walked away, saying, ‘Hey you
did it. You’re going to have to deal with it.’ Curtis killed Mr.
Houts with another shot, and both men cleaned the home and
buried the body, then drove off in the victim’s car. The
magistrate suppressed defendant’s first confession to these
crimes, but admitted a second one. There was also evidence that
Curtis had robbed two convenience stores, using a sawed-off
shotgun. Defendant’s second confession included an admission
that he had been the getaway driver in these robberies.
Defendant presented no evidence at the preliminary hearing,
though defense counsel did actively cross-examine the witnesses.
“The trial court also heard four prosecution witnesses and
five defense witnesses, including defendant. Most of the
testimony related to the suppression motions. The court denied
the motions and admitted both confessions into evidence.
Additional evidence presented by the prosecution included
testimony by Percy Owens, defendant’s employer some time
before he worked for Mr. Houts. Owens had fired defendant
because he suspected defendant was involved in the theft of some
of his property. Subsequently, defendant confronted Owens with
a shotgun, struck him, stole a pistol, demanded that Owens sign
some checks, and drove off in Owens’s car.
“Defendant’s family testified that Curtis was violent and
defendant was not and that Curtis was the leader and defendant
the follower. Defendant testified consistently with his confession
that he planned to burglarize the Houts residence only if no one
4
was home. Curtis was selected to approach the house because he
was unknown to Houts. If Houts was not home, Curtis was to
signal defendant to come to the house. If Houts was home, Curtis
was only to ask if there was any work for him on the ranch.
Defendant testified that he neither planned nor intended for
Curtis to rob Houts or force him to sign checks. Although he was
aware Curtis had a shotgun with him, defendant did not discuss
this with Curtis.”
Senate Bill No. 1437
In 2018, the Legislature passed Senate Bill No. 1437 (S.B.
1437) in order to “revise the felony murder rule to prohibit a
participant in the commission or attempted commission of a
felony that has been determined as inherently dangerous to
human life to be imputed to have acted with implied malice,
unless he or she personally committed the homicidal act.”
(Senate Rules Com., Off. Of Sen. Floor Analysis, Rep. on Sen. Bill
No. 1437 (2017-2018 Reg. Sess.) as amended Aug. 20, 2018, p. 6.)
S.B. 1437 amended sections 188 and 189, effective January 1,
2019. (Stats. 2018, ch. 1015, § 2, eff. Jan. 1, 2019.) As amended,
section 188 limits a finding of malice as follows: “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).) Subdivision (e) of
section 189 now requires that for a participant in the
perpetration of a felony listed in section 189, subdivision (a) in
which a death occurs, to be liable for murder, at least one of the
following must be proven:
“(1) The person was the actual killer.
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“(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.”
Section 1170.95 was added by S.B. 1437 to provide a
procedure by which those convicted of murder can seek
retroactive relief if affected by the changes in sections 188 or 189.
(People v. Martinez (2019) 31 Cal. App. 5th 719, 722.) A petition
under section 1170.95, subdivision (a), must include the
following:
“(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder
under the natural and probable consequences
doctrine.
“(2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a
plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree
murder.
“(3) The petitioner could not be convicted of first or
second degree murder because of changes to Section
188 or 189 made effective January 1, 2019.”
In addition, the petition must include the petitioner’s
declaration showing eligibility under all three enumerated
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conditions, as well as the superior court case number, year of
conviction, and any request for appointment of counsel.
(§ 1170.95, subd. (b)(1).) “If any of the information required by
this subdivision is missing from the petition and cannot be
readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (§ 1170.95, subd. (b)(2).) Once the petition
is deemed sufficient, the court then determines whether the
petition has made a prima facie showing that petitioner falls
within the provisions of section 1170.95, and if so and the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. (§ 1170.95, subd. (c).)4 “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.” (Ibid.)
Upon the issuance of an order to show cause, the parties
have an opportunity waive a hearing and stipulate that the
defendant is entitled to have the murder conviction vacated and
to resentencing. (§ 1170.95, subds. (c), (d)(2).) If they do not, a
hearing is held in which the prosecution has the burden to prove
beyond a reasonable doubt that petitioner is ineligible for
resentencing. If the prosecution fails to sustain its burden of
4 “[P]rima facie evidence is that which suffices for the proof
of a particular fact, until contradicted and overcome by other
evidence.” (Vaca V. & C. L. v. Mansfield (1890) 84 Cal. 560, 566;
see also People v. Verdugo (2020) 44 Cal. App. 5th 320, 329, review
granted Mar. 18, 2020, S260493.)
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proof the trial court is required to vacate the prior conviction and
resentence the petitioner on the remaining charges. (§ 1170.95,
subd. (d)(3).)
Defendant’s petition
In May 2019, defendant filed a section 1170.95 petition
alleging that he had been convicted of first or second murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine.5 The petition also alleged that there had
been a prior determination by a court or jury that he was not a
major participant and did not act with reckless indifference to
human life under section 190.2, subdivision (d), and he was thus
entitled to be resentenced pursuant to section 1170.95,
subdivision (d)(2).
On June 12, 2019, the trial court found that defendant was
not entitled to relief as a matter of law, and issued a
memorandum of decision summarily denying the petition, with
the following explanation:
“The petitioner was convicted of murder in the
1st degree, robbery (3 counts) and burglary after a
court trial. Additionally, the court found that the
petitioner was armed pursuant to Penal Code section
5 Felony murder liability is imposed upon a person who,
harboring no intent to kill or even implied malice, aids and abets
an accomplice in the commission of an inherently dangerous
felony, and the accomplice kills in the commission of the intended
crime. (People v. Bryant (2013) 56 Cal. 4th 959, 965; see § 189,
subd. (a) [robbery].) Under the natural and probable
consequences doctrine, a “‘person who knowingly aids and abets
criminal conduct is guilty of not only the intended [target] crime
. . . but also of any other crime the perpetrator actually commits
. . . that is a natural and probable consequence of the intended
crime.’” (People v. Medina (2009) 46 Cal. 4th 913, 920.)
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12022(a) as to each of the counts. There were no jury
instructions given as the petitioner was convicted by
the court according to a minute order entry dated
April 19, 1983.
“After a review of the information filed by the
petitioner and the other documents available to the
court, it is clear the petitioner does not qualify for
relief under this law. Penal Code § 189(e) as recently
amended did not change the law as to any individual
who is a major participant in the incident. This
petitioner could still be held liable for these offenses
even as the law is currently written as he was a
major participant in the crime. The fact that this
was a court trial is also important, as the court would
not be confused by the law or swayed by emotion.”
Defendant filed a timely notice of appeal from the
trial court’s order.
This court granted defendant’s motion to order the trial
court to prepare a settled statement stating what documents the
court reviewed in making its determination that defendant was
ineligible for resentencing pursuant to section 1170.95. The trial
court issued a minute order with the following response:
“The materials viewed by the court were all of those
documents previously copied for the appeal. Those
were the only documents. The court file was not
available or obtainable. In addition, the court
inspected the Court of Appeal website case search
information pages pertaining to this case. The
original opinion from the original appeal was not
available from this site due to its age. The court
through staff inquired if a probation report was
available. The court was informed that probation did
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not have any information on the petitioner arising
out of this incident.”
DISCUSSION
Defendant and respondent agree that defendant’s petition
and available records made a prima facie showing that defendant
falls within the provisions of section 1170.95.
We agree. First, when a trial court determines that
information is missing from the petition and not readily
available, the court may dismiss the petition without prejudice
and inform defendant what information is missing. (§ 1170.95,
subd. (b)(2).) However, where information is readily available
from the record of conviction, the court may review it to
determine whether the petition is sufficient to make a prima facie
showing that the petitioner falls within the provisions of section
1170.95. (See People v. Verdugo, supra, 44 Cal.App.5th at pp.
328-330.) As defendant notes, the California Supreme Court’s
opinion affirming defendant’s conviction was published in the
official reports, and was therefore readily available to the trial
court. (See Wright, supra, 43 Cal. 3d 487.) Appellate opinions are
part of the record of conviction. (People v. Cruz (2017) 15
Cal. App. 5th 1105, 1110; see People v. Lewis (2020) 43
Cal. App. 5th 1128, 1138-1139, review granted Mar. 18, 2020,
S260598.)
Here, the trial court reviewed only the April 19, 1983
minute order, and erroneously found that defendant was
personally armed with a firearm.6 The Supreme Court opinion
6 Section 12022, subdivision (a) provides a sentence
enhancement for a person who was armed with firearm in the
commission or attempted commission of a felony, or who
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shows that it was defendant’s brother Curtis, not defendant, who
was armed during the murder, that defendant was not present at
the murder, but in the car, and that the evidence did not
establish that defendant took part in planning the murder,
shared Curtis’s intent to kill, or even knew that Curtis intended
to kill Houts. (Wright, supra, 43 Cal.3d at pp. 497-498.) Along
with these facts from the opinion, the petition makes a prima
facie showing that defendant falls within the provisions of section
1170.95, as the facts indicate the defendant was convicted of
felony murder, that he was not the actual killer, and there was no
evidence that he harbored an intent to kill. (See §§ 189, subd. (e);
1170.95, subds. (a)(1)-(3), (c).)
As defendant requested counsel in his petition, his prima
facie showing of eligibility under the statute required the court to
appoint counsel, required the prosecutor to file and serve a
response to the petition, and permitted defendant to file and
serve a reply; and then after such briefing, the trial court should
have determined whether defendant had made a prima facie
showing of entitlement for relief. (§ 1170.95, subd. (c).) Thus,
section 1170.95 envisions two prima facie showings by the
petitioner: first, a prima facie showing of eligibility under the
statute; and second, a prima facie showing of entitlement to relief
under the statute. (People v. Drayton (2020) 47 Cal. App. 5th 965,
975.)
Here, the trial court omitted both stages required by
section 1170.95, subdivision (c), and resolved the ultimate issue
without input from counsel. We therefore remand the matter for
the trial court to follow the procedures of subdivision (c) after the
committed or attempted to commit the felony with a principal
who was armed with a firearm.
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showing of eligibility. We have determined the eligibility
requirement was satisfied and on remand, after the appointment
of counsel for defendant and briefing from both parties, a
determination of whether defendant has made a prima facie
showing that he is entitled to relief is to be made by the trial
court. If so, the court must issue an order to show cause, followed
by a hearing pursuant to section 1170.95, subdivision (d). In
making its determination whether defendant has made a prima
facie showing of entitlement to relief, the trial court may not
engage in fact finding involving the weighing evidence. (People v.
Drayton, supra, 47 Cal.App.5th at pp. 980-983.)
DISPOSITION
The order of the superior court denying defendant’s section
1170.95 petition is reversed. The matter is remanded with
directions to appoint counsel for defendant, require a response
from the People, permit a reply by defendant, and then the court
is to determine whether defendant has made a showing of
entitlement pursuant to section 1170.95, subdivision (c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
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