People v. Hendrix CA2/2 ( 2020 )

Filed 9/30/20 P. v. Hendrix 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B302997
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA004901)
v.
ALTRIKEE EUGENE HENDRIX,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Allen J. Webster, Jr., Judge. Reversed and
remanded with directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Zee Rodriguez and
Paul S. Thies, Deputy Attorneys General, for Plaintiff and
Respondent.
Altrikee Eugene Hendrix (defendant) appeals from the
denial of his petition to vacate his 1991 murder conviction and for
resentencing, filed pursuant to Penal Code section 1170.95.1 He
contends that the trial court erred in finding that he failed to
present a prima facie case for entitlement to relief under the
statute without first appointing counsel. Respondent agrees that
defendant’s petition satisfied the initial prima facie showing of
eligibility for relief, and that the court erred in failing to appoint
counsel and allow briefing. We find that the procedural
requirements of the statute were not met. We thus reverse the
trial court’s order and remand with directions.
BACKGROUND
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.
1 All further statutory references are to the Penal Code,
unless otherwise indicated. All references to a statutory
subdivision without mention of the code section are to section
1170.95.
2
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 in order 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.
“(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 the changes in sections 188 or 189 would
affect their previously affirmed convictions. (People v. Martinez
(2019) 31 Cal. App. 5th 719, 722.)
Procedural requirements of section 1170.95
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.
3
“(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 for relief under this section, the
superior court case number and year of conviction, and any
requests for the 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).)
If the court’s initial review reveals a prima facie showing
that petitioner falls within the provisions of this section and the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. (§ 1170.95, subd. (c).)2 “The
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply . . . . If the petitioner makes a prima
2 “[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. Railroad v. Mansfield (1890) 84 Cal.
560, 566.)
4
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.” (Ibid.) The trial court must then
hold a hearing 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
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 and prosecutor’s response
In 1991, defendant was convicted after a jury trial of first
degree murder, first degree robbery with the use of a firearm, and
two counts of second degree robbery. His conviction was affirmed
on appeal in People v. Hendrix (Sept. 24, 1992, B062672) [nonpub
opn.] In January 2019, defendant filed a petition for
resentencing under section 1170.95, and requested appointment
of counsel.
The petition alleged in relevant part that defendant had
been convicted of first degree felony murder, and could not now
be convicted under the amendments to sections 188 and 189,
effective January 1, 2019, because he was not the actual killer
and did not, with intent to kill, aid, abet, counsel, command,
induce, solicit, request, or assist the actual killing in the
commission of the murder. The petition also alleged that he was
not a major participant in the felony or did not act with reckless
indifference to human life during the course of the crime, and
that the victim was not a peace officer.
Prior to making a determination whether the petition
stated a prima facie showing that defendant came within the
terms of the statute, the trial court permitted the prosecutor to
file a “return” or “informal response,” and scheduled a hearing
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without appointing counsel for defendant. The prosecutor filed a
memorandum of points and authorities in opposition to the
petition and appended a copy of the transcript of the
prosecution’s case-in-chief in defendant’s murder trial, as well as
the jury instructions given. Included in the prosecutor’s exhibits
was the appellate decision in People v. Hendrix, supra, B062672,
which contained the following: “On January 21, 1990, appellant
was among a group of three men who robbed Margie Owens at
gunpoint. Later that evening, appellant and two accomplices
robbed Sylvia Bentley at gunpoint in her home. On January 22,
1990, at approximately 2:30 a.m., appellant and one accomplice
attempted to rob James Daly [sic] and shot him to death when he
resisted. The two robbers fled, one taking Daly’s car.” A hearing
on the petition at which only the prosecutor appeared was held.
The partial trial transcript appended to the prosecutor’s
opposition showed that sometime before 9:30 p.m. on January 21,
1990, defendant and another man robbed Margie Owens (Owens)
and two other women at gunpoint as they sat in a car, and then
ran across the street to a gas station. Owens identified defendant
as the one who held the gun after the other man passed it to him.
Sometime after 10:00 p.m. the same night, defendant and two
other men participated in an armed robbery at the home of Sylvia
Bentley (Bentley), who was the girlfriend of defendant’s drug
dealer, James “Speedy” Dailey (Dailey). Dailey conducted his
narcotic sales from a telephone booth at the same gas station to
which defendant and another man ran after robbing Owens.
An hour or two after the robbery at Bentley’s home,
defendant and two other men went back to the gas station,
lingering there and in the motel parking lot next to the station.
Dailey’s white car turned into the gas station, and Dailey got out
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to use the telephone, leaving the door open. Then two of the men
approached, and one of them struggled with Dailey for the keys
and then got into the car and drove. When Daily ran into the
street toward the car, one of the men shot him. Two men then
ran toward Dailey’s moving car. One was able to get in but the
other was not, and the car left the scene. One witness testified
that she was about 40 feet away when one of the men ran past
her after the shooting. She identified defendant as that person.
Another witness testified at trial that she did not get a good look
at the men, but at preliminary hearing, she testified that she did
get a good look and defendant was not one of them. A third
witness identified a photograph of defendant as resembling one of
the three men he saw in the area before the shooting.
In a police interview two months after the murder,
defendant admitted the robberies of Owens and Bentley, but
denied the murder. Defendant said that he knew that Bentley
was Dailey’s girlfriend and thought that Dailey would probably
come after him to kill him for robbing her.
The trial court’s order
The trial court denied the petition on October 23, 2019. In
that order the court found that defendant was a direct aider and
abettor of the actual killer and acted with reckless indifference to
human life. The court concluded that defendant could not make a
prima facie showing that he is eligible for resentencing under
section 1170.95.3 Defendant filed a timely notice of appeal from
the court’s order.
3 Our review of the jury instructions attached to the
prosecutor’s opposition shows that in addition to a direct aiding
and abetting instruction, the jury was presented with
instructions regarding felony murder based upon a killing during
7
DISCUSSION
Upon receipt of a section 1170.95 petition, a trial court is
required to determine whether it contains all required allegations
and necessary factual information, or whether any missing
information is readily ascertainable. (See § 1170.95, subd. (b)(2).)
If the information available for review by the court does not
refute the facially sufficient allegations as a matter of law, the
court is required to determine whether defendant has made a
prima facie showing of eligibility under the statute, pursuant to
the procedures set forth in subdivision (c). (See People v. Drayton
(2020) 47 Cal. App. 5th 965, 968 (Drayton); People v. Verdugo
(2020) 44 Cal. App. 5th 320, 327-328, review granted Mar. 18,
2020, S260493 (Verdugo).) Facially sufficient allegations may be
refuted as a matter of law where, for example, the record of
conviction shows that defendant was not actually convicted of
murder (Verdugo, at p. 330), or where the jury found that the
defendant personally and intentionally used a firearm to commit
murder, indicating that he was the actual killer. (People v.
Cornelius (2020) 44 Cal. App. 5th 54, 56-58, review granted Mar.
18, 2020, S260410.)
In determining eligibility, a trial court may review, if
necessary, any readily ascertainable information such as the
record of conviction, which may include the appellate record and
any appellate decisions. (People v. Lewis (2020) 43 Cal. App. 5th
1128, 1137-1138, review granted Mar. 18, 2020, S260598;
Verdugo, supra, 44 Cal.App.5th at pp. 329-331.) “The court’s role
at this stage is simply to decide whether the petitioner is
a robbery or attempted robbery, and second degree murder under
the natural and probable consequences doctrine.
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ineligible for relief as a matter of law, making all factual
inferences in favor of the petitioner. [Citation.]” (Verdugo, at p.
329.) “If the trial court determines a petitioner has made a prima
facie showing of eligibility for relief, the court proceeds to the
‘second’ inquiry into the prima facie showing under section
1170.95(c). [Citation.] In this second step, the trial considers
whether the petitioner has made a prima facie showing of
entitlement to (rather than eligibility for) relief.” (Drayton, supra,
47 Cal.App.5th at p. 976, citing Verdugo, supra, 44 Cal.App.5th
at p. 330.)
Here, when the trial court received defendant’s petition, it
allowed the prosecutor to file a “return” or “informal response,”
possibly following habeas corpus procedure. (See generally,
People v. Romero (1994) 8 Cal. 4th 728, 737.) However, at the
initial stage of determining eligibility, “habeas corpus procedures
are inapposite because of the ‘“heavy burden”’ on habeas
petitioners to show entitlement to relief and because habeas
petitioners retain the burden of persuasion.” (Drayton, supra, 47
Cal.App.5th at p. 979.) There are “significant differences
between section 1170.95 and habeas corpus procedures. . . . [A]
petitioner seeking habeas corpus relief bears both a burden of
pleading and proof. . . . [¶] By contrast, the petitioner
under section 1170.95 bears only the burden of making the initial
prima facie showings set out in section 1170.95(c). Once the trial
court issues the order to show cause, the burden of proof shifts to
the prosecution.” (Id. at pp. 979-980.) “[B]ecause the petitioner
does not bear the ultimate burden of proof under section 1170.95,
‘the superior court’s issuance of an order to show cause
[under section 1170.95(c)] is only an assessment that petitioner
9
has met a pleading burden, not a production burden.’” (Id. at p.
980.)
Section 1170.95 does not call for a response from the
prosecutor until the first prima facie showing under subdivision
(c) is satisfied, and then the prosecutor may file a response,
counsel, if requested, is appointed, and the petitioner may file a
reply. (§ 1170.95, subd. (c).) Although these procedures were not
followed in this case, the partial reporter’s transcript of the trial,
the jury instructions, and the appellate decision provided in the
prosecutor’s response were documents that the trial court could
properly review from its own file.4 (See People v. Lewis, supra, 43
Cal.App.5th at pp. 1137-1138; Verdugo, supra, 44 Cal.App.5th at
pp. 329-331.) Our review of the partial transcript, the jury
instructions and the appellate decision reveals that the only
allegation in defendant’s petition that was refuted as a matter of
law was the alternative allegation that defendant was convicted
of second degree murder. Otherwise, the documents did not
reveal facts that would refute, as a matter of law, the allegations
that defendant was convicted of first degree murder under the
felony murder rule, was not the actual killer, and did not act with
reckless indifference to human life. We thus conclude that the
initial prima facie showing of section 1170.95, subdivision (c) was
satisfied.
4 The prosecution also included documents and argument to
support its assertion that S.B. 1437 was unconstitutional. The
trial court did not rule on the contention and respondent does not
renew the claim here. We observe that several appellate courts
have rejected such a contention. (See, e.g., People v. Smith (2020)
49 Cal. App. 5th 85, 91, and the cases cited therein.)
10
Whether defendant harbored an intent to kill is a question
of fact. (See People v. Hayes (1985) 38 Cal. 3d 780, 788.) Whether
a defendant was a major participant and acted with a reckless
disregard for human life are also questions of fact. (See People v.
Banks (2015) 61 Cal. 4th 788, 803-812.) The trial court made
factual findings and drew inferences against defendant’s position
in concluding that “petitioner was a major participant who acted
with reckless indifference to human life. Petitioner was at the
scene of the murder when an accomplice shot the victim in the
head four times killing him.[5] After the shooting, petitioner was
observed by two percipient witnesses fleeing the scene of the
crime. Petitioner by his presence and behavior obviously aided
and abetted, assisted, facilitated, and encouraged the actual
killer in the commission of the murder.”
As it appears that the trial court made factual findings and
drew inferences to reach its conclusions, the trial court found
defendant ineligible, not as a matter law, but by resolving factual
issues contained in the record. As defendant made a prima facie
showing of eligibility, it was premature for the court to resolve
the issue of entitlement to relief without first appointing counsel,
allowing defendant to make a showing of entitlement to relief,
and issuing an order to show cause. (See § 1170.95, subd. (c).) It
was also premature to consider the prosecutor’s opposition at the
eligibility stage.
5 The medical examiner testified that Dailey died from a
single gunshot wound after the bullet entered his left shoulder
and lodged in his neck.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed. The matter is remanded with directions to appoint
counsel for defendant, allow defendant to file a reply to the
opposition, to consider the issuance of an order to show cause,
and to then proceed in accordance with the statutory
requirements.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
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