People v. Sanders CA2/1 ( 2021 )

Filed 3/12/21 P. v. Sanders CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B302198
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A364296)
v.
CHARLES SANDERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed.
Cynthia Grimm, 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, Charles S. Lee and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Petitioner Charles Sanders participated in a felony murder
in 1979. Sanders’s confederate Jesse James Andrews brutally
killed three people during the course of the robbery Sanders and
Andrews planned. Sanders testified during Andrews’s trial. The
trial court found, after the hearing, that Sanders was not eligible
for resentencing pursuant to Penal Code section 1170.95 (section
1170.95) because he acted as a major participant with reckless
indifference to human life. With defense counsel’s consent, the
trial court relied on our Supreme Court’s description of the crime
based primarily on Sanders’s testimony in his confederate’s trial.
Sanders appeals from the order denying his section 1170.95
petition for resentencing, arguing that the trial court was
required to issue an order to show cause and hold a hearing.
Sanders’s argument is unpersuasive because the court held a
hearing at which the parties disputed whether Sanders was
eligible for resentencing. Although the trial court erred in failing
to issue a formal order to show cause, that error did not prejudice
Sanders. Sanders demonstrates no other error, and we affirm the
trial court’s order denying Sanders’s petition for resentencing.
BACKGROUND
Sanders pleaded guilty to three counts of second degree
murder and admitted a gun-use enhancement in exchange for a
sentence of 17 years to life in prison. (People v. Andrews (1989)
49 Cal.3d 200, 207.) A jury convicted Andrews (Sanders’s
confederate), of three counts of first degree murder, one count of
robbery, one count of rape, and one count of sodomy by a foreign
object. (Id. at p. 206.) The jury also found three special
circumstance allegations: prior murder conviction, multiple
murders, and robbery-murder. (Id. at p 205.) The prior murder
occurred in Alabama in 1967. (Id. at p. 221.)
2
1. People v. Andrews (1989) 49 Cal.3d 200 (Andrews)
With Sanders’s counsel’s consent, the trial court relied on
the factual description of the murders in the Supreme Court’s
opinion in Andrews.
In Andrews, the Supreme Court reviewed Sanders’s
codefendant’s case. The following was included in the high
court’s summary: “On the evening of December 9, 1979, police
were summoned to the Los Angeles apartment of Preston
Wheeler. There they found the bodies of Wheeler, Patrice
Brandon and Ronald Chism. Wheeler had been stabbed in the
chest six times and shot in the neck at close range with either a
.32- or .357-caliber weapon. His face and head were bruised, and
his face had been slashed with a knife. Brandon and Chism had
been strangled with wire coat hangers. Their faces were bruised,
Chism’s extensively. Brandon’s anus was extremely dilated,
bruised, reddened and torn, consistent with the insertion of a
penis shortly before her death. There was also redness around
the opening of her vagina, and vaginal samples revealed the
presence of semen and spermatozoa. All three victims were
bound hand and foot.” (Andrews, supra, 49 Cal.3d at p. 206.)
“Roughly a year later, police arrested Charles Sanders, . . .
[Andrews’s] accomplice, in connection with these crimes. During
his interrogation, Sanders gave both a tape-recorded and a
written statement. He later cooperated with the authorities and
testified against [Andrews] at trial, pursuant to a plea bargain.”
(Andrews, supra, 49 Cal.3d at pp. 206–207.)
Sanders testified as follows: “After devising a plan to rob
Wheeler, a drug dealer, Sanders and [Andrews] went to see their
friend Carol Brooks on the night of December 8, 1979. Brooks
lived in the same apartment building as Wheeler. [Andrews] was
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armed with a .357 magnum. Sanders had a .38- or .32-caliber
automatic furnished by [Andrews]. Following their visit to
Brooks, the two men went to Wheeler’s apartment. In response
to their knocking, Wheeler, who apparently knew [Andrews], let
them in. Also inside the apartment was a woman (Patrice
Brandon).
“After smoking some marijuana with Wheeler, [Andrews]
and Sanders drew their guns. Sanders tied Wheeler and
Brandon with belts and socks, put on a pair of gloves, and began
to search the apartment for drugs and money. Except for some
powder on a saucer which appeared to be cocaine, the search was
unsuccessful. [Andrews] questioned Wheeler, who denied having
any drugs or money. Saying he would make Brandon talk,
[Andrews] dragged her into the kitchen and closed the door.
Sanders remained in the living room with Wheeler.
“Initially, Sanders heard [Andrews] talking to Brandon and
hitting her; later he heard ‘breathing as though they were
making love.’ Shortly thereafter, [Andrews] came out of the
kitchen. Through the partially open kitchen door, Sanders saw
Brandon’s pants around her ankles.
“[Andrews] put his gun in Wheeler’s mouth. He threatened
to kill Wheeler and Brandon unless Wheeler revealed the location
of the drugs. Wheeler said the ‘dope’ was in the attic, and
pointed out a trap door leading up to it. Sanders climbed into the
attic.
“While in the attic, Sanders heard two shots. When he
came down, [Andrews] told him he had shot Wheeler because the
latter had tried to jump out the window. Sanders asked if
Wheeler was dead. [Andrews] responded he was ‘standing right
up’ on Wheeler when he fired the gun. Sanders saw blood on
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Wheeler’s neck and chest. He suggested that they clean the
apartment and leave. When Sanders asked about Brandon,
[Andrews] replied he had killed her before leaving the kitchen.
“During the cleanup of the apartment, [Andrews]
responded to a knock on the door. Sanders heard the visitor
(Ronald Chism) ask if everything was all right and if Wheeler
was there. [Andrews] said Wheeler was home, and invited Chism
inside. [Andrews] then hit Chism on the head, tied him up, and
took him into the bathroom. Sanders saw [Andrews] sitting
astride Chism’s back, joining and separating his clenched fists in
a tugging motion, apparently strangling Chism. Sanders
could not see what [Andrews] had in his hands.
“Thereafter, Sanders saw [Andrews] enter the kitchen and
choke Brandon with a wire clothes hanger. [Andrews] and
Sanders then left the apartment and drove away. [Andrews]
gave Sanders some money, saying it was all he had found.”
(Andrews, supra, 49 Cal.3d at pp. 207–208.)
Prior to trial in written and tape-recorded statements,
Sanders provided substantially similar description of events.
(Andrews, supra, 49 Cal.3d at pp. 209–210.)
The Supreme Court described Carol Brooks’s testimony at
Andrews’s trial as follows: Brooks had known “[Andrews] and
Sanders were at her house between 10 and 11 p.m. [Andrews]
told her they were going to Wheeler’s apartment to get some
money. [¶] A week or so after the murders, Sanders told Brooks
of his involvement in the crimes. Several weeks later, [Andrews]
mentioned to Brooks he . . . [Andrews] shot Wheeler, took $300,
and had sex with Brandon.” (Andrews, supra, 49 Cal.3d at
p. 208.)
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2. Petition for resentencing
Sanders filed a petition for resentencing alleging that he
could not now be convicted of first or second degree murder
because of changes to Penal Code sections 188 and 189 effective
January 1, 2019. Sanders requested that the trial court appoint
counsel for him, and the court did so.
The complaint, information, judgment, and abstract of
judgment in this case are unavailable. The reporter’s transcript
of Sanders’s plea could not be prepared because the reporter
destroyed her notes.
The People opposed Sanders’s petition for resentencing,
relying on the facts as presented in Andrews. Among other
things, the People argued that Sanders could be convicted under
current law because he acted with reckless indifference to human
life.
With the help of counsel, Sanders filed a reply to the
People’s opposition. Sanders did not challenge the People’s
reliance on Andrews. Sanders argued that he did not act with
reckless indifference to human life as follows: “The gut-churning
abominations of Jesse James Andrews are not the proper focus of
this petition, rather, the court must examine [Sanders’s] own
actions. He participated in [a] sophisticated home invasion
robbery, but he did not kill anyone, and he did not rape anyone.
At Mr. Sanders’ 1996 parole hearing, Deputy District
Attorney . . . stated that, ‘If he really, really cared about these
people, he would have shot his crime partner.’ ”
Sanders attached a few pages from his 1996 parole hearing
showing the deputy district attorney argued the following: “This
crime calls out for the death penalty . . . . He may not have pulled
the trigger that killed [Wheeler], but he certainly tied [Wheeler]
6
up and tied [Brandon] up. He may not have raped [Brandon] or
sodomized her, but he certainly was there and had a gun. He
knew what was going on. He still didn’t leave the house. There’s
testimony that [Brandon] was sodomized by a foreign object. Her
rectum was enlarged to over one inch in diameter. The coroner
also testified that this would have caused excruciating pain. In
fact, I can’t imagine why he didn’t hear anybody screaming. He
may not have strangled [Brandon] with the coat hanger, and he
may not have strangled Ron with the coat hanger, but he
certainly was there. He certainly could have left, and he
certainly could have stopped it. If he really, really cared about
these people, he would have shot his crime partner to stop him
from killing the other two after he killed [Wheeler]. And then he
very calmly stayed there 25 minutes longer cleaning up the
prints, making sure his fingerprints weren’t on anything in the
house. And then . . . [they] went and calmly had hamburgers.
This crime was just despicable. I can’t imagine society ever, ever
wanting this man out of prison.”
3. The trial court ordered a hearing on the petition
On July 31, 2019, the court issued an order setting a
hearing for September 20, 2019, on petitioner’s resentencing
petition. Prior to that hearing, the trial court asked the parties if
they planned to “put on evidence.” The court asked defense
counsel what he suggested, and defense counsel asked to “put the
matter over for a hearing for that hearing and that Mr. [Sanders]
be ordered out of prison.” The court told the parties it would
“consider whatever the two of you present and I’ll just have to
make my decision based on that.” The trial court ordered
Sanders out of prison to attend the hearing.
7
On September 20, 2019, the trial court held a hearing “to
determine whether or not he [Sanders] is eligible for re-
sentencing.” The parties and the court focused on whether
Sanders was a major participant who acted with reckless
indifference to human life.
Sanders’s counsel argued that no trier of fact ever
determined whether Sanders was a major participant who acted
with reckless indifference to human life. Counsel argued there
was “no evidence to show that Charles Sanders knew just how
wicked of a man Jesse Andrews was. [¶] As far as he knew, he
was simply planning a burglary. That’s what he signed up for.
Then it turned into something far more unspeakable and far
mor[e] violent than that, is entirely the fault of Mr. Andrews who
sits on death row.” After completing his argument, counsel
stated, “At present, I have nothing further than that.”
The trial court asked defense counsel whether the court
could rely on Andrews “in terms of determining what the facts
are. . . . [H]ow do you propose the court should make factual
findings in this case?” Sanders’ counsel responded, “I have no
objection if the court relied upon the facts as recited in People
versus Andrews. I just ask the court view that factual recitation
through the lens of reading a capital appeal, which the California
State Supreme Court usually begins with the recitation of facts
so lurid that it seemingly always sets up a finding that the
verdict shall be affirmed . . . .” Counsel continued, “I wish we at
all times remember that . . . factual recitation is really directed
against Mr. Andrews and not Mr. Sanders.”
In response to questioning by the court on Sanders’s plea,
defense counsel argued that the reduced sentence (17 years to life
for three second degree murders) suggested that “Mr. Sanders
8
was not terribly likely” to be found as a major participant with
reckless indifference to human life. Counsel later admitted that
he was speculating.
Relying on the facts in Andrews, the prosecutor argued that
Sanders was a major participant who acted with reckless
indifference to human life.
In rebuttal, defense counsel argued that “the only way that
Mr. Sanders could have prevented further carnage would have
been to shoot Mr. Andrews. And I cannot help but think had he
done so, he would have been convicted of first-degree murder.”
Counsel argued, “Yes, he [Sanders] was armed with a gun. But
to adopt the People’s position means once he had it, once he
started to do one thing bad, he really ought to have killed
somebody.” The court noted that the prosecutor had not made
that argument but that defense counsel attached a portion of the
hearing before the parole board in which the deputy attorney
general made that argument.
At the conclusion of the hearing, defense counsel indicated
that Sanders “would request a forthwith return to the
Department of Corrections.” The court responded, “I’ll make that
order. If his relief is granted, he would be released from there.”
4. Order denying section 1170.95 motion
In a written order, the trial court denied Sanders’s petition
for resentencing. The trial court concluded that Sanders was an
active participant and acted with reckless indifference to
human life. The trial court explained: “Petitioner was
armed with a weapon, and he also knew that Andrews was
armed. . . . Petitioner was physically present at the scene and
helped Andrews tie up two of the victims. Although he was in a
different area of the apartment when Wheeler was shot,
9
Petitioner saw Chism and Brandon being strangled but did
nothing to aid them. . . . [I]t is unclear how long Petitioner and
Andrews were in the apartment, but it is clear that they were
inside for some time: Wheeler and Brandon were tied up,
Wheeler was interrogated about the location of drugs and money,
Andrews raped and sodomized Brandon, and they were inside the
apartment long enough for a neighbor to grow suspicious and
inquire about Wheeler’s welfare. . . . Petitioner did nothing to
minimize the risk of violence. Petitioner watched as Andrews
beat Wheeler and raped and sodomized Brandon. Further, it
appears that Petitioner did not attempt to stop Andrews from
answering the door, thereby allowing a new victim to be roped
into the already dangerous robbery. Finally, Petitioner did not
attempt to stop Andrews as he first strangled Chism, and then
Brandon, to death.” This timely appeal followed.
DISCUSSION
Section 1170.95 was enacted to implement changes in the
murder laws made by Senate Bill No. 1437. (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 249.) “Prior to the
enactment of Senate Bill No. 1437, . . . both the felony-murder
rule and the natural and probable consequences doctrine
provided theories under which a defendant could be found guilty
of murder without proof of malice.” (People v. Lee (2020)
49 Cal.App.5th 254, 260, review granted July 15, 2020, S262459.)
Senate Bill No. 1437 amended the law to “ ‘require that a
principal act with express or implied malice and by amending
[Penal Code] section 189 to state that a person can only be liable
for felony murder if (1) the “person was the actual killer”; (2) the
person was an aider or abettor in the commission of murder in
the first degree; or (3) the “person was a major participant in the
10
underlying felony and acted with reckless indifference to human
life.” [Citation.]’ ” (People v. Tarkington (2020) 49 Cal.App.5th
892, 896, review granted Aug. 12, 2020, S263219.) Only the last
method is implicated in the current case.
Section 1170.95 affords a procedural vehicle for a petitioner
to challenge retroactively a murder conviction that rests on a
theory of murder no longer valid. If petitioner makes a prima
facie showing that he or she is entitled to relief under the statute,
then the trial court “shall issue an order to show cause.”
(§ 1170.95, subd. (c).) At such a hearing, the prosecution has the
burden to prove beyond a reasonable doubt that the petitioner is
ineligible for resentencing, and both sides may rely on the record
of conviction or offer new evidence. (Id., subd. (d)(3).)
Sanders argues that the case must be remanded for the
trial court to hold a hearing pursuant to section 1170.95
subdivision (d). The Attorney General agrees that the trial court
erred in not issuing an order to show cause and that we should
remand the matter to the trial court to conduct a hearing
pursuant to section 1170.95, subdivision (d). We disagree.
Although the trial court did not formally issue an order to show
cause, it, in fact, conducted the hearing required by section
1170.95, subdivision (d) at which Sanders was present, both
parties had an opportunity to present new evidence, Sanders, in
fact, did introduce new evidence, and Sanders agreed that the
trial court could review the factual discussion in Andrews in
engaging in fact-finding. The record is devoid of any evidence
that trial counsel was misled as to the purpose of the hearing.
Any procedural error in not formally denominating that hearing
as pursuant to an order to show cause was thus harmless.
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A. The Trial Court Held a Hearing to Determine
Whether Sanders Was Eligible or Ineligible for Relief
Sanders argues that the case must be remanded for the
trial court to hold a hearing pursuant to section 1170.95
subdivision (d).
Section 1170.95, subdivision (d) provides: “(d)(1) Within
60 days after the order to show cause has issued, the court shall
hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the
petitioner had not been previously been sentenced, provided that
the new sentence, if any, is not greater than the initial sentence.
This deadline may be extended for good cause. [¶] (2) The parties
may waive a resentencing hearing and stipulate that the
petitioner is eligible to have his or her murder conviction vacated
and for resentencing. If there was a prior finding by a court or
jury that the petitioner did not act with reckless indifference to
human life or was not a major participant in the felony, the court
shall vacate the petitioner’s conviction and resentence the
petitioner. [¶] (3) 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. If the prosecution fails to
sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining
charges. The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens.”
12
Sanders’s argument that the case must be remanded for
the trial court to hold a hearing pursuant to section 1170.95
subdivision (d) is unpersuasive because the trial court already
held such a hearing. Prior to the hearing, the trial court
indicated it would consider “whatever” counsel presented and
make its “decision based on that.” The trial court asked if the
parties intended to put on evidence, as permitted under
section 1170.95, subdivision (d). At the hearing, the court
indicated that Sanders was present and the court was to
determine “whether or not he is eligible for re-sentencing.” The
trial court indicated that the critical issue with respect to
eligibility for resentencing was “whether or not Mr. Sanders can
be deemed to be a major participant . . . .” No party challenged
this procedure; instead both parties argued whether Sanders was
eligible for resentencing. Sanders’s counsel relied on new
evidence, which is admissible only in a section 1170.95,
subdivision (d)(3) hearing. At the end of the hearing, the court
noted that if it granted relief, Sanders “would be released”
further indicating that the purpose of the hearing was to
determine whether to vacate the sentence.
The fact that Sanders’s counsel chose not to present new
evidence other than a partial transcript of a hearing before the
parole board does not show the trial court deprived Sanders of
the opportunity to present new evidence.
Even if the court erred in purportedly preventing Sanders
the opportunity to present new evidence—a scenario the record
does not support—Sanders demonstrates no prejudice. Although
he states that either he or Brooks could have testified and
Sanders could have introduced his written statements and tape
recorded police interviews, Sanders identifies no new evidence
13
that would have supported his contention that he was not a
major participant who acted with reckless indifference to human
life.1 He identifies nothing that would contradict his own
testimony relied upon by the trial court in finding Sanders
ineligible for relief.
B. The Trial Court’s Error in Failing to Issue an OSC
Was Not Prejudicial
The trial court did not identify its order setting the hearing
as an order to show cause. Although under section 1170.95
subdivision (c), the trial court should have formally issued an
order to show cause, Sanders demonstrates no prejudice from the
court’s failure to issue a formal order to show cause. Sanders had
notice of the hearing and the court ensured that Sanders was
present as his counsel had requested. Sanders does not identify
any conduct he would have altered had the trial court issued an
order to show cause rather than an order providing notice of the
hearing.
C. Sanders Fails to Demonstrate Any Other Error
1. Sanders forfeited his claim of error based on the
trial court’s reliance on Andrews
For the first time on appeal, Sanders argues that the trial
court erred in relying on Andrews. Even if arguendo the court
erred in relying on Andrews, Sanders’s counsel expressly
consented to the court’s reliance on it and thereby forfeited any
1 The Supreme Court described Sander’s written and tape-
recorded statements as “substantially similar to his testimony at
trial.” (Andrews, supra, 49 Cal.3d at p. 209.)
14
objection. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1313
[issue forfeited by defendant’s failure to object].) In any event,
Sanders does not show any error in the trial court’s reliance on
his testimony, which constituted admissions by a party.
(Evid. Code, § 1220 [“Evidence of a statement is not made
inadmissible by the hearsay rule when offered against the
declarant in an action to which he is a party in either his
individual or representative capacity, regardless of whether the
statement was made in his individual or representative
capacity.”].)
2. Sanders’s challenge to the finding that he acted
with reckless indifference to Wheeler’s life lacks
merit
Sanders does not challenge the trial court’s conclusion that
he was a major participant who acted with reckless indifference
to human life with respect to the murders of Brandon and Chism.
However, Sanders argues that the “court erred by finding
Sanders acted with reckless indifference for Wheeler’s murder
because the analysis for the three murders is not the same. At
the very least, Sanders’s conviction for Wheeler’s murder should
be subject to resentencing because he did not act with reckless
indifference.” Sanders states that because he was not present
when Wheeler was shot he could not have prevented the murder.
Sanders cites no legal authority to support his argument.
He therefore forfeited his argument. (People v. Hardy (1992)
2 Cal.4th 86, 150.) In any event, Sanders’s argument lacks merit.
With respect to Wheeler’s murder, no reasonable argument could
15
be made that Sanders was not a major participant who acted
with reckless indifference to human life.2
Our high court in People v. Banks (2015) 61 Cal.4th 788,
listed considerations relevant to determine whether a particular
defendant was a major participant in the underlying felony.
These factors are: “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role
did the defendant have in supplying or using lethal weapons?
What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used? No one of these
considerations is necessary, nor is any one of them necessarily
sufficient. All may be weighed in determining the ultimate
question, whether the defendant’s participation ‘in criminal
activities known to carry a grave risk of death’ [citation] was
sufficiently significant to be considered ‘major’ [citations].”
(Id. at p. 803, fn. omitted.)
In People v. Clark (2016) 63 Cal.4th 522, our high court set
forth factors for determining whether a defendant acted with
reckless indifference to human life. (Id. at p. 617.) These include
(1) the defendant’s knowledge and use of weapons; (2) defendant’s
physical presence at the crime and opportunities to stop the
2 We rely on Sanders’s own admissions as described in
Andrews. We do not rely on the Attorney General’s description at
Sanders’s parole hearing even though Sanders presented them to
the trial court.
16
crime or aid the victim; (3) duration of the crime; (4) defendant’s
knowledge of a confederate’s likelihood of killing; and
(5) defendant’s efforts to minimize the risk of violence. (Id. at pp.
618–623.)
Here, Sanders’s participation in an armed robbery of
Wheeler in which Sanders threatened Wheeler with a firearm
was known to carry a grave risk of death and was sufficiently
significant to be considered major. (See Banks, supra, 61 Cal.4th
at p. 803.) According to his own testimony, Sanders and Andrews
planned the robbery. Sanders and Andrews went to Wheeler’s
apartment; each was armed. Both Andrews and Sanders drew
their guns on Wheeler. Thus, Sanders knew of the weapons and
actually used his weapon on Wheeler to effectuate the robbery.
Sanders did not try to stop the crime or aid Wheeler. To
the contrary, Sanders facilitated Andrews’s killing of Wheeler by
Sanders tying Wheeler up with belts and socks. Sanders also
made no effort to stop Andrews or to aid Wheeler (or the other
victims).
Sanders was present when Andrews put his gun in
Wheeler’s mouth and threatened to kill Wheeler unless Wheeler
told Andrews and Sanders the location of contraband. When
Wheeler revealed the location of the contraband, Sanders left the
room to look for the contraband and Andrews shot Wheeler.
Although Sanders left the room, he knew that Andrews was
threatening Wheeler with a gun and he showed no concern for
Wheeler’s life. Instead of assisting Wheeler, Sanders left the
room to complete the robbery he and Andrews planned.
Moreover, Sanders set Wheeler up to be killed by tying Wheeler
and thereby ensuring that Wheeler could not escape from
Andrews.
17
Although the record does not show the duration of the
crime or whether Sanders had any insight into Andrews’s
criminal background, it is clear that the criminal conduct lasted a
significant duration. First Sanders and Andrews smoked
marijuana with Wheeler before they drew their guns. Then
Sanders tied Wheler and Brandon and searched the apartment
for drugs and money. Sanders overheard Andrews’s rape of
Brandon. After that, Sanders was present and observed Andrews
with a gun in Wheeler’s mouth and threatened Wheeler until
Wheeler revealed the location of the drugs. This course of events
provided Sanders with ample time to contemplate his role and he
continued with the planned robbery even after overhearing
Andrews rape Brandon and seeing Andrews place a gun in
Wheeler’s mouth.
Regardless of whether Sanders knew of Andrews’s past
criminal conduct, he knew that Andrews showed extreme levels
of violence prior to the killing of Wheeler and did nothing to
assist Wheeler. Sanders both planned and executed an armed
robbery in which he knew that both he and Andrews were armed.
The Banks/Clark factors support only the conclusion that
Sanders was a major participant who acted with reckless
indifference to human life.
3. Sanders demonstrates no due process violation
Sanders argues that “[t]he improper denial of a section
1170.95 petition deprives defendants of their liberty, requiring
the state to provide them with due process protections.” Sanders
argues that he had a “liberty interest in having the trial court
follow” the correct procedures. We disagree.
In rejecting a contention that section 1170.95 required a
jury trial, our sister court held that the procedures outlined in
18
section 1170.95 are not “ ‘constitutionally compelled’ ” but
rather constitute an act of lenity. (People v. Lopez (2020)
56 Cal.App.5th 936, 958, review granted Feb. 10, 2021, S265974.)
As we have explained, Sanders demonstrates no prejudice from
the trial court’s failure to issue an order to show cause, the only
procedural error. Even if we assume that error rose to a
constitutional level, the error was harmless beyond a reasonable
doubt.
DISPOSITION
The order denying Sanders’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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