People v. Levette CA2/2 ( 2021 )

Filed 4/6/21 P. v. Levette 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303254
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A968146)
v.
ROCHELLE LEVETTE
LITTLEJOHN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Drew E. Edwards, 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, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Douglas L. Wilson, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In 1988, after a preliminary hearing, defendant and
appellant Rochelle Levette Littlejohn pled guilty to second degree
murder, stipulating that the preliminary hearing transcript
revealed the factual basis for the plea. She was sentenced to 15
years to life in state prison.
On May 24, 2019, defendant filed a petition for
resentencing pursuant to Penal Code section 1170.95.1 After
appointing counsel for defendant and reviewing the petition, the
People’s opposition, and defendant’s reply, the trial court
summarily denied the petition, finding that defendant was not
entitled to resentencing relief because she was the actual killer
and was not convicted on either a theory of felony murder or the
natural and probable consequences doctrine.
Defendant timely filed a notice of appeal. She argues that
the trial court erred in summarily denying her petition without
conducting an evidentiary hearing. She further contends that
section 1170.95 “treats similarly situated individuals differently
or arrives at different results for such individuals base[d] [upon]
factors that are arbitrary, capricious, irrational or unpredictable,
[which] violates due process and state and federal proscriptions
against cruel and unusual punishments.”
We conclude that the trial court properly denied
defendant’s section 1170.95 petition. Accordingly, we affirm.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND2
After a preliminary hearing held on June 23, 1988,
defendant was held to answer on a charge of murder (§ 187, subd.
(a)) with a firearm-use enhancement.
Yolanda Langford (Langford) testified at the preliminary
hearing that on April 25, 1988, she was on a three-way call with
her friend Wendolyn Spikes (Spikes) and defendant. Langford
asked defendant why she and Spikes were arguing.
Sometime later that day, Langford was at her father’s
house on West 71st Street in Los Angeles with Spikes and
another friend, Deborah Murphy (Murphy). At around 8:30 p.m.,
defendant drove her jeep to the house and honked the horn.
Langford went outside to see who was honking and walked
toward the jeep. Defendant said, “‘Yolanda, what the fuck you
talking about? What’s you mean all this bullshit?’” Langford and
defendant argued with raised voices. Spikes then went outside,
stood near Langford, and looked at defendant. Defendant stated,
“‘I just got out of Sybil Brand. I don’t give a fuck.’”
Defendant got out of the jeep and was holding a handgun.
Murphy, who had just left the house, yelled, “‘She got a gun.’”
Langford said to Spikes, “‘Let’s just go back in the house because
she’s got a gun.’” Defendant fired the gun into the air.
Spikes turned to go back to the house. Defendant said,
“‘I’m tired of this shit, all these damn phone calls.” Defendant
2 Neither the felony complaint nor information is included in
the record on appeal. The charges and conviction are evident
based on the transcripts from the preliminary hearing and plea
hearings and the abstract of judgment, which are part of the
appellate record.
3
then shot Spikes in the base of her neck, killing her. Defendant
got back in her jeep and drove away.
On November 15, 1988, the parties reached a negotiated
plea bargain to reduce the charge to second degree murder and
drop the firearm-use enhancement. After waiving her
constitutional rights, defendant pled guilty to second degree
murder and stipulated that the preliminary hearing transcript
revealed a factual basis for the plea. She was sentenced to the
agreed upon term of 15 years to life in state prison.
On May 24, 2019, defendant, in propria persona, filed a
section 1170.95 petition for resentencing. The public defender
was appointed to represent her.
The People filed a response in opposition to the petition and
attached as exhibits, inter alia, transcripts of the preliminary
hearing, change of plea hearing, and the abstract of judgment.
The People argued, inter alia, that because defendant was the
actual killer, she was ineligible for section 1170.95 resentencing.
Defendant, through her appointed attorney, filed a reply to
the People’s opposition.
On November 18, 2019, the trial court summarily denied
the petition and found that defendant was not entitled to relief as
a matter of law. In so ruling, the trial court determined: “The
record of conviction reflects that the petitioner was the actual
killer and was convicted of murder on a theory of being the direct
perpetrator and not on a theory of felony murder of any degree, or
a theory of natural and probable consequences.”
DISCUSSION
I. Standard of Review
We review the trial court’s order de novo. (See Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018
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[application of law to undisputed facts]; A.S. v. Miller (2019) 34
Cal.App.5th 284, 290 [statutory interpretation].)
II. Relevant Law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973 (Drayton).) The statute
applies to persons convicted after trial and to persons who
entered a guilty plea. (§ 1170.95, subd. (a)(2); People v. Sanchez
(2020) 48 Cal.App.5th 914, 919 [“Specifying that section 1170.95
applies to murder convictions both by trial and by guilty plea
clarifies that it does not matter how the murder conviction was
obtained for section 1170.95 to apply”].)
In order to obtain Senate Bill No. 1437 (2017-2018 Reg.
Sess.), effective January 1, 2019, resentencing relief, the
petitioner must proceed sequentially through section 1170.95’s
separate steps. (People v. Lewis (2020) 43 Cal.App.5th 1128,
1140 (Lewis), review granted Mar. 18, 2020, S260598; see also KB
Home Greater Los Angeles, Inc. v. Superior Court (2014) 223
Cal.App.4th 1471, 1477 [sequential structure of a statutory
scheme supports interpretation that acts required by the statutes
occur in the same sequence].) First, a defendant must file a
facially sufficient section 1170.95 petition. The petitioner must
aver that he is eligible for relief because (1) an accusatory
pleading was filed against him allowing the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; (2) he was convicted
of first or second degree murder; and (3) he could not be convicted
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of murder as a result of the recent amendments to sections 188
and 189. (§ 1170.95, subds. (a)(1)-(3), (b)(1)(A).)
The trial court must immediately review the petition and, if
the petitioner is ineligible for resentencing as a matter of law
because of some disqualifying factor, the trial court must dismiss
or deny the petition. (See People v. Verdugo (2020) 44
Cal.App.5th 320, 328–333 (Verdugo), review granted Mar. 18,
2020, S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, 57–
58 (Cornelius), review granted Mar. 18, 2020, S260410; Lewis,
supra, 43 Cal.App.5th at p. 1140.)3
However, if the petition is facially sufficient, the petitioner
is entitled to the appointment of counsel, if requested, and the
People may then brief the question of whether the petitioner is
entitled to relief. (§ 1170.95, subd. (c); Lewis, supra, 43
Cal.App.5th at pp. 1139–1140; Verdugo, supra, 44 Cal.App.5th at
pp. 331–332.) In contrast to the first step showing, the trial court
makes the second step determination with the benefit of briefing
and analysis by both parties, thereby permitting the trial court to
undertake more informed analysis concerning a petitioner’s
“entitle[ment] to relief,” relief meaning an evidentiary hearing,
not necessarily entitlement to resentencing. (§ 1170.95, subd. (c);
Drayton, supra, 47 Cal.App.5th at p. 975.)4 When making this
3 Disqualifying factors, or factors indicating ineligibility,
include, for example, a petitioner who admitted to being the
actual killer (Verdugo, supra, 44 Cal.App.5th at pp. 329–330) or a
petitioner that the jury found was the actual killer (Cornelius,
supra, 44 Cal.App.5th at p. 58).
4 Although the same type of information from the record of
conviction could result in denial of a petition at either prima facie
step, the two steps are procedurally distinct and should not be
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determination, “the trial court should assume all facts stated in
the section 1170.95 petition are true. [Citation.] The 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 . . . . [I]f 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 conducting an evidentiary hearing . . . is limited to
readily ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining
whether the petitioner showed reckless indifference to human life
in the commission of the crime).” (Drayton, supra, at p. 980; see
also Lewis, supra, 43 Cal.App.5th at p. 1138 [the contents of the
record of conviction defeats a petitioner’s prima facie showing
only when the record “show[s] as a matter of law that the
petitioner is not eligible for relief”].)
Only if the trial court determines that the petitioner has
made a prima facie showing of entitlement to relief must it issue
an order to show cause. (§ 1170.95, subd. (c).)
read as a redundancy written into the statute. The statute
contemplates two separate determinations that the trial court
must make at different times during the petition procedure.
(Verdugo, supra, 44 Cal.App.4th at pp. 328–329; but see People v.
Cooper (2020) 54 Cal.App.5th 106, 109), review granted Nov. 10,
2020, S264684 [concluding that the right to counsel attaches
upon the filing of a facially sufficient petition and disagreeing
with Verdugo, supra, at p. 320].)
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III. The trial court did not err
We conclude that the trial court properly denied
defendant’s petition for resentencing.
In 1988, defense counsel stipulated that the factual basis of
defendant’s guilty plea was the evidence adduced at the
preliminary hearing. The transcript of that hearing indisputably
shows that defendant was the actual killer of Spikes. (People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1166 [relying upon the
transcripts from the preliminary and plea hearings in affirming a
trial court order denying a section 1170.95 petition].) As a result,
the plea proceedings established as a matter of law that
defendant was the actual killer. (People v. Nguyen, supra, at
p. 1167 [a defendant’s “murder conviction after a guilty plea
should not be accorded less weight and finality than a murder
conviction after a jury trial, as the transcripts from the
preliminary and plea hearings demonstrate” that the defendant
was convicted under a theory not encompassed by section
1170.95].) Because section 1170.95 does not offer relief to actual
killers, defendant is ineligible for relief as a matter of law. (See,
e.g., People v. Tarkington (2020) 49 Cal.App.5th 892, 899, review
granted Aug. 12, 2020, S263219 [because the defendant was not
prosecuted on a felony murder or natural and probable
consequences theory, but rather as the actual killer, he was
ineligible to resentencing relief as a matter of law]; People v.
Edwards (2020) 48 Cal.App.5th 666, 674–675, review granted
July 8, 2020, S262481.)
Curiously, defendant does not dispute that she was
convicted as the actual killer. Rather she contends that she
remains eligible for relief because she was convicted as the actual
killer under the natural and probable consequences doctrine. She
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is wrong. The natural and probable consequences doctrine is
based on a theory of vicarious liability. (People v. Lopez (2019) 38
Cal.App.5th 1087, 1106, review granted Nov. 13, 2019, S258175.)
As the actual killer, defendant by definition could not have been
convicted under the natural and probable consequences theory.
Urging reversal, defendant seems to argue that because
there was no evidence of malice or an intent to kill, even though
she was the actual killer, she was entitled to an evidentiary
hearing. Again, she is mistaken. As the actual killer, she does
not fall within the purview of section 1170.95. There is no
statutory requirement for a separate finding of malice.
Defendant’s reliance upon People v. Martinez (2019) 31
Cal.App.5th 719 (Martinez) for the proposition that malice must
be proved even for actual killers is misplaced. Setting aside the
fact that defendant did not raise this legal authority until she
filed her reply brief, Martinez does not so hold; in fact, it
specifically recognizes otherwise. As the Martinez court explicitly
recognized: “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.’” (Martinez,
supra, at p. 723.) This language confirms that (1) actual killers
are excluded from section 1170.95, and (2) there is a difference
between persons convicted of murder as the actual killers and
persons convicted of murder pursuant to the natural and
probable consequences doctrine.
Finally, we reject defendant’s claim that section 1170.95
violates her federal due process rights and the constitutional
prohibition against cruel and unusual punishment. Regarding
her cruel and unusual punishment claim, a defendant bears a
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“considerable burden” of showing that she has been subjected to
cruel and unusual punishment. (People v. Wingo (1975) 14
Cal.3d 169, 174.) After all, the Legislature has considerable
latitude in defining and setting the consequences of criminal
offenses, and the Legislature could rationally decide to change
one area of law and not another. (People v. Cervantes (2020) 44
Cal.App.5th 884, 888–889.) It follows that the enactment of a law
providing postconviction relief for defendants convicted of murder
under two theories of vicarious liability, as opposed to a
defendant who was convicted as the actual killer, “does not
retroactively convert defendant’s otherwise lawful sentence into a
constitutionally ‘unusual’ one.” (People v. Smith (2015) 234
Cal.App.4th 1460, 1469.)
Regarding her federal claim, we are not convinced that
defendant’s due process rights were violated by the alleged
arbitrary deprivation of a state-created right. As defendant
correctly points out, when state law gives a criminal defendant
the expectation of receiving a certain right or benefit, the denial
of that right may violate federal due process. (See Hicks v.
Oklahoma (1980) 447 U.S. 343, 346 [deprivation of state law
right to jury determination of sentence violated the defendant’s
federal due process rights].) Here, defendant had no right to be
resentenced. Rather, she remains validly convicted of second
degree murder pursuant to her guilty plea. Section 1170.95 only
concerns a potential reduction in sentence, not defendant’s
constitutional rights.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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