People v. Harris CA2/4 ( 2020 )

Filed 11/25/20 P. v. Harris CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B299340
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA076883)
v.
KEVAUGHN HARRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed
in part, reversed in part, and remanded with instructions.
Robert E. Boyce, 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, Senior
Assistant Attorney General, Robin Urbanski, Supervising
Deputy Attorney General, Lynne McGinnis and Genevieve
Herbert, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________________________________
INTRODUCTION
After participating in a gang-related drive-by shooting,
appellant Kevaughn Harris was convicted of one count of
murder and three counts of attempted murder. In affirming
his convictions, we noted he had been the driver, but did not
address the underlying theories of liability or otherwise
clarify his role in the shooting. (People v. Harris (Aug. 15,
2006, No. B181957) Cal.App.Unpub. LEXIS 7115.) Years
later, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437)
imposed new limits on two theories of murder liability, viz.,
the natural and probable consequences doctrine and the
felony murder rule. SB 1437 also enacted Penal Code
section 1170.95 (Section 1170.95), creating a procedure for
defendants convicted of murder under these newly limited
theories to petition for postconviction relief. Appellant filed
a petition under Section 1170.95 for relief from his four
convictions, and requested the appointment of counsel.
Rather than appoint counsel or hold a hearing, the
trial court issued an order summarily denying appellant’s
petition. Without identifying the source on which it relied,
2
the court found that appellant had been one of the shooters,
and that he had “assisted, facilitated, counseled, and
encouraged the commission of a gang murder . . . .” In so
doing, the court implicitly found appellant had not been
convicted under the natural and probable consequences
doctrine or the felony murder rule, and concluded he was
ineligible for relief under Section 1170.95 as a matter of law.
On appeal, appellant contends the trial court erred by
summarily denying his petition. Anticipating the People’s
argument that relief from attempted murder convictions is
unavailable under Section 1170.95, he argues the equal
protection clauses of the state and federal constitutions
prohibit the Legislature from withholding relief under
Section 1170.95 from those convicted of attempted murder.
He further argues we should instruct the court, on remand,
to appoint counsel and issue an order to show cause why his
convictions should not be vacated. As anticipated, the
People argue Section 1170.95 provides no relief from
attempted murder convictions. However, the People concede
the court erred by relying on impermissible factfinding to
summarily deny appellant’s petition with respect to his
murder conviction. They agree that we should instruct the
court to appoint counsel on remand, but disagree that we
should instruct the court to issue an order to show cause,
arguing Section 1170.95 first requires the court to receive
briefing and determine whether appellant has made a prima
facie showing of entitlement to relief.
3
We agree with both parties that the court erred by
relying on impermissible factfinding to summarily deny
appellant’s petition with respect to his murder conviction.
We agree with the People that the court properly denied the
petition with respect to appellant’s attempted murder
convictions, as Section 1170.95 provides no relief from such
convictions. We further agree with the People that it would
be premature to instruct the court to issue an order to show
cause. Accordingly, we affirm the order with respect to the
attempted murder convictions, reverse the order with
respect to the murder conviction, and remand the matter to
the trial court with instructions to appoint counsel for
appellant, set a briefing schedule, and follow Section
1170.95’s further procedures for evaluating his petition for
relief from his murder conviction.
PROCEEDINGS BELOW
On the afternoon of July 11, 2003, Keenan Chaney,
Jason Martin, Dequin Bradford, and Deandre Pearson were
walking on the sidewalk in an area claimed by the
Campanella Park Pirus, a Blood gang. Martin was a
member of the Campanella Park gang. A blue car with three
occupants pulled alongside and stopped. Appellant was the
driver. Someone in the car asked, “What’s up, Cuz?” Two
occupants of the car began shooting, and the men on the
sidewalk started running. Chaney was shot in the left arm
and left leg. Martin suffered a fatal gunshot wound to the
chest. Following a jury trial, appellant was convicted of
4
Martin’s murder and the attempted murders of Chaney,
Bradford, and Pearson. On direct appeal, we found
sentencing error (immaterial to this appeal), but affirmed
the convictions, which appellant had not challenged. (People
v. Harris, supra, Cal.App.Unpub. LEXIS 7115.)1
On June 3, 2019, appellant filed a petition in propria
persona for postconviction relief pursuant to Section 1170.95.
By checking boxes on a form petition, he alleged that (1) he
was not “the actual killer”; (2) he did not aid or abet the
actual killer with the intent to kill; and (3) he was not a
major participant in any felony underlying the killing, or did
not act with reckless indifference to human life during the
course of any such felony. He further alleged that he was
convicted at trial “pursuant to the felony murder rule or the
natural and probable consequences doctrine,” and that under
the law as modified by SB 1437, he could not now be
convicted under those theories. He requested the
appointment of counsel.
On June 10, 2019, the court issued a minute order
summarily denying appellant’s petition. In addition to
stating facts included in our prior opinion, the court stated
the following: “Police officers were directed to a backyard of
a residence at 14601 South Corlett Avenue. They found
victims Chaney and Martin in the backyard and Chaney was
1 Our description of the offenses is reproduced from our prior
opinion. The record on this appeal does not include any
documents from appellant’s trial, or a transcript of the
resentencing hearing on remand from the prior appeal.
5
lying against the rear of the southwest corner of the house
and Martin was lying in a tall grass area along a fence. Both
were treated for their injuries[;] however[,] Martin
succumbed to his injuries. [¶] One of the men who ran,
Pearson, stated that the rear passenger displayed a ‘C’ hand
sign and was the first to initiate the shooting. He also
indicated that petitioner was the driver and that he fired 10
to 15 rounds from a semi-automatic type weapon. [¶]
Another victim, Bradford, gave a similar account as victim
Pearson[,] [a]dding that he believed petitioner described as
the driver emptied the entire magazine from the weapon.”
As the People acknowledge, “it is unclear where the trial
court obtained these facts.”2
Evidently relying on Pearson’s and Bradford’s asserted
identifications of appellant as one of the shooters, the court
concluded, “Because petitioner was the actual driver of the
car, was one of the shooters and assisted, facilitated,
counseled, and encouraged the commission of a gang murder
involving a rival gang[,] he does not come with[in] the
exceptions [established by SB 1437].” The court did not
separately address appellant’s attempted murder convictions.
Appellant timely appealed.
2 A pre-conviction probation report stated similar facts
concerning the police officers’ discovery of Chaney and Martin
and the statements from Pearson and Bradford. No other
document in the appellate record addresses these matters.
6
DISCUSSION
Appellant contends the trial court erred by summarily
denying his petition under Section 1170.95 to vacate his
murder and attempted murder convictions. He argues that
the court relied on impermissible factfinding to find him
ineligible for relief from his murder conviction, and that the
equal protection clauses of the state and federal
constitutions prohibit the Legislature from withholding
relief under Section 1170.95 from those convicted of
attempted murder. He further argues we should instruct
the court, on remand, to appoint counsel and to issue an
order to show cause why his convictions should not be
vacated.
A. Principles
1. SB 1437’s Changes to the Law on Murder
Liability
“Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.” (Pen. Code, § 187, subd.
(a).) “Before Senate Bill 1437, the felony-murder rule and
the natural and probable consequences doctrine were
exceptions to the actual malice requirement. The
felony-murder rule made ‘a killing while committing certain
felonies murder without the necessity of further examining
the defendant’s mental state.’ . . . The natural and probable
consequences doctrine made ‘a person who aids and abets a
confederate in the commission of a criminal act . . . liable not
only for that crime (the target crime), but also for any other
7
offense (nontarget crime) [including murder] committed by
the confederate as a “natural and probable consequence” of
the crime originally aided and abetted.’” (People v. Johns
(2020) 50 Cal.App.5th 46, 57-58.)
The Legislature enacted SB 1437 “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.” (Stats. 2018, ch. 1015, § 1.) As
amended by SB 1437, the statute defining the malice
element of murder now provides, “Except as stated in
subdivision (e) of Section 189 [addressing the felony murder
rule], 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.” (Pen. Code, § 188, subd. (a)(3); Stats. 2018, ch.
1015, § 2.) The felony murder statute now 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
8
to human life . . . .” (Pen. Code, § 189, subd. (e); Stats. 2018,
ch. 1015, § 3.)
2. Postconviction Relief Under Section
1170.95
SB 1437 enacted Section 1170.95, creating a
postconviction relief procedure. (Stats. 2018, ch. 1015, § 4.)
“A person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced
on any remaining counts when all of the following conditions
apply: [¶] (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 [i.e., SB 1437’s changes to the law on murder liability].”
(Pen. Code, § 1170.95, subd. (a).)
“The petition shall include all of the following: [¶] (A)
A declaration by the petitioner that he or she is eligible for
relief under this section, based on all the requirements of
subdivision (a). [¶] (B) The superior court case number and
9
year of the petitioner’s conviction. [¶] (C) Whether the
petitioner requests the appointment of counsel.” (Pen. Code,
§ 1170.95, subd. (b)(1).) The trial court may deny the
petition without prejudice if any of this information “is
missing from the petition and cannot be readily ascertained
by the court . . . .” (Id., § 1170.95, subd. (b)(2).)
If the required information is provided or ascertained,
“[t]he court shall review the petition and determine if the
petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section.” (Pen.
Code, § 1170.95, subd. (c).) The court may not engage in
factfinding at this stage. (People v. Drayton (2020) 47
Cal.App.5th 965, 980 [under Section 1170.95, trial court’s
“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)”].)
If the court does not summarily deny the petition, it
must appoint counsel for the petitioner (if requested),
require the People to file a response to the petition, and
allow the petitioner to file a reply. (Pen. Code, § 1170.95,
subd. (c).) “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.) “Within 60 days after the order
to show cause has issued, the court shall hold a hearing to
10
determine whether to vacate the murder conviction . . . .”
(Id., § 1170.95, subd. (d)(1).) “At the hearing . . . , 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 . . . shall be vacated . . . .” (Id.,
§ 1170.95, subd. (d)(3).) Alternatively, “[t]he parties may
waive a resentencing hearing and stipulate that the
petitioner is eligible to have his or her murder conviction
vacated . . . .” (Id., § 1170.95, subd. (d)(2).)
We review the trial court’s interpretation of Section
1170.95 de novo. (See People v. Perez (2020) 54 Cal.App.5th
896, 904.)
3. Equal Protection Doctrine
“Both the state and federal constitutions extend to
persons the equal protection of law.” (People v.
Chatman (2018) 4 Cal.5th 277, 287.) “[W]here the law
challenged neither draws a suspect classification nor
burdens fundamental rights, . . . [w]e find a denial
of equal protection only if there is no rational relationship
between a disparity in treatment and some legitimate
government purpose.”3 (Id. at 288-289.) “We first ask
whether the state adopted a classification affecting two or
3 Appellant does not argue Section 1170.95 draws a suspect
classification or burdens a fundamental right, even if interpreted
to deny relief to defendants convicted of attempted murder.
11
more groups that are similarly situated in an unequal
manner.” (Id. at 289.) “If we deem the groups at issue
similarly situated in all material respects, we consider
whether the challenged classification ultimately bears a
rational relationship to a legitimate state purpose.” (Ibid.)
The challenger bears the burden of showing that “no rational
basis for the unequal treatment is reasonably conceivable.”
(Ibid.) To be rational and reasonably conceivable, the basis
for the law need not be empirically substantiated, persuasive,
or sensible; nor need it have been articulated by the
lawmakers. (Ibid.)
B. Analysis
1. Appellant’s Murder Conviction
As the parties agree, the trial court erred by relying on
impermissible factfinding to summarily deny appellant’s
petition with respect to his murder conviction. The People
concede, “Appellant’s petition alleged that a complaint,
information, or indictment was filed against him that
permitted the prosecution to proceed under either the felony
murder rule or the natural and probable consequences
doctrine, that he was convicted of either first or second
degree murder under one of those theories, and that he could
no longer be so convicted under the changes to sections 188
and 189. [Citation.] If that were true, then appellant would
be eligible for relief, and nothing in the record of conviction
here appears to have indicated otherwise as a matter of law.”
(See Pen. Code, § 1170.95, subd. (a).) As they further
12
concede, the record “does not indicate which theories of
liability the People presented the jury and what instructions
were given by the trial court.” Indeed, the court did not
purport to find that the record of conviction established that
the jury had rejected -- or had never been presented with --
the natural and probable consequences and felony murder
theories. Rather, the court implicitly rejected those theories
itself, relying on unspecified sources to find appellant had
been one of the shooters and had aided and abetted “a gang
murder” (rather than a different target offense, of which
murder was a natural and probable consequence). The
court’s factfinding was impermissible. (See People v. Cooper
(2020) 54 Cal.App.5th 106, 124, review granted Nov. 10,
2020 (S264684) [trial court erred by relying on preliminary
hearing transcript to summarily deny Section 1170.95
petition, where “the court’s determination that [the
petitioner] could still be convicted of murder after Senate
Bill No. 1437 necessarily required factfinding”]; People v.
Drayton, supra, 47 Cal.App.5th at 980-981 [trial court erred
by summarily denying Section 1170.95 petition, where no
readily ascertainable facts in trial court record refuted, as a
matter of law, petitioner’s assertion he had been convicted of
first degree murder under felony murder theory].)
Though we must remand for further proceedings, it
would be premature to instruct the court to issue an order to
show cause, as appellant requests. The statute first requires
the court to appoint counsel (as requested), receive briefing,
and determine whether appellant has made a prima facie
13
showing of entitlement to relief. (Pen. Code, § 1170.95, subd.
(c).) From the record before us, we cannot determine
whether appellant has made such a showing. Accordingly,
we will instruct the court to appoint counsel, set a briefing
schedule, and follow Section 1170.95’s further procedures for
evaluating his petition for relief from his murder conviction.
2. Appellant’s Attempted Murder Convictions
The trial court did not err by summarily denying
appellant’s petition with respect to his convictions for
attempted murder because Section 1170.95 provides no relief
from convictions for that offense. Under the statute’s plain
language, a petitioner is limited to seeking relief from a
murder conviction. (Pen. Code, § 1170.95, subd. (a) [“A
person convicted of felony murder or murder under a natural
and probable consequences theory may file a petition with
the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated” (italics added)].) In
the proceedings on the petition, the court and parties are
limited to addressing potential relief from a murder
conviction; if the court issues an order to show cause, either
the parties “stipulate that the petitioner is eligible to have
his or her murder conviction vacated,” or the court holds a
hearing “to determine whether to vacate the murder
conviction . . . .” (Id., § 1170.95, subd. (d), italics added.)
Thus, Section 1170.95 neither authorizes a petitioner to seek
relief from an attempted murder conviction nor authorizes a
court to grant such relief. (See People v. Alaybue (2020) 51
14
Cal.App.5th 207, 223 (Alaybue) [“The repeated references to
murder convictions in section 1170.95, as opposed to
attempted murder convictions, make clear that Senate Bill
1437’s ameliorative benefit was meant to reach only the
completed offense of murder, not the distinct offense of
attempted murder”]; People v. Dennis (2020) 47 Cal.App.5th
838, 845, review granted July 29, 2020, S262184 [“‘The
Legislature’s obvious intent to exclude attempted murder
from the ambit of the Senate Bill 1437 reform is underscored
by the language of new section 1170.95’”]; People v. Medrano
(2019) 42 Cal.App.5th 1001, 1018, review granted March 11,
2020, S259948 (Medrano) [“the relief provided in section
1170.95 is limited to certain murder convictions and
excludes all other convictions, including a conviction for
attempted murder”].)4
4 The issue presented here is whether Section 1170.95
provides postconviction relief from attempted murder convictions
like appellant’s, which have already become final. We need not
address the distinct issue whether SB 1437’s amendments to
Penal Code sections 188 and 189 have narrowed attempted
murder liability in a manner that may entitle a defendant
convicted of attempted murder to relief on direct appeal. Courts
have disagreed on the latter issue. (Compare Medrano, supra, 42
Cal.App.5th at 1012-1015, 1018-1021 [holding SB 1437
invalidated the natural and probable consequences doctrine as a
basis for attempted murder liability, and reversing defendants’
convictions for attempted murder under that doctrine], with
People v. Dennis, supra, 47 Cal.App.5th at 841, 846-847, 856
[rejecting Medrano’s reasoning, and affirming defendant’s
convictions for attempted murder under the natural and probable
(Fn. is continued on the next page.)
15
Contrary to appellant’s contention, the Legislature did
not violate the equal protection clauses of the state and
federal constitutions by granting postconviction relief to
some defendants convicted of murder without extending the
same relief to defendants convicted of attempted murder.
These two classes of offenders are not similarly situated with
respect to Section 1170.95’s ameliorative purpose, as
“murder is punished more severely than attempted
murder.”5 (Lopez, supra, 38 Cal.App.5th at 1109-1110.) This
consequences doctrine].) However, all courts to have considered
the former issue have agreed Section 1170.95 provides no relief
from already-final attempted murder convictions. (See, e.g.,
Medrano, supra, at 1018 [despite being entitled to relief on direct
appeal, defendants were “categorically excluded from seeking
relief through the section 1170.95 petitioning procedure for their
attempted murder convictions”]; People v. Dennis, supra, at 845;
Alaybue, supra, 51 Cal.App.5th at 223.)
Our Supreme Court is currently considering, in review of a
decision on direct appeal, whether SB 1437 applies to attempted
murder liability under the natural and probable consequences
doctrine. (People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez),
review granted Nov. 13, 2019, S258175.) In resolving that issue,
the court may resolve whether Section 1170.95 provides relief to
defendants convicted of attempted murder under that doctrine.
Pending the Lopez decision, we join our sister courts in
concluding the statute provides no relief to such defendants.
5 Appellant argues that because both offenses require malice,
the two classes of offenders are similarly situated with respect to
the Legislature’s stated purpose “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
(Fn. is continued on the next page.)
16
disparity in punishment is also a reasonably conceivable
rational basis for the Legislature’s differential treatment of
the two classes of offenders. (Id. at 1112 [“The Legislature
could have reasonably concluded reform in murder cases
‘was more crucial or imperative’”]; cf. Alaybue, supra, 51
Cal.App.5th at 224-225 [interpretation of SB 1437 as
inapplicable to attempted murder convictions does not yield
absurd results, despite creating a disparity between murder
and attempted murder convictions; “Because the
punishment for murder is so much more severe than the
punishment for attempted murder, the Legislature may have
wished to limit Senate Bill 1437’s ameliorative reforms to
those instances where it perceived the disconnect between
culpability and punishment to be most glaring”].) Moreover,
there is a second reasonably conceivable rational basis for
the differential treatment, viz., concern for “judicial economy
and the financial costs associated with reopening both final
murder and final attempted murder convictions.” (Medrano,
supra, 42 Cal.App.5th at 1018; accord, Lopez, supra, at 1112
[“In a world of limited resources, it is reasonable for the
Legislature to limit the scope of reform measures to
maintain the state’s financial integrity”].)
In sum, because Section 1170.95 provides no relief to
persons convicted of attempted murder, the trial court did
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1.) Not so. Regardless of SB 1437’s
effects, “murder liability” is not imposed when a defendant is
convicted of attempted murder.
17
not err by summarily denying appellant’s petition for relief
from his convictions for that offense. However, the court
erred by relying on impermissible factfinding to summarily
deny his petition for relief from his murder conviction.
18
DISPOSITION
The order summarily denying appellant’s petition for
postconviction relief under Section 1170.95 is affirmed with
respect to his attempted murder convictions. The order is
reversed with respect to appellant’s murder conviction, and
the matter is remanded. On remand, the trial court shall
appoint counsel for appellant, set a briefing schedule, and
follow Section 1170.95’s further procedures for evaluating
his petition for relief from his murder conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
19