People v. Davis CA2/1 ( 2021 )

Filed 9/27/21 P. v. Davis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B306417
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA026317)
v.
STEPHEN EDMOND DAVIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Stephen Edmond Davis, who was convicted of first degree
murder with a felony-murder special circumstance finding,
appeals from an order denying his petition for resentencing under
Penal Code section 1170.95.1 He contends the trial court erred in
summarily denying his petition without appointing counsel to
represent him, issuing an order to show cause, and conducting an
evidentiary hearing. The Attorney General concedes, and we
agree, the trial court erred in failing to appoint counsel for Davis.
For the reasons set forth below, we conclude the error was
harmless and affirm the order denying the petition for
resentencing.
BACKGROUND
I. The Offense and the Trial2
An April 9, 1996 information charged Davis and
codefendant John Patrick Winkleman with the murder (§ 187,
subd. (a)) and second degree robbery (§ 211) of Willie Yen. The
information also alleged the special circumstance that Davis and
Winkleman committed the murder while they were accomplices
1 Further statutory references are to the Penal Code.
2 We take the facts regarding the circumstances of the
charged offenses from this court’s opinion in Davis’s direct
appeal. (People v. Davis (Sept. 24, 1998, B113832 [nonpub. opn.]
(Davis).) In his section 1170.95 petition, Davis stated, “he agrees
that the Court of Appeal’s statement of the evidence [in the
opinion in his direct appeal] is generally accurate,” although he
notes “it was composed without the benefit of the California
Supreme Court’s opinions in [People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522].” In the
respondent’s brief, the Attorney General asked this court to take
judicial notice of the opinion in Davis’s direct appeal, and we do
so.
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in the commission of a robbery (§ 190.2, subd. (a)(17)), and that
they each personally used a firearm in the commission of the
murder and robbery. (§ 12202.5, subd. (a).)
In a nonpublished opinion in Davis’s direct appeal from his
convictions, this court described the facts of the case as follows:
“Davis and Winkleman (who lived together) planned to rob
Willie Yen, a crystal methamphetamine dealer. Davis and
Winkleman arranged to meet Yen at a park, then armed
themselves and went to the park. Davis and Winkleman both
shot at Yen, who died from one gunshot wound that pierced his
aorta. Davis and Winkleman were arrested the next day.
“Davis confessed. He told the police he and Winkleman
were both involved in the incident, and said that he shot at the
back of Yen’s car as Yen was fighting with Winkleman and trying
to drive off with Winkleman in the car. Davis placed most of the
blame on Winkleman. After he confessed, Davis called his
girlfriend from the police station (the call was recorded). He told
her where to find the two guns that he and Winkleman had
discarded and asked her to get his friend, Christian Budnic, to
‘get rid of whatever he finds.’ The two guns were recovered by
the police but the ballistics experts could not determine which
one had fired the fatal shot. Yen’s pager was found in the room
shared by Davis and Winkleman.
“At trial, an eyewitness [Adam Asbury] identified
Winkleman as one of the shooters and testified to Winkleman’s
jury that Winkleman (not Davis) had walked up to Yen’s car and
fired into the driver’s side at Yen. The tape of Davis’s confession
was played to his jury but not to Winkleman’s jury. In defense,
Davis blamed Winkleman. Winkleman blamed Budnic. Davis
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and Winkleman were convicted.” (Davis, supra, B113832, at pp.
2-3.)
The opinion in the direct appeal also states Davis and
Winkleman “were convicted of felony murder with robbery special
circumstance findings and gun use enhancements found true. In
addition, Winkleman was convicted of attempted armed robbery,
Davis of robbery. Both men were sentenced to state prison for
life without the possibility of parole. Both appeal[ed].” (Davis,
supra, B113832, at p. 2.)
In the direct appeal, Davis and Winkleman contended,
among other things, “there was prosecutorial misconduct because
the prosecutor argued to Winkleman’s jury that Winkleman was
the shooter who killed Yen and to Davis’s jury that Davis was the
shooter who killed Yen.” (Davis, supra, B113832, at p. 3.) In
rejecting the contention and affirming the convictions, this court
stated in the opinion: “Both arguments were supported by the
evidence. The eyewitness account supports the prosecutor’s
argument that Winkleman was the killer, and Davis’s confession
supports the argument that he was the killer. The ballistics
experts could not say which gun fired the fatal bullet. Evidence
may support many truths and, on this record, there is no
misconduct in arguing these conflicting theories.” (Ibid.)
The opinion in the direct appeal also states: “We do not
agree with Davis and Winkleman that the prosecutor’s theories
were mutually exclusive. To Winkleman’s jury, the prosecutor
argued in favor of a conviction if the jury found Winkleman was
the actual killer or if it found he aided and abetted the killer,
with the emphasis on the latter rather than the former. To
Davis’s jury, the prosecutor emphasized Davis’s confession but
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also argued that Davis could be convicted on an aiding and
abetting theory.” (Davis, supra, B113832, at p. 3, fn. 1.)
In connection with his section 1170.95 petition, Davis
submitted documents indicating that in August 2018, the
Governor commuted Davis’s sentence to 25 years to life.
In 2018, the Legislature enacted Senate Bill No. 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(f), p. 6674;
§§ 188, subd. (a)(3), 189, subd. (e).) Senate Bill No. 1437 also
added section 1170.95, a statute which permits a person
convicted of felony murder or murder under a natural and
probable consequences theory to petition the court to have the
murder conviction vacated and to be resentenced, if the person
could not be convicted of murder today in light of amendments to
sections 188 and 189.
II. Davis’s Petition for Writ of Habeas Corpus
On February 15, 2019, Davis, as a self-represented litigant,
filed a petition for writ of habeas corpus in the trial court,
arguing the true finding on the special circumstance must be
reversed under Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522 because “the evidence does not prove that he was
a major participant in the shooting itself, and does not prove that
he acted with reckless indifference to human life.” In the petition
for writ of habeas corpus, Davis also referenced the enactment of
Senate Bill No. 1437. He attached to the petition, among other
things, excerpts from the reporter’s transcript of his trial,
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including parts of the prosecutor’s closing arguments to his jury
and Winkleman’s jury, and portions of the jury instructions.
After the district attorney filed an informal response to the
petition for writ of habeas corpus, and Davis filed a reply, the
trial court summarily denied the petition for writ of habeas
corpus. In an eight-page written order, after discussing Banks
and Clark, the trial court found: “The facts of the case clearly
support the conclusion that [Davis] was a major participant in
the murder with reckless indifference to human life.”
III. Davis’s Section 1170.95 Petition
On April 7, 2020, Davis, representing himself, filed a
petition for resentencing under section 1170.95. Therein, he
referenced the facts set forth in this court’s opinion from his
direct appeal, as quoted above. He also asserted: “The
particulars of the Banks and Clark findings are at the heart of
petitioner’s claim that the special circumstances true finding in
this case cannot withstand constitutional scrutiny.”
Davis’s petition included all information necessary for a
facially sufficient petition under section 1170.95, subdivision (b),
which the Attorney General concedes. Davis requested
appointment of counsel in connection with his section 1170.95
petition.
On April 25, 2020, the trial court summarily denied Davis’s
section 1170.95 petition, without appointing counsel for him. In
its two-page ruling, the court stated, in pertinent part:
“His petition is denied for the same reasons his writ of
February 15, 2020 was denied. The facts of the case support the
conclusion that [he] was a major participant in the murder.
Substantial evidence supports the special circumstance allegation
because petitioner was a major participant in the murder
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exhibiting a reckless indifference to life. Petitioner was at the
scene of the murder and in a position to prevent violence, but
instead he participated in the robbery and fled the scene of the
crime without a single attempt to render aid to the victim. His
actions before, during and after the killing were those of a
murderer who was clearly invested in the killing. His role in
assisting the shooter in the planning and execution of the robbery
and murder played a significant role in the victim’s death. He
admitted to running behind the vehicle in which the victim was
seated, firing several rounds at the victim’s vehicle.”
DISCUSSION
I. Pertinent Provisions of Section 1170.95
Under section 1170.95, subdivision (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 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.”
Subdivision (b)(1) of section 1170.95 provides: “The
petition shall be filed with the court that sentenced the petitioner
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and served by the petitioner on the district attorney, or on the
agency that prosecuted the petitioner, and on the attorney who
represented the petitioner in the trial court or on the public
defender of the county where the petitioner was convicted. If the
judge that originally sentenced the petitioner is not available to
resentence the petitioner, the presiding judge shall designate
another judge to rule on the petition. 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 year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.”
A trial court that receives a facially sufficient petition for
resentencing meeting the requirements of section 1170.95,
subdivision (b), must follow these steps, in pertinent part: “The
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. If the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner. The
prosecutor shall file and serve a response within 60 days of
service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served.
These deadlines shall be extended for good cause. 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.”
(§ 1170.95, subd. (c).)
If the trial court issues an order to show cause, “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
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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.” (§ 1170.95, subd. (d)(3).)
II. The Trial Court’s Summary Denial of the Section
1170.95 Motion, Without Appointing Counsel for
Davis, Was Harmless Error
Davis contends the trial court erred in summarily denying
his section 1170.95 petition without appointing counsel to
represent him, issuing an order to show cause, and conducting an
evidentiary hearing. The Attorney General concedes, and we
agree, the trial court erred in failing to appoint counsel for Davis.
In People v. Lewis (2021) 11 Cal.5th 952, 960-970 (Lewis), the
Supreme Court held the trial court must appoint counsel to
represent the petitioner in all cases where the petition is facially
sufficient.3 It is undisputed Davis filed a facially sufficient
section 1170.95 petition.
As the parties stated in their supplemental letter briefs,
the next step in our inquiry here is to determine if the trial
court’s error was harmless. The failure to appoint counsel in a
proceeding under section 1170.95 is an error of state statutory
law only, and not a violation of a defendant’s constitutional
rights. (Lewis, supra, 11 Cal.5th at pp. 972-973.) Accordingly,
3 The Supreme Court issued its opinion in Lewis after the
parties had filed their appellate briefs in this matter. We allowed
the parties to file supplemental briefs to explain how Lewis
affects this case, and they did.
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we review for harmless error under the standard set forth in
People v. Watson (1956) 46 Cal.2d 818, which requires a
defendant to “ ‘demonstrate there is a reasonable probability that
in the absence of the error he . . . would have obtained a more
favorable result.’ ” (Lewis, at p. 974.) “More specifically, a
[defendant] ‘whose [section 1170.95] petition is denied before an
order to show cause issues has the burden of showing “it is
reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.” ’ ” (Ibid.)
Davis cannot meet this burden. In order to find the felony-
murder special circumstance true under section 190.2, the jury
must have found that Davis either was the actual killer, that he
was not the actual killer but acted with the intent to kill in
aiding, abetting, soliciting, or assisting in the murder, or, at a
minimum, that he was a major participant in the felony and
acted with reckless indifference to human life.4 This is the same
finding required today for a conviction of felony murder under
newly amended section 189. (See § 189, subd. (e).) Therefore,
Davis is ineligible for resentencing as a matter of law because he
cannot show he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective”
in Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).)
4 The 1995 murder in this case postdated approval of
Proposition 115, which amended section 190.2 to allow for felony-
murder special circumstance findings where the defendant was a
major participant in the felony and acted with reckless
indifference to human life. (See Prop. 115, § 10, as approved by
voters, Primary Elec. (June 5, 1990).)
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Davis disagrees the true finding on the felony-murder
special circumstance prevents him from demonstrating the trial
court’s error was prejudicial. In his supplemental letter brief, he
asserts the “position that the denial [of his section 1170.95
petition] cannot properly be based solely on the jury’s verdict
because [his murder] conviction is based on a theory that is no
longer valid in light of” Banks, supra, 61 Cal.4th 788 and People
v. Clark, supra, 63 Cal.4th 522.
As we concluded in People v. Galvan (2020) 52 Cal.App.5th
1134, review granted October 14, 2020, S264284 (Galvan), People
v. Murillo (2020) 54 Cal.App.5th 160, review granted November
18, 2020, S264978, and People v. Allison (2020) 55 Cal.App.5th
449, a defendant with a pre-Banks/Clark felony-murder special
circumstance finding is ineligible for resentencing under section
1170.95, and a trial court does not err in summarily denying a
defendant’s section 1170.95 petition for resentencing on that
basis. We need not repeat here the analysis set forth in these
three opinions. Suffice it to say, Senate Bill No. 1437 did nothing
to alter the requirements for a special circumstance finding, as
clarified in Banks and Clark. (Galvan, at p. 1142.)
We stand by our analysis in Galvan, Murillo, and Allison
and, on that basis, hold Davis is unable to make a prima facie
case for relief under section 1170.95. Because Davis has not
shown it is reasonably probable his section 1170.95 petition
would not have been summarily denied if he had been appointed
counsel, the error in prematurely denying his petition was
harmless. (See Lewis, supra, 11 Cal.5th at p. 974.)
While we conclude a section 1170.95 petition is not the
proper vehicle for challenging the validity of a special
circumstance finding under Banks and Clark, this does not leave
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Davis without a means to make such a challenge. As we noted in
Galvan, a defendant with a pre-Banks/Clark special circumstance
finding may challenge the sufficiency of the evidence for the
special circumstance by means of a habeas corpus petition filed in
the appellate court. (Galvan, supra, 52 Cal.App.5th at p. 1141,
review granted; In re Scoggins (2020) 9 Cal.5th 667, 673-674.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
CRANDALL, 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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