People v. Harris CA2/3 ( 2021 )

Filed 9/28/21 P. v. Harris CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B308782
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA133670
v.
JULIUS D. HARRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Reversed and remanded
with directions.
Kathy R. Moreno, 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, Idan Ivri and J. Michael Lehmann, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2014, defendant Julius D. Harris was convicted of first
degree murder with gang and gun enhancements after a fight at
a party spiraled out of control. He appeals from the summary
denial of his petition for recall and resentencing under Penal
Code section 1170.95. On appeal, the People agree with
defendant that the trial court engaged in improper fact-finding
when it found that he had the specific intent to kill and acted as a
major participant in the underlying felony and with reckless
indifference to human life. We agree. We therefore reverse and
remand for further proceedings.
BACKGROUND1
By information dated August 28, 2014, defendant and
codefendant Michael Dunn were charged with one count of
murder (Pen. Code,2 § 187, subd. (a); count 1). The information
also alleged that the crime was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)) and that each
defendant personally used and discharged a firearm, causing
great bodily injury and death (§ 12022.53, subds. (b)–(d)). The
information also alleged Dunn had suffered various prior
convictions.3
1Because the People concede reversal is required in this case, we do
not address the facts underlying the charges.
2 All undesignated statutory references are to the Penal Code.
3The information also charged codefendant Maliek Dwayne Grissett
with attempted murder (§ 664/187, subd. (a); count 2). Grissett
ultimately pled no contest to one count of assault by means likely to
cause great bodily injury (§ 245, subd. (a)(1)). Neither Grissett nor
Dunn is a party to this appeal.
2
Defendant was convicted of first degree murder; Dunn was
convicted of second degree murder.4 The jury found the gang
allegation true as to both defendants and found true the
allegation that each defendant personally and intentionally
discharged a firearm—but found not true the allegation that each
defendant had thereby caused great bodily injury or death. The
court sentenced defendant to an aggregate term of 45 years to
life. A different panel of this court affirmed by unpublished
opinion but remanded to allow the lower court to exercise its
discretion to strike the gun enhancement under newly-enacted
Senate Bill No. 620 (2017–2018 Reg. Sess.). (People v. Harris
(Apr. 26, 2018, B266099) [nonpub. opn.].)
In July 2020, defendant filed a petition for recall and
resentencing under section 1170.95.5 He did not request the
appointment of counsel. Attached to the petition was a notarized
affidavit from Dunn stating that Dunn was the killer and that he
had acted without defendant’s assistance or encouragement. In
September 2020, the court summarily denied the petition without
receiving briefing from the prosecution or defendant.
The court’s order states:
The court has received and reviewed a petition
for … re-sentencing pursuant to Penal Code
section 1170.95. The petition is summarily denied
4 The jury was instructed on theories of both malice aforethought and
felony murder.
5Defendant also moved for a youth offender hearing under Assembly
Bill No. 1308 (2017–2018 Reg. Sess.) and moved to strike the firearm
enhancement under Senate Bill No. 620 (2017–2018 Reg. Sess.). He
does not challenge the denial of those motions on appeal.
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because the petition[er] is not entitled to relief as
a matter of law for the following reason: The
petitioner was convicted of murder and the court
file reflects that he was one of the actual shooters.
The appellate opinion affirming the petitioner’s
conviction and sentence reflect[s] that petitioner
was one of the actual shooters.
Specifically, the evidence a[t] trial established that
this case reflected a classic “gang confrontation”
which resulted in a shooting between gang
members. The shooting followed a series of verbal
dispute[s] and physical altercation[s.] Petitioner
was an instigator in the initial fight. The evidence
o[f] petitioner’s specific intent was overwhelming
e.g. petitioner left after the initial fight and
returned with a gun. Petitioner was convicted of
first degree murder and the [jury] found “true”
the allegation that he personally and
intentionally discharged a firearm.
Moreover, although it appears the jury could not
determine[ ] which of the actual shooter[s] caused
the victim’s death, it is clear that the petitioner
fired his weapon with the intent to kill and that he
was a major participant in the shooting and acted
with reckless indifference to human life.
[¶] … [¶]
For the foregoing indicated reasons, the petition
for recall and re-sentencing … [is] denied.
4
(Italics added.)
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that the trial court improperly weighed
the evidence at the prima facie stage of proceedings. The People
properly concede the point, and we agree.
1. S.B. 1437
Senate Bill No. 1437 (S.B. 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, 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, subd. (f); People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).) It accomplished this by amending
section 188, subdivision (a)(3), to require that all principals to
murder must act with express or implied malice to be convicted of
that crime, unless they are convicted of felony murder under
section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) For felony
murder convictions under section 189, subdivision (e), S.B. 1437
requires that the defendant be the actual killer, an aider and
abettor to the murder who acted with intent to kill, or a major
participant in the underlying felony who acted with reckless
indifference to human life. (Stats. 2018, ch. 1015, § 3.)
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted under one of the
now-invalid theories of murder the opportunity to petition for
resentencing under newly-enacted section 1170.95. (Stats. 2018,
ch. 1015, § 4.) Section 1170.95, subdivision (a)(3), describes who
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may petition for resentencing under the statute. Subdivision (b)
explains what information the petition must contain, where the
petitioner must file it, who the petitioner must serve, and what
the court should do if it’s incomplete. Subdivision (c)—the section
at issue here—describes the process the court uses to determine
whether the petitioner is entitled to an evidentiary hearing:
Appoint counsel, if requested; wait for the prosecutor’s required
response and the petitioner’s optional reply; if the petitioner
makes a prima facie showing that he is entitled to relief, issue an
order to show cause. (Lewis, supra, 11 Cal.5th at p. 966.)
“While the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited.” (Lewis,
supra, 11 Cal.5th at p. 971.) The court may deny a petition at this
stage only if the petitioner is ineligible for relief as a matter of
law. A petitioner is ineligible for relief as matter of law if the
record of conviction shows that he could not have been convicted
under any theory of liability affected by S.B. 1437—such as
where malice aforethought was the only theory presented to the
jury. “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.] … [T]he prima facie bar was intentionally
and correctly set very low.’ ” (Lewis, at p. 972.)
If the court issues an order to show cause after its prima
facie review, subdivisions (d)–(g) describe the procedures for
holding an evidentiary hearing, the type of evidence that may be
admitted, the burden of proof, and the requirements for
resentencing an eligible petitioner.
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2. The court conducted improper fact-finding.
The People concede: “At trial, the theories of liability
offered to the jury that could have supported appellant’s
conviction included both premeditation and felony murder.
[Citation.] The use of a felony murder theory presents the
possibility that appellant may be eligible for relief. The trial
court’s denial of appellant’s petition was predicated on
consideration of the facts of the crime and finding that he could
nevertheless be convicted of murder under a currently valid
theory. Although that is the correct question, and the facts
strongly support the court’s finding, the court may not actually
weigh the facts without issuing an order to show cause and
holding a section 1170.95, subdivision (d)(3) hearing.” (Footnote
omitted.)
As the People note, because the jury was instructed on
felony murder, defendant “could have been convicted without a
finding that he acted with actual malice, or that he was the
actual killer, or that he was a major participant in the felony who
acted with reckless indifference to life.” As to whether defendant
was the actual killer, as the trial court acknowledged, the jury
found true the allegation that defendant discharged a firearm in
the commission of the offense but found not true the allegation
that he caused death. As such, “it appears the jury could not
determine[ ] which of the actual shooter[s] caused the victim’s
death.” As to malice, the People concede that “the use of a felony
murder jury instruction indicates that the jury could have
convicted appellant of first degree murder even if the victim was
killed accidentally during the commission of an underlying felony
in which appellant was an aider and abettor.” Finally, the jury
was not asked to consider whether defendant was a major
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participant who acted with reckless indifference, and the felony-
murder instruction allowed it to convict without reaching the
issue.
We agree with defendant and the People that the court
here engaged in fact-finding—and did so without the benefit of
the required briefing from the People and optional response from
defendant—and adopt the People’s suggested remedy, to which
defendant agrees: “Because the trial court prematurely denied
the petition, the appropriate remedy is to remand the case with
orders to proceed according to section 1170.95, subdivision (c). In
other words, the trial court should appoint counsel, if requested,
and allow the parties to brief the issue of appellant’s eligibility as
a matter of law without engaging in factfinding. [Citations.]
Importantly, the parties may be able to obtain the full set of jury
instructions which may shed light on the nature of the conviction.
However, after briefing is complete, if the court finds that
appellant has made a prima facie showing for relief, then it must
issue an order to show cause and proceed with a hearing where
the parties may present evidence and the court acts as the trier of
fact. (§ 1170.95, subds. (c)–(d).)”
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed and the matter is remanded for further proceedings
consistent with the views expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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