People v. Powell CA2/7 ( 2021 )

Filed 8/18/21 P. v. Powell CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B304587
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA101113)
v.
MICHAEL ANTHONY POWELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, H. Clay Jacke II, Judge. Affirmed.
Stephen Temko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Amanda V. Lopez and
Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
INTRODUCTION
A jury convicted Michael Powell under the provocative act
doctrine of the murder of Dennis Smith. Twenty years later,
Powell filed a petition for resentencing under Penal Code section
1170.95,1 which authorizes certain defendants convicted of felony
murder or murder under the natural and probable consequences
doctrine to petition for recall of their sentences and resentencing.
Powell argues that, although he was not convicted of felony
murder, he was convicted of something similar. Similar,
however, is not the same. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Powell and Smith Try To Rob a Store; Smith Is Killed
In March 1999 Powell, armed with a gun and a magazine of
bullets, and Smith entered a price-point retail store that
historically sold merchandise for less than one dollar. As they
tried to rob the store, Powell and Smith fought with the store
manager and one of her grandsons. Another grandson got a gun
from the manager’s purse and shot at the two would-be robbers,
killing Smith. (People v. Powell (July 16, 2001, B139146)
[nonpub. opn.] (Powell I).)
1 Statutory references are to the Penal Code.
2
B. A Jury Convicts Powell of Provocative Act Murder
In October 1999 a jury convicted Powell of first degree
murder under the provocative act doctrine2 and found true the
allegation he committed the murder during an attempted
robbery, within the meaning of section 190.2, subdivision (a)(17).3
The jury also convicted Powell of attempted robbery and found
true allegations he personally used a firearm, within the meaning
of section 12022.53, subdivision (b). The trial court sentenced
Powell to a prison term of life without the possibility of parole,
plus 10 years for the firearm enhancement. We affirmed, holding
that substantial evidence supported Powell’s murder conviction
and that the trial court properly sentenced Powell to life in prison
2 “The provocative act doctrine does not define a crime. . . .
Rather, ‘provocative act murder’ is a descriptive term referring to
a subset of intervening-act homicides in which the defendant’s
conduct provokes an intermediary’s violent response that causes
someone’s death.” (People v. Gonzalez (2012) 54 Cal.4th 643, 649,
fn. 2; see People v. Concha (2009) 47 Cal.4th 653, 663 [“The words
‘provocative act murder’ are merely shorthand used ‘for that
category of intervening-act causation cases in which, during
commission of a crime, the intermediary (i.e., a police officer or
crime victim) is provoked by the defendant’s conduct into [a
response that results] in someone’s death.’”].)
3 Section 190.2, subdivisions (a)(17) and (d), provide for
punishment by death or life imprisonment without parole for a
defendant convicted of murder who participated in a robbery or
attempted robbery, if the defendant acted with reckless
indifference to human life and was a major participant in the
robbery or attempted robbery. (See People v. Williams (2020)
57 Cal.App.5th 652, 659; People v. Douglas (2020) 56 Cal.App.5th
1, 7.)
3
without the possibility of parole under section 190.2,
subdivision (a)(17). (Powell I, supra, B139146.)
C. The Superior Court Denies Powell’s Petition Under
Section 1170.95
In 2019 Powell, representing himself, filed a four-page,
typed petition for resentencing under section 1170.95 (with
exhibits), stating that he was convicted of first degree murder
under a felony-murder or natural and probable consequences
theory and that he could not be convicted of murder under
current law. Powell asked the court to hold a resentencing
hearing and to release him. The superior court found Powell had
stated a prima facie case for relief, appointed counsel for him,
and set the matter for a hearing under section 1170.95,
subdivision (d).
The prosecutor argued, among other things, that the People
did not rely on a felony-murder or natural and probable
consequences theory and that section 1170.95 “does not apply to
provocative act murder.” Counsel for Powell argued that the
provocative act murder “doctrine is an offshoot of the felony-
murder rule” and that it would be “an unjust result if our
Legislature were to abolish the felony-murder rule, but leave one
of its descendants to stand . . . .” Counsel for Powell argued that,
if Smith “had pulled the trigger of a gun and killed the
shopkeeper or her grandson or her nephew, Mr. Powell would be
sitting before this court eligible for resentencing and in all
likelihood receiving a new sentence.”
The court denied the petition, ruling Powell was ineligible
for resentencing under section 1170.95. The court stated: “Much
was made of the similarity between provocative act and natural
4
and probable consequences. However, similar to, is not the same
as. Thus, [Powell] was not convicted based upon the felony
murder rule nor by the doctrine of natural and probable
consequences. Further, [Powell] could be convicted of murder
under [current] law . . . .” Powell timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 amended sections 188 and 189 to
eliminate the natural and probable consequences doctrine as a
basis for finding a defendant guilty of murder (People v. Gentile
(2020) 10 Cal.5th 830, 838-839 (Gentile)) and significantly
narrowed the felony-murder exception to the malice requirement
for murder. (§§ 188, subd. (a)(3), 189, subd. (e); see People v.
Lewis (July 26, 2021, S260598) ___ Cal.5th ___, ___ [2021
WL 3137434, p. 1] (Lewis).) Senate Bill No. 1437 also authorized,
through new section 1170.95, an individual convicted of felony
murder or murder under a natural and probable consequences
theory to petition the sentencing court to vacate the conviction
and for resentencing on any remaining counts if he or she could
not have been convicted of murder because of Senate Bill
No. 1437’s changes to the definition of murder. (See Lewis, at
p. ___ [p. 2]; Gentile, at p. 853.)
If the petition contains the information required by
section 1170.95, subdivision (b), and the court, following the
procedures in section 1170.95, subdivision (c), determines the
petitioner has made a prima facie showing he or she is entitled to
relief, “the court shall issue an order to show cause.” (§ 1170.95,
5
subd. (c); see Lewis, supra, ___ Cal.5th at p. ___ [p. 3].) If the
court issues an order to show cause, the court must hold an
evidentiary hearing to determine whether to vacate the murder
conviction, recall the sentence, and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1); see Lewis, at
p. ___ [p. 3].) The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See Lewis, at p. ___ [p. 3]; Gentile,
supra, 10 Cal.5th at pp. 853-854.)
B. Powell Has Not Shown the Superior Court Erred in
Denying His Petition Under Section 1170.95
Powell “recognizes that section 1170.95 is limited to those
defendants who were convicted of felony murder or convicted
under the natural and probable consequences doctrine. In
response, [he] argues that he was in effect convicted of felony
murder, and not provocative act murder, due to the inadequate
jury instructions.” Powell does not argue he is entitled to relief
under section 1170.95 because he was convicted of murder under
a natural and probable consequences theory.4
As discussed, section 1170.95 allows defendants who have
been convicted of felony murder to petition for resentencing. The
4 The trial court instructed the jury that an “intentional
provocative act” meant (1) the “act was intentional,” (2) the
“natural consequences of the act were dangerous to human life,”
and (3) the “act was deliberately performed with knowledge of the
danger to, and with conscious disregard for human life.” Powell
does not argue that “natural consequences” meant “natural and
probable consequences” or that, under this instruction, he was
convicted of murder under a natural and probable consequences
theory.
6
record of conviction here shows, and Powell does not dispute, the
trial court did not instruct the jury on, the prosecution did not
argue Powell was guilty of, and the jury did not convict Powell of,
felony murder. Therefore, even if, as Powell argues, he could not
now be convicted of provocative act murder because of the
changes to sections 188 and 189, he “would still be ineligible for
relief under section 1170.95 because he was not originally
‘convicted of felony murder . . . .’” (People v. Johnson (2020)
57 Cal.App.5th 257, 269.) Because Powell was not convicted of
felony murder, he has not shown the superior court erred in
denying his petition under section 1170.95. (See Johnson, at
p. 266 [defendants could not “seek relief under the felony-murder
provision of section 1170.95” because they “were convicted of
provocative act murder, not felony murder”].)
Powell argues that the trial court failed “to instruct the
jury the provocative act had to be more than the robbery” and
that, “when the trial court fails to instruct the jury that the
robbery itself could not be used as the provocative act, a
conviction for provocative act murder is nothing more tha[n]
felony murder because the jury could have inferred malice from
the defendant’s participation in the robbery.” According to
Powell, “failing to instruct the jury the provocative act had to be
more than the robbery itself allowed the jury to find [him] guilty
of a crime more closely akin to felony murder than provocative
act murder because the jury could infer malice from the
commission of the felony.”
It is true provocative act murder requires an act “that goes
beyond what is necessary to accomplish an underlying crime and
is dangerous to human life because it is highly probable to
provoke a deadly response.” (People v. Gonzalez (2012) 54 Cal.4th
7
643, 655.) But the trial court instructed the jury on that very
principle. We held in Powell I “the jury was properly instructed a
‘provocative act’ must be something more than an act inherent in
the underlying felony.” (Powell I, supra, B139146.) We stated in
Powell I that the court’s instruction on provocative act murder
was “a correct statement of the law” that properly told the jurors
“the provocative act [had to] be something beyond the robbery
itself.” (Ibid.) And, even if Powell’s argument had merit, that
would not change the fact he was not convicted of felony murder.
Finally, Powell argues that, “even if section 1170.95 does
not apply to provocative act murder, the section unquestionably
applies to [his] first degree murder conviction because that
conviction was based on felony murder. The jury used the fact
that the murder occurred during the commission of a robbery to
elevate the conviction to first degree murder.” Again, Powell was
convicted of first degree provocative act murder, not first degree
felony murder. “The mere fact that a second degree provocative
act murder may be elevated to first degree murder pursuant to
felony-murder principles neither intertwines provocative act
murder with felony murder nor transforms the former into the
latter. . . .” (People v. Swanson (2020) 57 Cal.App.5th 604, 616,
review granted Feb. 17, 2021, S266262; see People v. Johnson,
supra, 57 Cal.App.5th at p. 266 [rejecting the argument that,
“[e]ven though he was not convicted of felony murder,” a
defendant “is eligible for relief under section 1170.95 because the
felony-murder rule was invoked to determine the degree of the
murder, i.e., murder of the first degree”].)
8
DISPOSITION
The order denying Powell’s petition for resentencing under
section 1170.95 is affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
9