People v. Radloff CA4/1 ( 2023 )

Filed 7/20/23 P. v. Radloff CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080082
Plaintiff and Respondent,
v. (Super. Ct. No. SCN370158)
JAMIE RADLOFF,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Carlos O. Armour, Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for
Plaintiff and Respondent.
Following her 2019 first degree murder conviction and the subsequent
denial of her direct appeal in January 2021, in May 2021, Jamie Radloff filed
a petition for resentencing under former Penal Code section 1170.95 (now
section 1172.6).1 The prosecutor filed a response, and the court eventually
appointed Radloff counsel shortly before a hearing on the matter, at which
Radloff’s attorney appeared. However, the court did not give Radloff an
opportunity to file a brief responding to the prosecutor. The court denied the
resentencing petition, concluding Radloff was not eligible for relief because
she was convicted after section 1172.6 became effective.
Radloff appeals, contending the court erred by waiting to appoint
counsel and by denying her petition without offering the opportunity to
respond to the prosecution. The Attorney General concedes the court erred
by making its decision without the benefit of briefing but contends the error
was harmless. We agree with the Attorney General, and we affirm.
BACKGROUND AND PROCEDURAL FACTS
The details of the crime are not essential to our analysis. A summary
of them can be found in our opinion on Radloff’s direct appeal. (People v.
Radloff (Jan. 27, 2021, D075891 [unpub. opn.].)
At trial, the court provided a felony murder jury instruction that
included the factors discussed in People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The instructions
also explained that “[a] person acts with reckless indifference to human life
when he or she knowingly engages in criminal activity that he or she knows
involves a grave risk of death. This requires the person to actually know that
under the circumstances the crime in which he or she is participating carries
a higher probability of death than normally attends to the commission of such
1 All statutory references are to the Penal Code. Effective June 30, 2022,
section 1170.95 was recodified without substantive change in section 1172.6,
pursuant to Assembly Bill No. 200 (2021-2022 Reg Session). (See Stats. 2022,
ch. 58, § 10.) We refer to the current codification throughout this opinion.
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crime. [¶] Mere knowledge that an alleged co-participant in the crime is
armed and the anticipation that lethal force might be used to accomplish the
robbery is not sufficient by itself to prove beyond a reasonable doubt that the
defendant knew the alleged conduct involved a grave risk of death.”
The jury convicted Radloff of first degree murder (§ 187, subd. (a)(1))
and robbery (§ 211) in April 2019. It also made a finding that she was
vicariously armed with a firearm. (§ 12022, subd. (a)(1).)
Radloff appealed the conviction, and we affirmed the judgment in
January 2021. (People v. Radloff, supra, D075891.)
In May 2021, Radloff filed a petition for resentencing under
section 1172.6. She served the district attorney with the petition, and the
People filed an initial response to the petition in July. By September, Radloff
had not received confirmation that her petition was received. So, in
November, Radloff filed a petition to vacate her petition and request
appointment of counsel.
On January 28, 2022, the court assigned an attorney and set a hearing
for February 10, 2022 to address Radloff’s petition. Radloff’s attorney
appeared at the hearing.
The court explained it had prepared an order several months earlier
denying the petition, but it did not sign the order. The court said, “[A]s far as
I’m concerned, this petition is not valid because she was not a person that
was tried under the old law. She was tried under the current statute, and
the new elements for felony murder were applied to her case and instructed
to the jury. And they did find her guilty of murder.” It said that for those
reasons, it would file the order denying the request, and it offered to hear
from the attorneys.
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Radloff’s attorney told the court that after Radloff’s trial there was a
change in the law because the Supreme Court decision in In re Scoggins
(2020) 9 Cal.5th 667 “interpret[ed] Clark and the elements needed to prove
reckless indifference to human life.” Radloff’s counsel also asked the court if
the order was being dated that day, and the court confirmed it was, even
though it “probably” completed the order within two weeks of receiving it.
The court denied the petition. Radloff filed a timely notice of appeal.
DISCUSSION
A. Legal Principles
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)
amended Penal Code section 188, which defines malice, and section 189,
which defines degrees of murder. (Stats. 2018, ch. 1015, §§ 2 & 3.)
Amended section 189 states: “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. [¶] [or] (3) The person was a
major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.”
(§ 189, subd. (e).)
Senate Bill 1437 also established resentencing relief for eligible
defendants. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698,
707-708 (Strong).) Under section 1172.6, subdivision (a), “[a] person
convicted of felony murder or murder under a natural and probable
consequences theory may file a petition” with the sentencing court to have
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his or her 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” under
Senate Bill 1437.
After receiving a petition containing the required information, “the
court must evaluate the petition ‘to determine whether the petitioner has
made a prima facie case for relief.’ ” (Strong, supra, 13 Cal.5th at p. 708,
citing § 1172.6, subd. (c).) “[P]etitioners who file a complying petition
requesting counsel are to receive counsel upon the filing of a compliant
petition.” (People v. Lewis (2021) 11 Cal.5th 952, 963 (Lewis).) The
prosecutor then files and serves a response within 60 days of service of the
petition, and the petitioner may respond within 30 days of the prosecutor
serving the response. (Lewis, at p. 964; § 1172.6, subd. (c).) “[T]he court
reviews the petition to determine ‘if the petitioner has made a prima facie
showing that petitioner falls within the provisions of this section.’ ” (Lewis,
at p. 962, quoting former § 1170.95, subd. (c).) The Supreme Court described
the process: “[A] complying petition is filed; the court appoints counsel, if
requested; the issue is briefed; and then the court makes one . . . prima facie
determination.” (Lewis, at p. 966.) If the defendant makes a prima facie
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showing of entitlement to relief, the court must issue an order to show cause
and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).)
B. Analysis
Radloff and the Attorney General agree that the law requires a court to
consider whether a petitioner makes a prima facie showing of eligibility for
relief only after appointment of counsel and briefing occur. (§ 1172.6,
subds. (b), (c); Lewis, supra, 11 Cal.5th at p. 957.) They agree that did not
occur here because the court did not consider briefing before denying the
petition.2 However, they dispute whether this error was prejudicial.
(People v. Watson (1956) 46 Cal.2d 818.) Thus, we consider whether it is
reasonably probable Radloff would have obtained a more favorable outcome if
the court had received briefing from the parties. (Lewis, at pp. 973-974.)
Radloff’s trial occurred after the amendments to the felony murder law
were effective, and the jury instructions reflected the requirements of the
new law. For instance, the court instructed the jury that to convict Radloff of
murder as an aider and abettor, the jury must find beyond a reasonable
doubt that she either acted with the intent to kill or that she was a major
participant who acted with reckless indifference to human life. In connection
with whether Radloff was a major participant in the underlying robbery, the
instructions directed the jury to consider her role in the robbery, her role in
supplying or using lethal weapons, her awareness as to the dangers posed by
the nature of the crime, any weapons used, Radloff’s past experience with the
perpetrator, Radloff’s presence at the killing, whether Radloff was in a
position to facilitate or prevent the murder, Radloff’s own actions or inaction
2 Although the court did not appoint Radloff counsel when she filed the
petition, as it should have, the court did appoint counsel before the hearing,
in which the attorney represented Radloff.
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and whether either played a particular role in the victim’s death, and her
actions after lethal force was used. (See Banks, supra, 61 Cal.4th at p. 803.)
With regard to whether Radloff acted with a reckless indifference to human
life, the instructions directed the jury to consider if she knowingly engaged in
criminal activity that she knew involved a grave risk of death and whether
Radloff “actually kn[e]w that under the circumstances[,] the crime in
which . . . she . . . participat[ed] carrie[d] a higher probability of death than
normally attends the commission of such a crime.” (See Clark, supra, 63
Cal.4th at pp. 618-623.)
Radloff argues that Scoggins changed the law by clarifying that
reckless indifference has both objective and subjective elements. She
contends that because the instructions used at her trial did not explicitly
reference “objective” and “subjective” intent or tell the jury how to assess
those requirements, it is “unclear whether the jury engaged in a complete
and proper analysis of the requirements necessary to find her guilty.” In
other words, Radloff contends that she is not sure on which of those factors
the jury based its decision. But this does not tell us how the court’s failure to
review briefing prejudiced her. Radloff’s attorney told the court about the
Scoggins case, so the court heard that information before concluding Radloff
was ineligible for relief.
Additionally, Radloff’s argument essentially challenges the correctness
of the jury instructions because she contends the jury did not have the
necessary information to properly assess recklessness. That is a claim of trial
error (see, e.g., People v. Hendrix (2022) 13 Cal.5th 933, 941 [discussing
instructional error as error at trial]), and section 1172.6 “does not permit a
petitioner to establish eligibility on the basis of alleged trial error.” (People v.
DeHuff (2021) 63 Cal.App.5th 428, 438.)
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To meet her burden, Radloff must be able to make a prima facie
showing that all the components of section 1172.6, subdivision (a) apply.
Because she was convicted after section 1172.6 became effective in 2019, she
cannot show that she could not be convicted of murder “because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3)).
Thus, she does not show it is reasonably probable she would have obtained a
more favorable outcome if the court had received briefing from the parties.
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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