People v. Wahlert CA4/2 ( 2023 )


Menu:
  • Filed 7/31/23 P. v. Wahlert CA4/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,                                      E079621
    v.                                                                      (Super. Ct. No. RIF095477)
    JOSHUA BLAINE WAHLERT,                                                  OPINION
    Defendant and Appellant.
    APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
    Reversed and remanded with directions.
    Alissa Bjerkhoel, 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, Robin Urbanski and Donald
    W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
    1
    I.
    INTRODUCTION
    Defendant and appellant Joshua Blaine Wahlert appeals the trial court’s order
    denying his petition to vacate his 2003 murder conviction and for resentencing under
    1                                            2
    Penal Code section 1172.6 (formerly section 1170.95). The trial court relied on the
    jury’s robbery-kidnapping-murder special-circumstances findings to deny relief at the
    prima facie review stage. On appeal, defendant contends the trial court erred in denying
    his petition at the prima facie stage because the court failed to adhere to the procedures
    articulated in section 1172.6, misapplied the law and failed to appropriately specify the
    reasons for the denial. The People agree the order denying the petition should be
    reversed and the matter remanded to the trial court for further proceedings consistent with
    People v. Strong (2022) 
    13 Cal.5th 698
     (Strong). We also agree. Accordingly, we
    reverse the trial court’s order denying the petition and remand the matter for further
    proceedings pursuant to section 1172.6.
    1
    All future statutory references are to the Penal Code.
    2
    Effective June 30, 2022, the Legislature renumbered section 1170.95 as section
    1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section
    1172.6 for ease of reference unless otherwise indicated.
    2
    II.
    3
    PROCEDURAL BACKGROUND
    On November 3, 2003, a third amended information was filed charging defendant
    with first degree murder (§ 187, subd. (a); count 1), being a felon in possession of a
    firearm (§ 12021, subd. (a)(1); count 2;), being a felon in possession of ammunition
    4
    (§ 12316, subd. (b)(1); count 3), and brandishing a firearm (§ 417, subd. (a)(2); count 4).
    As to the murder offense, the information alleged two special circumstances that
    defendant committed the murder while engaged in the commission of a robbery and
    kidnapping (§ 190.2, subd. (a)(17)(A), (B)). Further, in connection with the murder, the
    information alleged that defendant personally discharged a firearm causing great bodily
    injury or death (§ 12022.53, subd. (d)) and personally used a knife (§ 12022, subd.
    (b)(1)).
    On December 9, 2003, a jury found defendant guilty as charged on all counts and
    found true all enhancement allegations. He was sentenced to life without possibility of
    parole on count 1, plus a consecutive sentence of 25 years to life for the gun enhancement
    and an additional one year on the arming enhancement.
    3
    Because the factual background is not relevant to the legal issues raised in this
    appeal, we will not recount the details of defendant’s underlying offenses. Those details
    can be found in our partially published opinion from defendant’s direct prior appeal.
    (See People v. Wahlert, et al. (2005) 
    31 Cal.Rptr.3d 603
    ; previously published at 
    130 Cal.App.4th 709
    .)
    4
    The information also contained allegations against defendant’s codefendant,
    Tracey Garrison. Those allegations are omitted here.
    3
    On June 24, 2005, we affirmed defendant’s convictions in a partially published
    opinion in People v. Wahlert, et al., supra, 
    31 Cal.Rptr.3d 603
    , but modified defendant’s
    sentence on counts 2, 3 and 4 by directing the trial court to stay defendant’s sentence on
    counts 3 and 4 pursuant to section 654. We also directed the court to correct certain
    clerical errors and ordered victim restitution to be paid jointly and severally. (Ibid.)
    On March 7, 2022, defendant in propria persona filed a petition to vacate his
    murder conviction and for resentencing pursuant to former section 1170.95.
    The trial court appointed counsel for defendant and heard the petition on August
    19, 2022. The prosecutor argued the petition should be denied due to the robbery-
    kidnapping-murder special circumstances findings and also pointed out that defendant
    was the actual killer who admitted shooting the victim in the head and slitting his throat.
    Defense counsel conceded but made an objection for the record. The trial court denied
    the petition based on the special circumstances findings. Defendant timely appealed.
    III.
    DISCUSSION
    Defendant argues the trial court erred in denying his petition at the prima facie
    stage because the court failed to adhere to the procedures articulated in section 1172.6
    and misapplied the law. The People agree that under Strong, supra, 
    13 Cal.5th 698
     the
    court’s order denying defendant’s petition for resentencing at the prima facie stage should
    be reversed and the matter remanded for further proceedings. Because his conviction
    predates our Supreme Court’s decisions in People v. Banks (2015) 
    61 Cal.4th 788
    4
    (Banks) and People v. Clark (2016) 
    63 Cal.4th 522
     (Clark), we concur that the trial court
    erred in denying defendant’s petition at the prima facie stage and remand for further
    5
    proceedings.
    A. Legal Background
    In 2015 and 2016, our Supreme Court decided Banks and Clark, respectively,
    which discuss when section 190.2 authorizes a special circumstance life without parole
    sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra,
    61 Cal.4th at p. 794; Clark, 
    supra,
     63 Cal.4th at pp. 609-610.) Those decisions held that
    participation in an armed robbery, on its own, is insufficient to support a finding the
    defendant acted with reckless indifference to human life. Instead, the factfinder must
    consider “the defendant’s personal role in the crimes leading to the victim’s death and
    weigh the defendant’s individual responsibility for the loss of life, not just his or her
    vicarious responsibility for the underlying crime.” (Banks, supra, at p. 801, italics
    omitted.) “The defendant must be aware of and willingly involved in the violent manner
    in which the particular offense is committed,” thereby “demonstrating reckless
    indifference to the significant risk of death his or her actions create.” (Ibid., italics
    added.) Banks provided a non-exhaustive list of factors to consider when determining
    whether the defendant was a major participant in the underlying felony. (Id. at p. 803.)
    5
    Since we are remanding the matter for further proceedings pursuant to section
    1172.6 in light of Strong, we need not address defendant’s specific contentions.
    5
    And Clark offered a similar list for determining whether the defendant acted with
    reckless indifference to human life. (Clark, 
    supra, at pp. 619-623
    .)
    Effective January 1, 2019, the Legislature passed 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.’” (People v. Gentile (2020) 
    10 Cal.5th 830
    , 846-847; see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature
    accomplished this by amending sections 188 and 189. Effective January 1, 2022, Senate
    Bill No. 775 expanded the scope of those changes to encompass, among other things,
    murder convictions “under the natural and probable consequences doctrine or other
    theory under which malice is imputed to a person based solely on that person’s
    participation in a crime.” (§ 1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2.)
    Senate Bill No. 1437 also created a procedure for offenders previously convicted
    of felony murder or murder under the natural and probable consequences doctrine to seek
    retroactive relief if they could no longer be convicted of murder under the new law.
    (§ 1172.6, subd. (a); People v. Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis
    (2021) 
    11 Cal.5th 952
    , 959 (Lewis); Strong, supra, 13 Cal.5th at p. 708.) “[T]he process
    begins with the filing of a petition containing a declaration that all requirements for
    eligibility are met [citation], including that ‘[t]he petitioner could not presently be
    convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189
    6
    made effective January 1, 2019’ . . . .” (Strong, supra, at p. 708.) “When the trial court
    receives a petition containing the necessary declaration and other required information,
    the court must evaluate the petition ‘to determine whether the petitioner has made a prima
    facie case for relief.’ [Citations.] If the petition and record in the case establish
    conclusively that the defendant is ineligible for relief, the trial court may dismiss the
    petition.” (Ibid.)
    In Lewis, supra, 
    11 Cal.5th 952
    , our Supreme Court explained the trial court’s role
    when faced with a section 1172.6 petition: Petitioners who request counsel “are entitled
    to the appointment of counsel upon the filing of a facially sufficient petition . . . .” (Id. at
    p. 957.) “[O]nly after the appointment of counsel and the opportunity for briefing may
    the superior court consider the record of conviction to determine whether ‘the petitioner
    makes a prima facie showing that he or she is entitled to relief.’” (Ibid., italics omitted;
    see id. at p. 966 [“a complying petition is filed; the court appoints counsel, if requested;
    the issue is briefed; and then the court makes [its] prima facie determination”].) The
    court’s “prima facie inquiry . . . is limited. . . . ‘“[T]he court takes petitioner’s factual
    allegations as true and makes a preliminary assessment regarding whether the petitioner
    would be entitled to relief if his or her factual allegations were proved. If so, the court
    must issue an order to show cause.”’ [Citation.] ‘[A] court should not reject the
    petitioner’s factual allegations on credibility grounds without first conducting an
    evidentiary hearing.’” (Id. at p. 971.) Importantly, “[i]n reviewing any part of the record
    of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding
    7
    involving the weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “[T]he
    ‘prima facie bar was intentionally and correctly set very low.’” (Ibid.)
    If a petitioner has made a prima facie showing of entitlement to relief, “‘the court
    shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.) Once the
    court determines that a defendant has made a prima facie showing, it “must [then] hold an
    evidentiary hearing at which the prosecution bears the burden of proving, ‘beyond a
    reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under state
    law as amended by Senate Bill [No.] 1437. [Citation.] ‘A finding that there is substantial
    evidence to support a conviction for murder, attempted murder, or manslaughter is
    insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for
    resentencing.’ [Citation.] ‘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.’” (Strong,
    supra, at p. 709; accord, Lewis, supra, 11 Cal.5th at p. 960.) “Senate Bill [No.] 1437
    relief is unavailable if the defendant was either the actual killer, acted with the intent to
    kill, or ‘was a major participant in the underlying felony and acted with reckless
    indifference to human life . . . .’” (Strong, supra, at p. 710.)
    In Senate Bill No. 775, the Legislature amended the language of section 1172.6,
    codifying Lewis, supra, 
    11 Cal.5th 952
    , expanding the scope of the petitioning process
    and clarifying some of the procedural requirements. (Stats. 2021, ch. 551, § 2.)
    8
    B. Standard of Review
    In this case, the trial court denied defendant’s petition at the prima facie review
    stage under section 1172.6, subdivision (c). A denial at this stage is appropriate only if
    the record of conviction demonstrates that the petitioner is ineligible for relief as a matter
    of law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, which we
    review de novo. (See id. at p. 961.)
    C. Analysis
    Our Supreme Court recently made clear that when, as here, a defendant’s case
    “was tried before both Banks and Clark, the special circumstance findings do not
    preclude him from making out a prima facie case for resentencing under section 1172.6.”
    (Strong, supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have
    been sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The
    Strong court noted that the Banks and Clark cases “both substantially clarified the law
    governing findings under . . . section 190.2, subdivision (d).” (Strong, supra, at p. 706.)
    The court explained that a pre-Banks and Clark special circumstance finding does not
    negate the showing that the petitioner could not presently be convicted of murder or
    attempted murder because of changes to section 188 or 189 “because the finding alone
    does not establish that the petitioner is in a class of defendants who would still be viewed
    as liable for murder under the current understanding of the major participant and reckless
    indifference requirements.” (Strong, supra, at pp. 717-718.)
    9
    Noting the differences between pre- and post-Banks and Clark special
    circumstance requirements, the Supreme Court observed the changes may “have altered
    what evidence defense counsel would have sought to introduce[,] . . . might have
    fundamentally altered trial strategies,” and may have affected what jury instructions were
    requested or given. (Strong, supra, 13 Cal.5th at p. 719.) “An after-the-fact court review
    of a pre-Banks and Clark record does not account for all these differences. . . . And as
    the Legislature has made explicit in a recent amendment to the predecessor to section
    1172.6, a court determination that substantial evidence supports a homicide conviction is
    not a basis for denying resentencing after an evidentiary hearing. [Citation.] Nor, then,
    is it a basis for denying a petitioner the opportunity to have an evidentiary hearing in the
    first place.” (Id. at p. 720.) Thus, neither “the jury’s pre-Banks and Clark findings nor a
    court’s later sufficiency of the evidence review amounts to the determination section
    1172.6 requires, and neither set of findings supplies a basis to reject an otherwise
    adequate prima facie showing and deny issuance of an order to show cause.” (Id. at p.
    720.)
    Here, the jury’s felony-murder special circumstances findings were made before
    our high court decided Banks and Clark. And the trial court found defendant ineligible
    for relief based on the attendant special circumstances findings that the murder was
    committed in the commission of a robbery and kidnapping. Under Strong, the finding
    does not categorically render defendant ineligible for resentencing. (Strong, supra, 13
    Cal.5th at p. 720.) Furthermore, a defendant’s prima facie case is not barred even if the
    10
    trial evidence was sufficient to support the special circumstances findings after Banks and
    Clark. (Strong, supra, at p. 710; Lewis, supra, 11 Cal.5th at p. 972.) We therefore vacate
    the trial court’s order and remand the matter for further proceedings.
    IV.
    DISPOSITION
    The trial court’s order denying defendant’s section 1172.6 petition is reversed.
    The matter is remanded for further proceedings consistent with Strong, Lewis, and section
    1172.6.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    CODRINGTON
    J.
    We concur:
    MILLER
    Acting P. J.
    FIELDS
    J.
    11
    

Document Info

Docket Number: E079621

Filed Date: 7/31/2023

Precedential Status: Non-Precedential

Modified Date: 7/31/2023