People v. Ward CA2/6 ( 2024 )


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  • Filed 2/22/24 P. v. Ward CA2/6
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
    THE PEOPLE,                                                 2d Crim. No. B326448
    (Super. Ct. No. SA066108)
    Plaintiff and Respondent,                              (Los Angeles County)
    v.
    JAMES VERNON WARD,
    Defendant and Appellant.
    James Vernon Ward appeals the denial of his petition for
    resentencing under Penal Code section 1172.61. He contends the
    trial court erred by conducting the evidentiary hearing without
    1 All further undesignated statutory references are to the
    Penal Code. Appellant filed his petition under former section
    1170.95. Effective June 30, 2022, the Legislature renumbered
    section 1170.95 as section 1172.6, with no change in text. (Stats.
    2022, ch. 58, § 10.) We refer to the statute throughout as section
    1172.6.
    him present. We will affirm because as the actual killer he was
    not entitled to an evidentiary hearing.
    FACTS AND PROCEDURAL HISTORY2
    Appellant lived with his wife Deshawn Ward, and three
    children: his wife’s six-year-old son J. and two-year-old daughter
    K., and her and appellant’s infant son J.W. On the morning of
    September 7, at approximately 5:00 a.m., Mrs. Ward awoke and
    left for work. Later that morning, appellant walked J. to school
    accompanied by K. and J.W. At 1:00 p.m., appellant telephoned
    his wife and reported that K. and J.W. were sleeping. Shortly
    thereafter, appellant telephoned his wife and told her K. would
    not wake up. At his wife’s direction, appellant called 911. Police
    reached the home at 2:05 p.m. K. was lying on the floor. An
    officer could not find a pulse and began performing CPR.
    Paramedics arrived two or three minutes after the police.
    K. was taken to a hospital where she was treated by
    emergency room physician Dr. Covington, who restarted K.’s
    heart and placed her on a ventilator. Dr. Covington’s
    examination revealed that K.’s abdomen was large and rigid, her
    rectum was prolapsed, her vaginal opening was larger than
    would be expected in a two-year-old, and she did not see a hymen.
    Dr. Covington concluded that K.’s injuries were the result of
    trauma and reported to the police that K. had been abused.
    2 The following summary of the factual and procedural
    background is drawn from this court’s unpublished opinion in
    People v. Ward (Apr. 25, 2013, B231332) [nonpub. opn.]. We
    previously granted appellant’s unopposed request for judicial
    notice of the record in his direct appeal. (Evid. Code, § 452.) We
    provide this background to give context to our analysis of
    whether the jury instructions and verdicts foreclose the existence
    of a prima facie case.
    2
    K. was sent to another hospital for surgery. Pediatric
    surgeon Dr. Sydorak concluded that K. had visible signs of abuse
    and was critically ill and near death. Dr. Sydorak opined that
    K.’s injuries had been sustained within one to six hours before
    the operation. K. was removed from the ventilator, and died on
    September 9, 2007.
    On September 11 and 12, Los Angeles County Deputy
    Medical Examiner Dr. Whiteman performed an autopsy of K. Dr.
    Whiteman found organ damage and other injuries, and he opined
    that the cause of death was multiple traumatic injuries, including
    injuries to her abdomen, rib cage, and head. Dr. Whiteman
    concluded that most of K.’s injuries, including bruises inside her
    rectum, occurred between six and 12 hours before K. was placed
    on a ventilator at the hospital.
    Dr. Heger participated in the autopsy and testified that
    acute trauma extended around and across the base of her hymen
    and in her rectum. She concluded that the injuries to K.’s hymen
    were “fairly recent,” and that K. had been penetrated at least
    once in the anus and at least once in the vagina. Dr. Heger could
    not determine what object made the penetrations.
    A jury convicted appellant of the first degree murder of K.
    while engaged in the commission of sexual penetration (rape by
    instrument) (§§ 187, subd. (a), 289); count 1), assault on a child
    causing death (§ 273ab; count 2), and child abuse (§ 273a, subd.
    (a); count 3). As to count 1, the jury found true the special
    circumstance that the murder was committed during the
    commission of a rape by instrument. (§§ 190.2, subd. (a)(17)(k),
    289.) Appended to count 3 and also found true was the allegation
    that appellant willfully harmed or injured a child resulting in the
    child’s death (§ 12022.95). Appellant was sentenced to life
    without possibility of parole for the murder, plus a consecutive
    3
    three-year term for child abuse and four-year term for child
    abuse pursuant to section 12022.95. We affirmed the judgment
    in People v. Ward, supra, B231332.
    Appellant petitioned for resentencing under section 1172.6
    and requested appointment of counsel. The trial court granted
    the request for counsel and each side submitted briefs. It found
    appellant’s petition made a prima facie case for relief, ordered
    additional briefing, and scheduled an evidentiary hearing. At an
    evidentiary hearing for which appellant was not present, the
    court denied the petition. The court found appellant’s record of
    conviction established he was K.’s actual killer beyond a
    reasonable doubt. The court noted the jury was never instructed
    on the natural and probable consequences doctrine or any theory
    of aiding and abetting.
    DISCUSSION
    Appellant contends the trial court prejudicially erred when
    it denied his resentencing petition at the evidentiary hearing
    without him present. (See People v. Basler (2022) 
    80 Cal.App.5th 46
    , 58.) We conclude that because the record of conviction
    conclusively establishes the jury convicted appellant as the actual
    killer, any error in holding an evidentiary hearing in appellant’s
    absence was harmless under any standard. (See People v. Garcia
    (2022) 
    82 Cal.App.5th 956
    , 973 (Garcia); People v. Hurtado (2023)
    
    89 Cal.App.5th 887
    , 893 [“the harmless error doctrine provides a
    reasonable method to avoid protracted hearings in past cases
    that are final and should stay that way”].)
    Section 1172.6
    Effective January 1, 2019, Senate Bill No. 1437 (2017-2018
    Reg. Sess.) (Senate Bill 1437) narrowed the felony-murder rule’s
    scope. The bill added section 189, subdivision (e) (Stats. 2018, ch.
    1015, § 3; see People v. Strong (2022) 
    13 Cal.5th 698
    , 707-708
    4
    (Strong)), which provides that defendants are liable on a felony-
    murder theory only if they (1) were the actual killer; (2) were not
    the actual killer but, with the intent to kill, aided and abetted the
    actual killer in committing first degree murder; or (3) were a
    major participant in the underlying felony and acted with
    reckless indifference to human life. (See Strong, at p. 708.)
    Senate Bill 1437 also established a procedure for
    defendants convicted under prior law to petition for relief.
    (§ 1172.6.) Under section 1172.6, the petition must contain a
    declaration that all eligibility requirements are met, including
    that “[t]he petitioner could not presently be convicted of murder
    or attempted murder because of changes to Section 188 or 189
    made effective January 1, 2019.” (§ 1172.6, subd. (a)(3).) After
    receiving a compliant petition, the trial court “hold[s] a hearing to
    determine whether the petitioner has made a prima facie case for
    relief.” (§ 1172.6, subd. (c).) Upon a successful prima facie
    showing, the court issues an order to show cause and conducts an
    evidentiary hearing. (§ 1172.6, subds. (c), (d).) At that hearing,
    the prosecution must prove beyond a reasonable doubt that the
    petitioner is guilty of murder under the law as amended by
    Senate Bill No. 1437. (Ibid.; see also Strong, supra, 13 Cal.5th at
    p. 709.)
    The prima facie inquiry is “limited.” (People v. Lewis (2021)
    
    11 Cal.5th 952
    , 971.) The court accepts the petitioner’s factual
    allegations as true but may consider the record of conviction,
    which includes jury instructions, closing argument, verdict forms,
    and prior appellate opinions. (Ibid.; see also People v. Lopez
    (2022) 
    78 Cal.App.5th 1
    , 13.) However, “the probative value of an
    appellate opinion is case-specific, and ‘it is certainly correct that
    an appellate opinion might not supply all answers.’” (Lewis, at
    p. 972.) In relying on the record of conviction, the court “should
    5
    not engage in ‘factfinding involving the weighing of evidence or
    the exercise of discretion.’” (Ibid.)
    Appellant is Ineligible for Relief as a Matter of Law
    The record of conviction conclusively demonstrates the jury
    convicted appellant as the actual killer. Appellant is, therefore,
    ineligible for relief under section 1172.6 as a matter of law.
    At trial, the prosecution proceeded solely on a felony-
    murder theory with appellant as the lone perpetrator. The court
    instructed only on first degree murder under a felony-murder
    theory. The court did not instruct on liability as an aider and
    abettor, accomplice, or major participant in the underlying felony
    who acted with reckless indifference to human life. Nor did the
    court instruct on malice or the natural and probable
    consequences doctrine.
    While the felony-murder conviction did not require a jury
    finding that appellant was the actual killer, the jury’s verdicts on
    both the section 12022.95 allegation and section 273ab charge
    cement appellant’s actual killer status. As to section 12022.95,
    the court instructed: “If you find the defendant guilty of the
    charged crime of Penal Code section 273a, subdivision (a) in
    Count 3, then you must determine whether the following
    allegation pursuant to Penal Code section 12022.95 is true or not
    true. [¶] That, under circumstances or conditions likely to
    produce great bodily harm or death, the defendant willfully
    caused or permitted any child to suffer that resulted in the child’s
    death or inflicted upon the child unjustifiable physical pain or
    injury that resulted in the child’s death; or [¶] [t]hat, having care
    or custody of any child under circumstances or conditions likely
    to produce great bodily harm or death, the defendant willfully
    caused or permitted that child to be injured or harmed, and that
    injury or harm resulted in the child’s death.”
    6
    A true finding under this instruction theoretically allows
    for the possibility that appellant only permitted or indirectly
    caused, without personally perpetrating, an injury or harm
    resulting in K.’s death. However, the verdict form states: “We
    further find [true] the allegation that the defendant willfully
    harmed or injured the child, which harm or injury resulted in the
    child’s death, within the meaning of Penal Code Section
    12022.95.” The plain meaning of this language confirms the jury
    found appellant personally harmed or injured K., which resulted
    in K.’s death. The record supports this conclusion. Personal
    perpetration of harm or injury is consistent with the jury’s
    finding that appellant “committed the murder of [K.] while he
    was engaged in the commission of the crime of forcible sexual
    penetration . . . .” Moreover, the prosecution argued appellant’s
    physical blows during a beating caused K.’s death. The defense
    disagreed but did not argue appellant only permitted or indirectly
    caused a fatal harm or injury without perpetrating it. In finding
    true the section 12022.95 allegation, therefore, the jury found
    appellant personally perpetrated a harm or injury resulting in
    K.’s death. Only the actual killer could do so.
    The section 273ab conviction further identifies appellant as
    the actual killer. That conviction required a finding appellant
    committed an assault upon K. “by means of force that to a
    reasonable person would be likely to produce great bodily injury.”
    (CALJIC No. 9.36.5.)3 The jury necessarily concluded appellant’s
    3 On the section 273ab charge, the court instructed that
    proof of the following elements was necessary: “1. A person had
    the care or custody of a child under eight years of age; [¶] 2. That
    person committed an assault upon the child; [¶] 3. The assault
    was committed by means of force that to a reasonable person
    7
    assault resulted in K.’s death. Accordingly, by finding appellant
    committed the section 273ab “offense of child abuse homicide,”
    the jury determined appellant was K.’s actual killer. (People v.
    Wyatt (2010) 
    48 Cal.4th 776
    , 780.)
    Appellant argues the record of conviction does not establish
    he was the actual killer. Appellant catalogs evidence of K.’s
    preexisting medical conditions and accident history, as well as
    injuries potentially produced during medical treatment.
    Appellant contends the jury, as instructed on causation, could
    have convicted based on proximate causation without finding
    appellant was K.’s actual killer. We disagree.
    The court instructed on causation with CALJIC Nos. 3.40
    and 3.41. CALJIC No. 3.40, the more general instruction,
    provided: “To constitute the crimes of Penal Code section 187(a)
    in Count 1 and Penal Code section 273ab in Count 2 and the
    allegation in Count 3 pursuant to Penal Code section 12022.95,
    there must be in addition to the death an unlawful act which was
    a cause of that death. [¶] The criminal law has its own
    particular way of defining cause. A cause of the death is an act
    that sets in motion a chain of events that produces as a direct,
    natural and probable consequence of the act the death and
    without which the death would not occur.”
    CALJIC No. 3.41 provided specific direction on concurrent
    causes: “There may be more than one cause of the death. When
    the conduct of two or more persons contributes concurrently as a
    cause of the death, the conduct of each is a cause of the death if
    that conduct was also a substantial factor contributing to the
    result. A cause is concurrent if it was operative at the moment of
    would be likely to produce great bodily injury; and [¶] 4. The
    assault resulted in the death of the child.” (CALJIC No. 9.36.5.)
    8
    the death and acted with another cause to produce the death. [¶]
    If you find that the defendant’s conduct was a cause of death to
    another person, then it is no defense that the conduct of some
    other person contributed to the death.”
    Our Supreme Court recently affirmed these instructions in
    clarifying proximate causation for concurrent cause cases.
    (People v. Carney (2023) 
    14 Cal.5th 1130
    , 1138-1142.) When
    evidence of concurrent causes exists, to be a proximate cause, a
    defendant’s conduct must be a substantial factor contributing to a
    victim’s death. (Carney at p. 1138, 1142; see also CALJIC No.
    3.41.) The death must also be foreseeable—that is, the “‘“direct,
    natural and probable consequence”’” of the defendant’s conduct.
    (Carney at pp. 1138, 1142; see also CALJIC No. 3.40.)
    Instructed in line with these principles, the jury could have
    found appellant’s conduct “resulted in” K.’s death if it was a
    substantial factor contributing to K.’s death, not the sole cause
    thereof. The jury may have believed K.’s preexisting conditions
    or medical injuries contributed to the death as well. In that case,
    the question is whether a defendant who commits an act that
    operates as such a proximate cause, along with concurrent
    medical causes, is an actual killer. We conclude yes.
    Longstanding precedent establishes that a victim’s
    preexisting medical condition does not relieve a defendant of
    liability for murder so long as the condition “‘is not the only
    substantial factor bringing about [the] death.’” (People v. Catlin
    (2001) 
    26 Cal.4th 81
    , 155.) Likewise, inadequate medical
    treatment has not traditionally discharged murder liability
    unless “the maltreatment is the sole cause of death and hence an
    unforeseeable intervening cause.” (People v. Roberts (1992) 
    2 Cal.4th 271
    , 312.) As explained in People v. Garcia, supra, 
    82 Cal.App.5th 956
    , nothing in Senate Bill No. 1437 evinces a
    9
    legislative intent to modify longstanding concurrent causation
    principles. (Id. at p. 967.) Instructed under those principles, the
    jury found appellant’s conduct proximately caused K.’s death,
    even if preexisting or ensuing medical factors may have also
    contributed. The jury’s finding suffices to identify appellant as
    the actual killer. (See id. at pp. 970-971 [because the defendant’s
    acts were a substantial factor in bringing about the victim’s
    death, the defendant “‘personally killed’” and was the “‘actual
    killer’” under section 189].) We fail to see how or why external
    factors like a preexisting medical condition or negligent medical
    treatment would routinely absolve an actual killer.
    Appellant also contends a recent accident K. suffered
    “provides precedent” for a similar accident possibly contributing
    to her death. Even granting this possibility, such an accident
    would simply function as another concurrent cause along with
    appellant’s conduct. Furthermore, “the primary purpose of the
    felony-murder rule . . . is ‘“to deter felons from killing negligently
    or accidentally by holding them strictly responsible for the
    killings they commit.”’ [Citations.]” (Garcia, supra, 82
    Cal.App.5th at p. 969.) Given this core purpose, an accident, like
    a concurrent medical cause, does not discharge appellant as the
    actual killer. In short, the possible concurrent causes in this case
    do not undermine the jury’s finding that appellant’s acts—
    namely, his assault and perpetration of harm or injury—were at
    least a substantial factor contributing to K.’s foreseeable death.
    That finding establishes appellant as K.’s actual killer.
    Finally, appellant’s reliance upon People v. Vang (2022) 
    82 Cal.App.5th 64
     (Vang) is misplaced. In Vang, the victim died
    after jumping from a moving car to escape her kidnapper. (Id. at
    pp. 79-80.) Vang held an actual killer must personally commit
    the homicidal act. (Id. at p. 80.) The trial court’s instructions
    10
    allowed the jury to convict based on general causation principles,
    even if it did not find the defendant personally committed the
    homicidal act. (Id. at p. 91.) Vang reversed the first degree
    felony-murder conviction and vacated the special circumstance
    finding because “the evidence [did] not permit any inference that
    defendant was the direct cause of [the victim’s] death.” (Ibid.)
    Appellant’s case is distinguishable. The jury found
    appellant personally perpetrated a harm or injury resulting in
    K.’s death, as well as an assault upon K. resulting in her death.
    Thus, appellant’s situation diverges from Vang, where the
    victim’s death resulted from her own volitional act of jumping
    from a moving car. Although appellant criticizes the evidence of
    his acts as circumstantial, the species of evidence is irrelevant
    and does not undermine the jury’s findings. (Cf. People v.
    Anderson (2007) 
    152 Cal.App.4th 919
    , 930.)
    DISPOSITION
    The judgment is affirmed.
    NOT TO BE PUBLISHED.
    CODY, J.
    We concur:
    GILBERT, P. J.
    YEGAN, J.
    11
    Michael E. Pastor, Judge
    Superior Court County of Los Angeles
    ______________________________
    Jonathan E. Demson, 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, Senior
    Assistant Attorney General, Scott A. Taryle, Supervising Deputy
    Attorney General, and Daniel C. Chang, Deputy Attorney
    General, for Plaintiff and Respondent.
    

Document Info

Docket Number: B326448

Filed Date: 2/22/2024

Precedential Status: Non-Precedential

Modified Date: 2/22/2024