People v. Riley CA4/1 ( 2024 )

Filed 6/27/24 P. v. Riley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D081347
Plaintiff and Respondent,
v. (Super. Ct. No. FVI800042)
BRITIN AMIEL RILEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernadino County,
Debra Harris, Judge. Reversed and remanded with directions.
Denise M. Rudasill, 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, Daniel
Rogers and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and
Respondent.
In 2019, Britin Amiel Riley filed a petition to vacate his 2010 murder
conviction under Penal Code1 section 1170.95 (since renumbered as
section 1172.6). In this third appeal from the superior court’s orders on his
petition, Riley contends the December 2, 2022 order denying his request for
resentencing relief after an evidentiary hearing must be reversed because the
court applied the wrong standard. He seeks another evidentiary hearing and
argues the hearing should address his attempted murder convictions in
addition to his murder conviction.
The People assert the trial court denied the petition using the proper
standard and any error was harmless in light of the overwhelming evidence
in the record that Riley is guilty under current law as a direct aider and
abettor. The People also maintain that Riley must file a new petition to
request resentencing on his attempted murder convictions.
We conclude the superior court failed to act as an independent fact
finder and applied the incorrect standard and analysis at the evidentiary
hearing. We cannot say the error was harmless and we therefore reverse the
order and remand this matter with specific directions to the superior court to
conduct another evidentiary hearing as the independent fact finder and to
determine if the prosecution has proven, beyond a reasonable doubt, that
Riley is guilty of murder under current law in accordance with
subdivision (d)(3) of section 1172.6. If Riley wishes to seek resentencing relief
for his attempted murder convictions, he must file a separate petition.
FACTUAL AND PROCEDURAL BACKGROUND
“Riley was a member of the Rolling 40s Crips gang. In 2007, he drove
to a convenience store with acquaintances. His acquaintance entered the
1 All further statutory references are to the Penal Code.
2
store while he remained in the vehicle. Two of the acquaintances got into an
altercation with persons associated with the Fruit Town Brims, a Blood gang.
The acquaintances returned to the vehicle and Riley drove away from the
convenience store. However, he later turned the vehicle around and followed
two vehicles he believed were transporting the Fruit Town Brims associates.
He pulled alongside them and someone in Riley’s vehicle fired shots at the
other vehicles. One of the bullets struck and killed 15-year-old Mylela
Ransom.” (People v. Riley (Apr. 9, 2020, D076020 [nonpub. opn.].)2
In 2010, a jury convicted Riley of one count of first degree murder
(§ 187, subd. (a)); five counts of attempted premeditated murder (§§ 187,
subd. (a), 664); two counts of shooting at an occupied vehicle (§ 246); and one
count of street terrorism (§ 186.22, subd. (a)). Relative to the murder
conviction, the jury deadlocked on the personal use of a firearm special
allegation (§ 12022.53, subd. (d)) but found true the street gang special
circumstance (§ 186.22, subd. (b)(1)). The jury also found true the allegations
that Riley had a strike prior (§ 667, subds. (b)-(i)) and a prison prior. (§
667.5, subd. (b).) He was sentenced to an indeterminate term of 212 years to
life in prison, and this court affirmed the judgment in a 2012 unpublished
opinion. (People v. Riley (July 26, 2012, D058999) [nonpub. opn.].)
In 2019, Riley filed a petition to vacate his murder conviction under
former section 1170.95 (Stats. 2018, ch. 1015, § 4). The trial court granted
2 We grant Riley’s unopposed request for judicial notice of this court’s
prior appellate opinions relating to Riley’s resentencing petition (opinion filed
April 9, 2020 in appellate case No. D076020 and opinion filed August 26,
2021 in case No. D078125) in addition to this court’s July 26, 2012 opinion
affirming the underlying judgment of conviction and the appellate record in
case No. D058999.
3
the People’s motion to strike the petition on constitutional grounds, and this
court reversed the order. (Riley, supra, (D076020).)
After considering the petition, the superior court summarily denied it
at the prima facie stage. Quoting a portion of the factual background
contained in this court’s 2021 appellate opinion, the superior court concluded
“Riley was the actual killer” and therefore ineligible for resentencing relief.
This court again reversed the order. In that appeal, the parties asserted, and
this court agreed, the superior court’s denial “was the result of impermissible
factfinding” at the prima facie stage. The matter was remanded to the
superior court with directions to issue an order to show cause and “conduct
an evidentiary hearing as required by statute.” (People v. Riley (Aug. 26,
2021, D078125 [nonpub. opn.].)
On January 11, 2022, the People filed a supplemental brief opposing
the petition in which they reiterated the constitutional challenges to the
resentencing statute and argued Riley was ineligible for relief because he was
convicted of first degree murder as the actual killer or shooter at an occupied
vehicle, not under a felony murder or natural consequences theory, and he
could also be convicted under current law as a direct aider and abettor. They
also requested judicial notice of the reporter’s trial transcripts, the
preliminary hearing transcript, the probation report, transcripts of Riley’s
recorded phone conversations admitted at trial as Exhibits 83 through 99,
and this court’s 2012 appellate opinion affirming the judgment.
After multiple continuances at counsel’s request, another superior court
judge was assigned to conduct the evidentiary hearing based on the trial
judge’s unavailability. At a July 22, 2022 status hearing, the court
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considered Riley’s request to appear by video at the evidentiary hearing,3 and
the parties confirmed they did not intend to call any other witnesses or
introduce any additional evidence aside from the documents contained in the
trial court’s file and those listed in the People’s request for judicial notice.
On September 27, 2022, Riley filed a supplemental brief in which he
claimed the prosecution was unable to satisfy its burden to prove Riley was
guilty as the actual shooter or as an aider and abettor with the intent to kill
without introducing additional evidence. He further argued the prosecution
could not prove beyond a reasonable doubt that Riley was a major participant
who acted with reckless indifference to human life, taking into account the
factors set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People
v. Clark (2016) 63 Cal.4th 522 (Clark) including Riley’s youth at the time of
the offense. He further asserted he was now also eligible for resentencing
relief relative to his attempted murder convictions that were based on an ill-
defined kill zone theory rather than the requisite specific intent to kill.4
Riley appeared at the December 2, 2022 evidentiary hearing by video.
At the outset of the hearing, the court informed the parties that it had
reviewed “the record of conviction” and specifically referenced some of the
jury instructions and noted the jury had deadlocked on the personal use of a
firearm special allegation. Although the court expressly granted the
prosecution’s request for judicial notice of certain trial exhibits and
3 Riley requested to appear by video at the evidentiary hearing to avoid
being transported to county jail.
4 Riley filed his underlying petition before the Legislature passed Senate
Bill No. 775, which expanded the resentencing scheme to include attempted
murder convictions. (See former § 1170.95, subd. (a) (Stats. 2021, ch. 551,
§ 2).)
5
referenced a “review of the file” later in the hearing, the record does not
clearly reflect the evidence the court judicially noticed or considered.5
The prosecution argued Riley was ineligible for resentencing because:
(1) he was not prosecuted under a theory of felony murder; (2) there was
“sufficient evidence in the record that could be reproduced for a jury to show
that Mr. Riley was the actual killer based on . . . his own testimony, his
actions after the crime, and his own motive;” and (3) even if a jury were to
believe that Cherray Rice was the actual shooter as Riley had testified at
trial, it could and would find Riley guilty as a direct aider and abettor based
on shared intent rather than a natural and probable consequences theory.
The prosecution did not argue that Riley was guilty as a major participant
that acted with reckless disregard for life, nor did it address his youth at the
time of the offense.
Riley’s counsel countered that the jury “never made a determination of
whether or not Mr. Riley had the actual intent to kill.” Highlighting the
absence of true finding of the special allegation of the personal use of a
firearm, the jury instructions on natural and probable consequences, the
prosecutor’s closing argument at trial referencing the trial court’s aiding and
abetting instruction that did not, back in 2010, include intent to kill, Riley’s
counsel asserted the “only logical explanation” is that the jury convicted Riley
of first degree murder based on the natural and probable consequences
doctrine.
5 The court did not expressly rule on all the items listed in the
prosecution’s request for judicial notice, and its ruling remains unclear. The
prosecution sought judicial notice of trial Exhibits 83–99 (transcripts of
Riley’s wire-tapped phone conversations after the shooting), but the reporter’s
transcript reflects the court judicially noticed Exhibits “38 through 89,” and
the corresponding minute order refers to Exhibits “83 [through] 89.”
6
The court denied the petition and went on to explain “there is
substantial evidence that a jury would have found, beyond a reasonable
doubt, that that defendant would be guilty under the current state of the
law.”
Riley filed a timely appeal.
DISCUSSION
Legislative history and applicable legal standards
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4) amended sections
188 and 189 of the Penal Code to “eliminate[ ] natural and probable
consequences liability for murder as it applies to aiding and abetting” (People
v. Lewis (2021) 11 Cal.5th 952, 957) and to significantly limit the scope of the
felony-murder rule “to effectuate the Legislature’s declared intent ‘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. Strong (2022) 13 Cal.5th 698, 707–708 (Strong); see § 189, subd.
(e)(1)–(3).) Senate Bill No. 1437 also added former section 1170.95, which
went into effect on January 1, 2019, permitting a person convicted of felony
murder or murder under a natural and probable consequences theory who
could not be convicted under current law to petition the trial court to vacate
the murder conviction and resentence petitioner on any remaining counts.
(See former § 1170.95, subd. (a) (Stats. 2018, ch. 1015, § 4).)
In 2021, after Riley’s second successful appeal from the superior court’s
orders on his petition, the Legislature passed Senate Bill No. 775, which
amended section 1170.95 to extend relief to defendants convicted under “any
theory under which malice is imputed to a person based solely on that
person’s participation in a crime” and expanded the eligible offenses to
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include attempted murder and manslaughter. (§ 1170.95, subd. (a) (Stats.
2021, ch. 551, § 2).) It also significantly amended subdivision (d)(3) to clarify
what evidence may be considered at an evidentiary hearing, the prosecution’s
burden of proof and the standard by which trial courts should review the
evidence. (Former § 1170.95, subd. (d)(3).) Subdivision (d)(3) unequivocally
states “[t]he burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder
under California law as amended by the changes to Section 188 or 189,” and
includes the express qualification that “[a] finding that there is substantial
evidence to support a conviction . . . is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).)6
The trial court’s role at the evidentiary hearing is “to act as an
independent fact finder and determine, in the first instance, whether the
petitioner committed murder under the law as amended by Senate Bill No.
1437. [Citations.]” (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123
(Guiffreda).) The statute does not require the trial court to issue a statement
of decision or make express factual findings on the record. (Cf. § 1172.6,
subd. (c) [requiring statement of reasons for denial at prima facie stage].)
The trial court did not act as an independent fact finder
Our review of the record as a whole reveals the trial court did not act as
an independent fact finder at the evidentiary hearing and apparently
misunderstood the prosecution’s burden. At the prehearing status conference
6 The Legislature later renumbered former section 1170.95 as section
1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For
simplicity, we refer to section 1172.6 throughout the remainder of this
opinion.
8
in July 2022, the trial court cautioned counsel to “[m]ake sure that we are
settled on the current law, meaning we know that it’s the People’s burden but
if there’s evidence beyond a reasonable doubt that the jury could have
convicted defendant, then People have met their burden. I [want to] make
sure we don’t disagree on the law. If you have a disagreement [with] that[,]
you can brief it.” These comments reflect a misapprehension of the
prosecution’s burden and the lens through which the court considers the
evidence that echoes an older view that had already been eclipsed by the
amendments to section 1172.6, subdivision (d)(3).7
Rather than direct the court to the applicable statutory language
during the months before the evidentiary hearing, the prosecution
perpetuated the court’s misunderstanding of its role and repeatedly
misstated its burden during the hearing. The prosecution argued “the
question is sufficiency of the evidence. [¶] Here, there was sufficient
evidence in the record that could be reproduced for a jury to show that
Mr. Riley was the actual killer . . . ” (Italics added.) The prosecution
similarly argued that even if anyone believed Cherray Rice was the actual
shooter, “a jury could easily find [Riley] guilty either as the actual killer or as
a direct aider and abettor with intent to kill.” (Italics added.) The
prosecution confirmed the court’s understanding that it was asked to find
“there [was] evidence beyond a reasonable doubt that a jury could have and
would have found him guilty under the current state of the law because of the
7 Prior to the enactment of Senate Bill No. 775 (Stats. 2021, ch. 551, § 2),
some courts had embraced the view that “the trial court had to deny the
petition as long as there was substantial evidence to support the original
jury’s finding, beyond a reasonable doubt, that the petitioner was guilty of
murder under current law.” (See People v. Vance (2023) 94 Cal.App.5th 706,
714-715.)
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shared intent,” but the court then referenced the incorrect standard when
clarifying the prosecution’s argument that “the issue . . . is whether or not
there’s sufficient evidence to support a guilty verdict for the current state of
the law.” (Italics added.)
Although Riley’s counsel had correctly reframed the question as
whether the prosecution proved “beyond a reasonable doubt” that Riley is
“guilty of murder under a current valid theory of law,” the prosecution
continued its mischaracterization of the trial court’s role and its burden. It
maintained the court’s analysis should be “if . . . this stack of evidence that
was reflected in the record of conviction [was] in front of a new jury, . . . ,
could they find [Riley] guilty under the valid theory of law today” and argued
“there [was] more than substantial evidence to do so.” (Italics added.)
At the conclusion of the hearing, the court found the prosecution had
met its burden and denied the petition. The court went on to explain, “there
is substantial evidence that a jury would have found, beyond a reasonable
doubt, that that defendant would be guilty under the current state of the
law.” (Italics added.)
The proper question is whether the trial court, independently assessing
the evidence as a factfinder (see Guiffreda, supra, 87 Cal.App.5th at p. 123)
concludes the admissible evidence before it proves, beyond a reasonable
doubt, that Riley was guilty of murder under current law. (§ 1172.6, subd.
(d)(3).) The court did not make any express factual findings or cite to any
specific evidence upon which it had relied, and it apparently made its
decision to deny the petition based on the prosecution’s faulty analysis of
what a jury would have found. (See People v. Tessman (2014) 223
Cal.App.4th 1293, 1302 [we may consider the trial court’s statements to the
extent they “disclose[] an incorrect rather than a correct concept” of the law].)
10
Considering the court’s comments within the context of the record, it is
apparent the court did not embrace its role as an independent fact finder and
erroneously considered the evidence based on what a hypothetical jury
“would have found.” The prosecution’s burden “is neither conditional nor
hypothetical.” (People v. Clements (2022) 75 Cal.App.5th 276, 296.) The
prosecution must prove Riley is “ineligible for resentencing, not that he . . .
might be or could be ineligible.” (Ibid.)
On this record, we cannot say the error was harmless. (Cf. People v.
Cody (2023) 92 Cal.App.5th 87, 110 [“Although at one point the trial court
alluded to what a ‘reasonable and rational jury’ would do, the court
immediately corrected itself by saying, ‘of course I’m not saying what they
would do. I’m the independent fact finder here, so let’s be clear.’”]; People v.
Garrison (2021) 73 Cal.App.5th 735, 745 [despite the trial court’s application
of the incorrect standard, error was harmless based on defendant’s
ineligibility for relief as a matter of law].) Accordingly, we reverse the court’s
order denying Riley’s petition and remand the matter to the superior court to
hold a new evidentiary hearing to determine whether the prosecution proved,
beyond a reasonable doubt, that defendant is guilty of murder under current
law in accordance with section 1172.6, subdivision (d)(3).
Directions on remand
At the new evidentiary hearing, Riley must be personally present or
provide “a knowing, intelligent[,] and voluntary written waiver of his
presence.” (People v. Basler (2022) 80 Cal.App.5th 46, 62; see also People v.
Quan (2023) 96 Cal.App.5th 524, 536.) The court may consider previously
admitted evidence if it remains “admissible under current law,
including witness testimony, stipulated evidence, and matters judicially
noticed” (§ 1172.6, subd. (d)(3)), and the parties may offer new or additional
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evidence that may be admitted in accordance with the Evidence Code. (Ibid.)
To avoid any ambiguity in the record, if the parties request any matters to be
judicially noticed by the court at the evidentiary hearing, they must file and
serve such a written request for judicial notice following remand. The court
may consider the procedural history set forth in this court’s prior appellate
opinions (ibid.) but should not rely on this court’s factual summaries.
The court must consider the evidence as an independent factfinder (see
Guiffreda, supra, 87 Cal.App.5th at p. 123) and determine whether the
admissible evidence before it proves beyond a reasonable doubt that Riley is
guilty of murder under current law. (§ 1172.6, subd. (d)(3).) To the extent
the prosecution may attempt to prove Riley is guilty on a theory of implied
malice murder based on direct aiding and abetting (§189, subd. (d)(2)), the
Supreme Court’s decision in People v. Reyes (2023) 14 Cal.5th 981 explains
the applicable guidelines. To the extent the prosecution may attempt to
prove Riley is guilty as a major participant in the underlying felony and acted
with reckless indifference to human life (§189, subd. (d)(3)), the trial court
shall consider the factors outlined in Banks, supra, 61 Cal.4th 788 and Clark,
supra, 63 Cal.4th 522 and their progeny and consider Riley’s youth at the
time of the offense. (See People v. Keel (2022) 84 Cal.App.5th 546, 558–563.)
The burden of proof rests on the prosecution. A finding that there is
substantial evidence to support a conviction for murder is insufficient to
prove, beyond a reasonable doubt, that Riley is ineligible for resentencing.
(§1172.6, subd. (d)(3).) If the prosecution fails to sustain its burden, Riley’s
murder conviction, “and any allegations and enhancements attached to the
conviction, shall be vacated and [Riley] shall be resentenced on the remaining
charges.” (Ibid.) We express no opinion on the outcome of the new
evidentiary hearing.
12
If Riley wishes to seek resentencing relief on his attempted murder
convictions, he must file a separate petition in accordance with section
1172.6, subdivision (b).8 We express no opinion on the outcome of such a
petition and do not limit the trial court’s discretion to coordinate any future
trial court proceedings.
DISPOSITION
The December 2, 2022 order is reversed. The matter is remanded for
the trial court to conduct further proceedings consistent with this opinion and
applicable law.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
8 Riley could have filed another resentencing petition at any time after
the January 1, 2022 the effective date of the amendments expanding the
scope of the resentencing statute to include attempted murder convictions
(see former § 1170.95, subd. (a) (Stats. 2021, ch. 551, § 2); see also People v.
Farfan (2021) 71 Cal.App.5th 942, 950–951), and his appeal to judicial
economy at this juncture is a poor excuse for his attempt to circumvent the
statutorily mandated process.
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