People v. Smith CA2/4 ( 2024 )

Filed 5/23/24 P. v. Smith CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B321024
Los Angeles County
Plaintiff and Respondent, Super. Ct. No. A711739
v. ORDER MODIFYING
OPINION AND DENYING
DONALD FRANKLIN SMITH, PETITION FOR
REHEARING
Defendant and Appellant.
NO CHANGE IN
JUDGMENT
THE COURT*:
This court has received the petition for rehearing filed by
respondent on May 13, 2024. This court’s opinion, filed April 26,
2024, is modified to add the following paragraph to the end of the
discussion on page 5:
After we modified this opinion in response to Smith’s
petition for rehearing, the Attorney General also moved for
rehearing, arguing Smith is guilty of murder under current law
under the transferred intent doctrine. Under the transferred
intent doctrine, “a defendant who shoots with the intent to kill a
certain person and hits a bystander instead is subject to the same
criminal liability that would have been imposed had ‘the fatal
[shot] reached the person for whom [it was] intended.” (People v.
Bland (2002) 28 Cal.4th 313, 321.) The transferred doctrine is
irrelevant to the present inquiry, however. The prosecutor did not
argue transferred intent at trial and the jury was not instructed
on that theory. But the jury was instructed on the now-discarded
natural and probable consequences doctrine. As noted above, this
leaves open the possibility that the jury convicted Smith of
murder on count four under the natural and probable
consequences doctrine. We therefore remand the matter for an
evidentiary hearing on that count.
This modification does not change the judgment.
The petition for rehearing is DENIED.
____________________________________________________________
CURREY, P. J. COLLINS, J. MORI, J.
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Filed 4/26/24 P. v. Smith CA2/4 (unmodified opinion)
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B321024
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A711739
v.
DONALD FRANKLIN SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Reversed and remanded
with instructions.
John Steinberg, 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, Dana Muhammad Ali and Colleen
M. Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
In 1995, a jury convicted defendant and appellant Donald
Franklin Smith of two counts of first degree murder, two counts
of second degree murder, and one count of attempted murder.
After a penalty trial, the jury returned a verdict of death.
In 2020, Smith filed a petition for resentencing under
former Penal Code section 1170.95.1 The trial court issued an
order to show cause on the second degree murder and attempted
murder counts, then, following an evidentiary hearing, granted
Smith relief on those counts. The court subsequently vacated the
death sentence, and resentenced Smith to consecutive terms of
life without the possibility of parole on the first degree murder
counts.
On appeal, Smith argued the trial court erred by denying
his petition on the first degree murder convictions at the prima
facie stage. He further argued he is entitled to an evidentiary
hearing on one of those counts (count four). In our first opinion,
we rejected Smith’s argument and affirmed the trial court’s order
denying his resentencing petition. (People v. Smith (Jan. 4, 2024,
B321024) [nonpub. opn.] (Smith).)2
As we noted in Smith, the jury at Smith’s murder trial was
instructed on the natural and probable consequences doctrine.
The basis for our conclusion in Smith that the record
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. That statute
provides relief for certain individuals previously convicted of
murder under the natural and probable consequences doctrine.
2 In the interest of keeping this opinion concise, we
incorporate our original opinion in Smith by reference.
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demonstrated Smith was ineligible for relief as a matter of law on
count four (despite the natural and probable consequences
instruction) was as follows:
Although it is theoretically true the[ ] instructions left open
the possibility that the jury could convict Smith on count
four under the natural and probable consequences doctrine,
the record, viewed as a whole, demonstrates Smith is
ineligible for relief as a matter of law on that count. A
review of closing arguments reveals that, in regard to the
murder of Brown, the prosecution did not argue Smith was
guilty under the natural and probable consequences
doctrine. Rather, the prosecution's sole theory concerning
the murder of Brown was that Smith harbored the express
intent to kill. The prosecution summarized its theory as
follows: “[Y]ou have Don Smith, Johnny Settle, Leroy
Wheeler and Stan Bryant going in the back room of that
house, going back there and planning what is to occur,
bringing guns to the crime scene and bringing gloves to the
crime scene, laying out a plan to lure Andre Armstrong and
James Brown over there to kill them . . . .” The
prosecution’s closing argument thus makes clear that the
only theory of murder liability it presented to the jury was
that Smith harbored the express intent to kill Brown.
Because this was the only theory presented to the jury, the
jury necessarily convicted Smith on that theory, not under
the natural and probable consequences doctrine. In other
words, the record demonstrates the jury found Smith guilty
beyond a reasonable doubt of murdering Brown under
current law. (See generally §§ 187, subd. (a), 188, subd.
(a)(1) [express malice is a valid theory of murder liability
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under current law].) He is therefore ineligible for relief as a
matter of law on count four.
After we affirmed the trial court’s order denying section
1172.6 relief, Smith petitioned for rehearing. In his petition for
rehearing, Smith points out our colleagues in Division One
recently reached a contrary holding to our holding in Smith. In
People v. Lee (2023) 95 Cal.App.5th 1164, 1188 (Lee), Division
One held as follows:
We acknowledge that the prosecutor in closing proceeded
solely on the theory that Lee personally committed a
provocative act, with no suggestion that he was liable
because of a provocative act committed by someone else.
The jury instructions, however, were not so limited, and
permitted the jury to convict Lee based on the act of a
surviving accomplice. We do not know if, based on the
evidence, the jury might have convicted Lee on this latter
theory, because we do not have the full record before us. We
therefore are unwilling to conclude, based solely on the
prosecution’s closing argument and summary of the
evidence, that the jury necessarily convicted Lee as a
provocateur as opposed to a nonprovocateur accomplice.
After reviewing Smith’s petition for rehearing, we asked
the Attorney General for an answer. After considering the
arguments raised in Smith’s petition for rehearing and the
Attorney General’s answer, we granted rehearing to reconsider
the matter, which we now resolve anew in this opinion.
In its answer, the Attorney General argues Smith’s case is
different from Lee in that here, we have the whole record of
Smith’s murder trial, and we should consequently affirm the trial
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court’s order denying Smith section 1172.6 relief based on the
rest of the record. This argument is unpersuasive. Although it is
true Smith’s case is different from Lee in that we have the whole
record, that difference is of no consequence, because nothing else
in Smith’s record conclusively demonstrates ineligibility as a
matter of law on count four.
The Attorney General also argues Smith’s contention raised
in his petition for rehearing should be forfeited because Smith
could have brought Lee to this court’s attention before this court
issued its opinion in Smith. We are likewise unpersuaded by this
argument. Our main concern in resolving this appeal is that
Smith receive a section 1172.6 hearing which thoroughly
conforms with the procedures set forth in the statute. We
therefore decline to exercise our discretion to deem Smith’s
argument forfeited, and instead reach the merits of how best to
resolve this case in light of Lee.
Although we note that the issue presented in this case is a
close one, principles of uniformity in the law favor changing
course and following Lee. Having reconsidered the matter in light
of Lee, we remand the matter for an evidentiary hearing on count
four.
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DISPOSITION
The order denying Smith section 1172.6 relief on his first
degree murder convictions is reversed, and the matter is
remanded for an evidentiary hearing on count four.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
MORI, J.
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