People v. Patterson CA2/5

Filed 6/21/22 P. v. Patterson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B313045
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA040726)
v.
TRYNUN PATTERSON,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Laura L. Laesecke, Judge. Reversed and
remanded.
Stephen M. Vasil, 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, Idan Ivri and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Trynun Patterson appeals from an order
denying his petition for resentencing pursuant to Penal Code
section 1170.95.1 We reverse and remand with directions.
II. BACKGROUND
A. Conviction
On May 3, 1999, defendant and three others robbed a
jewelry and music store in Long Beach. (People v. Patterson
(Sept. 25, 2001, B143582) (Patterson), review granted and opn.
ordered nonpub. Dec. 19, 2001, S101726.) During the robbery,
one of defendant’s accomplices shot and killed the store owner
Gary Kim. (Ibid.) Two days later, defendant was arrested for an
unrelated crime. (Ibid.) After being interviewed by homicide
detectives, defendant confessed to participating in the murder.
(Ibid.)
On July 15, 1999, the Los Angeles County District Attorney
(District Attorney) charged defendant and two codefendants by
information with: murder (§ 187, subd. (a); count 1), with a
special circumstance allegation that the murder was committed
while defendants were engaged in the crime of robbery (§ 190.2,
subd. (a)(17)); second degree robbery (§ 211; counts 2, 3); and
conspiracy to commit robbery (§ 182, subd. (a)(1); count 6). The
District Attorney also alleged that defendant personally used a
handgun in the commission of the murder and robberies.
(§ 12022.5, subd. (a)(1).)
1 Further statutory references are to the Penal Code.
2
On June 27, 2000, a jury convicted defendant on all counts
and found true the allegation that he personally used a handgun
in the commission of the robberies and murder.
On July 27, 2000, the trial court sentenced defendant to life
without the possibility of parole plus four years for murder.
(Patterson, supra, B143582.) The court also imposed two
concurrent seven-year terms for the robberies. (Ibid.) Finally, it
imposed a concurrent three-year term for conspiracy to commit
robbery. (Ibid.) On September 25, 2001, a panel of this court
affirmed the conviction, with directions for the trial court to
amend the abstract of judgment to reflect that the sentences for
counts 2 and 6 were stayed under section 654. (Ibid.)
B. Section 1170.95 Petition
On January 17, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. Defendant declared
that he was convicted of first degree murder under the felony
murder rule or the natural and probable consequences doctrine
and he could not now be convicted of first degree murder because
of changes to sections 188 and 189. Defendant asserted that he
was not a major participant in the felony and did not act with
reckless disregard to human life. On May 14, 2019, the trial
court appointed counsel to represent defendant.
On January 6, 2020, the District Attorney opposed the
petition, arguing that defendant either intended to kill or was a
major participant in the underlying felony who acted with
reckless indifference to human life. The District Attorney also
argued that the record of conviction proved beyond a reasonable
doubt that defendant acted with malice aforethought.
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On June 8, 2021, the trial court denied defendant’s petition,
concluding that the special circumstances finding rendered him
ineligible for relief as a matter of law. Citing People v. Allison
(2020) 55 Cal.App.5th 449, the court concluded that defendant
had not made a prima facie showing that he was entitled to relief.
This appeal followed.
III. DISCUSSION
A. Section 1170.95
Section 1170.95, as amended by Senate Bill No. 775,
“creates a procedure for convicted murderers [and attempted
murderers] who could not be convicted under the law as amended
to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th
952, 957 (Lewis).) Where a petitioner files a section 1170.95
petition that contains all of the statutorily required information
and requests counsel, the court must appoint counsel and order
briefing. (Id. at p. 966.)
When briefing has been completed, “the court shall hold a
hearing to determine whether the petitioner has made a prima
facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall
issue an order to show cause.” (Ibid.) Within 60 days of issuance
of the order to show cause, the trial court shall hold a hearing “to
determine whether the petitioner is entitled to relief.” (§ 1170.95,
subd. (d)(1) & (3).) “[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
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made effective January 1, 2019.” (§ 1170.95, subd. (d)(3).) The
trial court acts as the finder of fact when determining whether
the prosecution has met its burden beyond a reasonable doubt.
(See ibid.; People v. Gentile (2020) 10 Cal.5th 830, 855 [“section
1170.95 requires the superior court to determine on an
individualized basis, after considering any new or additional
evidence offered by the parties, whether the defendant is entitled
to relief”].)
B. Special Circumstances
Defendant contends the trial court erred by finding that the
jury’s special circumstance findings, made before People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark) were decided, rendered him ineligible for
section 1170.95 relief as a matter of law. This is a question of law
that we review de novo. (Lewis, supra, 11 Cal.5th at p. 961.)
The Courts of Appeal are in disagreement regarding this
issue, which is currently pending before the Supreme Court.
(People v. Strong, (Dec. 18, 2020, C091162) [nonpub. opn.], review
granted Mar. 10, 2021, S266606.) In the absence of a decision by
the Supreme Court, we see no reason to depart from our prior
conclusion that the special circumstances findings do not prevent
defendant from making a prima facie showing that he is entitled
to relief. (People v. York (2020) 54 Cal.App.5th 250, 257–263,
review granted Nov. 18, 2020, S264954; People v. Smith (2020) 49
Cal.App.5th 85, 93, review granted July 22, 2020, S262835
(Smith); People v. Torres (2020) 46 Cal.App.5th 1168, 1179–1180,
abrogated on other grounds by Lewis, supra, 11 Cal.5th at
p. 963.)
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C. Prima Facie Showing
We next consider whether defendant has demonstrated a
prima facie case for relief. Here, defendant’s jury was instructed
that it could convict defendant of murder under either a felony
murder or a natural and probable consequences theory.
Defendant asserted in his petition that he was not a major
participant in the felony and did not act with reckless disregard
of human life. The record on appeal of excerpts from defendant’s
trial does not demonstrate that defendant was precluded from
relief as a matter of law. (See Patterson, supra, B143582.)
Defendant therefore met his prima facie burden to establish he
was entitled to relief. (See People v. Offley (2020) 48 Cal.App.5th
588, 599.)
The Attorney General argues that we should follow People
v. Law (2020) 48 Cal.App.5th 811, review granted July 8, 2020,
S262490 (Law), and People v. Murillo (2020) 54 Cal.App.5th 160,
review granted November 18, 2020, S264978 (Murillo), which
both held that a Court of Appeal should conduct a Banks/Clark
analysis of the record at the prima facie stage to determine
whether a defendant is ineligible for section 1170.95 relief. (Law,
supra, 48 Cal.App.5th at p. 822; Murillo, supra, 54 Cal.App.5th
at p. 169.) We adhere to our holding in Smith, supra, 49
Cal.App.5th at page 95, which rejected the Attorney General’s
argument.
The trial court erred in denying defendant’s petition, and
we will reverse and remand with instructions for the court to
issue an order to show cause and hold a hearing pursuant to the
resentencing statute. (§ 1170.95, subd. (d)(3); People v. DeHuff
(2021) 63 Cal.App.5th 428, 442.)
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IV. DISPOSITION
The order denying the section 1170.95 petition is reversed.
The matter is remanded with directions for the trial court to
issue an order to show cause under section 1170.95, subdivision
(c) and hold a hearing pursuant to section 1170.95, subdivision
(d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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