People v. Young CA4/1

Filed 2/25/22 P. v. Young 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D078290
Plaintiff and Respondent,
v. (Super. Ct. No. SCD164636)
LEJON ANDERSON YOUNG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Reversed and remanded with directions.
Law Offices of Damon L. Hobdy and Damon L. Hobdy, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, Alan L. Amann, and Felicity Ann Senoski, Deputy Attorneys
General, for Plaintiff and Respondent.
In 2002, Lejon Anderson Young pleaded guilty to first degree murder
(Pen. Code,1 § 187, subd. (a)) as part of a plea bargain under People v. West
(1970) 3 Cal.3d 595 (West). As a factual basis for the plea, the parties
stipulated to the use of the transcript of the preliminary hearing. The parties
also considered the change of plea form, which stated that they stipulated the
prosecution evidence would show that Young drove the codefendant to a place
knowing the codefendant was going to kill someone.
Young was sentenced to a stipulated term of 25 years to life. The
remaining charges and allegations were dismissed.
In 2019, Young filed a petition for resentencing under section 1170.95.
Young was represented by retained counsel. The parties filed briefs and the
court reviewed the record of conviction. The court denied the petition without
issuing an order to show cause (OSC) and holding an evidentiary hearing.
The trial court concluded, based on the change of plea form and the court’s
review of the transcript of the preliminary hearing, that Young was a direct
aider and abettor who acted with reckless indifference to human life. The
order stated:
“On November 13, 2002, Petitioner entered a guilty plea
to first degree murder in violation of Penal Code section
187(a). On April 2, 2003, Petitioner was sentenced to the
total term of 25 years to life in state prison.
“On January 14, 2019, the court received Petitioner’s
petition for resentencing pursuant to Penal Code section
1170.95. On January 24, 2019, counsel was appointed for
Petitioner. On February 25, 2019, the People filed a
response. On July 31, 2019, Petitioner, through appointed
counsel, filed a reply. After a court-ordered stay of
proceedings elapsed, on July 27, 2020, Petitioner, through
1 All further statutory references are to the Penal Code.
2
retained counsel, filed an additional reply to the People’s
response.
“The court has reviewed the case file, the petition, the
pleadings filed by both parties, and the preliminary
examination transcript. The court finds Petitioner has not
made a prima facie showing that he is entitled to relief.
(See Pen. Code§ 1170.95(c).) Petitioner has not shown that
he could not be convicted of murder because of the changes
made to Penal Code section 188 or 189 made effective
January 1, 2019.
“Penal Code section 188(a)(3) states, ‘Except as stated in
subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.’
“Penal Code section 189(e) states, ‘A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder
only if one of the following is proven:
(1) The person was the actual killer.
(2) The person was not the actual killer, but,
with the intent to kill, aided, abetted,
counseled , commanded, induced, solicited,
requested, or assisted the actual killer in the
commission of murder in the first degree.
(3) The person was a major participant in the
underlying felony and acted with reckless
indifference to human life, as described in
subdivision (d) of Section 190.2.’
“Here, even without addressing Petitioner’s personal
intent, the facts contained in the court record establish
Petitioner was a major participant in the murder and acted
with reckless indifference to human life. On the change of
plea form, when describing the facts of the murder charge,
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Petitioner admitted, ‘People v. West. Defense stipulates
that the facts presented by the People would show that
[Petitioner] drove another person to a specific location
knowing that the other person intended to kill another
human being. Further, the preliminary hearing transcript
can also be used as a factual basis.’ (See Plea of Guilty/No
Contest - Felony Form Item No. 12.)
“Petitioner’s counsel argues that the preliminary
examination transcript raises a question as to whether or
not Petitioner had knowledge a murder was going to occur.
However, this court finds that the issue regarding
Petitioner’s knowledge was resolved when Petitioner
admitted under penalty of perjury on the change of plea
form that he knew of his passenger’s intent to kill when he
drove him to the scene of the crime. The facts set forth in
the preliminary examination transcript support the
admission that Petitioner drove a person known to him to
kill another person and, based on the evidence presented at
the preliminary examination, there was probable cause to
make a finding that the Petitioner was a member of a
criminal street gang and the victim was a rival gang
member. The Petitioner’s version of the facts presented
during the preliminary examination regarding his lack of
knowledge of the shooting and the shooter’s intent were not
made under penalty of perjury. Thus, this court does not
find that a question regarding Petitioner’s knowledge
remains.
“When considering if a defendant is a ‘major participant’
in the murder, the following factors are considered: ‘What
role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did
the defendant have in supplying or using lethal weapons?
What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or
past experience or conduct of the other participants? Was
the defendant present at the scene of the killing, in a
position to facilitate or prevent the actual murder, and did
his or her own actions or inaction play a particular role in
the death? What did the defendant do after lethal force
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was used? No one of these considerations is necessary, nor
is any one of them necessarily sufficient. All may be
weighed in determining the ultimate question, whether the
defendant’s participation “in criminal activities known to
carry a grave risk of death” (citation omitted) was
sufficiently significant to be considered “major” (citations
omitted).’ People v. Banks (2015) 61 Cal.4th 788, 803.
“Some factors to take into consideration when
determining if a defendant acted with ‘reckless indifference
to human life’ are as follows: the mere fact of a defendant’s
awareness that a gun will be used in the felony is not
sufficient to establish reckless indifference to human life,
but a defendant’s use of a firearm, even if the defendant
does not kill the victim or the evidence does not establish
which armed robber killed the victim, can be significant to
the analysis of reckless indifference to human life;
proximity to the murder and the events leading up to it
may be particularly significant where the murder is a
culmination or a foreseeable result of several intermediate
steps, or where the participant who personally commits the
murder exhibits behavior tending to suggest a willingness
to use lethal force; defendant’s failure to provide aid while
present at the scene; whether a murder came at the end of
a prolonged period of restraint of the victims by defendant;
defendant’s knowledge of factors bearing on a cohort’s
likelihood of killing; and defendant’s efforts to minimize the
risks of violence during the felony. (People v. Clark (2016)
63 Cal.4th 522, 616-623.)
“When considering the factors set forth in the Banks and
Clark cases in conjunction with the facts detailing
Petitioner’s participation in the murder, there are sufficient
facts to make a finding that Petitioner was a major
participant and acted with reckless indifference to human
life. Petitioner drove the actual killer to the scene of the
murder, drove with the lights off on the vehicle near the
scene of the murder, knew the shooter intended to kill the
victim when he drove him to the scene of the murder, did
not render aid to the victim or attempt to get the victim any
medical attention after he was shot in the head, drove the
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actual killer from the scene after the shooting at a high
rate of speed, and was a member of a rival criminal street
gang. (See Plea of Guilty/No Contest- Felony Form Item
No. 12 and Preliminary Examination Transcript.)
Petitioner aided the shooter in committing a first degree
murder and provided crucial assistance the shooter needed
to complete the crime and get away from the scene without
being caught. Accordingly, Petitioner falls within Penal
Code section 189(e)(3) and he is not statutorily eligible for
Penal Code section 1170.95 relief.
“Based on the foregoing, the Penal Code section 1170.95
petition for resentencing is hereby DENIED.”
Young appeals, contending the trial court erred in concluding he had
not stated a prima facie case for relief based upon the court’s review of the
record. He argues the court should have issued an OSC and conducted an
evidentiary hearing as required by statute. We agree with Young that the
court erred in denying Young’s petition at the prima facie stage of review.
The record of conviction does not establish Young is ineligible for relief as a
matter of law. Rather, the court’s denial of the petition was based on
factfinding and weighing of the evidence, all of which are inappropriate at the
prima facie review of the petition. Accordingly, we will reverse the order and
remand the case to the trial court with directions to issue an OSC and
conduct an appropriate evidentiary hearing.
DISCUSSION
I
Legal Principles
Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437) was
enacted 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
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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, 842.)
Section 1170.95, subdivision (c) provides: “Within 60 days after service
of a petition that meets the requirements set forth in subdivision (b), the
prosecutor shall file and serve a response. The petitioner may file and serve
a reply within 30 days after the prosecutor’s response is served. These
deadlines shall be extended for good cause. After the parties have had an
opportunity to submit briefings, 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. If the court declines to
make an order to show cause, it shall provide a statement fully setting forth
its reasons for doing so.”
When a trial court reviews a petition for resentencing, the court first
determines if the petitioner has shown a prima facie case for relief under the
statute. If so, the court must issue an OSC and hold an evidentiary hearing
on the petition. (People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis).)
However, the court may deny the petition if the person is ineligible as a
matter of law. (People v. Drayton (2020) 47 Cal.App.5th 965, 980-981.) The
court may review the record of conviction, including any prior appellate
opinion, to determine if the petitioner’s allegations are rebutted by the
record. (Lewis, at p. 972.) However, the court may not engage in factfinding
and weighing credibility at the prima facie stage of petition review. (Drayton,
at pp. 979-980.)
The court in Lewis went on to explain the process of reviewing petitions
for resentencing under section 1170.95. The court said: “The record of
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conviction will necessarily inform the trial court’s prima facie inquiry under
section 1170.95, allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at
p. 971.) “While the trial court may look at the record of conviction after the
appointment of counsel to determine whether a petitioner has made a prima
facie case for section 1170.95 relief, the prima facie inquiry under
subdivision (c) is limited. Like the analogous prima facie inquiry in habeas
corpus proceedings, ‘ “the 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.” ’ ” (Ibid.)
“ ‘However, if the record, including the court’s own documents,
“contain[s] facts refuting the allegations made in the petition,” then “the
court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “Appellate
opinions . . . are generally considered to be part of the record of conviction.”
(Id. at p. 972.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ ” (Ibid.) “In sum, the
parties can, and should, use the record of conviction to aid the trial court in
reliably assessing whether a petitioner has made a prima facie case for relief
under [section 1170.95], subdivision (c).” (Ibid.)
II
Analysis
The People and the trial court take the position that Young’s change of
plea form establishes he admitted being a direct aider and abettor who acted
with the reckless indifference to human life. We do not believe the record
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supports that conclusion without doing some factfinding, which is not
permitted by Lewis or Drayton.
Properly read, the statement is not an admission of particular behavior
by Young. In this West plea bargain, the parties stipulated to what the
prosecution’s evidence would show. Consistent with the principles of West,
which allow a defendant to take the benefit of a plea offer without making a
specific factual admission, this plea has its “factual basis” in the transcript of
the preliminary hearing and a stipulation regarding the prosecution’s case.
It is apparent that Young was accepting the plea offer without a direct
admission of specific criminal conduct.
In order for the trial court to deny the petition for resentencing here, it
was necessary to consider the evidence at the preliminary hearing as well as
the stipulation. In other words, the trial court here found and weighed the
evidence supporting the plea in order to discern the exact nature of Young’s
conduct during the offense. Such evidentiary evaluation is not appropriate at
the prima facie stage of review. The court must issue an OSC and hold an
evidentiary hearing as required by section 1170.95. We will reverse and
remand to permit further review of Young’s petition.
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DISPOSITION
The order denying Young’s petition for resentencing under section
1170.95 is reversed. The matter is remanded to the Superior Court with
directions to issue an OSC and conduct an appropriate evidentiary hearing as
required by statute.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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