People v. Blocker CA2/1

Filed 8/30/21 P. v. Blocker CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309642
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA018677)
v.
LINNETTE O. BLOCKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Nicole C. Bershon, Judge. Affirmed.
Robert D. Bacon, 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, Assistant
Attorney General, Michael R. Johnsen and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant and appellant Linnette O. Blocker challenges
the trial court’s denial of her petition under Penal Code1
section 1170.95 for resentencing on her murder conviction.
She argues that the trial court erred by applying an incorrect
standard of proof and by finding after an evidentiary hearing
that she was a major participant in the underlying burglary that
was the basis of her felony-murder conviction. We disagree and
affirm on two grounds. First, the jury in Blocker’s trial found
true a felony-murder special circumstance, making her ineligible
for relief as a matter of law. Second, even assuming that the
special circumstance finding did not disqualify her, there was
substantial evidence to support the trial court’s rejection of her
petition after a final eligibility hearing.
FACTUAL AND PROCEDURAL SUMMARY
In 1994, Blocker took part in a burglary in which one
of her cohorts killed a victim, and another cohort attempted to
kill a second victim. A jury convicted her of one count of murder
(§ 187, subd. (a)), one count of attempted murder (§§ 187, 664),
one count of residential burglary (§ 459), and one count of felony
child abuse (former § 273a, subd. (a)(1)). On the murder count,
the jury found true a felony-murder special circumstance
allegation. (§ 190.2, subd. (a)(17).) The trial court sentenced
Blocker to life in prison without the possibility of parole, plus
an additional 10 years 4 months. We affirmed the convictions
in Blocker’s direct appeal. (People v. Blocker (Oct. 2, 1996,
B099624) [nonpub. opn.].)
1 Subsequent statutory references are to the Penal Code.
2
In our prior opinion, we described the facts of the case
as follows: “T[airree] Lynne West (West) lived in a small
apartment in El Segundo with her infant daughter, Carlie, and
with 12-year-old Ashley L[.], whom West was adopting. Erica
Olsen (Olsen) had lived with West for approximately two months.
She left at West’s request in late November or early December
1993. Olsen had a key to the apartment. While Olsen was living
with West, her boyfriend, Robert Foster (Foster), occasionally
visited and spent the night.
“Foster and Olsen were living in room 401 of the Hollywood
YMCA in early February 1995. Marcus Brewington (Brewington)
lived in room 414. At approximately 2:30 p.m. on February 8,
1994, Foster asked the YMCA residence director for permission
to bring a visitor to his room to discuss business. The director
gave permission, after which Foster and Olsen walked toward the
rooms with [Blocker]. The desk supervisor saw these three and
Brewington leave the YMCA later that night; they walked toward
the bus stop. Their demeanor appeared to be uncharacteristically
serious; they were all wearing dark clothing and bandannas.
[Blocker] was wearing gloves.
“West, the baby and Ashley arrived home at approximately
midnight on the night of February 8. After Ashley finished her
homework, they retired for the night. The baby, Carlie, was ill
with bronchitis and therefore was sleeping with her mother.
“Foster, Olsen, Brewington and [Blocker] had taken a bus
to West’s apartment, arriving at approximately 11:00 p.m. They
waited in a nearby park for approximately one hour until West
and the children returned home. As they waited, Foster, Olsen
and Brewington discussed entering West’s apartment to steal
her belongings and then killing the family. Foster, who had a
3
butcher knife, said he would break West’s neck. Brewington said
he would ‘take care of the baby.’
“Shortly after they saw West drive up in her Nissan Pulsar
and enter the apartment, the quartet left the park and went to
the apartment. Foster used Olsen’s key to open the door. As the
others entered the apartment, Foster went to West’s bedroom.
He attacked her with the knife, inflicting a number of stab
wounds. She also was struck forcefully 15 to 20 times. She
died from strangulation.
“Aware that West was struggling for her life, [Blocker]
entered the kitchen. Finding Carlie, clad only in a diaper, lying
in the sink, she picked her up. [Blocker] carried Carlie to the
living room; she placed the baby on the sofa. At this point,
[Blocker] saw Brewington wrestling with Ashley. He called to
[Blocker] to come and hold down Ashley. [Blocker] did so briefly.
When she left the room, Brewington still was struggling with
Ashley. According to Ashley, Foster attempted to strangle her,
after which Brewington punched her and she passed out.
“As the quartet gathered West’s property, they heard
Ashley moan. Foster went into Ashley’s bedroom briefly. When
he emerged, the quartet left with a radio, West’s spoon collection,
a large number of compact discs, a stereo and West’s Nissan
Pulsar. They also took a jacket of West’s and her pager.
“Ashley regained consciousness some time later. After
discovering that her neck was bleeding, she crawled to the
telephone and called 911. As she passed West’s bedroom, she
could see West’s legs and a great deal of blood.
“El Segundo Police Officer Louis Kutil found the panic-
stricken and terrified Ashley holding a bloody towel to her neck.
West was lying on her bed, covered with blood. She had been
4
strangled with a black scarf. There was a broken knife in the
bedroom. The living room had been ransacked. Officer Calvin
Smith found Carlie lying face down on the living room sofa
underneath pillows and towels. She had been gagged with a
light blue bandanna; she was extremely cold, pale and tired; her
diaper was abnormally saturated.
“Foster, Olsen, Brewington and [Blocker] returned to the
YMCA at approximately 2:30 a.m. on February 9, 1994. After
cleaning up, they discussed the venture. Foster acknowledged
stabbing and choking West. Brewington said he tried to choke
Ashley, but she simply would not succumb; Foster went into her
room and slashed her throat.
“[Blocker] initially denied knowing anything about the
killing. She stated, however, that she spent the entire night
with Foster. While talking to [Blocker], Detective Bart Langley
noticed a pager hanging from [Blocker’s] waistband; the pager
was West’s. He arrested [Blocker] and Brewington. Shortly
thereafter, Foster and Olsen returned to the YMCA in West’s
automobile. Officer Rudy Kerkoff arrested them. They had
pawned most of the property taken from West’s apartment.
“Defense
“In early February 1994, Thomas Semblower (Semblower)
met Foster, Brewington and Olsen at the Teen Canteen. Foster
asked Semblower to help with a burglary in El Segundo; he
intended to burglarize a place he and Olsen knew. They had a
key to the apartment. Semblower’s role would be to help restrain
the boyfriend; the other participants would be Foster,
Brewington, Olsen and [Blocker]. Olsen and [Blocker] would
restrain the children. Semblower agreed to participate in the
burglary.
5
“Semblower met Foster and the others at the YMCA on
the following day to discuss the matter further. Foster took
Semblower aside; he said he had changed plans. Rather than
restraining the burglary victims, they would kill them. [Blocker]
was not present when this conversation took place. Semblower
refused to participate under these circumstances.” (People v.
Blocker, supra, B099624.)
•••
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases
of murder, and limited the application of the felony-murder
doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843
(Gentile).) Under the new law, a conviction for felony murder
requires proof that the defendant was either the actual killer,
acted with the intent to kill, or “was a major participant in
the underlying felony and acted with reckless indifference to
human life.” (§ 189, subd. (e)(3).) The legislation also enacted
section 1170.95, which established a procedure for vacating
murder convictions for defendants who could no longer be
convicted of murder because of the changes in the law and
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
Blocker filed a petition for resentencing on January 7,
2019. The trial court found that Blocker had established a
prima facie case for relief, appointed counsel to represent her,
and issued an order to show cause why the petition should not
be granted. After a hearing on the order to show cause, the trial
court found that the prosecution proved beyond a reasonable
6
doubt that Blocker was ineligible for resentencing and denied
the petition.
DISCUSSION
A. Background on Senate Bill No. 1437
Senate Bill No. 1437 includes both prospective and
retrospective provisions. Prospectively, the law amended
section 188 to provide that “[e]xcept 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.” (§ 188, subd. (a)(3).) The effect of this amendment is
to “eliminate[ ] natural and probable consequences liability for
first and second degree murder.” (Gentile, supra, 10 Cal.5th at
p. 849.) In addition, Senate Bill No. 1437 enacted section 189,
subdivision (e), which restricted felony-murder liability to cases
in which the defendant was the actual killer, acted with the
intent to kill, or was a major participant in the underlying felony
and acted with reckless indifference to human life. (See Gentile,
supra, at pp. 842–843.)
The retroactive component of Senate Bill No. 1437 is
codified in section 1170.95. (See Gentile, supra, 10 Cal.5th
at p. 853 [“the Legislature intended section 1170.95 to be
the exclusive avenue for retroactive relief under Senate Bill
[No.] 1437”].) This section allows a defendant “convicted of felony
murder or murder under a natural and probable consequences
theory [to] file a petition” for resentencing under the new law.
(§ 1170.95, subd. (a).) To be eligible for resentencing, a defendant
must show that he or she “could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
7
effective” as a part of Senate Bill No. 1437. (§ 1170.95,
subd. (a)(3).)
The first step for a defendant to obtain relief under
section 1170.95 is to file a declaration affirming that he or she
is eligible for resentencing under the new law. (See § 1170.95,
subd. (b)(1).) The trial court reviews the petition, and if the
petition is incomplete, “the court may deny the petition
without prejudice to the filing of another petition and advise
the petitioner that the matter cannot be considered without
the missing information.” (Id., subd. (b)(2).)
If the defendant’s petition is facially sufficient, the
trial court “shall appoint counsel to represent the petitioner.”
(§ 1170.95, subd. (c).) The prosecutor must file a response within
60 days of service of the petition, and the petitioner may file
a reply. (Ibid.) At this stage, the trial court must determine
whether the petitioner has made a prima facie case for relief,
under a standard of review “analogous” to the “prima facie
inquiry in habeas corpus proceedings.” (People v. Lewis (2021)
11 Cal.5th 952, 971 (Lewis).) In this review, “ ‘ “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.” ’ [Citations.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.’
[Citations.] ‘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.” ’ ” (Ibid.)
8
As part of its review, the court may consult the record of
conviction in the case, including any prior appellate opinions,
subject to the caveat that “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, supra,
11 Cal.5th at p. 972.) The “trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise
of discretion’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,]
980 . . . )” (Lewis, supra, 11 Cal.5th at p. 972) in recognition of the
fact that “the ‘prima facie bar was intentionally and correctly set
very low.’ ” (Ibid.)
If the trial court determines that the defendant has
met this burden, “the court shall issue an order to show cause.”
(§ 1170.95, subd. (c).) If the court issues an order to show cause,
it must hold a hearing within 60 days to determine whether to
vacate the murder conviction. (§ 1170.95, subd. (d)(1).) At this
final stage of the proceeding, the prosecution has the burden
of proving “beyond a reasonable doubt[ ] that the petitioner is
ineligible for resentencing.” (Id., subd. (d)(3).)
B. The Trial Court Did Not Err in Denying
Blocker’s Petition
In this case, the trial court denied Blocker’s petition at
the final stage of review, finding beyond a reasonable doubt after
a hearing pursuant to section 1170.95, subdivision (d)(1) that
Blocker was ineligible for resentencing because she was a major
participant in the burglary and acted with reckless indifference
to human life. She contends that the trial court erred by failing
to apply the correct standard of proof at the hearing, and by
finding that she was a major participant in the burglary. We
disagree, both because the jury’s special circumstance finding at
9
Blocker’s original trial made her ineligible for resentencing as
a matter of law, and because, even if the special circumstance
finding did not disqualify her, the trial court did not err in
describing the legal standard for deciding her petition or in
finding that she was a major participant in the underlying
burglary.
1. The jury’s felony-murder special
circumstance finding renders Blocker
ineligible for resentencing as a matter
of law
To be eligible for resentencing, Blocker must show that she
“could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective” in Senate Bill
No. 1437. (§ 1170.95, subd. (a)(3).) As we have described above,
Senate Bill No. 1437 amended section 189 to require, in all
felony-murder cases, proof that the defendant was the actual
killer, acted with the intent to kill, or “was a major participant
in the underlying felony and acted with reckless indifference to
human life.” (§ 189, subd. (e)(3); see Gentile, supra, 10 Cal.5th
at pp. 842–843.) These requirements are identical to those for a
felony-murder special circumstance. (See § 190.2, subds. (b)−(d);
People v. Allison (2020) 55 Cal.App.5th 449, 457 (Allison).) The
special circumstance finding thus establishes as a matter of
law that Blocker could still be convicted of murder despite the
amendments in Senate Bill No. 1437, and that she is ineligible
for resentencing.
Blocker disagrees with this conclusion. She argues that
the jury’s special circumstance finding does not preclude her from
relief under section 1170.95 because, in the years following her
conviction, the Supreme Court clarified the definition of major
10
participation and reckless indifference to human life in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark). Because no court has considered whether
she was a major participant who acted with reckless indifference
under the Banks/Clark standard, she contends that the jury’s
special circumstance finding does not alone render her ineligible
for resentencing.
We have considered this argument in three separate
published opinions, and on each occasion, we have held that
a defendant with a pre-Banks/Clark felony-murder special
circumstance finding is ineligible for resentencing under
section 1170.95, although she may seek review by way of habeas
corpus. (See People v. Galvan (2020) 52 Cal.App.5th 1134, review
granted Oct. 14, 2020, S264284 (Galvan), People v. Murillo (2020)
54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978
(Murillo), and Allison, supra, 55 Cal.App.5th 449.) We stand by
our reasoning in those opinions, and we see no need to repeat
them here.
2. Substantial evidence supported the trial
court’s decision to deny Blocker’s petition
We recognize that other courts have disagreed with our
conclusion regarding pre-Banks/Clark special-circumstance
findings,2 and that the issue is currently pending before the
2See People v. Torres (2020) 46 Cal.App.5th 1168, review
granted June 24, 2020, S262011; People v. Smith (2020) 49
Cal.App.5th 85, review granted July 22, 2020, S262835; People v.
York (2020) 54 Cal.App.5th 250, review granted November 18,
2020, S264954; People v. Harris (2021) 60 Cal.App.5th 939,
review granted April 28, 2021, S267802; People v. Secrease (2021)
11
California Supreme Court. In the interest of judicial economy,
we will assume Blocker is correct that the special-circumstance
finding does not preclude her from resentencing as a matter of
law, and we will consider her arguments against the trial court’s
decision to deny her petition at the final stage of review.
At the final eligibility hearing, the prosecution must “prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).) Blocker contends that
the trial court erred by implying that the prosecution need show
only that there was substantial evidence to support the trial
court’s conviction. In another prior opinion, People v. Duke (2020)
55 Cal.App.5th 113, review granted January 13, 2021, S265309
(Duke), we held that the standard of review at the final eligibility
hearing is indeed “essentially identical to the standard of
substantial evidence.” (Id. at p. 123.) Thus, if the trial court had
applied this standard, it would not have erred.
Once again, however, we recognize that other courts
have disagreed with our opinion in Duke,3 and that the issue is
63 Cal.App.5th 231, review granted June 30, 2021, S268862;
People v. Pineda (2021) 66 Cal.App.5th 792; People v. Gonzalez
(2021) 65 Cal.App.5th 420; People v. Arias (2021) 66 Cal.App.5th
987. On the other hand, several other Court of Appeal opinions
have agreed with our conclusion, including People v. Nunez
(2020) 57 Cal.App.5th 78, review granted January 13, 2021,
S265918; People v. Gomez (2020) 52 Cal.App.5th 1, review
granted October 14, 2020, S264033; People v. Jones (2020) 56
Cal.App.5th 474, review granted January 27, 2021, S265854;
and People v. Simmons (2021) 65 Cal.App.5th 739.
3See People v. Lopez (2020) 56 Cal.App.5th 936, 949–951,
review granted February 10, 2021, S265974 (Lopez); People v.
12
currently pending before the California Supreme Court. In the
interest of judicial economy, we will assume that the substantial
evidence standard does not apply, and that instead, “ ‘[i]t is the
burden of the prosecution to show, beyond a reasonable doubt,
that the petitioner is guilty of murder under the law’ ” effective
following the enactment of Senate Bill No. 1437. (People v. Lopez,
supra, 56 Cal.App.5th at p. 950, review granted.)
Contrary to Blocker’s assertion, the trial court did not
apply a substantial evidence standard to the review of her
petition. Although the court mentioned the substantial
evidence standard in a different context earlier in the hearing,
when it came time to render a decision, the court did not
cite that standard. Instead, the court followed the language
of section 1170.95, subdivision (d)(3), and found that “the
prosecution has proved beyond a reasonable doubt that the
petitioner is ineligible for resentencing.” In explaining its
decision, the court did not indicate that it was rejecting
Blocker’s petition because a jury could have found her guilty
under a still-valid theory. Instead, the court found that the
evidence was unequivocal: “I don’t think there’s a clearer
example of a non-gun related . . . major participant, but more
importantly reckless indifference to human life,” than Blocker’s
case.
We also disagree with Blocker’s contention that, because
there was no live testimony or new evidence introduced at the
hearing, we should conduct an independent review of the factual
Rodriguez (2020) 58 Cal.App.5th 227, 240–244, review
granted March 10, 2021, S266652; People v. Clements (2021)
60 Cal.App.5th 597, 613–618, review granted April 28, 2021,
S267624.
13
findings. Blocker cites cases in which reviewing courts in other
contexts have not deferred to the trial court’s factual findings
when those findings are based on a purely written record rather
than live testimony. (See, e.g., People v. Ogunmowo (2018) 23
Cal.App.5th 67, 79–80; In re Cox (2003) 30 Cal.4th 974, 998, fn. 2;
In re Cudjo (1999) 20 Cal.4th 673, 687–688.) But these cases are
contrary to the general rule of “apply[ing] a deferential standard
of review in determining whether the evidence supports any
of the superior court’s factual findings.” (People v. Rodriguez,
supra, 58 Cal.App.5th at p. 238, review granted.) Substantial
evidence review “is not reserved for the review of jury findings;
it has been applied to postjudgment orders involving judicial
factfinding.” (Lopez, supra, 56 Cal.App.5th at p. 954, review
granted.) Section 1170.95 establishes a multi-stage review
process for the trial court to determine a defendant’s eligibility.
The statute does not indicate that, when we review the trial
court, we should repeat the final stage of that process with no
deference to the trial court’s findings. We join the other courts
that have considered this question in holding that it applies
to the review of final eligibility hearings under section 1170.95
as well. (See Lopez, supra, at pp. 953–954; People v. Clements,
supra, 60 Cal.App.5th at p. 618, review granted.)
When reviewing for substantial evidence, “ ‘ “the court
‘must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and
of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citations.]” ’ ”
(Lopez, supra, 56 Cal.App.5th at p. 950.)
14
Under this standard, there was substantial evidence
to support the trial court’s finding that Blocker was a major
participant in the burglary.4 In Banks, the Supreme Court
set out a series of factors relevant to determining whether a
defendant’s participation in a felony “was sufficiently significant
to be considered ‘major.’ ” (Banks, supra, 61 Cal.4th at p. 803.)
These factors are: “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 was used?” (Ibid.)
Blocker argues that some of these factors point in her favor.
She did not plan the burglary, nor did she supply the weapons.
She notes that a detective in the case described her as “probably
the least culpable of the four defendants.” But these factors pale
in comparison to other circumstances of the case. This was no
“garden-variety [burglary], where death might be possible but not
probable.” (Banks, supra, 61 Cal.4th at p. 802.) Blocker’s cohorts
planned not merely to steal from West, but also to kill her and
anyone else in the apartment. Blocker admitted to police that
she overheard her three cohorts discussing this plan beforehand.
In cases like Banks where a court overturned a finding of major
participation, the defendant typically acted as a getaway driver
4 Blocker does not contend that the trial court erred by
finding that she acted with reckless indifference to human life.
15
or otherwise was not present at the scene of the killing. (See id.
at pp. 804–805.) In this case, Blocker admitted that she entered
the apartment with her cohorts and remained there throughout
the burglary. She admitted that she was nearby when Foster
stabbed and strangled West, that she saw him jump on West’s
bed, and heard them struggle. She admitted that she assisted
Brewington in holding down 12-year-old Ashley while he was
struggling with her.
After listing the relevant factors to determining whether a
defendant was a major participant, the Supreme Court in Banks
cautioned that “[n]o 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 (Tison v. Arizona [(1987)] 481 U.S. [137,] 157) was
sufficiently significant to be considered ‘major.’ ” (Banks, supra,
61 Cal.4th at p. 803.) In this case, Blocker’s conduct met the
requirements for major participation under any standard of
review. The trial court did not err in denying her petition for
resentencing.
16
DISPOSITION
The trial court’s order denying the petition for resentencing
is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
17