People v. Murphy CA3

Filed 9/20/22 P. v. Murphy CA3
Opinion following rehearing
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
C093199
THE PEOPLE,
(Super. Ct. No. 96F09069)
Plaintiff and Respondent,
OPINION ON REHEARING
v.
RUDY JAMES MURPHY,
Defendant and Appellant.
Defendant Rudy James Murphy appeals from a postjudgment order denying his
petition for resentencing under former Penal Code section 1170.95.1 Defendant argues
the trial court erred in engaging in factfinding and not accepting the allegations of his
petition as true. Defendant also argues the jury’s finding of robbery-murder special
1 Further undesignated statutory references are to the Penal Code. Effective June 30,
2022, former section 1170.95 was recodified without substantive change to section
1172.6. (Stats. 2022, ch. 58, § 10.) In this opinion, we shall continue to refer to this
section as former section 1170.95 for purposes of clarity and conformity with the
petition.
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circumstances does not preclude his eligibility for resentencing as a matter of law,
because those findings were made prior to the Supreme Court’s decisions in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
After we issued our opinion affirming the trial court’s order, defendant filed a petition for
rehearing in anticipation of People v. Strong (2022) 13 Cal.5th 698 (Strong). The
Attorney General concedes the petition should be granted and the matter should be
remanded to the trial court for further proceedings. We granted the petition for rehearing
and, based on Strong, we agree we must reverse the order of the trial court and remand
the matter for the trial court to issue an order to show cause and hold an evidentiary
hearing on the petition under former section 1170.95.2
I. BACKGROUND
We set forth the facts of this case in our unpublished opinion affirming the
judgment on direct appeal in People v. Murphy (April 24, 2001, C029954) [nonpub. opn.]
(Murphy).
R.F., her sister M.F., and her boyfriend T.B. checked into a motel. There, they
met the victim, Jeffrey Stetka, who was staying in a room nearby. (Murphy, supra,
C029954.)
Defendant and his friend, Aaron, joined R.F. and T.B. at the motel. The four went
to Stetka’s room, rummaged through his stuff looking for a gun, and took some of his
clothes. (Murphy, supra, C029954.)
Later that evening, Stetka joined the group in R.F.’s room. They drank and
smoked methamphetamine. Stetka returned to his own room after he became intoxicated.
After he left, defendant, Aaron, and M.F. hatched a plot to steal Stetka’s gun. R.F.
2 Defendant filed a timely notice of appeal on November 30, 2020, and the matter was
fully briefed on May 11, 2022.
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implored the group not to do this and went to Stetka’s room to urge him to leave the
motel. Stetka was lying on his bed and would not get up. (Murphy, supra, C029954.)
M.F. went to Stetka’s room to make sure he was asleep and to leave the door open
for defendant and Aaron. Defendant and Aaron went to Stetka’s room and when M.F.
joined them, she saw Aaron take a knife out of Stetka’s body. Stetka died from multiple
stab wounds. The group took various items from the victim’s room. (Murphy, supra,
C029954.)
Defendant, Aaron, and M.F. sold items they took from Stetka’s room. The trio
went to Aaron’s girlfriend’s house. There, they showed her the sports jerseys and caps
they took from Stetka’s room. Defendant was nervous and wanted to know what was
being reported on the news. (Murphy, supra, C029954.)
The prosecution filed an amended information charging defendant and Aaron with
murder. (§ 187, subd. (a).) The information further alleged this crime was a serious
felony and both defendant and Aaron used a knife in the commission of the murder.
(§§ 1192.7, subd. (c)(1), 12022, subd. (b).) The information also charged them with
robbery and alleged this offense was a serious felony. (§§ 211, 1192.7, subd. (c)(19).)
The information alleged special circumstances allegations that defendant and Aaron
committed the murder during the commission of a robbery or a burglary. (§ 190.2, subd.
(a)(17).)
After trial, the jury convicted defendant of robbery (§ 211) and first degree murder
with the robbery special circumstances (§§ 187, subd. (a), 190.2, subd. (a)(17)(A)).
(Murphy, supra, C029954.) It found not true the allegation defendant used a knife in the
commission of the crime. (§ 12022, subd. (b).) Contrasted with its true robbery special
circumstances finding, the jury also found not true the special allegation defendant
committed the murder during the commission of a burglary. (§ 190.2, subd. (a)(17).)
The trial court sentenced defendant to life without the possibility of parole and we
affirmed the judgment on appeal. (Murphy, supra, C029954.)
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In 2019, defendant filed a petition under Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) and former section 1170.95 to have his
murder conviction vacated, and to be resentenced. In his petition, defendant checked the
boxes stating he was convicted of murder and could not now be convicted of murder
because of the changes made to sections 188 and 189 effective January 1, 2019. He
further checked the boxes he was not the actual killer; he did not, with the intent to kill
aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the
commission of the murder; and he was not a major participant in the felony or did not act
with reckless disregard to human life in the course of the crime.
After the trial court appointed counsel for defendant, it received briefing from both
parties.
In ruling on the petition, the trial court reviewed the facts of the case presented to
the jury, the jury instructions, and our prior decision. Based on this review, the trial court
found the evidence was overwhelming that defendant planned to murder and rob the
victim and solicited assistance from Aaron and M.F. It found the evidence demonstrated
defendant was the actual killer, or if he was not, he aided and abetted the crime, with the
intent to kill. It further found defendant was a major participant and acted with reckless
indifference to human life. As a result, the court denied the petition.
II. DISCUSSION
Defendant argues the trial court should not have engaged in fact finding, but rather
should have issued an order to show cause and set this matter for an evidentiary hearing
because he established a prima facie case he was entitled to relief. Defendant further
argues the trial court’s finding he was the actual killer is contravened by the jury’s
findings at trial. He argues the jury’s special circumstance finding should not bar his
petition as a matter of law because it was decided before our Supreme Court clarified the
law in Banks and Clark, and the evidence was insufficient under these cases to support
the special circumstance finding. The Attorney General concedes the matter should be
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remanded for further proceedings. We conclude defendant has established a prima facie
case for resentencing and the matter must be remanded for the court to issue an order to
show cause and hold the appropriate evidentiary hearing.
A. Legal Background
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 intent
to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended
section 188, which defines malice, and section 189, which defines the degrees of murder
to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.) As relevant here,
Senate Bill 1437 also added former section 1170.95, which provides a procedure by
which those convicted of murder premised on either a felony murder or natural and
probable consequences theory can petition for resentencing, if they could not be
convicted of first or second degree murder because of changes to sections 188 or 189 by
the bill. (Stats. 2018, ch. 1015, § 4; former § 1170.95, subd. (a).)
Former section 1170.95, subdivisions (b) and (c) create a process for evaluating a
petitioner’s eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960-962
(Lewis).) The trial court initially determines whether the petition is facially sufficient
under former section 1170.95, subdivision (b). (Lewis, supra, at p. 960.) If the petition is
facially sufficient, the trial court moves on to subdivision (c), appointing counsel (if
requested) and following the briefing schedule set out in the statute. (Lewis, supra, at
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p. 966.)3 Following the completion of briefing, the trial court then determines whether
the petitioner has made a prima facie showing he or she is entitled to relief. (Ibid.)
As our Supreme Court recently explained: “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 [former] 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.” ’ [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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)
B. Application
Here, defendant filed a facially sufficient petition alleging the essential facts
required for relief under former section 1170.95, subdivision (a). In this appeal, the
parties focused on whether the special circumstances finding that, at a minimum,
3 During the pendency of this appeal, the Legislature also enacted Senate Bill No. 775
which moved the requirement to appoint counsel to former section 1170.95, subdivision
(b)(3). (Stats. 2021, ch. 551, § 2; former § 1170.95, subd. (b)(3), eff. Jan. 1, 2022.)
Senate Bill No. 775 also amended former section 1170.95, subdivision (c) to require the
court to “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.”
(Stats. 2021, ch. 551, § 2; former § 1170.95, subd. (c).) Because we conclude post
defendant is entitled to an order to show cause and an evidentiary hearing on the current
showing, whether the trial court followed this procedure in rejecting the petition is of no
moment here.
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defendant was a major participant who acted with reckless indifference to human life,
bars his petition as a matter of law.
As relevant here, section 190.2, subdivision (d) provides that for the purposes of
the special circumstance allegations based on the enumerated felonies in paragraph (17)
of subdivision (a), which include robbery, an aider and abettor must have been the actual
killer, an aider or abettor who acted with the intent to kill, or at a minimum, a “major
participant” and have acted “with reckless indifference to human life.” (§ 190.2, subd.
(d); Banks, supra, 61 Cal.4th at p. 798.)
At trial in 1998, the jury found true the special circumstances allegation that
defendant committed the murder of Stetka during the commission of the robbery. In so
doing, the jury necessarily found defendant was either the actual killer, participated in the
robbery with the intent to kill the victim, or at a minimum, he was a major participant
who acted with reckless indifference to human life. There is no explicit finding in the
record of conviction defendant had an intent to kill during the robbery, and the jury’s
finding defendant did not use a knife tends to negate that the jury found he was the actual
killer.
Defendant argues the jury’s special circumstance finding as it relates to his major
participation in this murder and reckless disregard for human life does not make him
ineligible for resentencing, because the jury made that finding before the Supreme Court
clarified the analysis as to who qualifies as a major participant acting with reckless
indifference to human life in Banks and Clark.
Shortly after we issued our original opinion in this case rejecting defendant’s
argument, our Supreme Court provided the definitive answer to this question. (See
Strong, supra, 13 Cal.5th 698.) In Strong, the Supreme Court held: “Findings issued by
a jury before Banks and Clark do not preclude a defendant from making out a prima facie
case for relief under Senate Bill 1437. This is true even if the trial evidence would have
been sufficient to support the findings under Banks and Clark.” (Id. at. p. 710.) Further,
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our Supreme Court noted: “Banks and Clark both substantially clarified the law
governing findings under . . . section 190.2, subdivision (d): Banks elucidated what it
means to be a major participant and, to a lesser extent, what it means to act with reckless
indifference to human life, while Clark further refined the reckless indifference inquiry.”
(Id. at. pp. 706-707.) The court concluded these two rulings reflected a significant
change in the law and jury findings made prior to this change in the law did not have a
preclusive effect in a subsequent petition for resentencing. (Id. at p. 717.)
Here, the jury made its special circumstances finding 16 years before the Supreme
Court announced the change in the law in Banks and Clark as to what it is to be a major
participant and to act with reasonable indifference. Accordingly, that finding does not
preclude defendant from stating a prima facie case for relief. (Strong, supra, 13 Cal.5th
at p. 710.)
Given defendant’s facially sufficient petition alleging the essential facts required
for relief under former section 1170.95, subdivision (a), and nothing in the record
demonstrating defendant is ineligible for sentencing as a matter of law, we must remand
the matter for the trial court to issue an order to show cause and hold an evidentiary
hearing under former section 1170.95, subdivision (d), to determine if defendant should
be resentenced. We express no opinion on the ultimate resolution of the petition.4
4 As defendant observes, the trial court’s ruling denying the petition here at the prima
facie stage was based on its review of the evidence and jury instructions and factual
findings the trial court made based on that review. At this initial stage of the
proceedings, the trial court was limited to determining, based on the record of conviction,
whether defendant made a prima facie showing he was entitled to an order to show cause
and an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.) The trial court was not
permitted to examine the evidence admitted at trial and make credibility findings
concerning defendant’s role based on those findings at this initial stage. (Ibid.)
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III. DISPOSITION
The trial court’s denial of defendant’s former section 1170.95 petition is reversed,
and the matter is remanded for the trial court to issue an order to show cause and hold an
evidentiary hearing on the petition.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
HOCH, J.
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