People v. Doss CA2/1

Filed 3/1/23 P. v. Doss CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B300197
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. TA013552)
v.
JOHN DOSS,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Pat Connolly, Judge. Reversed and remanded
with directions.
Mary Jo Strnad, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
A jury convicted John Doss for the 1991 murders of Desiree
Mayberry and Larry Thomas and we affirmed the convictions on
Doss’s direct appeal. (People v. Doss (May 4, 1995, B076155)
[nonpub. opn.] (Doss I).) In 2019, Doss petitioned the trial court
under Penal Code section 1172.6 (former section 1170.95)1 for
resentencing, alleging that he could not be convicted of first or
second degree murder because of changes made to Penal Code
sections 188 and 189 that became effective on January 1, 2019.2
The trial court found that Doss was ineligible for relief as a
matter of law because the jury had concluded that Doss acted
with reckless indifference to human life and was a major
participant in the underlying crimes.
We affirmed the trial court’s order in an unpublished
opinion. (People v. Doss (Dec. 16, 2020, B300197) (Doss II).) The
Supreme Court granted review and transferred this case back to
us with directions to vacate our decision and reconsider the cause
in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and
People v. Strong (2022) 13 Cal.5th 698 (Strong). We vacated our
decision. We have reconsidered the cause, and we now reverse
the trial court’s order with directions to conduct an evidentiary
hearing under section 1172.6.
1 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6 with no change in its text. (Stats. 2022, ch. 58,
§ 10.)
2 Further statutory references are to the Penal Code.
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BACKGROUND
In 1993, a jury convicted Doss of two counts of first degree
murder (§§ 187, 189), one count of attempted premeditated
murder (§§ 664, 187), one count of assault with a firearm (§ 245),
and three counts of residential robbery (§§ 211, 212.5). (Doss I,
supra, B076155, at p. 2.) “The jury found true multiple murder
and murder during robbery special circumstances . . . and, after a
penalty trial, recommended life in prison without parole.” (Ibid.)
At trial, the jury was instructed that “if a defendant was
not an actual killer, or if the jury could not so decide, ‘you cannot
find the special circumstances to be true as to that defendant,
unless you are satisfied beyond a reasonable doubt that such
defendant, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted any actor
in the commission of the murder during the first degree, or with
reckless indifference to human life and as a major participant,
aided, abetted, counseled, commanded, induced, solicited,
requested or assisted in the commission of the crime of robbery,
which resulted in the death of a human being, namely Desiree
Mayberry and/or Larry Thomas.” (Doss I, supra, B076155, at p.
3, original emphasis and alterations.)
On February 19, 2019, Doss filed a petition under section
1172.6 alleging that he was entitled to resentencing because he
was not the actual killer and that he could not now be convicted
of first or second degree murder because of amendments to
sections 188 and 189 that became effective on January 1, 2019.
On June 24, 2019, the People filed an opposition to Doss’s
petition for resentencing. At a hearing on June 28, 2019, the trial
court denied Doss’s petition. In its order denying the petition,
the trial court stated: “The petitioner was convicted by jury of
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multiple counts of murder . . . . The jury found true the special
circumstances allegation of multiple murder . . . as well as the
special circumstances of felony murder . . . . The true finding as
to both of the special circumstance allegations renders
petitioner’s claim pursuant to [section 1172.6] meritless. Here,
the jury was properly instructed and found that petitioner was a
major participant in the underlying crimes. [¶] The appellate
opinion affirming the petitioner’s conviction and sentence reflects
that the jury was properly instructed regarding the special
circumstance allegation and speci[fic]ally rejected claims by
petitioner that there was insufficient evidence.”
Doss filed a timely notice of appeal.
We affirmed the trial court’s order in an unpublished
opinion. (Doss II, supra, B300197.) We concluded that our
opinion in People v. Galvan (2020) 52 Cal.App.5th 1134(disapproved by Strong, supra, 13 Cal.5th at p. 718, fn. 3)
foreclosed Doss’s arguments because we held in Galvan that
“section [1172.6] is not the correct vehicle” to challenge the jury’s
special circumstance findings under People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522(Clark).
Our Supreme Court granted Doss’s petition for review and
held the case pending decision in Lewis and Strong. The
Supreme Court decided Lewis on July 26, 2021 and Strong on
August 8, 2022. On September 28, 2022, the Supreme Court
transferred this case back to us with directions to vacate our
decision and reconsider the cause in light of Lewis and Strong.
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DISCUSSION
Under section 1172.6, a defendant “convicted of felony
murder” may file a petition to have the murder conviction
vacated and “be resentenced on any remaining counts.”
(§ 1172.6, subd. (a).) A defendant makes a prima facie case for
relief under this section if, among other requirements, the
defendant “could not presently be convicted of murder” under the
amendments to sections 188 or 189 that became effective on
January 1, 2019. (§ 1172.6, subd. (a)(3).) These statutes, as
amended, still authorize a murder conviction under the felony
murder doctrine if the defendant “was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e)(3).) Thus, if these facts can be established
as a matter of law based on the record of the defendant’s
conviction, the court may determine that the defendant has failed
to make a prima facie case for relief and deny the defendant’s
petition without an evidentiary hearing. (Lewis, supra, 11
Cal.5th at p. 971.)
In Strong, supra, 13 Cal.5th 698, as in the instant case, the
defendant’s jury found true the special circumstance that he was
a “major participant” who acted with “reckless indifference to
human life.” (Id. at p. 703.) There, as here, the jury’s finding
was made before the Supreme Court’s decisions in Banks and
Clark, “which for the first time provided substantial guidance on
the meaning of the two relevant statutory phrases.” (Strong,
supra, 13 Cal.5th at p. 703.)
In Strong, the trial court had summarily denied the
defendant’s petition under section 1172.6 on the ground that the
jury’s pre-Banks and pre-Clark finding was binding. The
Supreme Court reversed, and explained that Banks and Clark
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“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.” (Strong, supra, 13
Cal.5th at pp. 706-707.) As a result, facts that would support a
jury finding that a defendant was a major participant or had
acted with reckless disregard for life before Banks and Clark
would not necessarily be sufficient to support the same finding
after Banks and Clark. Thus, “unless a defendant was tried after
Banks was decided, a major participant finding will not defeat an
otherwise valid prima facie case. And unless a defendant was
tried after Clark was decided, a reckless indifference to human
life finding will not defeat an otherwise valid prima facie case.”
(Id. at p. 721.)
In sum, after Strong, a jury’s finding that a defendant was
a major participant in a felony and acted with reckless
indifference to human life made before Banks and Clark does not
support a summary denial of a section 1172.6 petition. In their
pre-Strong briefs in this court, the People argued that any error
would be harmless because, they contended, the Banks and Clark
analysis is purely legal. The Supreme Court also rejected this
argument in Strong. “Although the mandatory instructions did
not change in the wake of Banks and Clark,” the Supreme Court
said, “much else about the trial environment did. For one, the
arguments available to counsel changed significantly after [the
Supreme Court] offered a range of guiding factors and made clear
that simple participation in, e.g., a ‘garden-variety armed
robbery’ was not sufficient, without more, to establish the truth of
the felony-murder special circumstances. [Citation.] The newly
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articulated guiding factors might also have altered what evidence
defense counsel would have sought to introduce. And more
broadly, the clarifications Banks and Clark offered about the
height of the bar needed to prove a felony-murder special-
circumstance finding might have fundamentally altered trial
strategies, causing some defendants to focus on proving they
were guilty at most of a noncapital homicide once Banks and
Clark created more daylight between the proof required to
convict of murder and the proof required to convict of special
circumstance murder. As for instructions, after Banks and Clark,
defense counsel could have asked that optional additional
instruction on the Banks and Clark factors be given to guide the
jury in its deliberations . . ., with the possibility that different
outcomes might have resulted. [¶] An after-the-fact court review
of a pre-Banks and Clark record does not account for all these
differences. The prior findings were made to a beyond-a-
reasonable-doubt degree of certainty, but under outdated legal
standards. The Attorney General’s proposed review would apply
the correct legal standards, but would not involve a
determination beyond a reasonable doubt that they were met.
Indeed, it could not; such a determination would entail
factfinding prohibited at the prima facie stage.” (Strong, supra,
13 Cal.5th at pp. 719-720, italics added.) Consequently, the
People’s pre-Strong harmless error contentions are no longer
viable after Strong.
Unless there is some other reason for concluding that the
defendant failed to make a prima facie showing for relief, the
court must hold an evidentiary hearing on the petition.
Here, the trial court’s reason for denying Doss’s petition is
that the jury had found that he was a major participant in the
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underlying felony and acted with reckless indifference to human
life. These findings were made prior to Banks and Clark. We
therefore agree with Doss that the matter should be remanded
for the trial court to issue an order to show cause and conduct an
evidentiary hearing pursuant to section 1172.6, subdivision
(d)(3).
DISPOSITION
The trial court’s order denying Doss’s petition for
resentencing is reversed. On remand, the trial court will issue an
order to show cause and conduct an evidentiary hearing under
section 1172.6, subdivision (d).
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
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