People v. Polk CA6

Filed 3/8/23 P. v. Polk CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047953, H048089
(Monterey County
Plaintiff and Respondent, Super. Ct. No. CR16712)
v.
LESTER LAMOUNT POLK,
Defendant and Appellant.
Defendant Lester Lamount Polk appeals from a 2019 trial court order denying a
petition to vacate his 1993 murder conviction and be resentenced under former Penal
Code section 1170.95 (hereafter petition).1 In this appeal, Polk contends that the trial
court erred in denying his petition at the prima facie stage without issuing an order to
show cause. The Attorney General agrees with Polk that this matter should be remanded
for the issuance of an order to show cause.
1
Unspecified statutory references are to the Penal Code. Effective January 1,
2022, the Legislature amended section 1170.95 in several respects. (See Stats. 2021, ch.
551, §§ 1, 2; see also People v. Birdsall (2022) 77 Cal.App.5th 859, 865.) The
Legislature later renumbered section 1170.95 as section 1172.6, with no change to the
text of the statute (Stats. 2022, ch. 58, § 10, eff. June 30, 2022). In this opinion we refer
to the current version of any relevant provisions now codified in section 1172.6.
For the reasons explained below, we reverse the trial court’s order and remand
with directions to issue an order to show cause and conduct further proceedings under
section 1172.6.
I. FACTS AND PROCEDURAL BACKGROUND2
In mid-June of 1991, Polk and three men (Patrick Richardson, Eugene Ballance,
and John Drayton) assembled to commit a robbery. Polk, Richardson, and Drayton were
armed. The four men entered the home of Cheryl and Jim Ward and their teenage
daughter, R. A violent incident ensued. “Both [Polk] and Richardson repeatedly
demanded money and threatened to kill Mr. Ward if the Wards did not disclose the
location of their safe. Every time Mr. Ward answered a question, Richardson hit him in
the face with a handgun. The Wards did not have a safe.” (Polk, supra, H011133, at
p. 2.) Polk told R. to take off her clothes. He grabbed her breast and put a shotgun in her
mouth. He said he was going to blow her head off and wanted to know where the safe
was. He also “stuck the shotgun in R.’s vagina.” (Polk, at p. 3.)
After the men found an envelope containing a large amount of cash, Polk
“screamed at Mr. Ward ‘you are a fucking liar.’ He said ‘We’re going to fuck your wife
and daughter and we’re going to make you watch.’ [Polk] turned back toward R. and Mr.
Ward tried to stand up. Within five to ten seconds of one another, two shots were fired.
A struggle ensued with Richardson, [Polk,] and Mr. Ward during which [Polk]’s shotgun
discharged. Polk moved to the bathroom area and fell down. Richardson continued to
struggle with Mr. Ward and the pistol fired. The bullet struck Mr. Ward in the back,
severing his spinal cord. He bled to death within a few minutes.” (Polk, supra,
2
The appellate record includes a copy of this court’s opinion in Polk’s direct
appeal from his 1993 conviction (People v. Polk (July 26, 1994, H011133) [nonpub.
opn.] (Polk).) We rely on that opinion, as well as documents from the underlying
prosecution that are included in the appellate record, when stating the facts and
procedural background of this case. Although the appellate record includes the reporter’s
transcript from Polk’s preliminary hearing, the record does not contain any reporter’s
transcript from Polk’s subsequent trial.
2
H011133, at pp. 3–4.) Eventually, after noticing a car on the road outside, “[t]he men
left, telling Mrs. Ward and R. not to move for fifteen minutes.” (Id. at p. 4.)
In 1991, the Monterey County District Attorney charged Polk and his three
codefendants by information with murder (§ 187), three counts of robbery (§ 212.5),
burglary (§ 459), two counts of assault with a firearm (§ 245, subd. (a)(2)), sexual
penetration with a foreign object (§ 289, subd. (a)), and conspiracy to commit robbery
(§§ 182, 212.5). As to the murder charge, the information alleged the special
circumstances of murder during the commission of robbery, burglary, and rape by
instrument (former § 190.2, subd. (a)(17)(i), (vii), (xi)). The information also alleged that
Polk and two codefendants (Richardson and Drayton) personally used a firearm in the
commission of the offenses (§ 12022.5).
Polk waived his right to a jury trial. In February 1993, after a court trial, the trial
court acquitted Polk of one count of robbery but otherwise found him guilty as charged.
In finding Polk guilty of murder with special circumstances, the trial court said
“ ‘although Lester Polk did not actually kill Mr. Ward, and although there has been no
evidence to this Court or that the Court knows of that Patrick Richardson intended to kill
Mr. Ward, rather, the evidence indicates it was an accidental killing, this Court must
follow the law. [¶] Under the felony murder doctrine, Lester Polk is guilty of first
degree murder. . . . Lester Polk was a major participant. . . . The Court finds that the
special circumstances are true.’ ” (Polk, supra, H011133, at pp. 4–5.) The court
sentenced Polk to 25 years in prison concurrent to life without the possibility of parole.
In 1994, a different panel of this court affirmed the judgment. (Polk, supra,
H011133, at p. 12.) This court rejected Polk’s claim that the special circumstance
findings should be reversed because the trial court’s factual findings showed, as a matter
of law, that he was not the actual killer and did not act with reckless indifference to
human life. (Id. at pp. 4–8.)
3
In 2019, Polk, on his own behalf, filed his petition requesting resentencing in the
trial court. Polk declared that a complaint had been filed against him that allowed the
prosecution to proceed under a theory of felony murder or the natural and probable
consequences doctrine; he was convicted of first degree murder pursuant to the felony
murder rule and the natural and probable consequences doctrine; and he could not now be
convicted of murder based on the changes to sections 188 and 189 effective January 1,
2019. Polk further asserted that he was not the actual killer (rather Richardson was), he
did not aid or abet the actual killer in the commission of first degree murder with an
intent to kill, he did not act with reckless indifference to human life during the crime, and
the victim was not a peace officer performing his or her duties.
The trial court appointed counsel for Polk, and the district attorney filed an
opposition to Polk’s petition. The prosecution argued, among other things, that Polk was
ineligible for relief under the law of the case doctrine because this court had found on
direct appeal that Polk acted with reckless indifference to human life and impliedly found
that he was a major participant in the underlying felonies. Alternatively, relying on the
preliminary hearing transcript and this court’s opinion, the district attorney asserted that
Polk was ineligible for relief because he was a major participant in the underlying
felonies and acted with reckless indifference to human life. Polk’s appointed counsel did
not reply to the district attorney’s opposition.
On June 13, 2019, the trial court held a hearing on Polk’s petition and denied it
(June 2019 order). Agreeing with the prosecution’s recitation of the facts of the crime,
the court found Polk ineligible for relief because the facts demonstrated that he was a
major participant in the crime and acted with reckless indifference to human life.
Eight months later, on February 26, 2020, Polk appealed from the trial court’s
June 2019 order. This court docketed that appeal as case No. H047953. On May 4,
2020, Polk filed an application for relief from default for his failure to timely file a notice
of appeal. This court docketed that application as case No. H048089. On July 31, 2020,
4
this court granted Polk’s application for relief from default and ordered case Nos.
H047953 and H048089 to be considered together.
Concurrently with this appeal, on January 14, 2022, Polk’s appellate counsel filed
a petition for writ of habeas corpus (case No. H049685). In his habeas corpus petition,
Polk, inter alia, challenges his murder conviction and the special circumstance findings
based on current section 189, subdivision (e), People v. Banks (2015) 61 Cal.4th 788, and
People v. Clark (2016) 63 Cal.4th 522. This court ordered that the habeas corpus petition
would be considered with this appeal. In addition, on February 9, 2023, Polk filed a
motion for a stay of the habeas corpus proceeding pending resolution of his section
1172.6 petition. We have disposed of the petition for writ of habeas corpus and the stay
motion by a separate order filed this day in case No. H049685.
II. DISCUSSION
Polk asserts several reasons why the trial court erred in denying his petition at the
prima facie stage under section 1172.6, subdivision (c), including that the court made
factual findings adverse to him rather than accepting the allegations in his petition as true.
Relying on People v. Strong (2022) 13 Cal.5th 698 (Strong), Polk further asserts that the
felony-murder special circumstance findings in this case do not preclude relief under
section 1172.6 because those findings predate the California Supreme Court’s decisions
in Banks and Clark. The Attorney General agrees with Polk that this matter should be
remanded for the issuance of an order to show cause. We concur.
“In 2015, Banks substantially clarified the law surrounding major participant
findings. [Citation.] A year later, Clark recited the teachings of Banks on the major
participant question and then substantially clarified the relevant considerations for
determining whether a defendant has acted with reckless indifference to human life.”
(Strong, supra, 13 Cal.5th at p. 721.)
In Strong, the California Supreme Court held that a felony-murder special
circumstance finding made prior to its decisions in Banks and Clark does not
5
categorically preclude a defendant from making a prima facie showing of eligibility for
relief under section 1172.6. (Strong, supra, 13 Cal.5th at p. 720.) “Section 1172.6 offers
resentencing for petitioners who have not been determined beyond a reasonable doubt to
have the degree of culpability now required for a murder, attempted murder, or
manslaughter conviction. Neither the jury’s pre-Banks and Clark findings nor a court’s
later sufficiency of the evidence review amounts to the determination section 1172.6
requires, and neither set of findings supplies a basis to reject an otherwise adequate prima
facie showing and deny issuance of an order to show cause.” (Ibid.)
The prima facie inquiry under section 1172.6, subdivision (c) is “limited.”
(People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) 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.” ’ ”
(Ibid.) Although the court may rely on the record of conviction in determining whether
defendant has made a prima facie showing, the court “should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972; see
also Strong, supra, 13 Cal.5th at p. 720 [rejecting an “after-the-fact court review of a pre-
Banks and Clark record” at the prima facie showing stage because such a determination
would entail prohibited factfinding].)
In the present case, at Polk’s court trial in February 1993, the trial court found the
felony-murder special circumstance allegations true—well before the California Supreme
Court’s rulings in Banks and Clark in 2015 and 2016. Hence, those special circumstance
findings do not preclude Polk from making a prima facie showing in support of his
section 1172.6 petition. (See Strong, supra, 13 Cal.5th at p. 721.) Nor is the trial court’s
more recent evaluation of the facts of the crime—conducted at the prima-facie showing
stage—a proper basis for denying an order to show cause. (Id. at p. 720.) Moreover,
Polk’s petition alleged the facts necessary for relief under section 1172.6 (§ 1172.6,
subds. (a)–(c)) and nothing in the record demonstrates that he is ineligible for relief as a
6
matter of law. Because Polk’s petition made a prima facie showing of entitlement to
relief (see Lewis, supra, 11 Cal.5th at pp. 970–972; § 1172.6, subd. (c); see also Strong,
at p. 720), we will reverse the trial court’s June 2019 order and remand the matter to the
trial court with directions to issue an order to show cause and hold further proceedings
under section 1172.6.3
III. DISPOSITION
The trial court’s June 13, 2019 order is reversed, and the matter is remanded with
directions to issue an order to show cause and conduct further proceedings in accordance
with Penal Code section 1172.6.
3
Because of this disposition, we need not address Polk’s further contentions that
he was denied his rights to due process and the effective assistance of counsel in the trial
court.
7
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Lie, J.
H047953, H048089
People v. Polk