People v. Hardin CA2/2

Filed 3/8/23 P. v. Hardin CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B319223
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA271293)
v.
LEWIS EDWARD HARDIN,
Defendant and Appellant.
THE COURT:
Defendant and appellant Lewis Edward Hardin (defendant)
appeals from the denial of his petition for vacatur of his murder
conviction and for resentencing under Penal Code former section
1170.95, now section 1172.6.1 After examination of the record,
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) We will refer to the section by its new numbering
only.
All further unattributed code sections are to the Penal Code
unless otherwise stated.
appointed counsel filed an opening brief raising no issues and
asking this court to independently review the record. Counsel
provided defendant with a copy of the record on appeal and
informed him of his right to file his own supplemental brief. As
defendant has done so, we evaluate the specific arguments raised
in his brief, but do not conduct an independent review of the
record to identify unraised issues. (See People v. Delgadillo
(2022) 14 Cal.5th 216, 232.) In his supplemental brief, defendant
contends that the trial court erred in finding he had failed to
make the required prima facie showing of eligibility for relief
under section 1172.6, and in denying his petition. Finding no
merit to defendant’s arguments, we affirm the trial court’s order.
BACKGROUND
In 2007, a jury convicted defendant and codefendant
Theodore Shove of the first degree murders of Hubert Souther
and Elizabeth Souther (Pen. Code, § 187) and found true the
special circumstance allegation as to each victim that defendant
committed the murder for financial gain within the meaning of
section 190.2, subdivision (a)(1). On June 2, 2008, the trial court
sentenced defendant to life in prison without the possibility of
parole. The judgment was affirmed on appeal. (See People v.
Hardin (Oct. 19, 2009, B208895) [nonpub. opn.].)
After defendant’s conviction, the Legislature passed Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), amending
sections 188 and 189, the laws pertaining to felony murder and
murder under the natural and probable consequences doctrine,
“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,
2
subd. (f).) The Legislature also added section 1172.6, which
provides a procedure for those convicted of murder to seek
retroactive relief if they could not be convicted under sections 188
and 189 as amended effective January 1, 2019. (People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis).) In seeking relief, it is the
petitioner’s burden to make a prima facie showing that he “‘could
not [presently] be convicted of first or second degree murder
because of changes to Section 188 or 189’” made by Senate Bill
1437. (People v. Farfan (2021) 71 Cal.App.5th 942, 954; see
§ 1172.6, subds. (a)(3) & (c).)
In September 2021, defendant filed his petition for vacatur
of his murder convictions and resentencing as permitted under
section 1172.6, subdivision (a) for those “convicted of felony
murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime.”
Defendant’s petition set forth the three conditions specified in
subdivision (a)(1) through (3) of section 1172.6, by alleging that
the charging document filed against him allowed the prosecution
to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine, that he was
convicted at trial of murder under one of those theories, and that
he could not presently be convicted of murder or attempted
murder because of changes to section 188 or 189 made effective
January 1, 2019. In addition, the petition alleged that defendant
was not the actual killer, did not aid and abet the actual killer
with intent to kill, and was not a major participant in the
underlying felony or act with reckless indifference to human life
during the commission of the felony, and that the victim was not
a peace officer. Defendant requested appointment of counsel.
3
The prosecution’s response included copies of the jury
instructions given at defendant’s jury trial, the jury’s verdicts
regarding the murder counts, and the opinion affirming
defendant’s conviction in People v. Hardin, supra, B208895. The
trial court appointed counsel for defendant, who submitted a
brief. A hearing was held on March 2, 2022, to determine
whether defendant had demonstrated a prima facie showing of
eligibility for relief as required by section 1172.6, subdivision (c).
At the hearing, the parties submitted the issue without argument
or further evidence, and the court later issued its order denying
the petition upon finding that no prima facie showing had been
made.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
In his supplemental brief, defendant contends that that he
made a prima facie showing of eligibility for relief under section
1172.6, and thus the trial court erred in denying his petition
without issuing an order to show cause and holding an
evidentiary hearing pursuant to 1172.6, subdivisions (c) and
(d)(1). If during the prima facie review the record of conviction
contains facts refuting the allegations made in the petition as a
matter of law, no prima facie showing is made, and the petition is
properly denied. (Lewis, supra, 11 Cal.5th at p. 971.) We have
reviewed the jury instructions given at defendant’s trial and find
no instructions regarding felony murder, the natural and
probable consequences doctrine, or other theory under which
malice could be imputed to defendant based solely on his
participation in a crime. Thus, defendant is ineligible for relief as
a matter of law. (See People v. Daniel (2020) 57 Cal.App.5th 666,
677.)
4
Defendant argues that although there were no such jury
instructions, the applicability of those theories could be inferred
from ambiguous instructions and the prosecutor’s argument to
the jury regarding aiding and abetting and uncharged conspiracy.
Defendant refers to CALJIC Nos. 3.01, defining aiding and
abetting, and 8.31, defining second degree murder. Defendant
also quotes the following portion of the prosecutor’s argument:
“But even if you think he was not the actual killer he is guilty
under two different theories, whichever one you feel comfortable
with, either as aider and abetter [sic] or under conspiracy laws.”
Defendant argues that because second degree murder as defined
in CALJIC No. 8.31 requires a mental state of conscious
disregard for human life, but that requirement is not included in
the definition of aider and abettor in CALJIC No. 3.01, the
instructions permitted the jury to find him guilty of first degree
murder by imputing to him the implied malice of the actual
killer.
Read together, CALJIC Nos. 3.01 and 8.31 could create
confusion when, as here, it does not state that the aider and
abettor of implied malice murder must have known that the act
in which he aided was life-threatening and performed with a
conscious indifference to human life. (See People v. Langi (2022)
73 Cal.App.5th 972, 982.) However, defendant was instead
convicted of first degree murder. If the jurors had misinterpreted
the instructions, they would have found defendant guilty of
second degree, implied malice murder, rather than first degree
murder, as defendant contends. Furthermore, when considered
with the instruction regarding uncharged conspiracy, the
prosecutor’s argument that aiding and abetting and conspiracy
would lead to the same conclusion served only to clarify any
ambiguity, rather than worsening it. The conspiracy instruction,
5
CALJIC No. 6.10.5, told the jury in relevant part that “[a]
conspiracy is an agreement between two or more persons with
the specific intent to agree to commit the crime of murder . . . .”2
The argument and instruction, considered together, thus made
clear that the aider and abettor/conspirator must have personally
intended to kill.
Regardless, the overriding consideration in this case is that
the jury found true beyond a reasonable doubt the special
circumstance that the murders were committed for financial gain,
alleged pursuant to section 190.2, subdivision (a)(1). The actual
killer and the person who aids or abets the deliberate killing of
another for the killer’s own financial gain is subject to the special
circumstance punishment of section 190.2, subdivision (a).
(People v. Fayed (2020) 9 Cal.5th 147, 201-202.) Defendant’s jury
was instructed:
“If you find that a defendant was not the actual killer
of a human being, or if you are unable to decide
whether the defendant was the actual killer or an
aider and abettor or co-conspirator, you cannot find
the special circumstance 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 in the first degree.”
(Italics added.)
The instruction as given did not mention felony murder,
nor did it include language relating to the finding of reckless
2 “‘[A]ll conspiracy to commit murder is necessarily
conspiracy to commit premeditated and deliberated first degree
murder.’” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 641.)
6
indifference to human life relevant to felony murder. Thus, in
finding the special circumstance true, the jury necessarily found
either that defendant was the actual killer or he was an aider
and abettor or coconspirator who personally harbored an intent
to kill.
A petitioner under section 1172.6 is entitled to relief only if
he could not presently be convicted of murder because of changes
to section 188 or 189. (See § 1172.6, subd. (a)(3); Lewis, supra, 11
Cal.5th at p. 960.) Currently, the actual killer and the aider or
abettor who personally harbored an intent to kill may still be
liable for murder. (§ 189, subd. (e)(1) & (3).) As the record of
conviction refutes the allegations of defendant’s petition by
showing that, whether he was the actual killer or an aider or
abettor, he acted with the intent to kill. The trial court thus did
not err in finding him ineligible as a matter of law and denying
the petition without further proceedings. (See Lewis, supra, at
p. 971.)
DISPOSITION
The order of the superior court denying defendant’s petition
for vacatur and resentencing is affirmed.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
7