People v. Carr CA2/1

Filed 10/21/21 P. v. Carr 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B309479
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A923178)
v.
PATRICK CARR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura C. Ellison, Judge. Reversed.
Alex Green, 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, Idan Ivri and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Patrick Carr appeals from an order denying his petition to
vacate his murder conviction under Penal Code section 1170.95.1
We reverse the order because, as Carr argues, he made a prima
facie showing that he is entitled to relief and the trial court erred
in denying his petition without issuing an order to show cause
and holding an evidentiary hearing. The record does not support
the Attorney General’s argument that the trial court had held an
evidentiary hearing.
BACKGROUND
In June 1988, the People charged Carr and two
codefendants of robbery and murder. Carr pleaded guilty to
second degree murder. The trial court sentenced him to prison
for an indeterminate term of 15 years to life.
Following a jury trial, a jury convicted two of Carr’s
confederates—Van Otis Wilson and Joevone Elster—of the
murder of George Aguilar. (People v. Elster et al. (May 6, 1992,
B047207), at pp. 2 [nonpub. opn.] (Elster).) In Wilson and
Elster’s direct appeal from the judgment of conviction, this court
described the facts as follows:
“In January 1988, defendant Elster was hired as a cashier
at a Shell gasoline station . . . .” (Elster, supra, B047207, at p. 2.)
“At that time, defendant Elster learned the owner’s brother,
Masih Madani [the robbery victim], collected the station’s
receipts every morning and took them to the bank.” (Ibid.) “At
some point before March 28, 1988, defendant Elster solicited the
participation of Lamont Wade (Wade) in a robbery; he [Elster]
also asked a neighbor to contact Leslie Holget (Holget).” (Ibid.)
1 Undesignated statutory citations are to the Penal Code.
2
On March 28, 1988, Wade, Elster, and Wilson parked
across the street from the Shell Station to wait for Madani.
Elster and Wilson again waited for the courier on March 29. “On
March 30, 1988, this trio again took up an observation post
behind the Shell station with the intent of robbing the courier.”
(Elster, supra, B047207, at p. 3.) “For some reason, the trio did
not attempt a robbery on this occasion.” (Id. at p. 4.) Wade then
decided that he did not want to participate in the planned
robbery.
On March 31, 1988, Holget drove Elster and Carr to a
location near the gas station, and “Elster explained that he used
to work at the Shell station; the courier should arrive at
approximately 8:00 a.m. in a blue Acura, after which they
would rob him in the parking lot. Holget was armed with a
.44 Magnum; Carr, with a .25 caliber handgun. Approximately
20 minutes after arriving at the . . . parking lot [near the Shell
station], this group met . . . Wilson and [Terrence] Gross who
arrived in” another vehicle. (Elster, supra, B047207, at pp. 4–5.)
“The courier collected $1,912.59 in cash, as well as some
checks; these items had been placed in a cloth bag which the
courier in turn placed in the rear area of his 1986 Acura Integra.
He then left the station. . . . Elster directed his companions to
follow the Acura, stating they would rob it on the street. It was
decided the group would place one automobile in front of the
Acura and one behind it when it stopped at a traffic signal, at
which point they would rob the courier. Thereafter, they would
abandon the Acura a few blocks from the site of the robbery. . . .”
(Elster, supra, B047207, at p. 5.)
When the courier stopped at a traffic signal, “Wilson and
Holget stepped out of their automobiles and walked toward the
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Acura, displaying handguns.” (Elster, supra, B047207, at p. 6.)
Wilson ordered the courier out of the Acura and Wilson and
Holget drove away in the Acura. An off-duty Inglewood Police
Sergeant George Aguilar pursued the Acura with the courier.
Aguilar was able to pull alongside the Acura and “shouted several
times that he was a police officer. In response, shots were fired
from the Acura.” (Id. at p. 7.) Aguilar later died from gunshot
injuries.
1. Carr’s pretrial police interview
When interviewed by police officers, Carr reported that he
knew about the robbery the night before it occurred. Carr told
officers he took a gun with him to the robbery for personal
protection. Carr reported that after the robbery he was supposed
to follow Holget, but chose to go the other way because, “I didn’t
like it, just didn’t like it.”
2. Carr’s testimony at Wilson and Elster’s trial
Carr testified at Wilson and Elster’s trial. He stated that
he had known Holget for a couple years. He further testified that
on the night before the robbery, Holget told Carr Elster was
planning a robbery and Holget wanted Carr to “watch his back.”
The group planned to rob a gas station where Elster formerly
worked.
The next day, Holget, Elster, and Carr went in Holget’s
vehicle to Western and Manchester. Carr sat in the backseat and
carried a gun. Carr testified Holget and Wilson also had guns.
Carr also testified that the group planned to rob the courier
in the parking lot. As they waited for the courier, Wilson and
someone Carr knew as “Baby Cookie” drove up. Carr asked
Elster why Wilson and Baby Cookie were participating in the
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robbery, and Elster reassured Carr, “ ‘There is enough funds for
everyone.’ ”
After they waited a while, Carr “want[ed] out” but he
stayed because he “was supposed[d] to watch [Holget’s] back.”
Holget persuaded Carr to stay.
The group had planned to rob the courier inside the gas
station but “[i]t just didn’t happen” that way. Eventually, the
group saw the courier drive off, and Elster said, “ ‘Follow that
car.’ ” The group started to “chase the c[ou]rier down Manchester
[Avenue].” Elster was driving one car and Wilson was driving the
other.
The group was able to cut off the courier; Holget and
Wilson exited their vehicles. Holget and Wilson both brandished
firearms and ordered the carrier out of his car. Holget jumped
into the driver’s seat of the courier’s car and Wilson jumped into
the passenger seat. They then drove away with Holget turning
left and Elster, who was driving with Carr, turning in the
opposite direction. Carr understood he would receive 10 percent
of the proceeds from the robbery.
3. Carr’s section 1170.95 petition for resentencing
On March 30, 2020, Carr filed a section 1170.95 petition for
resentencing. Carr alleged that he could not now be convicted of
first or second degree murder because of changes made to
sections 188 and 189, effective January 1, 2019. Carr also alleged
he was not a major participant in the felony or he did not act with
reckless indifference to human life during the course of the crime
or felony.
In April 2020, the court appointed counsel for Carr.
Counsel filed a brief arguing, “A prima facie case has been
established; there is no evidence petitioner was the actual killer,
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aided and abetted with the intent to kill . . . [and] he [was] not a
major participant who acted with a reckless indifference to
human life.” The People opposed the petition, disputed Carr’s
contentions, and concluded that Carr had not stated a prima facie
case that he could not be convicted of murder because of changes
to sections 188 and 189.
4. Hearing and order
The court set the case “for hearing pursuant to Penal Code
section 1170.95(A).”
On August 18, 2020, the court “put this over for 11-17-20
for status. Just going to call it a status.” At the November 17
“status” hearing, the court asked why Carr was not present and
his counsel responded, “I don’t think we’re passed the prima facie
[stage] at this point.”
The court then indicated that Carr was “potentially
eligible.” There was a discussion whether the court was
“[i]ssuing an order to show cause,” but the court never expressly
responded to that inquiry. Instead, the court stated it “thought”
the case was set for an unspecified hearing. The court
never actually issued an order to show cause or referred to a
section 1170.95, subdivision (d)(3) hearing. The court did not ask
if either party had additional evidence to present at such a
hearing.
The prosecutor argued Carr was a major participant in the
robbery who acted with reckless indifference to human life.
Carr’s counsel disagreed. Following argument, the trial court
concluded: “I think it’s reasonably foreseeable that an armed
robbery in broad daylight in public in a residential [area] or in a
busy gas station it’s perfectly foreseeable that others might get
involved to try to prevent i[t] and stop it, and that’s what
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happened here. I think it’s very foreseeable to [defendant] that
that would occur, and that’s exactly what did occur.
“This robbery was not over. They had planned in advance
to meet with guns, they had planned in advance, they changed
the plans slightly not to rob him at the gas station, but to follow
him to a different area, the area that would be potentially quieter
than the gas station. They followed him in two separate cars.
The plan at that point was to get the money and meet somewhere
else to divide the money up.
“The only thing that changed in the plan was that the
victim resisted, I guess, and somebody came to his aid. But that’s
all foreseeable that that would occur, and the defendant fully
involved himself in this robbery. He was using deadly violence,
prepared to use deadly violence with others he knew were also
prepared to use deadly violence.”
The trial court’s posthearing minute order states that the
“[p]etition pursuant to 1170.95(A) Penal Code is denied.” The
court explained: “Defendant Carr is just as guilty of this murder
as any of the other persons who participated knowingly and
willingly and intentionally and with absolute reckless disregard
and as a major participant. Mr. Carr is a major participant and
has absolute disregard for human life.”
Carr timely appealed.
DISCUSSION
Carr argues that the trial court engaged in improper
factfinding at the prima facie stage. The Attorney General
argues that the trial court “already conducted a subdivision (d)(3)
hearing in which it properly engaged in fact finding and
determined beyond a reasonable doubt that appellant was
ineligible for resentencing.” According to the Attorney General,
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“There is no basis to hold another such hearing.” We conclude
the trial court did not hold a section 1170.95, subdivision (d)(3)
hearing, and we cannot conclude from the record that as a matter
of law, Carr was ineligible for relief under section 1170.95.
Accordingly, we remand the matter to the trial court for a section
1170.95, subdivision (d)(3) hearing.
A. Legal Background
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437) 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.” (Stats. 2018, ch. 1015, § 2.) The
amendment effectively “eliminates natural and probable
consequences liability for first and second degree murder.”
(People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile).) 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. (Stats. 2018,
ch. 1015, § 3; see Gentile, supra, 10 Cal.5th at pp. 842–843.)
A person convicted of murder under a felony murder or
natural and probable consequence theory may petition to have
the murder conviction vacated. (§ 1170.95, subd. (a).) The
petitioner’s prima facie case consists of the following three
elements:
“(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
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under a theory of felony murder or murder under the natural and
probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could be convicted for first degree
or second degree murder.
“(3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).)
When a petitioner files a “complying petition,” the court
must appoint counsel if requested, “the issue is briefed[,] and
then the court makes one (not two) prima facie determination.”
(People v. Lewis (2021) 11 Cal.5th 952, 966 (Lewis).) “[T]he prima
facie inquiry . . . 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.” ’ [Citation.] ‘[A] court should
not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.’
[Citation.]” (Id. at p. 971.) At the prima facie stage, the trial
court “should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ [Citation.]” (Id. at p. 972.)
“If the petitioner makes a prima facie showing that he or
she is entitled to relief, the court shall issue an order to show
cause.” (§ 1170.95, subd. (c).) In that event, the court must hold
a hearing within 60 days to determine whether to vacate the
murder conviction. (Id., subd. (d)(1).) At this third and final
stage of the proceeding, the prosecution has the burden of proving
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“beyond a reasonable doubt[ ] that the petitioner is ineligible for
resentencing.” (Id., subd. (d)(3).) Either party may present “new
or additional” evidence. (Ibid.)
B. The Trial Court Did Not Hold An 1170.95 (d)(3)
Hearing and Engaged in Improper Factfinding at the
1170.95 (a) Hearing
Here Carr filed a petition, and both parties filed briefs on
the issue of whether Carr established a prima facie case under
section 1170.95, subdivision (a). The court set the case for a
section 1170.95, subdivision (a) hearing. The court did not offer
either party the opportunity to present additional evidence at the
hearing. After the hearing, the court denied the petition
pursuant to section 1170.95, subdivision (a). For all of these
reasons, the record supports only the conclusion that the trial
court evaluated Carr’s prima facie case under section 1170.95,
subdivision (a). It does not support the Attorney General’s
argument that the trial court held a hearing under section
1170.95, subdivision (d)(3), a hearing at which the prosecutor
bore the burden of proof and either party could offer new or
additional evidence. (§ 1170.95, subd. (d)(3).)
Our high court prohibited factfinding at the prima facie
stage. (Lewis, supra, 11 Cal.5th at pp. 971–972.) In violation of
this prohibition, the trial court concluded that Carr was a major
participant who acted in reckless disregard for human life by
drawing inferences favorable to the prosecution. Most
significantly the court inferred that Carr was “prepared to use
deadly violence with others he knew were also prepared to use
deadly violence.” The error prejudiced Carr because the record
does not show as a matter of law Carr was ineligible for relief and
Carr (and the People) should have the opportunity to present
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“new or additional” evidence. (§ 1170.95, subd. (d)(3).) The court
must issue an order to show cause and hold a hearing, at which it
may evaluate as well, any additional evidence and the record
facts.2 (§ 1170.95, subds. (c) & (d).)
DISPOSITION
The order denying Carr’s petition for resentencing under
Penal Code section 1170.95 is reversed. Upon remand, the
superior court shall issue an order to show cause and hold a
section 1170.95, subdivision (d)(3) hearing to determine whether
to vacate Carr’s murder conviction, recall his sentence, and
resentence him.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
2 We express no opinion on how the trial court should
decide whether Carr was a major participant who acted with
reckless indifference to human life. Because we remand for
additional proceedings, we need not address Carr’s argument
that his age at the time of his crimes—21—potentially could have
affected his ability to appreciate the risk posed by his criminal
activities.
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