People v. Condiff CA2/8

Filed 11/4/21 P. v. Condiff CA2/8
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B296181
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA051505)
v.
NORMAN LOUIS CONDIFF,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Teri Schwartz, Judge. Affirmed.
Mark S. Givens, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Amanda Lopez and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff
and Respondent.
____________________
Norman Louis Condiff challenges the trial court’s denial of
his petition under Senate Bill No. 1437 (2017–2018 Reg. Sess.).
In 2005, a jury convicted Condiff of first degree murder and other
crimes. The jury made special circumstance findings about the
murder: Condiff intentionally killed the victim by means of lying
in wait and to further his gang. The trial court summarily denied
the petition without appointing counsel.
We affirmed the order denying relief. The Supreme Court
directed us to vacate that decision and to reconsider the cause in
light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Under
Lewis, the trial court should have appointed Condiff counsel. We
affirm, however, because the error was harmless. As a matter of
law, the lying-in-wait and gang special circumstance findings
make Condiff ineligible for resentencing for his murder
conviction.
Undesignated statutory citations are to the Penal Code.
I
We outline Condiff’s crimes using the opinion in his direct
appeal. (People v. Condiff (Aug. 28, 2007, B186654) [nonpub.
opn.]; see Lewis, supra, 11 Cal.5th at p. 972 [appellate opinions
are typically part of the record of conviction].)
The night before his preliminary hearing in a different
criminal case, Condiff sought to prevent a witness from
testifying. He went with a fellow Blood gang member to the
witness’s home. After the witness’s uncle said the witness was
not home, Condiff left and returned with another Blood gang
member. Condiff waited in a car while his two companions shot
the witness’s uncle and grandmother. The uncle survived. The
grandmother did not.
2
The following information about the jury’s verdict and
sentencing is from minute orders in our appellate record.
On August 5, 2005, a jury convicted Condiff of first degree
murder (§ 187, subd. (a)) (count 1), willful, deliberate, and
premeditated attempted murder (§§ 187, subd. (a), 664) (count 2),
conspiracy to commit murder (§ 182, subd. (a)(1)) (count 3),
dissuading a witness by force or threat (§ 136.1, subd. (c)(1))
(count 4), and conspiracy to dissuade a witness by force or threat
(§ 136.1, subd. (c)(2)) (count 5).
As to count 1, the jury found Condiff committed the murder
while lying in wait (§ 190.2, subd. (a)(15)) and in furtherance of
his gang (id., subd. (a)(22)). The minute order says the jury
found Condiff “intentionally killed the victim by means of lying in
wait” and “intentionally killed the victim while the defendant
was an active participant in a criminal street gang and the
murder was carried out to further the activities of the criminal
street gang.”
The jury made other gang and firearm findings that are not
pertinent to this appeal.
The trial court found Condiff had two strikes. (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d).)
The court sentenced Condiff to life imprisonment without
the possibility of parole, plus 25 years to life for a firearm
enhancement for count 1. It sentenced him to a consecutive term
of 25 years to life plus 25 years to life for a firearm enhancement
for count 2. It imposed sentences for counts 3 through 5 but
ordered the sentence on count 4 to run concurrently with count 1
and stayed the sentences on counts 3 and 5 under section 654.
On direct appeal, Condiff challenged the sufficiency of the
evidence of the lying-in-wait and gang special circumstance
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findings, among other arguments. We modified the sentence and
a fine, but otherwise affirmed the judgment, including the special
circumstance findings. (People v. Condiff (Aug. 28, 2007,
B186654) [nonpub. opn.].)
On January 7, 2019, Condiff filed a petition for
resentencing under section 1170.95. He asserted he was entitled
to relief because he was convicted of first or second degree
murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine, neither of which could serve as a
basis for a murder conviction under the new law. He requested
counsel.
The trial court summarily denied the petition without
prejudice on January 18, 2019. It found Condiff failed to show
entitlement to relief as a matter of law because his murder
conviction was not based on the felony-murder rule or the natural
and probable consequences doctrine. Instead, the record showed
the jury found Condiff aided and abetted the murder of the victim
in count 1 with the intent to kill. The trial court said the jury
found Condiff had the intent to kill based on its findings for the
lying-in-wait special circumstance and its findings of overt acts
associated with the guilty verdict for conspiracy to commit
murder. The trial court additionally relied on our unpublished
opinion in his direct appeal.
On May 14, 2020, we affirmed the order denying relief. On
September 22, 2021, the Supreme Court directed us to vacate
that decision and to reconsider the cause in light of Lewis.
II
Condiff was entitled to counsel because he filed a facially
sufficient petition and he requested counsel (Lewis, supra, 11
Cal.5th at p. 963), but this error was harmless.
4
We review the denial of the right to counsel during the
petition process for prejudice under People v. Watson (1956) 46
Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 973–974.) To
establish prejudice, Condiff must demonstrate that with counsel,
it was reasonably probable the court would not have summarily
denied his petition without an evidentiary hearing. (Id. at p.
974.)
To find the lying-in-wait and gang special circumstances
true, Condiff’s jury necessarily found he acted with the intent to
kill. (See § 190.2, subds. (a)(15), (a)(22); People v. Fayed (2020) 9
Cal.5th 147, 203 [an aider and abettor who is not the actual killer
is subject to the lying-in-wait special circumstance if the
defendant, with the intent to kill, aided and abetted the victim’s
killing, and the actual killer intentionally killed the victim by
means of lying in wait]; People v. Ruiz (1988) 44 Cal.3d 589, 614
[proof of lying in wait is the functional equivalent of proof of
premeditation, deliberation, and intent to kill]; People v. Allison
(2020) 55 Cal.App.5th 449, 460 [explaining in dicta that a
defendant with a § 190.2, subd. (a)(22) special circumstance is
ineligible for relief].)
The jury’s findings about Condiff’s intent show he could not
have been convicted of murder under any theory of liability
Senate Bill No. 1437 affected. With or without counsel, the trial
court would have summarily denied Condiff’s petition without an
evidentiary hearing. The error was harmless.
Condiff asserts the prosecution cited the natural and
probable consequences doctrine at his trial. This is of no import
given the jury’s special circumstance findings, which prove the
jury found he intended to kill.
Condiff says the error was prejudicial but he offers no legal
reasoning to explain how he could gain relief given his special
5
circumstance findings. If the trial court had appointed counsel,
Condiff says counsel “would have made all of the appropriate
arguments . . . on the potential bases for the special circumstance
findings and whether they necessarily preclude relief.” He
admits the jury made the special circumstance findings. Thus
the question of whether these findings preclude relief is a legal
one. This appeal is the time for Condiff to offer such a legal
argument. He has not done so and his prejudice argument fails.
Because the special circumstance findings preclude relief as
a matter of law, we need not and do not address other arguments
the prosecution offered for affirming the trial court’s order.
Nothing in this opinion precludes Condiff from bringing a
separate petition based on his attempted murder conviction. His
petition alleged he had a murder conviction and the trial court’s
reasoning was about his murder conviction, only. Condiff’s
appellate briefs mention his attempted murder conviction but set
forth no argument about section 1170.95 applying to it. The
Legislature has passed Senate Bill No. 775 (2021–2022 Reg.
Sess.), which, effective January 1, 2022, amends section 1170.95
to clarify relief is available to people with attempted murder
convictions. Because Condiff made no argument about his
attempted murder conviction and because it is outside the scope
of this remand—to consider the case in light of Lewis—we do not
address the attempted murder issue in this appeal.
6
DISPOSITION
The order denying Condiff’s petition is affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
7