People v. Nowden CA4/1

Filed 1/3/23 P. v. Nowden CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075767
Plaintiff and Respondent,
v. (Super. Ct. No. SCD143117)
TERRANCE LAMONT NOWDEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Frederic L. Link, Judge. Reversed and remanded.
Nancy J. King, 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, Julie L. Garland and Charles C. Ragland,
Assistant Attorneys General, Lynne McGinnis, Alan L. Amann, and
A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Terrance Lamont Nowden filed a petition under Penal
Code,1 section 1172.6 (formerly section 1170.95)2 requesting his first degree
felony-murder conviction be vacated and he be resentenced. After appointing
counsel but before briefing occurred, the trial court issued an order denying
the petition, stating the jury had found special circumstances that made
Nowden ineligible for resentencing. On appeal, Nowden argued that in light
of new standards for determining whether a defendant has acted as a major
participant with reckless indifference to human life detailed in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), the court erred by denying relief without allowing him the
opportunity to file a brief. In an unpublished opinion, we explained that the
trial court’s summary denial of the petition was improper because it
considered only the language of the verdict, and we remanded the matter for
reconsideration.
The People submitted a petition for review to the Supreme Court,
which granted the request. After reaching its decisions in People v. Strong
(2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952(Lewis), the Supreme Court transferred the matter back to us with directions
to vacate our previous opinion and reconsider the cause.
We have complied with the California Supreme Court’s instructions
and considered Nowden’s claims, taking into consideration Strong and Lewis.
In his supplemental brief (see Cal. Rules of Court, rule 8.200(b)(1)), Nowden
contends he has already met his prima facie burden and requests remand
1 Further section references are to the Penal Code.
2 Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10) renumbered
section 1170.95 to 1172.6, effective June 30, 2022.
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with instructions to order a hearing pursuant to section 1172.6,
subdivision (d). The People concede that the order summarily denying the
petition for resentencing based on the existence of a felony-murder special-
circumstance finding should be reversed and the matter remanded for further
proceedings.
We agree that it was error to conclude Nowden failed to meet his prima
facie burden based solely on the special circumstances finding. Accordingly,
we remand the matter to the superior court for further proceedings in
accordance with section 1172.6, subdivision (d).
BACKGROUND AND PROCEDURAL FACTS
A jury convicted Nowden of first degree murder (§ 187, subd. (a)),
residential burglary of an inhabited dwelling in the first degree (§§ 459, 460),
two counts of attempted first degree robbery, perpetrated in an inhabited
dwelling (§§ 664, 211, 213, subd. (b), 212.5, subd. (a)), and assault by means
likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found as
special circumstances that the murder was committed during the commission
of burglary in the first or second degree (§ 190.2, subd. (a)(17)(G)) and during
the commission of attempted robbery (§ 190, subd. (a)(17)(A)). Nowden was
sentenced to life without the possibility of parole plus four years. The facts of
the underlying conviction can be found in our unpublished opinion People v.
Nowden (Dec. 31, 2001, D036964) (Nowden), in which this court affirmed the
judgment.
On January 18, 2019, Nowden filed a petition for resentencing under
section 1172.6, declaring he could not now be convicted of first or second
degree murder because he was not the actual killer, did not have intent to
kill, and was not a major participant in the felony or did not act with a
reckless indifference to human life.
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On February 22, 2019, the People, through the District Attorney, filed a
motion to deny the petition, wherein they explained that Nowden was found
guilty of one count of first degree murder, one count of residential burglary,
two counts of attempted robbery and one count of assault by means likely to
produce great bodily injury, and the jury found true the special circumstance
allegation that the murder was committed in the course of an attempted
robbery and a burglary, each in violation of section 190.2, subdivision (a)(17).
On March 12, 2019, at Nowden’s request, the court appointed a public
defender to represent him.
On March 18, 2019, the court denied Nowden’s section 1172.6 petition.
The court stated that Nowden had not made a prima facie showing of
entitlement to relief because he was “found guilty by a jury of one count of
first-degree murder, one count of residential burglary, two counts of
attempted robbery, and one count of assault by means likely to produce great
bodily injury. The jury found true special circumstances allegations that the
murder was committed during the course of an attempted robbery, in
violation of section 190.2, subdivision (a)(17). As such, petitioner is ineligible
for relief.”
Nowden timely appealed.
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (Senate Bill 1437)
narrowed liability for murder under the felony-murder rule and eliminated
the natural and probable consequences doctrines. (§§ 188, subd. (a)(3) & 189,
subd. (e); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147 (Anthony).)
Senate Bill 1437 addressed aspects of felony murder and the natural
and probable consequences doctrine, “redefin[ing] ‘malice’ in section 188.
Now, to be convicted of murder, a principal must act with malice
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aforethought; malice can no longer ‘be imputed to a person based solely on his
or her participation in a crime.’ (§ 188, subd. (a)(3).)” (In re R.G. (2019) 35
Cal.App.5th 141, 144.) Senate Bill 1437 also amended section 189 by adding
subdivision (e), which states that a participant in the target felony who did
not actually commit a killing is nonetheless liable for murder if he or she
aided, abetted, or assisted the actual killer in first degree murder or was a
major participant in the target crime and acted with reckless indifference to
human life. (§ 189, subd. (e)(2)-(3).) The result is that Senate Bill 1437
“ensure[s] that murder liability is not imposed on a person who is not the
actual killer, did not act with intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life.”
(Anthony, supra, 32 Cal.App.5th at p. 1147.)
When a trial court reviews a petition for resentencing, the court first
determines if the petitioner has shown a prima facie case for relief under the
statute. (Lewis, supra, 11 Cal.5th at p. 971.) The court accepts the
allegations as true and evaluates whether the petitioner would be entitled to
relief if he or she proved the allegations. (Ibid.) The court may review the
record of conviction, including any prior appellate opinion, to determine if the
petitioner’s allegations are rebutted by the record (id. at p. 972), but the court
may not engage in factfinding and weighing credibility at the prima facie
stage of petition review. (Lewis, supra, 11 Cal.5th 952, citing People v.
Drayton (2020) 47 Cal.App.5th 965, 979-980.) The court may deny the
petition if the person is ineligible as a matter of law. (Drayton,
at pp. 980-981.)
Alleging the conviction was based on grounds now made impermissible
under Senate Bill 1437 will show a prima facie case for relief. Absent
anything to change the showing, the court should issue an order to show
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cause (OSC) and conduct an appropriate evidentiary hearing. (Lewis, supra,
11 Cal.5th at pp. 971-972.) At this stage of the proceeding, the prosecution
has the burden of proving “beyond a reasonable doubt[ ] that the petitioner is
ineligible for resentencing.” (§ 1172.6, subd. (d)(3); People v. Martinez (2019)
31 Cal.App.5th 719, 723-724.)
An after-the fact court review of findings made before Banks and Clark
does not account for how the law has evolved because prior findings “made to
a beyond-a-reasonable-doubt degree of certainty,” were made “under outdated
legal standards.” (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 a 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.) Thus, a true finding on
a felony-murder special circumstance that pre-dates Banks and Clark does
not render the defendant categorically ineligible for relief under
section 1172.6. (Strong, at pp. 710-719.)
Nowden contends his conviction is based on a theory that is no longer
valid in light of Banks and Clark. In those cases, our Supreme Court
“clarified ‘what it means for an aiding and abetting defendant to be a “major
participant” who acted with a “reckless indifference to human life.” ’ ” (In re
Taylor (2019) 34 Cal.App.5th 543, 546.) In Banks, the court addressed both
prongs and identified certain factors to consider in determining whether a
defendant was a major participant (Banks, supra, 61 Cal.4th at p. 803); Clark
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identified factors to determine whether the defendant acted with reckless
indifference to human life (Clark, supra, 63 Cal.4th at pp. 619-623).
Nowden was neither the killer nor was he convicted of a crime
requiring proof of express malice. The jury’s special circumstances findings
rendered in 2000 indicate the jury concluded Nowden was a major
participant in the crime who acted with reckless indifference to human life in
the victim’s death, but those jury findings, the sole basis on which the trial
court based its opinion, do not preclude Nowden from showing that he could
not be convicted now of first or second degree murder under amended
section 189. Further, the trial court’s order summarily denying Nowden’s
petition under section 1172.6 indicates it relied exclusively on the jury’s
special circumstances findings and offered no alternative reason for finding
Nowden ineligible for resentencing as a matter of law.
Because we cannot say as a matter of law that Nowden’s actions make
him ineligible for relief under section 1172.6, there is a possibility that
Nowden was punished for conduct no longer prohibited by section 190.2.
Accordingly, the trial court erred in summarily denying the petition based on
the pre-Banks and Clark special circumstances verdict finding.
DISPOSITION
The trial court’s order denying Nowden’s resentencing petition is
reversed and the matter is remanded to the superior court with directions to
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issue an OSC and conduct an evidentiary hearing. We express no opinion
about the outcome of such hearing.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
BUCHANAN, J.
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