People v. Simmons CA5

Filed 10/27/22 P. v. Simmons CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079610
Plaintiff and Respondent,
(Super. Ct. No. CF94520777)
v.
LAWRENCE SIMMONS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
Kendall Dawson Wasley, 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, Michael P. Farrell, Assistant Attorney General, Lewis A.
Martinez, Christina Simpson, and Louis M. Vasquez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Petitioner Lawrence Simmons petitioned the superior court, pursuant to former
section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction
for first degree murder (§ 187). The superior court denied the petitions at the prima facie
stage, without appointing counsel, on the ground that petitioner was a major participant in
the underlying felony and acted with reckless indifference to human life.
On appeal, petitioner argues the superior court erred in failing to appoint counsel
and in denying the petitions at the prima facie stage. He contends the jury’s robbery-
murder special circumstance, which required the jury to find he was a major participant
in the underlying felony and acted with reckless indifference to human life (§ 190.2,
subds. (a)(17)(A), (d)), does not preclude relief because it was made prior to our Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark).
In our original opinion we held the jury’s robbery-murder special circumstance
rendered petitioner ineligible for resentencing as a matter of law. Accordingly, we held
any error in failing to appoint counsel or otherwise follow the procedures set out in
former section 1170.95, subdivision (c) was harmless. We therefore affirmed the
superior court’s denial of the petition. (People v. Simmons (June 16, 2021, F079610)
opn. ordered nonpub. Sept. 28, 2022, S270048.)
Petitioner petitioned the California Supreme Court for review (S270048). The
state high court granted review and ultimately transferred the matter to us with directions
to vacate our opinion and reconsider the cause in light of People v. Strong (2022) 13
Cal.5th 698 (Strong). Pursuant to the California Supreme Court’s order, we vacated our
prior opinion. We also advised the parties of our intention to reverse and remand this
1 Undesignated statutory references are to the Penal Code. Former section
1170.95 recently was renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.
2.
matter with directions to issue an order to show cause, in light of the holding in Strong.
The People filed a letter stating they had no objection to the proposed disposition.
Petitioner filed no objections and the time for doing so has passed.
In light of Strong, we will reverse the superior court’s order denying the petitions
and remand with directions for the court to appoint counsel to represent petitioner and to
issue an order to show cause.
FACTUAL AND PROCEDURAL HISTORY
On March 22, 1995, a jury convicted petitioner of first degree murder (§ 187;
count one), with a special circumstance that petitioner was engaged in the commission
and attempted commission of a robbery (§§ 190.2, subd. (a)(17), 211); premeditated
attempted murder (§§ 187, 664; count two); and attempted second degree robbery
(§§ 211, 212.5, former subd. (b), 664; count three). As to each count, the jury found
petitioner was armed with a firearm. (§ 12022, subd. (a)(1).) In bifurcated proceedings,
the court found petitioner had two prior serious felonies (§ 667, subd. (a)) and two prior
strike convictions (§ 667, subds. (b)-(i)). On count one, the court sentenced petitioner to
life without the possibility of parole, plus one year for the arming enhancement and 10
years for the two prior serious felony enhancements. On count two, the court sentenced
petitioner to life with the possibility of parole. Sentence on count three was imposed and
stayed pursuant to section 654.2
On January 9, 2019, petitioner filed a petition for resentencing pursuant to section
1172.6. On March 8, 2019, the People filed an opposition, noting petitioner’s defective
service of the petition and arguing the jury’s finding on the robbery-murder special
2 Due to the age of the case, the court reporter was unable to prepare transcripts of
petitioner’s trial for the record on appeal. The People represent that the convictions arose
out of an incident in which petitioner and two others attempted to rob a liquor store,
during which petitioner’s partner fatally shot a customer and also shot a store clerk.
Petitioner’s submissions in the trial court suggest the same. Regardless, the facts
underlying petitioner’s offenses are irrelevant to the resolution of his appeal.
3.
circumstance precluded him from making a prima facie showing that his conviction falls
within the provisions of section 1172.6. In a separate motion to dismiss, the People
argued section 1172.6 was unconstitutional. On March 28, 2019, the court denied the
petition without prejudice due to defective service.
On March 29, 2019, petitioner filed a second petition for resentencing pursuant to
section 1172.6. He then filed a substantially similar petition on May 8, 2019. In the form
petitions, petitioner stated that a complaint, information, or indictment was filed against
him that allowed him to be prosecuted under a theory of felony murder; he was convicted
of first or second degree murder at trial; and he was not the actual killer, did not act with
an intent to kill, and was not a major participant in the underlying felony or did not act
with reckless indifference to human life in the course of the crime. He requested counsel
be appointed to represent him.
On June 20, 2019, the court summarily denied the petitions as follows:
“The Court is in receipt of Petitions for Resentencing filed
March 29, 2019 and May 8, 2019. The petitions are denied with prejudice.
Petitioner . . . has failed to make a prima facie showing that he falls within
the provisions of . . . section [1172.6]. The condition set out at [section
1172.6, subdivision ](a)(3) does not apply. As a major participant in the
crime of attempted robbery who acted with deliberate indifference to
human life, Petitioner is not eligible for resentencing. [¶] Petition is
denied.”
This timely appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “to amend the felony murder rule and 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,
4.
ch. 1015, § 1, subd. (f); see § 189, subd. (e); accord, Strong, supra, 13 Cal.5th at pp. 707-
708.) Senate Bill No. 1437 also added former section 1170.95, now renumbered as
section 1172.6, which provides a procedure for persons convicted of felony murder to
seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, Strong, at
p. 708.)
Under section 1172.6, an offender seeking resentencing must first file a petition in
the sentencing court, and the sentencing court must determine whether the petitioner has
made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c);
accord, Strong, supra, 13 Cal.5th at p. 708.) If the sentencing court determines the
petitioner has made such a showing, the court must issue an order to show cause and hold
a hearing to determine whether to vacate the murder conviction. (§ 1172.6, subds. (c),
(d)(1).) At this evidentiary hearing, “the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under
California law as amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1172.6 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (People v. Lewis (2021) 11 Cal.5th 952, 972-974; see People v.
Watson (1956) 46 Cal.2d 818, 836.)
II. Appointment of Counsel
Petitioner contends the trial court erred by summarily denying his facially
sufficient petition, rather than appointing counsel, issuing an order to show cause, and
otherwise following the procedures of section 1172.6, subdivisions (b)(3) and (c).
At the time the trial court ruled on the petition, our Supreme Court had not
resolved whether section 1172.6 requires the appointment of counsel or further briefing
immediately upon the filing of a facially sufficient petition. (See Lewis, supra, 11
5.
Cal.5th at pp. 961-967.) However, our Supreme Court and Legislature have since
clarified that counsel must be appointed if requested, and briefing must proceed, so long
as the petition complies with the requirements of section 1172.6, subdivision (b)(1)
and (2). (§ 1172.6, subd. (b)(3); accord, Lewis, at pp. 962-963, 967.) Here, the People do
not suggest the petition failed to meet the requirements of section 1172.6, subdivision (b).
Accordingly, appointment of counsel and a full opportunity for briefing were required by
section 1172.6, subdivisions (b)(3) and (c). (See Lewis, supra, 11 Cal.5th at pp. 961-963,
967.) The court erred in disposing of the petition without following these procedures.
III. Prejudice
Because the trial court erred in failing to appoint counsel, we may affirm only if
petitioner was not prejudiced by the error. (Lewis, supra, 11 Cal.5th at pp. 972-974.)
Because the record does not establish petitioner is ineligible for resentencing as a matter
of law, we cannot conclude the court’s error in failing to appoint counsel was harmless.
While this appeal was pending, our Supreme Court issued its opinion in Strong,
supra, 13 Cal.5th 698. Therein, the high court held that a special circumstance finding
entered pursuant to section 190.2, subdivision (a)(17) prior to the court’s decisions in
Clark, supra, 63 Cal.4th 522 and Banks, supra, 61 Cal.4th 788 did not preclude a section
1172.6 petitioner from making a prima facie showing of eligibility for relief.3 (Strong, at
p. 703.)
Strong is dispositive of this case. The special circumstance finding was made
before Banks and Clark and therefore is not preclusive on prima facie review of the
petition under section 1172.6. (Strong, supra, 13 Cal.5th at p. 703.) The petition was
facially sufficient and alleged the essential facts necessary for relief under section 1172.6.
Because the People have presented no other basis to deny the petition at the prima facie
3Banks and Clark “substantially clarified the law” regarding “what it means to be
a major participant and . . . to act with reckless indifference to human life.” (Strong,
supra, 13 Cal.5th at pp. 706-707.)
6.
stage, the order denying the petition must be reversed and the matter remanded with
directions to appoint counsel, to issue an order to show cause and, to the extent necessary,
to conduct an evidentiary hearing under subdivision (d) of section 1172.6. We express no
opinion on the ultimate resolution of the petition.
DISPOSITION
The June 20, 2019 order denying the petition is reversed and the matter remanded
with directions to appoint counsel, issue an order to show cause and, to the extent
necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
DETJEN, J.
WE CONCUR:
HILL, P. J.
PEÑA, J.
7.