People v. Peters CA4/1

Filed 11/8/22 P. v. Peters CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D079686
Plaintiff and Respondent,
v. (Super. Ct. No. SCD187000)
THERON LEE PETERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Reversed and remanded with directions.
Lizabeth Weis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, A. Natasha Cortina and Alan L.
Amann, Deputy Attorneys General, for Plaintiff and Respondent.
After pleading guilty in 2007 to two counts of first degree murder as
well as other crimes and being sentenced to two consecutive life terms for the
murders, Theron Lee Peters in 2019 petitioned for resentencing under then
Penal Code1 section 1170.95 (now section 1172.62) based on changes made to
the felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.). The
trial court summarily denied the petition, finding Peters’s admissions in his
plea agreement showed he was a major participant who had acted with
reckless indifference to human life in committing the murders.
While Peters’s appeal was pending, the California Supreme Court
decided People v. Strong (2022) 13 Cal.5th 698 (Strong) and the parties
submitted supplemental briefing. Based on Strong, the People now concede
the court’s order should be reversed and the matter remanded for further
proceedings consistent with that case. As we explain, we agree with the
People’s concession, reverse the order and remand with directions set forth
below.
BACKGROUND
In 2007, Peters pleaded guilty to two counts of first degree murder and
other crimes.3 In connection with the murder counts, he admitted special
1 Undesignated statutory references are to the Penal Code.
2 While this appeal was pending, the Legislature amended and
renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) We
refer to section 1172.6 in this opinion, even though 1170.95 was the operative
designation at the time of the underlying proceedings.
3 In addition to the two first degree murder counts (§ 187, subd. (a);
counts 2 and 4), Peters pleaded guilty to two counts of robbery (§ 211; counts
11 and 12); two counts of attempted robbery (§§ 211, 664; counts 5 and 7);
conspiracy to take a vehicle by force (§ 182, subd. (a)(1); count 1); conspiracy
to rob a liquor store (§ 182, subd. (a)(1); count 3); attempted carjacking
(§§ 215, subd. (a), 664; count 6); kidnapping during a carjacking (§ 209.5,
subd. (a); count 8); kidnapping for robbery (§ 209, subd. (b)(1); count 9); and
carjacking (§ 215, subd. (a); count 10).
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circumstance allegations that the murders had been committed in the
perpetration of the underlying felonies of robbery or attempted robbery
(§ 190.2, subd. (a)(17)). Peters admitted as to all counts that he was
vicariously liable for another principal’s use of a firearm within the meaning
of section 12022, subdivision (a)(1). Peters’s plea contains detailed factual
bases for all counts. As to the count 2 murder, Peters admitted that he and
Tecumseh Colbert agreed to rob Robert McCamey, and “[d]uring the
commission of the robbery of McCamey, Peters was a major participant and
acted with reckless indifference to human life when he participated in the
crime, and who aided and abetted Colbert. Colbert killed . . . McCamey by
shooting him with a handgun . . . .” (Some capitalization and bold omitted.)
As to the count 4 murder, Peters admitted that “[d]uring the commission of
the attempted robbery of [store clerk, Richard] Hammes, [he] was a major
participant and acted with reckless indifference to human life when he
participated in the crime, and who aided and abetted Colbert. Colbert killed
. . . Hammes by shooting him with a handgun . . . .”
The court sentenced Peters to two consecutive life-without-parole terms
on the murder counts, a consecutive term of life with the possibility of parole
on the count 8 kidnapping, and seven years on the enhancements.
After Peters’s guilty plea, the California Supreme Court decided People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), in which the court set out guidance on factors that must be
considered by a jury in felony-murder special circumstance sentencing
enhancements. Banks substantially clarified the law as to whether a
defendant was a major participant in the underlying felony. (Strong, supra,
13 Cal.5th at p. 721; see Banks, at pp. 797-804.) Thereafter, in Clark, the
court substantially clarified the relevant considerations for determining
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whether a defendant acted with reckless indifference to human life. (Strong,
supra, 13 Cal.5th at p. 721; see Clark, at pp. 611-623.)
DISCUSSION
Senate Bill No. 1437, effective January 1, 2019, “amend[ed] the
felony[-]murder rule and the natural and probable consequences doctrine as
it relates to murder, 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, subd. (f); see also
Strong, supra, 13 Cal.5th at pp. 707-708.)4
Senate Bill No. 1437 also created a procedural mechanism in section
1172.6 for those convicted under the former law to petition the trial court for
retroactive relief under the amended law. (§ 1172.6, subd. (a); Strong, supra,
13 Cal.5th at p. 708.) “[T]he process begins with the filing of a petition
containing a declaration that all requirements for eligibility are met
[citations], including that ‘[t]he petitioner could not presently be convicted of
4 Section 188, which defines malice, now provides in part: “Except 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.”
(§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of
felony-murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] in which a
death occurs is liable for murder only if one of the following is proven: [¶] (1)
The person was the actual killer. [¶] (2) The person was not the actual killer,
but, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder
in the first degree. [¶] (3) The person was a major participant in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
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murder or attempted murder because of changes to . . . [s]ection 188 or 189
made effective January 1, 2019 . . . .” (Ibid., fn. omitted.) “When the trial
court receives a petition containing the necessary declaration and other
required information, the court must evaluate the petition ‘to determine
whether the petitioner has made a prima facie case for relief.’ [Citations.] If
the petition and record in the case establish conclusively that the defendant
is ineligible for relief, the trial court may dismiss the petition.” (Ibid.)
In People v. Lewis (2021) 11 Cal.5th 952, the California Supreme Court
explained the trial court’s role in assessing a section 1172.6 petition: “While
the trial court may look at the record of conviction after the appointment of
counsel to determine whether a petitioner has made a prima facie case for . . .
relief, the prima facie inquiry . . . is limited. . . . ‘ “[T]he 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.’ ” (Id. at p. 971.) Importantly, “[i]n reviewing any part of the record
of conviction at this preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’ ”
(Id. at p. 972.) “[T]he ‘prima facie bar was intentionally and correctly set
very low.’ ” (Ibid.)
If a defendant has made a prima facie showing of entitlement to relief,
“ ‘the court shall issue an order to show cause.’ ” (Strong, supra, 13 Cal.5th at
p. 708.) Once the court determines that a defendant has made a prima facie
showing, it “must [then] hold an evidentiary hearing at which the prosecution
bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is
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guilty of murder or attempted murder’ under state law as amended by Senate
Bill [No.] 1437. [Citation.] ‘A finding that there is substantial evidence to
support a conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its
burden of proof, the prior conviction, and any allegations and enhancements
attached to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.’ ” (Id. at p. 709.) “Senate Bill [No.]
1437 relief is unavailable if the defendant was either 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 . . . .’ ” (Id. at p. 710.)
In Strong, supra, 13 Cal.5th 698, the California Supreme Court held
that given the clarifications in the law, jury special circumstance findings
issued before Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522“do not preclude [a defendant] from making out a prima facie case for
resentencing under section 1172.6.” (Strong, at p. 721.) The court explained:
“Banks and Clark represent the sort of significant change that has
traditionally been thought to warrant reexamination of an earlier-litigated
issue. Our earlier discussion of habeas corpus petitioners who have obtained
relief from their felony-murder special circumstances in the wake of Banks
and Clark [citation] does much to explain why: There are many petitioners
with pre-Banks and Clark felony-murder special-circumstance findings who
nevertheless could not be convicted of murder today. . . . A pre-Banks and
Clark special circumstance finding does not negate [a defendant’s prima facie
showing under section 1172.6, subdivision (a)(3) that they could not presently
be convicted of murder or attempted murder because of changes to section
188 or 189 effective January 1, 2019] because the finding alone does not
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establish that the petitioner is in a class of defendants who would still be
viewed as liable for murder under the current understanding of the major
participant and reckless indifference requirements.” (Strong, at pp. 717-718.)
Nor does a court’s later sufficiency of the evidence review amount to the
determination section 1172.6 requires. (Id. at p. 720.) Accordingly, such
findings do not warrant summary denial of a section 1172.6 petition, rather,
the matter must proceed to an evidentiary hearing. (See ibid.)
Here, Peters’s guilty plea admission to being a major participant who
acted with reckless indifference to human life occurred before the high court
decided Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. As
the People properly concede, neither his admissions, nor the trial court’s
cursory finding in denying Peters’s petition for resentencing, provide a basis
to reject an otherwise prima facie showing. (Strong, supra, 13 Cal.5th at p.
720.) We therefore vacate the court’s order and remand the matter for
further proceedings consistent with Strong. We express no opinion on
whether Peters is entitled to relief.
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DISPOSITION
The order is reversed and the matter remanded with directions to issue
an order to show cause under section 1172.6, subdivision (c) and to hold a
hearing under subdivision (d) of that section.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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