People v. Durbin CA2/6

Filed 1/5/23 P. v. Durbin CA2/6
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B305999
(Super. Ct. No. KA064692)
Plaintiff and Respondent, (Los Angeles County)
v. OPINION ON TRANSFER
FROM SUPREME COURT
JAMES NICKOLAS DURBIN,
Defendant and Appellant.
Appellant Jack Nickolas Durbin was convicted of first
degree murder in 2005. (Pen. Code, §§ 187, subd. (a), 189.)1 The
jury found true a special circumstance allegation that the murder
had been committed while appellant was engaged in the
commission of robbery. (§ 190.2, subds. (a)(17)(A), (d).) In 2019
appellant filed a petition to vacate his murder conviction and
obtain resentencing pursuant to section 1170.95, now section
1172.6, which was added to the Penal Code by Senate Bill No.
1 All statutory references are to the Penal Code.
1437 (S.B. 1437).2 (Stats. 2018, ch. 1015, § 4.) The trial court
summarily denied the petition because appellant had failed to
make a prima facie showing that he could not be convicted of
murder under current law. (§ 1172.6, subd. (c).)
In our original unpublished opinion (People v. Durbin (May
24, 2021, B305999)), we held that the jury’s true finding on the
special circumstance allegation rendered appellant ineligible for
relief as a matter of law. We therefore affirmed the order
denying his petition.
On July 29, 2021, the California Supreme Court granted
review. On November 16, 2022, it transferred the matter back to
us “with directions to vacate [our] decision and reconsider the
cause in light of People v. Strong (2022) 13 Cal.5th 698 [Strong].”
The Attorney General concedes that, pursuant to Strong,
appellant made a prima facie case for relief. We accept the
concession. Thus, appellant is entitled to an evidentiary hearing
under section 1172.6, subdivision (d). We vacate our original
decision, reverse, and remand for further proceedings.
Procedural Background
In addition to being convicted of first degree murder,
appellant was convicted of conspiracy to commit robbery and two
counts of second degree robbery. (§§ 182, subd. (a)(1), 211, 212.5.)
The trial court found true one prior serious felony conviction
(§ 667, subd. (a)(1)) and one prior strike within the meaning of
California’s “Three Strikes” law. (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i).) Appellant was sentenced to prison for a
2 Effective June 30, 2022, section 1170.95 was renumbered
as section 1172.6 with no change in text. (Stats. 2022, ch. 58, §
10.) We will refer to the statute as section 1172.6.
2
determinate term of 15 years plus an indeterminate term of life
without the possibility of parole.
Appellant appealed from the judgment. In People v. Berry
et al. (Oct. 19, 2006, B183555) [nonpub. opn.], we struck a parole
revocation fine and affirmed the judgment as modified.3
In support of his 2019 petition for resentencing, appellant
declared under penalty of perjury: (1) he was convicted of first
degree murder under the felony-murder rule or the natural and
probable consequences doctrine; (2) he could not currently be
convicted of murder because of changes made by S.B. 1437; (3) he
was not the actual killer; (4) he “did not, with the intent to kill,
aid, abet, counsel, command, induce, solicit, request, or assist the
actual killer in the commission of murder;” and (5) he “was not a
major participant in the felony or [he] did not act with reckless
indifference to human life.”
The trial court denied appellant’s petition because he “is
not entitled to relief as a matter of law.” The trial court reasoned
that, based on the record of conviction, the jury had found true
the special circumstance allegation. “This finding required the
prosecution to show that the petitioner, as a non-shooter, had the
intent to kill or acted with reckless indifference to human life
while acting as a major participant in the robbery.”
Facts
The following summary of the facts is taken from our 2006
unpublished opinion in appellant’s appeal from the judgment:
Three persons were involved in the commission of the
robbery – appellant, Shawn Berry, and George Berry. While
Shawn Berry stood outside as a lookout, appellant and George
3 The opinion is included in the record on appeal.
3
Berry entered a store. “[T]he victims [inside the store] were
thrown to the floor, kicked, handcuffed, threatened with a knife
and revolver, and [they] screamed.” “Brandishing a large bowie
knife, [appellant] kicked and handcuffed the store owner, Shu-
Ying Chen. George Berry pointed a revolver at Chen’s
husband, . . . ordered him to the front of the store and pushed
him down. [Husband] tried to remove his fanny pack and pled,
‘I’ll give you money, I’ll give you money.’” “George Berry fired
three shots, killing [husband].” The cause of death was a gunshot
wound to the chest. “At the preliminary hearing, [appellant]
blurted out ‘I did this crime’ and declared that Shawn Berry and
George Berry had nothing to do with the robbery.” At trial
appellant’s statement was admitted in evidence.
S.B. 1437
“In Senate Bill No. 1437 . . . , the Legislature significantly
narrowed the scope of the felony-murder rule. [Pursuant to new
section 1172.6,] [i]t also created a path to relief for defendants
who had previously been convicted of murder on a felony-murder
theory but who could not have been convicted under the new
law.” (Strong, supra, 13 Cal.5th at p. 703.)
Appellant was convicted of murder on a felony-murder
theory. In Strong, supra, 13 Cal.5th at p. 708, our Supreme
Court noted: “Penal Code section 189, as amended [by S.B. 1437],
now limits liability under a felony-murder theory principally to
‘actual killer[s]’ (Pen. Code, § 189, subd. (e)(1)) and those who,
‘with the intent to kill,’ aid or abet ‘the actual killer in the
commission of murder in the first degree’ (id., subd. (e)(2)).
Defendants who were neither actual killers nor acted with the
intent to kill can be held liable for murder only if they were
‘major participant[s] in the underlying felony and acted with
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reckless indifference to human life, as described in subdivision (d)
of [Penal Code] Section 190.2’ — that is, the statute defining the
felony-murder special circumstance. (Id., § 189, subd. (e)(3).)”
Section 1172.6 gives retroactive effect to the changes in
section 189. It provides, “A person convicted of felony murder . . .
may file a petition with the court that sentenced the petitioner to
have the petitioner’s murder . . . conviction vacated and to be
resentenced on any remaining counts when” certain conditions
apply. (§ 1172.6, subd. (a).) One of the conditions is that “[t]he
petitioner could not presently be convicted of murder . . . because
of changes to Section . . . 189 made [by S.B. 1437] effective
January 1, 2019.” (Id., subd. (a)(3).) The petition must include a
declaration by the petitioner showing that he is eligible for the
relief afforded by section 1172.6. (Id., subd. (b)(1)(A).)
“If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause.” (§ 1172.6, subd. (c).) “Within 60 days after the
order to show cause has issued, the court shall hold a hearing to
determine whether to vacate the murder . . . conviction and to
recall the sentence and resentence the petitioner . . . .” (Id., subd.
(d)(1).)
People v. Strong
In Strong our Supreme Court explained the significance of
its prior decisions in People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark):
“Banks and Clark both substantially clarified the law governing
findings under Penal Code section 190.2, subdivision (d): Banks
elucidated what it means to be a major participant and, to a
lesser extent, what it means to act with reckless indifference to
human life, while Clark further refined the reckless indifference
5
inquiry.” (Strong, supra, 13 Cal.5th at pp. 706-707.) Thus, “[f]or
petitioners [such as appellant] with pre-Banks/Clark findings, no
judge or jury has ever found the currently required degree of
culpability for a first time.” (Id. at p. 718.)
The Supreme Court held: “[Un]less a defendant was tried
after Banks was decided [in 2015], a major participant finding
will not defeat an otherwise valid prima facie case [under section
1172.6, subdivision (c)]. And unless a defendant was tried after
Clark was decided [in 2016], a reckless indifference to human life
finding will not defeat an otherwise valid prima facie case.
[¶] Because Strong’s case was tried before both Banks and Clark,
the special circumstance findings do not preclude him from
making out a prima facie case for resentencing under section
1172.6.” (Strong, supra, 13 Cal.5th at p 721.) “This is true even
if the trial evidence would have been sufficient to support the
findings under Banks and Clark.” (Id. at p. 710.)
Strong Mandates the Reversal of the Order
Summarily Denying Appellant’s Petition
The trial court denied appellant’s petition without issuing
an order to show cause because it concluded that the jury’s
special circumstance findings rendered him ineligible for section
1172.6 relief as a matter of law. The Attorney General correctly
acknowledges that, since the jury’s findings were rendered before
Banks and Clark, they do not preclude appellant from making
the requisite prima facie showing under section 1172.6,
subdivision (c). (Strong, supra, 13 Cal.5th at p 721.) We accept
the Attorney General’s concession that “the matter should be
remanded for the trial court to issue an order to show cause and
conduct an evidentiary hearing pursuant to section 1172.6,
subdivision (d)(3).”
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We express no opinion on the merits as to whether
appellant was a “major participant” who acted with “reckless
indifference to human life.” In the first instance, this is
addressed to the Superior Court sitting as trier of fact. (People v.
Schell (2022) 84 Cal.App.5th 437, 442, review denied Dec. 28,
2022, S277446.)
Disposition
Our original decision filed on May 24, 2021 is vacated. The
order denying appellant’s section 1172.6 petition is reversed. The
matter is remanded to the trial court with directions to (1)
reappoint counsel, (2) issue an order to show cause, and (3)
conduct an evidentiary hearing in accordance with section
1172.6, subdivision (d).
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Rogelio Delgado, Judge
Superior Court County of Los Angeles
______________________________
Tracy A. Rogers, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Xavier Becerra, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, Michael C. Keller, Charles
S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.