People v. Berry CA2/6

Filed 1/5/23 P. v. Berry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B307146
(Super. Ct. No. KA064692)
Plaintiff and Respondent, (Los Angeles County)
v. OPINION ON TRANSFER
FROM SUPREME COURT
SHAWN EARL BERRY,
Defendant and Appellant.
In 2005 appellant Shawn Earl Berry was convicted of first
degree murder. (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. 1437 (S.B.
1 All statutory references are to the Penal Code.
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In our original unpublished opinion (People v. Berry (Nov.
22, 2021, B307146)), 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 February 9, 2022, the California Supreme Court
granted review. On November 22, 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, (§§ 182,
subd. (a)(1), 211), two counts of second degree robbery (§§ 211,
212.5), two counts of assault with a deadly weapon upon a peace
officer (§ 245, subd. (c)), and one count of attempting to elude a
pursuing peace officer (Veh. Code, § 2800.2, subd. (a)). Appellant
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.
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was sentenced to prison for a determinate term of seven years,
eight months, plus an indeterminate term of life without the
possibility of parole.
Appellant appealed from the judgment. In a 2006
opinion, People v. Berry et al. (Oct. 19, 2006, B183555) [nonpub.
opn.] (Berry), we struck a parole revocation fine and affirmed the
judgment as modified.
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.”
Without issuing an order to show cause, the trial court
denied appellant’s petition because he “is not entitled to relief as
a matter of law.” The court explained that the special
circumstance allegation “required the prosecution to show that
[appellant], 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
unpublished 2006 opinion, Berry, supra, slip opn. at pp. 2-3, 14:
Three persons were involved in the commission of the
robbery – appellant, James Durbin, and George Berry. Appellant
and Durbin entered a store and “looked around.” Appellant made
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a purchase. They exited the store, but about 10 minutes later
George Berry and Durbin entered the store wearing masks.
Appellant “stood outside . . . as a lookout.” “[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, Durbin 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].”
A witness “saw a . . . man pace back and forth in front of
the store doorway during the robbery. The man peered into the
doorway twice . . . and fit [appellant’s] description . . . .”
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
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‘major participant[s] in the underlying felony and acted with
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
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human life, while Clark further refined the reckless indifference
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
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conduct an evidentiary hearing pursuant to section 1172.6,
subdivision (d)(3).”
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 November 22, 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
______________________________
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo, Douglas Wilson,
Michael C. Keller, Charles S. Lee, Deputy Attorneys General, for
Plaintiff and Respondent.