People v. Abernathy CA3

Filed 1/9/23 P. v. Abernathy CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092495
Plaintiff and Respondent, (Super. Ct. No. 93F06757)
v. OPINION ON TRANSFER
CHRISTIAN MATTHEW ABERNATHY,
Defendant and Appellant.
Defendant Christian Matthew Abernathy appeals from the trial court’s order
denying his petition for resentencing under former Penal Code1 section 1170.95 (now
1 Undesignated statutory references are to the Penal Code.
1
section 1172.6).2 Defendant contends the decisions in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) render the jury’s special
circumstance finding legally insufficient to prove he was a major participant who acted
with reckless indifference to human life. As such, the trial court’s order was in error.
We filed an unpublished opinion on February 7, 2022, affirming the trial court’s
order. Our Supreme Court granted review of the matter on April 13, 2022, and, in
November 2022, transferred the case to us with directions to vacate our previous decision
and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong).
Upon reconsideration and following Strong, we now must vacate the trial court’s order
denying the petition and remand the matter to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
I
Underlying Facts
The relevant facts are taken from our opinion, People v. Wright (1996)
52 Cal.App.4th 203 (Wright).
“Victim Moore was driving his Oldsmobile convertible on the afternoon of
April 25, 1993, with three passengers. Victim Brown was in the back. As Moore turned
left onto the street where his female passenger lived (in the vicinity of Watt Avenue and
A Street), a Hyundai was sitting at the stop sign. Neither he nor his female passenger
recognized the car or its occupants. He drove down the street and began making a wide
U-turn to park on the other side of the street. He noticed the Hyundai had made a U-turn
and was coming toward him. It pulled in front of him before he completed his U-turn,
blocking his way.
2 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no
changes in text. (Stats. 2022, ch. 58, § 10).
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“Defendants Wright and Abernathy (also known as ‘Joker’ and ‘Snoop’) were
passengers in the Hyundai. The five occupants of the Hyundai had been drinking and
smoking marijuana throughout the day, and were on a trip to buy more alcohol when they
crossed paths with the Oldsmobile occupants. Although defendant Wright had brought
the car, he made someone else drive on this trip because he was too drunk and high; the
other Hyundai occupants testified he appeared intoxicated. Two of the other Hyundai
occupants (the third ‘wasn’t paying attention’) and another drinking companion also
described defendant Abernathy as intoxicated. Both defendants claimed at trial as well
that by the time they encountered the Oldsmobile, they felt intoxicated.
“As summarized in defendant Abernathy’s brief, ‘two people got out of the
Hyundai and approached the Oldsmobile. After a brief exchange of words [which the
Oldsmobile occupants took as a demand for money], one drew a gun and fired, killing
[victim Brown] and injuring [victim Moore]. [¶] The prosecutor called seven
eyewitnesses to testify to the events of that afternoon. All basically agreed to the above
series of events. Five testified that Wright was the shooter[,] . . . two recall[ing] that
Abernathy was standing near Wright and was actually trying to stop Wright from
shooting. [The sixth eyewitness] reversed the identities, testifying that Abernathy was
the shooter and that Wright did everything in his power to try and stop the shooting.
Finally, [the seventh eyewitness] testified that he was not sure who did what to whom.’
“As might be expected, each defendant claimed the other was the shooter. Each
also claimed the incident was not pursuant to any prearranged plan. Defendant
Abernathy admitted he was a gang member who regularly carried a gun. He claimed,
however, that he approached the Oldsmobile with his gun at his side without any
intention to use it and never pointed it at anybody; an Oldsmobile occupant corroborated
his account. Defendant Wright claimed defendant Abernathy got out of the car with a
gun; he followed to prevent anything from happening. He had not been aware defendant
Abernathy was even carrying a gun. Defendant Wright denied he ever possessed a gun
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on that afternoon. After defendant Wright was unsuccessful in attempting to disarm
defendant Abernathy at the Oldsmobile, defendant Abernathy shot at the victims. By its
felony-murder verdicts, the jury apparently believed defendant Wright was the shooter
and both defendants intended to participate in a robbery of the occupants of the
Oldsmobile.” (Wright, supra, 52 Cal.App.4th at pp. 206-207.)
The People charged defendant with first degree murder (alleging the special
circumstance of robbery murder and personal use of a firearm), attempted murder,
attempted robbery, and robbery. A jury found defendant guilty of first degree murder and
found true the robbery-murder special-circumstance allegation, but found defendant did
not personally use a firearm. The jury also found defendant guilty of the lesser included
offense of assault with a firearm, attempted robbery, and robbery. The trial court
sentenced defendant to life without the possibility of parole.
On December 13, 1996, this court affirmed the judgment in a partially published
opinion. (Wright, supra, 52 Cal.App.4th 203.)
II
Procedural History
Defendant’s section 1172.6 petition for resentencing contains a declaration stating
that (1) an information was filed against him that allowed the prosecution to proceed
under a felony murder or natural and probable consequences theory, (2) he was convicted
of first degree murder by a jury pursuant to the felony murder and/or the natural and
probable consequences doctrine, and (3) he could not now be convicted of murder
because of the changes to sections 188 and 189, effective January 1, 2019. Specifically
relevant here, defendant declared he was not a major participant who acted with reckless
indifference to human life during the course of the crime. The People opposed the
petition. Appointed counsel for defendant responded to the People’s opposition.
The trial court “examined the court’s underlying file” and, on December 27, 2019,
the court denied defendant’s petition. The trial court explained that the court file showed
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defendant “was convicted of one count of Penal Code [section] 187[ subdivision ](a) first
degree murder and that one robbery-murder special circumstance was found true with
regard to the murder . . . .”
The court further explained that “[a]t trial, the jury was instructed on the
requirements for finding true a robbery-murder special circumstance, including the
requirement that the jury find that defendant . . . was either the actual killer, acted with
intent to kill, or was a major participant in the robbery who acted with reckless
indifference to human life. As such, in finding true the robbery-murder special
circumstance, the jury necessarily determined, unanimously and beyond a reasonable
doubt, that defendant . . . was either the actual killer, acted with intent to kill, or was a
major participant in the [crime] who acted with reckless indifference to human life.”
The court also found defendant had not “obtained any order from any court
vacating his murder conviction or the robbery-murder special circumstance.” Under such
circumstances, the court concluded, defendant was not eligible for relief under section
1172.6.
Defendant’s counsel moved the trial court to amend and/or clarify its
December 27, 2019, order and on June 4, 2020, the court amended the order to include
the following paragraph: “IT IS ORDERED that the Penal Code [section 1172.6] filed
by defendant . . . , seeking relief from his first degree murder conviction in Case
No. 93F06757, is DENIED, without prejudice to defendant filing a new Penal Code
[section 1172.6] petition if and when defendant . . . is able to obtain habeas corpus relief
from his robbery-murder special circumstance that was found to be true by a jury in that
case.”
DISCUSSION
On transfer, neither party submitted a supplemental brief. As determined by our
Supreme Court in Strong, the jury’s true finding on the robbery-murder special
circumstance, which was made before our Supreme Court’s decisions in Banks, supra, 61
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Cal.4th 788 and Clark, supra, 63 Cal.4th 522 clarified what it means to be a major
participant who acts with reckless indifference to human life, does not preclude defendant
as a matter of law from relief under section 1172.6. Accordingly, we reverse and remand
the cause for further proceedings under section 1172.6.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended 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(f).) Senate Bill
No. 1437 achieves these goals by amending section 188 to require that a principal act
with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by
amending section 189 to state that a person can be liable for felony murder only if:
(1) the “person was the actual killer”; (2) the person, with an intent to kill, was an aider or
abettor in the commission of murder in the first degree; or (3) the “person was a major
participant in the underlying felony and acted with reckless indifference to human life.”
(§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)
As pertinent here, Senate Bill No. 1437 also added what is now section 1172.6,
which permits a person convicted of felony murder or murder under a natural and
probable consequences theory to petition the sentencing court to vacate the murder
conviction and resentence the person on any remaining counts if, among other things, the
petitioner could not be convicted of first or second degree murder due to the change in
the law. (§ 1172.6, subd. (a).) Upon submission of a facially sufficient petition that
requests counsel, the court shall appoint counsel and provide the parties an opportunity to
submit briefs. (§ 1172.6, subds. (b)(3), (c).) Following briefing, the court must hold a
hearing to determine whether the petitioner has made a prima facie case for relief.
(§ 1172.6, subd. (c).) If a sufficient prima facie showing is made, the court must issue an
order to show cause. (§1172.6, subds. (c), (d).)
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Section 190.2, subdivision (d) provides that, for the purposes of those special
circumstances based on the enumerated felonies in paragraph (17) of subdivision (a),
which include robbery, an aider and abettor must have been a “major participant” and
have acted “with reckless indifference to human life.” (§ 190.2, subd. (d); Tapia v.
Superior Court (1991) 53 Cal.3d 282, 298.) Thus, on its face, a special circumstance
finding satisfies the requirements for accomplice murder liability even after Senate Bill
No. 1437. (§ 189, subd. (e).)
Since the time of defendant’s convictions, the Supreme Court has refined the
analysis as to who qualifies as a major participant acting with reckless indifference to
human life in Banks and Clark. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179,
abrogated on other grounds in People v. Lewis (2021) 11 Cal.5th 952, 963.) After we
rejected defendant’s claims in our previous opinion, our Supreme Court decided Strong,
which concluded: “Findings issued by a jury before Banks and Clark do not preclude a
defendant from making out a prima facie case for relief under Senate Bill 1437. This is
true even if the trial evidence would have been sufficient to support the findings under
Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 710.)
Here, the trial court concluded the jury’s pre-Banks and Clark findings precluded
defendant from establishing a prima facie case. The trial court’s conclusion does not
survive Strong.
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DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is vacated. The
matter is remanded to the trial court for issuance of an order to show cause and further
proceedings consistent with section 1172.6, subdivision (d).
/s/
HOCH, J.*
We concur:
/s/
DUARTE, Acting P. J.
/s/
BOULWARE EURIE, J.
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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