People v. Pinckney CA2/4

Filed 12/18/20 P. v. Pinckney CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B304439
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA299868)
v.
TIMOTHY PINCKNEY, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Bob S. Bowers, Jr., Judge. Reversed and remanded.
Vanessa Place, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Scott A. Taryle, Supervising Deputy Attorney General, and
Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Timothy Pinckney Jr., who was
convicted in 2008 of first degree felony murder (Pen. Code, §§ 187, subd.
(a), 189),1 appeals from an order summarily denying his petition for
resentencing under Penal Code section 1170.95 following the
appointment of counsel and briefing by both parties. Defendant
contends, and the Attorney General concedes, that the trial court erred
when it found defendant failed to make a prima facie showing he is
eligible for relief. We reverse the trial court’s order, and remand the
matter for further proceedings consistent with section 1170.95.
FACTUAL BACKGROUND2
On November 16, 1988, the body of the victim, E.L., was found
lying on the ground in the playground area of Manuel Arts High School.
(Pinckney I, supra, at p. 1.) The victim’s body had been bruised and
lacerated. (Ibid.) Vaginal, genital, and anal samples were collected
from the body during a sexual assault examination. (Ibid.) The
following week, officers spoke with a man associated with the victim.
(Ibid.) The man told police that on November 16, he observed two men
in a car speaking with the victim. (Ibid.) One of the men hit the victim
and pushed her into the car before it drove away. (Ibid.)
1 Undesignated statutory references are to the Penal Code.
2 We recite the factual and procedural background from the record on
appeal in this case and our prior opinion affirming defendant’s conviction in
People v. Pinckney (Oct. 22, 2009, B212120) [nonpub. opn.] (Pinckney I).
2
The parties stipulated to the following: semen found on the
vaginal swab was from defendant; semen found on the anal swab was
from an unknown male; the victim’s blood was found on a bench located
near her body; and defendant’s palm print was found on the same
bench. (Pinckney I, supra, at p. 1.) In 2006 (over 17 years after the
murder), DNA testing matched defendant’s DNA to the semen sample.
(Id. at p. 2.) When interviewed by police, defendant could not provide
an explanation for the presence of his DNA in the victim’s body and the
location of his palm print at the murder scene. (Ibid.)
Defendant called a gynecologist and fingerprint expert to testify in
his defense. (Pinckney I, supra, at p. 2.) The gynecologist testified that
sperm found in a woman’s vagina generally will last three days, but can
sometimes be present for as many as 27 days after intercourse. (Ibid.)
After reviewing the autopsy report, he concluded the victim had no
trauma to her genitalia, which made it “less likely that force was used.”
(Ibid.) However, the gynecologist acknowledged that the absence of
damage to the victim’s genitalia did not “totally rule out a forcible
event.” (Ibid.) The fingerprint expert testified that other fingerprints
not identifiable as defendant’s were also left on the same bench near the
victim’s body, and that it was unclear when defendant had left his print
on the bench. (Ibid.)
PROCEDURAL BACKGROUND
In 2008, a jury convicted defendant of first degree felony murder
(§§ 187, subd. (a), 189), and found not true the special circumstance
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allegation that the murder occurred during the commission of a rape
(§ 190.2, subd. (a)(17)). (Pinckney I, supra, at p. 1.) The trial court
sentenced defendant to 25 years to life imprisonment.
We affirmed defendant’s conviction in Pinckney I. In doing so, we
reconciled the conviction with the jury’s not true finding as to the
special circumstance allegation, as it was “eminently reasonable that
the jury was convinced defendant raped the victim [so as to support
first degree felony murder], but was unable to determine either that he
was the actual killer or that he aided his accomplice in killing [the
victim] while possessing the specific intent to kill her.” (Pinckney I,
supra, at p. 4.) In reaching this conclusion, we noted that the jury had
been instructed that “any unlawful killing, intentional or not,
constituted first degree murder if it occurred during the commission or
attempted commission of a rape.” (Ibid., citing former CALJIC No.
8.21.) The jury was also instructed that it could find the special
circumstance that the murder occurred during the rape true only if it
found that defendant was the actual killer, or acted as an aider and
abettor with the intent to kill. (Ibid., citing former CALJIC No. 8.80.)
In 2019, defendant filed a petition for resentencing under section
1170.95, which provides that persons who were convicted under
theories of felony murder or murder under the natural and probable
consequences doctrine, and who could no longer be convicted of murder
following the enactment of Senate Bill No. 1437 (S.B. 1437), may
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).)
4
In the petition, defendant checked the boxes indicating that an
information had been filed against him that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural
and probable consequences doctrine; at trial, he was convicted of first or
second degree murder pursuant to the felony-murder rule or the natural
and probable consequences doctrine; and he could not now be convicted
of first or second degree murder because of the changes made to
sections 188 and 189.
Defendant also checked the boxes in the petition indicating that
he had been convicted of first degree felony murder and could not now
be convicted based on the changes in the law because he was not the
actual killer; he did not, with the intent to kill, aid, abet, induce, or
assist the actual killer in the commission of murder; and he was not a
major participant in the felony or did not act with reckless indifference
to human life during the course of the crime. Defendant requested that
counsel be appointed on his behalf. The trial court appointed counsel
for defendant before he and the People filed additional briefing.
After the parties submitted on the briefs for ruling, the trial court
summarily denied the petition, concluding that defendant failed to
make a prima facie case for relief under section 1170.95. Having
reviewed the case file including our opinion in Pinckney I, the court
noted that instructions on felony murder and the natural and probable
consequences doctrine had been presented to the jury, but that the
People relied only on felony murder as a theory of liability. In light of
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our reasoning in Pinckney I,3 the court found that “defendant was at the
very least a major participant as well as a direct aider and abettor, if
not the actual killer, in the rape and brutal murder of [the victim].
Furthermore, the forcible rape and savage beating of [the victim]
constitutes a reckless indifference to human life.”
Defendant timely filed a notice of appeal from the order denying
his petition.
DISCUSSION
1. Governing Law
The legislature enacted S.B. 1437 “to amend 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); accord,
§ 189, subd. (e).)
3 The court quoted a portion of Pinckney I wherein we reasoned that the
facts and circumstances of the crime “tend[ed] to establish that the victim
was raped . . . as follows: (1) she was seen being forced into a vehicle by two
men a few hours before her body was found; (2) she had semen in her vagina
provided by one male and semen in her anus from another, her pants were
partially unbuttoned, and her shirt was turned inside out, strongly
suggesting the two abductors had sex with her; and (3) she was savagely
beaten to death after engaging in the sexual activity. In addition, the jury
had evidence that defendant was one of the rapists, as he could not explain
how his semen came to be inside her vagina or how his palm print was left on
the bench that was likely used during her killing.” (Pinckney I, supra, p. 3.)
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S.B. 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted,
S260493, Mar. 18, 2020.) Under the revised section 188, subdivision
(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43
Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who were
convicted of felony-murder or murder under the natural and probable
consequences doctrine, but who could not be convicted of murder
following S.B. 1437’s changes to sections 188 and 189, to petition the
sentencing court to vacate the conviction and resentence on any
remaining counts. (§ 1170.95, subd. (a).)
A petition for relief under section 1170.95 must include a
declaration by the petitioner that he is eligible for relief under section
1170.95 based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a request
for appointment of counsel, should petitioner seek appointment.
(§ 1170.95, subd. (b)(2).)
If the petition includes the required information, subdivision (c) of
section 1170.95, prescribes “a two-step process” for the court to
determine if it should issue an order to show cause. (Verdugo, supra, 44
Cal.App.5th at p. 327.) The court first “review[s] the petition and
determine[s] if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section.” (§ 1170.95, subd.
(c).) The court then appoints counsel, if requested, and reviews the
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petition a second time after briefing by the parties to determine if
petitioner has established a prima facie case for relief. (Ibid.; see Lewis,
supra, 43 Cal.App.5th at p. 1140.) At this stage, the court may review
the petitioner’s record of conviction to determine whether the
allegations set forth in the petition are untrue as a matter of law.
(Verdugo, supra, at p. 333; Lewis, supra, 43 Cal.App.5th at p. 1138,
quoting Couzens et al., Sentencing Cal. Crimes (The Rutter Group
2019) ¶ 23:51(H)(1), pp. 23–150 to 23–151.) If the court concludes the
petitioner has made a prima facie showing, it must issue an order to
show cause. (§ 1170.95, subd. (c); Verdugo, supra, at p. 328.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction and to
recall the sentence and resentence the petitioner on any remaining
counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327, citing § 1170.95,
subd. (d)(1).) The parties may rely on the record of conviction or present
“new or additional evidence” to support their positions. (§ 1170.95,
subd. (d)(3).)
2. Analysis
While a trial court has the power to summarily deny a defendant’s
petition when the defendant is ineligible for relief as a matter of law
(People v. Smith (2020) 49 Cal.App.5th 85, 92, rev. granted July 22,
2020, S262835; Verdugo, supra, 44 Cal.App.5th at p. 333; Lewis, supra,
43 Cal.App.5th at p. 1138), here the record fails to demonstrate
defendant’s ineligibility. The jury convicted defendant based on a
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felony murder theory of liability, but found the special circumstance
allegation that the murder occurred during the commission of rape not
true. (Pinckney I, supra, at pp. 1, 4.) To reconcile those findings in our
earlier opinion, we noted that while the jury could have found that
defendant intended to commit the underlying rape, it also could have
been unable to determine whether defendant was the actual killer or
acted as an aider and abettor with the intent to kill. (Id. at p. 4.)
Thus, our prior opinion establishes that the jury could have found
defendant guilty of first degree felony murder based solely on his
participation in the underlying rape. As a result, we cannot say as a
matter of law that defendant could now be convicted of murder
following S.B. 1437’s changes to sections 188 and 189. (Lewis, supra, 43
Cal.App.5th at p. 1135.) The trial court’s weighing of evidence to make
a determination of fact not established by the record of conviction
constituted reversible error.4
4 In light of our conclusion, we do not address defendant’s alternative
contention that the trial court was prohibited from considering Pinckney I as
part of defendant’s record of conviction.
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DISPOSITION
The order summarily denying defendant’s section 1170.95 petition
is reversed, and the matter is remanded with directions to issue an
order to show cause and proceed consistent with section 1170.95,
subdivisions (c) and (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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