People v. Sconiers CA2/2

Filed 2/3/21 P. v. Sconiers CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B304595
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA355108)
v.
DARYL SCONIERS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Reversed and remanded
with directions.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Charles S. Lee and
Idan Ivri, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Daryl Anthony Sconiers, Jr.
(defendant) appeals from the judgment entered after he was
resentenced upon the granting of his petition for vacatur and
resentencing pursuant to Penal Code section 1170.95.1
Defendant contends, and respondent agrees, that the trial court
erred in replacing his first degree murder conviction with a
second degree murder conviction, and then resentencing him on
the second degree murder, rather than on the remaining counts.
We agree that this was error, therefore we reverse and remand
with directions.
BACKGROUND
In 2014, a jury convicted defendant of first degree murder
(count 1) and found true the special allegation that a principal
was armed with a firearm. The jury also found true the special
circumstance alleged pursuant to former section 190.2,
subdivision (a)(17), that an accomplice committed the murder
during the commission of a first degree burglary and during the
commission of attempted first degree robbery. Defendant was
also convicted of attempted first degree robbery (count 2) and
first degree burglary (count 3), with a principal armed in the
commission of the offenses (§ 12022, subd. (a)(1)).
On February 26, 2016, defendant was sentenced to life in
prison without the possibility of parole (LWOP) as to count 1,
plus one year for the firearm allegation. The court imposed a
sentence of three years plus a one-year firearm enhancement as
to count 2, and a term of six years plus a one-year firearm
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
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enhancement as to count 3. The sentences as to counts 2 and 3
were stayed pursuant to section 654.
Section 190.2, subdivisions (a)(17) and (d) provide, and
provided at the time of defendant’s 2014 conviction, that LWOP
or the death penalty could be imposed on an aider or abettor, not
the actual killer, whose accomplice committed murder during the
commission or attempted robbery or burglary, so long as the
aider and abettor was a major participant in the crime and acted
with reckless indifference to human life. (See Stats. 1998,
ch. 629, § 2.) Defendant appealed from the 2014 judgment,
challenging the true findings on the section 190.2 special
circumstance on the ground that they were not supported by
substantial evidence. (See People v. Aikens (Nov. 2, 2017,
B270559) [nonpub. opn.] (Aikens).)
The Aikens opinion’s summary of the evidence indicates
that defendant and his codefendant attempted to rob a marijuana
dealer, and during the attempted robbery, one of them shot and
killed the dealer. (Aikens, supra, B270559 at pp. 3-6.)
Substantial evidence indicated that the codefendant, not
defendant, was the actual killer, as the codefendant brought a
gun and brandished it during the robbery. There was no
evidence that defendant had a gun. (Id. at p. 9.) After applying
the factors in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522 to the evidence, we concluded that
the evidence was insufficient to show that defendant acted with
reckless indifference to human life. (Aikens, at pp. 10-15.)
Therefore, we reversed the true finding on the special
circumstance and remanded for resentencing. (Id. at pp. 9, 15.)
On remand, defendant filed a petition pursuant to section
1170.95 for resentencing, alleging that he was convicted of first
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degree felony murder, that he could no longer be convicted
because of changes to sections 188 and 189, that he was not the
actual killer, did not act with the intent to kill, was not a major
participant in the felony or did not act with reckless indifference
to human life, and the victim was not a peace officer. The
prosecution opposed the petition on the asserted grounds that
section 1170.95 was unconstitutional, and that our finding on
appeal that defendant did not act with reckless indifference to
human life should be reconsidered by the trial court. At a
hearing on the petition, defendant was represented by previously
appointed counsel. The trial court heard arguments, found that
the statute was not unconstitutional and that defendant had
made a prima facie case for granting the petition. The court
issued an order to show cause why the requested relief should not
be granted.
After hearing on the order to show cause, the trial court
granted the petition. Relying on our decision in People v.
Ramirez (2019) 41 Cal.App.5th 923 (Ramirez), the court
explained that although it disagreed with the finding in
defendant’s appeal that he had not acted with reckless
indifference to human life, the court had no discretion to deny
vacatur of defendant’s first degree murder conviction. On
January 14, 2020, the trial court vacated defendant’s first degree
murder conviction, and added a conviction of second degree
murder. The court then sentenced defendant to a term of 15
years to life for that offense, plus one year for the firearm
enhancement.2
2 The trial court relied on a pre-Senate Bill No. 1437
(S.B. 1437) California Supreme Court decision, People v. Chiu
(2014) 59 Cal.4th 155. In that case, the court held that a
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Defendant filed a timely notice of appeal from the
judgment.
DISCUSSION
Defendant contends that the trial court had no authority to
reduce the first degree murder conviction to second degree
murder, but was instead required to vacate count 1 and sentence
him on the remaining counts, attempted first degree robbery and
first degree burglary. Respondent agrees, as do we.
Second degree murder is the unlawful killing of a human
being with malice aforethought that is not willful, deliberate and
premeditated. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102;
§§ 187, subd. (a), 189.) Malice may be express or implied. (§ 188;
Nieto Benitez, at p. 102.) S.B. 1437 added section 1170.95 and
amended sections 188 and 189. As amended, section 188 limits a
finding of malice as follows: “Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) As added by S.B. 1437, subdivision (e) of
section 189 reads: “A participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a)
defendant who has been convicted of murder under the natural
and probable consequences could not be convicted of first degree
murder, and such a conviction must be reduced to second degree
murder. (Id. at pp. 166-167.) It was thus inapplicable to section
1170.95 and post S.B. 1437 felony murder convictions. We
granted respondent’s request that we take judicial notice of the
appellate record in Aikens, supra, B270559, and we note that the
jury was extensively instructed regarding felony murder liability
(CALJIC Nos. 8.10, 8.21, 8.21.1, 8.21.2, 8.26, and 8.27), but not
the natural and probable consequences doctrine.
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[including attempted robbery and first degree burglary] 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.”
The trial court correctly determined that the finding in our
opinion that defendant was not the actual killer and did not act
with reckless indifference to human life required it to vacate
defendant’s murder conviction and to resentence him. (§ 1170.95,
subd. (d)(2); see Ramirez, supra, 41 Cal.App.5th at p. 932.) There
is, however, no provision in section 1170.95 for substituting
second degree murder in place of a first degree murder conviction
or for reducing first degree murder to second degree murder.
Current section 189 does not limit its application to first degree
murder, but unambiguously applies to murder, without regard to
its degree. Where, as here, the prosecution fails to prove beyond
a reasonable doubt that the petitioner is ineligible for
resentencing, “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.”
(§ 1170.95, subd. (d)(3), italics added; Ramirez, at p. 933.) Here,
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the remaining charges are count 2, attempted first degree
robbery, and count 3, first degree burglary.3
Though defendant may have served the maximum possible
sentence, the trial court is permitted to resentence defendant on
the remaining counts and to order defendant subject to parole
supervision for up to three years. (§ 1170.95, subd. (g); People v.
Wilson (2020) 53 Cal.App.5th 42, 46.)
3 The only provision in section 1170.95 authorizing the
replacement of the vacated conviction with another is found in
subdivision (e): “If petitioner is entitled to relief pursuant to this
section, murder was charged generically, and the target offense
was not charged, the petitioner’s conviction shall be redesignated
as the target offense or underlying felony for resentencing
purposes.” (See e.g. People v. Howard (2020) 50 Cal.App.5th 727,
729-738.)
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DISPOSITION
The judgment entered upon vacatur and resentencing
pursuant to section 1170.95 is reversed. The matter is remanded
to the superior court with directions to vacate count 1 in its
entirety, and resentence defendant on the remaining counts,
count 2, attempted first degree robbery and count 3, first degree
burglary, and to give defendant credit for the time he has served.
The superior court is further directed to prepare an amended
abstract of judgment reflecting the new sentence, and to forward
it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
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