People v. Pitts CA2/4

Filed 1/25/21 P. v. Pitts 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301227 consolidated with B306084
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA016655)
v.
JESSE PITTS,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, John J. Lonergan, Judge. Reversed and remanded with
directions.
Edward S. Temko, 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, Charles S. Lee and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Jesse Pitts filed two notices of appeal from the
trial court’s denial of his petition for resentencing under Penal
Code section 1170.95.1 We consolidated the appeals for all
purposes.
Appellant contends the trial court erred in denying his
petition because the record before it did not establish his
ineligibility for relief as a matter of law. Respondent Attorney
General agrees and concedes remand is required. We agree,
reverse the trial court’s orders dated August 8, 2019 and March
10, 2020, and remand for issuance of an order to show cause and
any other further proceedings required by section 1170.95.
Appellant also requests that we treat his appeals as a writ
of habeas corpus and consider thereunder two arguments
regarding the jury instructions given at his trial. We deny the
request. Appellant’s request for judicial notice is also denied.
FACTUAL BACKGROUND2
In 1992, appellant and several others participated in the
fatal beating and sodomy of Cornelius Johnson. Evidence
presented at a joint 1994 jury trial showed that Johnson died
from blunt head and facial injuries following a beating, and that
the contemporaneous insertion of more than a gallon of
pressurized water into his rectum was an independent cause of
death.
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2We draw the factual background from our prior opinion
affirming appellant’s conviction in People v. Pitts (June 24, 1996,
B087300) [nonpub. opn.], which is included in the record on
appeal.
2
On the day of the incident, approximately ten individuals
began beating Johnson when he emerged from an alley. “Most of
the attackers left before Johnson began bleeding,” but appellant
continued punching Johnson even after Johnson fell to the
ground and was unable to get up. Appellant stopped punching
Johnson when another person on the scene told appellant, “That’s
enough,” and cautioned appellant that appellant “would kill
Johnson if he did not stop.” Appellant then “stopped, stepped
back a few feet, and watched.”
While appellant watched, his codefendant, Alfred Wilson,
pulled down Johnson’s pants. When Johnson attempted to pull
up his pants and leave, Wilson directed another codefendant,
James Lavelle Kelly, to “stomp him out.” Kelly stomped on
Johnson’s face with his feet six to 10 times; Johnson remained
conscious during this attack. At Wilson’s direction, Kelly then
activated a water hose. As the water began to flow, Kelly kicked
Johnson several more times. Kelly and appellant then watched
“as Wilson inserted the hose into Johnson’s rectum multiple
times.” Appellant and the others fled the scene when police
arrived.
PROCEDURAL HISTORY
In 1994, a jury convicted appellant of first degree murder
(§ 187, subd. (a)) and anal penetration by a foreign object (§ 289),
and the trial court found that appellant suffered a prior serious
felony conviction. The trial court sentenced appellant to an
aggregate term of 36 years to life. We affirmed appellant’s
convictions and sentence on direct appeal.
On April 8, 2019, appellant, acting in propria persona, filed
a petition for resentencing under section 1170.95. That provision
permits persons convicted of murder under theories of felony
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murder or 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), to petition the
sentencing court to vacate the conviction and resentence on any
remaining counts. In the petition, appellant asserted that he met
the criteria for relief and requested the appointment of counsel.
On June 6, 2019, the trial court appointed counsel for
appellant and continued the matter to August 2, 2019.
On August 1, 2019, the prosecution filed a written
opposition to appellant’s petition. In addition to arguing that
section 1170.95 was unconstitutional, the prosecution contended
that appellant was ineligible for relief as a matter of law because
he was either an actual killer or a major participant who acted
with reckless indifference to human life. The prosecution
attached a copy of our prior opinion to its opposition.
On August 2, 2019, the court heard the case and advised
that its tentative was to “summarily deny” the petition; only the
minute order documenting this hearing is in the record. The
court later orally explained3 that appellant’s counsel requested a
continuance to respond to the tentative. The court granted the
request and continued the matter to September 16, 2019.
However, through inadvertence, on August 5, 2019, the court
issued a minute order denying the petition for the three reasons
stated in its tentative: (1) the jury was instructed with a still-
valid theory that appellant tortured Johnson and therefore acted
with implied malice; (2) appellant directly aided and abetted the
killing by participating in the fatal beating of Johnson; and (3)
3The court summarized the procedural history of the case
during the March 12, 2020 hearing. Neither side disputed the
court’s recollection.
4
appellant was a major participant who acted with reckless
indifference to human life. The September 16, 2019 hearing date
was vacated. Appellant timely filed a notice of appeal from the
August 5, 2019 minute order on September 3, 2019.
On September 9, 2019, appellant filed, in propria persona,
a petition for writ of habeas corpus in the trial court. In the
petition, he argued that reversal of his first degree murder
conviction was required under People v. Chiu (2014) 59 Cal.4th
155 because “[t]here is a possibility that the jury relied on the
natural and probable consequences instruction in reaching its
verdict.”
On September 20, 2019, the trial court reviewed the writ
petition in chambers. The minute order documenting that review
states in relevant part, “The petitioner raises issues that were
previously addressed by the court. [¶] The case is currently
under review by a higher court. [¶] This court has no jurisdiction
to hear this matter. [¶] The petition is denied.” Appellant did
not file a new petition in this court. (See Robinson v. Lewis
(2020) 9 Cal.5th 883, 895 [“[I]n noncapital cases, if the superior
court denies a petition for a writ of habeas corpus, the petitioner
has no statutory right to appeal. Instead, the petitioner must file
a new, original petition, generally in the Court of Appeal.”].)
On February 26, 2020, the trial court discovered that it had
inadvertently reduced its tentative to a minute order denying
appellant’s section 1170.95 petition on August 5, 2019. The court
notified appellant’s counsel and the prosecution of the error and
set the matter for hearing on March 12, 2020.4
4“‘Itis not open to question that a court has the inherent
power to correct clerical errors in its records so as to make these
records reflect the true facts. [Citations.] The power exists
5
On March 11, 2020, appellant’s counsel filed a response to
the trial court’s original tentative and the prosecution’s
opposition. Counsel argued that relief was warranted under
section 1170.95 because appellant may have been convicted
under the natural and probable consequences theory, which was
“a principal part of [the] jury instruction[s]” and “cannot be
separated out at this present time.” He further asserted that the
prosecution “could not prove him guilty beyond a reasonable
doubt under the theories espoused by the prosecution under the
law in existence now,” and the prosecution could not argue a
different theory than it did at his trial.
The trial court heard the matter on March 12, 2020. It
stated that it was denying the section 1170.95 petition “for the
same reasons again.” Specifically, it stated, “The jury was
instructed of [sic] not only the natural and probable consequence
theory, but they were also instructed the only theory of first
degree murder was torture in which the jury would have had to
find implied malice. I also indicated in my denial that the victim
was repeatedly beaten by the petitioner and three other
participants. The coroner testified that the beating was enough
to kill the victim. Then finally, the petitioner played a major role
as one of the few individuals that continued the assault on the
victim after most of the others had left the scene. And even after
the petitioner was warned that further assault would kill the
independently of statute and may be exercised in criminal as well
as in civil cases. [Citation.] The power is unaffected by the
pendency of an appeal or a habeas corpus proceeding. [Citation.]
The court may correct such errors on its own motion or upon the
application of the parties.’” (People v. Mitchell (2001) 26 Cal.4th
181, 185, quoting In re Candelario (1970) 3 Cal.3d 702, 705.)
6
victim, he continued to act with reckless indifference to human
life.” The minute order documenting the hearing states in
relevant part, “The court conducts a hearing re denial of petition
pursuant to Penal Code section 1170.95. The ruling of 8/5/19
stands—the petition is denied.”
Appellant timely appealed the March 12, 2020 ruling on
May 7, 2020. We consolidated his two appeals for all purposes on
June 24, 2020.
DISCUSSION
I. Section 1170.95 Petition
A. Governing Law
In 2018, the Legislature enacted Senate Bill No. 1437 (SB
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).) To that end, SB 1437 amended sections 188 and 189.
Section 188, subdivision (a)(3) now provides that “in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
Section 189 now provides that a participant in qualifying felonies
during which a death occurs generally will not be liable for
murder unless (1) he or she was “the actual killer,” (2) he or she,
“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,” or (3) he or she “was a
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major participant in the underlying felony [who] acted with
reckless indifference to human life.” (§ 189, subds. (e)(1)-(3).)
SB 1437 also added section 1170.95, which permits a
person whose murder conviction could have been made under a
felony murder theory or pursuant to the natural and probable
consequences doctrine 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) A declaration by the petitioner that he or she
is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).)
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. (People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review
granted March 18, 2020, S260493 (Verdugo).) At the first step,
the court’s role “is simply to decide whether the petitioner is
ineligible for relief as a matter of law, making all factual
inferences in favor of the petitioner.” (Id. at p. 329.) In addition
to the allegations of the petition, the court may review readily
ascertainable information in the record of conviction and the
court file, such as the information or indictment, the verdict form,
and the abstract of judgment. (Ibid.) If these documents reveal
that the petitioner is ineligible for relief, the trial court may
summarily dismiss the petition. (Id. at p. 330.)
If the petition and record of conviction do not establish as a
matter of law the petitioner’s ineligibility for resentencing,
8
evaluation of the petition proceeds to the second step of the prima
facie review. At that step, “the court must direct the prosecutor
to file a response to the petition, permit the petitioner (through
appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis,
whether the petitioner has made a prima facie showing he or she
is entitled to relief.” (Verdugo, supra, 44 Cal.App.5th at p. 330.)
The trial court must accept as true the petitioner’s factual
allegations and make a preliminary assessment regarding
whether the petitioner would be entitled to relief if the factual
allegations were proved. (Id. at p. 328.) The trial court’s
authority to make factual determinations at this stage extends
only to “readily ascertainable facts from the record (such as the
crime of conviction), rather than factfinding involving the
weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference
to human life in the commission of the crime).” (People v.
Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton).)
If the trial court concludes the petitioner has made a prima
facie showing that he or she is entitled to relief, it must issue an
order to show cause. (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).)
We review de novo the predominantly legal question of
whether a petitioner has made a prima facie showing. (See
9
People v. Drayton, supra, 47 Cal.App.5th at p. 981; see also
Smiley v. Citibank, N.A. (1995) 11 Cal.4th 138, 146
[“Independent review is called for when the underlying
determination involves a purely legal question or a
predominantly legal mixed question.”].)
B. Analysis
Appellant contends the court erred in denying his petition
because the materials before the trial court did not conclusively
show that he was ineligible for relief. Specifically, he contends
the jury was instructed on the now-invalid natural and probable
consequences doctrine, “and the People cannot show the jury did
not rely on it.” Appellant also argues that the court erroneously
found that he was a major participant who acted with reckless
indifference.
The Attorney General concedes the court erred. It agrees
with appellant that “the record of conviction did not establish as
a matter of law that appellant was ineligible for relief as the
actual killer, a direct aider and abettor who acted with malice, or
a major participant in the underlying felony who acted with
reckless indifference to human life.” It further acknowledges that
the record “does not establish as a matter of law that appellant
acted with malice aforethought,” such that appellant “could have
been convicted under a vicarious theory of murder liability
without proof of malice.” The Attorney General additionally
asserts that the trial court erred by making the factual finding
that appellant was a major participant who acted with reckless
indifference to human life.
We agree with the parties that the record fails to
demonstrate appellant’s ineligibility for relief as a matter of law.
The record shows that the jury was instructed on the natural and
10
probable consequences theory, and its finding that appellant
committed first degree murder by means of torture did not
establish that it found malice. At the time of his conviction,
“murder by means of torture, a statutorily listed type of first
degree murder (§ 189), d[id] not require an intent to kill, but
require[d] the intent to torture.” (People v. Whisenhunt (2008) 44
Cal.4th 174, 201.) Furthermore, the record evinces no jury
finding that appellant was the actual killer or was a major
participant who acted with reckless disregard for human life.
The court acted prematurely in making a factual finding that
appellant was a major participant who acted with reckless
disregard for human life. (See People v. Drayton, supra, 47
Cal.App.5th at p. 980.)
Although the parties agree remand is necessary, their
views of the proceedings required on remand differ. Appellant
contends that we should direct the trial court to issue an order to
show cause and hold an evidentiary hearing. The Attorney
General argues that the trial court “should be directed to appoint
counsel as appellant requested, allow the parties to brief the
issues, and proceed to the second step” of the prima facie review.
Appellant replies that the trial court already appointed counsel
and held a hearing, and that the Attorney General’s concessions
demonstrate his entitlement to an order to show cause.
We agree with appellant. The trial court appointed counsel
for appellant, received briefing, and held a hearing before
denying appellant’s petition for failure to make a prima facie
case. We concluded that ruling was in error; appellant made a
prima facie case. Pursuant to section 1170.95, subdivision (c),
“[i]f the petitioner makes a prima facie showing that he or she is
11
entitled to relief, the court shall issue an order to show cause.”
We will direct the trial court to do so on remand.
II. Requests for Habeas Corpus and Judicial Notice
In addition to arguing that the trial court erred in denying
his section 1170.95 petition, appellant contends that the trial
court committed instructional errors during his 1994 trial. He
contends the court erred by instructing the jury on the natural
and probable consequences doctrine and by failing to instruct on
lesser included offenses. Appellant requests that we “treat the
appeal as a writ of habeas corpus” so that we “can properly
resolve this issue now.” He has also filed a request for judicial
notice of materials that were not before the trial court deciding
his section 1170.95 petition, including the briefs he filed in his
direct appeal and the reporter’s transcript of his trial. We deny
both requests.
As appellant accurately observes in his opening brief, “It
has long been the law in California that, while a Court of Appeal
may have original jurisdiction in a habeas corpus proceeding, it
has the discretion to deny a petition without prejudice if it has
not been first presented to the trial court.” (In re Kler (2010) 188
Cal.App.4th 1399, 1403.) It does not appear that appellant has
presented these issues to the trial court. To the extent that his
September 9, 2019 writ petition addressed the issues he seeks to
raise here, the trial court denied the petition, and appellant did
not file a proper petition seeking review by this court. We
accordingly decline to treat this appeal as a petition for writ of
habeas corpus in the first instance.
Moreover, we agree with the Attorney General that
appellant’s natural and probable consequences claim would not
be cognizable on habeas corpus review even if we were inclined to
12
afford writ review. Appellant argues that his murder conviction
cannot stand because SB 1437 invalidated the natural and
probable consequences doctrine in the context of murder cases.
“Those who suffered convictions for murder under the felony
murder rule or natural and probable consequences doctrine
before SB 1437’s enactment can obtain relief under the new law,
but only through the petition process” prescribed by section
1170.95. (People v. Cervantes (2020) 46 Cal.App.5th 213, 221; see
also People v. Martinez (2019), 31 Cal.App.5th 719, 727-728
(Martinez).) Appellant’s instant appeal is the proper—and
exclusive—vehicle by which he may raise his natural and
probable consequences argument.
Appellant argues that Martinez “did not rule a petition
under section 1170.95 was the exclusive means to have the
conviction set aside, . . and specifically noted a habeas petition
could be brought under the right circumstances.” Appellant
misreads Martinez. In Martinez, the court considered whether a
defendant whose direct appeal was pending when SB 1437
became effective could seek resentencing relief in his already
pending appeal, without first filing a section 1170.95 petition in
the trial court. (Martinez, supra, 31 Cal.App.5th at p. 722.) The
court expressly held that a “defendant must file a section 1170.95
petition in the trial court to seek retroactive relief under Senate
Bill 1437.” (Id. at p. 729; see also ibid. [“the section 1170.95
petition procedure is the avenue by which defendants with
nonfinal sentences of the type specified in section 1170.95,
subdivision (a) must pursue relief”].)”
Ignoring this explicit language, appellant points to a
paragraph in Martinez in which the court observed that “some
defendants may believe themselves able to present a particularly
13
strong case for relief under the changes worked by Senate Bill
1437 and wish to seek that relief immediately rather than await
the full exhaustion of their rights to directly appeal their
conviction. Our holding today does not foreclose such immediate
relief in an appropriate case.” (Martinez, supra, 31 Cal.App.5th
at p. 729.) Appellant asserts that this excerpt demonstrates that
SB 1437 claims may be pursued on habeas corpus. It does not.
In the very next paragraph, the Martinez court clarifies that a
defendant with a pending direct appeal who wishes to
immediately file a section 1170.95 petition “retains the option of
seeking to stay his or her pending appeal to pursue relief under
Senate Bill 1437 in the trial court.” (Ibid.) Appellant is not
among this limited class of defendants—his direct appeal
concluded more than 15 years ago—and requesting a stay of a
pending appeal is not analogous to filing a petition for writ of
habeas corpus. Martinez does not support appellant’s request to
treat his appeal as a petition for writ of habeas corpus. To the
extent the alleged instructional errors are relevant to appellant’s
eligibility for relief under section 1170.95, he may raise them on
remand.
Because we decline to treat the appeal as a writ petition,
the extra-record materials of which appellant seeks judicial
notice are not relevant to our review. His request for judicial
notice accordingly is denied. (See People ex rel. Lockyer v.
Shamrock Foods (2000) 24 Cal.4th 415, 422-423, fn. 2.)
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DISPOSITION
The orders summarily denying appellant’s section 1170.95
petition are reversed, and the matter is remanded with directions
to issue an order to show cause and proceed pursuant to section
1170.95, subdivisions (c) and (d). The request for judicial notice
is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
15