People v. Savage CA2/7

Filed 3/12/21 P. v. Savage CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304404
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A146871-03)
v.
BOBBY RAY SAVAGE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael V. Jesic, Judge. Reversed and
remanded with directions.
Susan L. Jordan, 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, Senior
Assistant Attorney General, Idan Ivri and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
______________
Bobby Ray Savage, convicted in 1984 of first degree felony
murder, mayhem and assault with a caustic chemical, appeals
the postjudgment order denying his petition for resentencing
under Penal Code section 1170.95.1 Savage contends the superior
court’s ruling he was ineligible for resentencing as a major
participant in the underlying offense of mayhem who had acted
with reckless indifference to human life was impermissibly based
on factfinding conducted prior to issuance of an order to show
cause and evidentiary hearing. The Attorney General agrees the
court should not have engaged in factfinding on the reckless
indifference question without issuing an order to show cause.
Nonetheless, the Attorney General urges us to affirm the order
based on an alternate ground: Savage’s jury found true on the
mayhem and aggravated assault counts that Savage had
personally inflicted great bodily injury on the victim (§ 12022.7),
which necessarily meant it found Savage was the actual killer,
making him ineligible for resentencing as a matter of law.
Although we disagree with Savage’s response to the
Attorney General—he contends our review on appeal must be
limited to determining whether the trial court’s reason for
denying the petition was correct—in the superior court the
prosecutor expressly stated she did not intend “to exploit any
ambiguity in the evidence” concerning Savage’s role in the crime
and, therefore, was not relying on an argument Savage was the
1 Statutory references are to this code.
2
actual killer in opposing his petition for resentencing. Under
these circumstances, any contention Savage was the actual killer,
like the argument he was a major participant in the mayhem and
had acted with reckless indifference to human life, must be
addressed following issuance of an order to show cause.
FACTUAL AND PROCEDURAL BACKGROUND
1. Savage’s Conviction for Felony Murder
a. The attack
Richard Gilman and his fiancée Patricia Worrell had an
acrimonious breakup. In late July 1980 Gilman, after telling a
prostitute in Las Vegas that he was looking for a “hit man” to
“mess up” a woman in Los Angeles, met and hired Savage, the
prostitute’s pimp, to attack and disfigure Worrell. Gilman agreed
to pay Savage $1,500, advancing $750 as an initial payment.
Savage drove to Los Angeles and went to Worrell’s home on
several occasions, but did not attack Worrell because there were
always other people around when he was there. Gilman was
upset the job had not been completed and threatened Savage.
Savage then enlisted Ricardo Robinson to do the job with him.
Robinson contacted Gilman, and Gilman agreed to pay Robinson
$1,000 to throw lye or acid on Worrell.
On August 14, 1980 Savage and Robinson drove to
Worrell’s home from Las Vegas. They brought with them a glass
jar in which they had mixed the contents of a can of drain cleaner
(later determined to contain sodium hydroxide or lye) and water.
When they arrived, Savage told Robinson he would turn on the
headlights of the car parked in the driveway, which Robinson
could then use as a ruse to get Worrell to open the front door.
Savage handed Robinson the jar with the caustic liquid. As
planned, Worrell opened the door in response to being told her
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car’s lights had been left on. Robinson threw the liquid in
Worrell’s face.
Immediately after the attack Worrell was rushed to the
hospital, suffering from burns to her face and upper body. In
addition, Worrell ingested some of the caustic liquid, which
burned through her esophagus, causing a massive arterial
hemorrhage. She died 10 days after being hospitalized.
While in the hospital Worrell told her son a Black man had
knocked on her door and threw the liquid in her face. She made a
similar statement to the detective investigating the case.
Robinson is Black; Savage is White. In addition, evidence at trial
established that Robinson had severe burns on his hands
immediately after the incident, consistent with coming into
contact with a caustic liquid.
b. Trial
Savage, Robinson and Gilman were all charged with first
degree murder with special circumstance allegations the murder
had been perpetrated for financial gain and by torture, as well as
counts charging mayhem, assault with a caustic substance and
conspiracy to commit those offenses. Savage’s case was severed
from the other two men’s (see People v. Robinson (1997)
53 Cal.App.4th 270, 275; People v. Gilman (1984) 156 Cal.App.3d
760, 762, fn. 1), and he was tried on a theory of felony murder as
an aider and abettor of the planned mayhem of Worrell.
Savage was convicted of first degree murder, mayhem and
assault with a caustic substance. The jury also found true the
special allegations that Savage had inflicted great bodily injury
during the commission of mayhem and the aggravated assault.
He was sentenced to an indeterminate state prison term of
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25 years to life for murder. Sentences on the other two counts
and the related enhancements were stayed.
2. Savage’s Section 1170.95 Petition and the Prosecutor’s
Responses
Savage, representing himself, filed a petition for
resentencing pursuant to section 1170.95 on November 26, 2018.
He attached as exhibits to the petition a portion of the trial
testimony of Worrell’s treating physician, who explained
ingesting a caustic liquid is likely to cause death in only 1 percent
of cases, that is, in his opinion throwing lye in someone’s face is
not likely to cause death. Also attached was a letter from
Savage’s trial counsel in support of granting Savage parole,
which explained the case had been tried as a felony murder, not
on the theory Savage and Robinson had intended to kill Worrell.
Counsel was appointed to represent Savage. The
prosecutor and Savage’s counsel initially filed briefs regarding
the constitutionality of section 1170.95, an issue subsequently
abandoned by the district attorney’s office. Savage’s counsel also
submitted a memorandum asserting Savage had made a prima
facie showing of eligibility for resentencing, as required for
issuance of an order to show cause pursuant to section 1170.95,
subdivision (c).
On November 5, 2019, after hearing argument directed to
the prosecutor’s contention Savage could still be convicted of
murder under amended section 188 on a theory of implied malice,
the court invited the parties to submit supplemental briefing on
that issue. Savage’s counsel filed two additional memoranda, and
the prosecutor filed a supplemental opposition to the petition.
Savage’s counsel identified four questions for the court to resolve:
(1) who threw the caustic chemical; (2) was Savage an aider and
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abettor who had acted with intent to kill; (3) may the People raise
new theories of liability during an eligibility hearing, specifically,
implied malice; and (4) had Savage acted with reckless
indifference to human life?
In her opposition the prosecutor, after acknowledging
Savage’s jury had been instructed, and he had been convicted of
murder, solely on the theory of first degree felony murder in the
commission of mayhem, informed the court it was unnecessary to
consider the first two questions Savage raised. The prosecutor
stated the record of conviction contained conflicting evidence
whether Savage was the actual killer, noting there was
“compelling evidence that Robinson was the direct perpetrator,”
but the jury had found true the special allegation that Savage
had personally inflicted great bodily injury on the victim. The
brief continued, “The People do not intend to exploit any
ambiguity in the evidence, and hereinafter assume arguendo that
he was not the actual killer for the purposes of this response.” In
addition, to decide whether Savage had established a prima facie
case of eligibility for resentencing, the prosecutor contended, “it is
unnecessary to determine whether or not Petitioner acted with
the intent to kill” because he had “acted with reckless
indifference and/or conscious disregard for human life” and,
therefore, could be “convicted of second degree murder with
malice aforethought.”
3. The Trial Court’s Ruling
At the continued hearing on January 14, 2020 the court
confirmed its understanding the prosecutor was not contending
Savage had been Worrell’s actual killer. Savage’s counsel argued,
“[Savage is] obviously not the person who throws the chemical
because, if he was, then he’s the actual killer here. And I don’t
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believe that’s the People’s position. And I set forth in my moving
papers why it’s clear that he is not the person who throws the
chemical.” The court responded, “I accept that. And I don’t think
[the prosecutor] is arguing any different.” The prosecutor agreed,
“No, I’m not. . . . I do think there is some ambiguity in the
record.” The court again stated, “And I’m willing to accept in this
proceeding that he was not the actual killer.”
The court thereafter indicated its tentative ruling was to
find Savage could have been convicted as a major participant in
the commission of mayhem who had acted with reckless
indifference to human life, making him ineligible for
resentencing. Savage’s counsel conceded Savage had been a
major participant in the underlying felony, but argued there was
no evidence in the record indicating Savage and Robinson had
intended to kill Worrell, rather than disfigure her, or that Savage
and his crime partners had discussed throwing the caustic liquid
in Worrell’s face. In addition, Savage’s counsel emphasized the
medical testimony regarding how unlikely it was that an attack
as perpetrated in this case would cause the victim’s death.
The court denied the petition, finding Savage had failed to
establish a prima facie case for resentencing. Explaining its
reasoning, the court stated, “I see this very similar to shooting
someone in the leg and saying, ‘Well, I only wanted to hurt them.
I didn’t want to kill them.’ To throw lye in someone’s face, I can’t
even imagine that you could do that without thinking that the
person could die. . . . I have no doubt when they went up that
they went up with the intent to maim her. But I also believe they
went up fully knowing that whatever happened, happened, and
one of those possibilities was definitely that she could die from
this. Not that that’s what their actual intent was at the time was
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to kill her, but that they knew that that was a possibility. They
didn’t care. So I do find that he was not only a major participant
but acted with reckless indifference to human life.”
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
As discussed in a rapidly expanding number of appellate
decisions, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) (Senate Bill 1437), effective January 1,
2019, significantly modified the law relating to accomplice
liability for murder. (People v. Gentile (2020) 10 Cal.5th 830, 839,
842-43 (Gentile).) New section 188, subdivision (a)(3), added by
the legislation, eliminates the natural and probable consequences
doctrine as a basis for finding a defendant guilty of murder by
providing, “Except as stated in subdivision (e) of Section 189, 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.” (See
Gentile, at p. 848 [Senate Bill 1437 eliminates natural and
probable consequences liability for murder regardless of degree].)
New section 189, subdivision (e), limits the felony-murder
exception to the malice requirement, permitting a murder
conviction for a death that occurred during the commission of
certain serious felonies only when the defendant was the actual
killer, aided or abetted the underlying felony with the intent to
kill, or was a major participant in the felony and acted with
reckless indifference to human life.2
2 Section 189, subdivision (e), provides with respect to a
participant in the perpetration or attempted perpetration of a
8
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
p. 859.) The petition must include a declaration by the petitioner
that he or she is eligible for relief under section 1170.95 and a
statement whether the petitioner requests the appointment of
counsel. (§ 1170.95, subd. (b)(1); see People v. Verdugo (2020)
44 Cal.App.5th 320, 326-327 (Verdugo), review granted Mar. 18,
2020, S260493.)
If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a process for the court
to determine whether an order to show cause should issue: “The
court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel,
felony listed in section 189, subdivision (a), in which a death
occurs—that is, as to those crimes that provide the basis for the
charge of first degree felony murder—that an individual 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.”
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the court shall appoint counsel to represent the petitioner. The
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply. . . . If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.”
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. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230,
review granted Mar. 10, 2021, S266652; but see People v. Duke
(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021,
S265309 [prosecutor must only prove a reasonable jury could find
the defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial
evidence”].)3 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
3 In granting review in People v. Duke, S265309, the
Supreme Court limited the issue to be briefed and argued to the
following: “Can the People meet their burden of establishing a
petitioner’s ineligibility for resentencing under Penal Code
section 1170.95, subdivision (d)(3) by presenting substantial
evidence of the petitioner’s liability for murder under Penal Code
sections 188 and 189 as amended by Senate Bill No. 1437
(Stats. 2018, ch. 1015), or must the People prove every element of
liability for murder under the amended statutes beyond a
reasonable doubt?”
10
their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. Savage Made a Prima Facie Showing He Is Entitled to
Relief Under Section 1170.95
It is undisputed Savage was convicted of Worrell’s murder
under a felony-murder theory. In his opening brief in this court
Savage makes a persuasive argument he satisfied the other
requirement for issuance of an order to show cause under
section 1170.95, subdivision (c)—that is, he made a prima facie
showing he could not now be convicted of felony murder because
of Senate Bill 1437’s changes to sections 188 and 189.
Specifically, Savage demonstrated, although he had been a major
participant in the attack on Worrell, there was conflicting
evidence in the trial record whether in aiding and abetting that
crime he had acted with reckless indifference to his victim’s life.
(See, e.g., People v. Drayton, supra, 47 Cal.App.5th at p. 968
[“[T]he trial court should accept the assertions in the petition as
true unless facts in the record conclusively refute them as a
matter of law. . . . In assessing the petitioner’s prima facie
showing, the trial court should not weigh evidence or make
credibility determinations”]; People v. Lewis, supra,
43 Cal.App.5th at p. 1168 [to defeat the petitioner’s prima facie
showing, the record of conviction must establish as a matter of
law that petitioner is not entitled to relief].)4
4 The nature and scope of the prima facie review under
section 1170.95, subdivision (c), following briefing by the
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In the respondent’s brief the Attorney General agrees the
superior court erred in refusing to accept Savage’s allegations of
his subjective intent for purposes of evaluating his prima facie
case for relief, acknowledging, “[T]he court should not have
engaged in factfinding on the reckless indifference question
without issuing an OSC.” Nonetheless, arguing a correct
outcome must be affirmed on appeal even if the superior court
employed incorrect reasoning, the Attorney General contends
denial of Savage’s petition was proper in light of the true finding
that Savage had personally inflicted great bodily injury during
the attack on Worrell, which necessarily means the jury found
Savage was the actual killer. We decline the Attorney General’s
invitation to decide the case on a ground the prosecutor expressly
disclaimed as a basis to deny the petition without an evidentiary
hearing.
As the Attorney General’s argument suggests, if the record
of conviction before the superior court established a properly
instructed jury found the petitioner had personally inflicted the
prosecutor and counsel for petitioner “is equivalent to the
familiar decisionmaking process before issuance of an order to
show cause in habeas corpus proceedings, which typically follows
an informal response to the habeas corpus petition by the
Attorney General and a reply to the informal response by the
petitioner. . . . ‘The court must issue an order to show cause if
the petitioner has made a prima facie showing that he or she is
entitled to relief. In doing so, the court takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.’” (Verdugo, supra, 44 Cal.App.5th at
p. 328, review granted.)
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injury that caused the victim’s death, and no legal impediment
precluded reliance on that finding, the court could properly deny
the section 1170.95 petition without issuing an order to show
cause. (Verdugo, supra, 44 Cal.App.5th at p. 330, review granted
[the record of conviction might include information that
establishes the petitioner is ineligible for relief as a matter of
law—“for example, a petitioner who admitted being the actual
killer as part of a guilty plea or who was found to have personally
and intentionally discharged a firearm causing great bodily
injury or death in a single victim homicide”]; accord, People v.
Falcon (2020) 57 Cal.App.5th 272, 275, review granted Jan. 27,
2021, S266041; People v. Cornelius (2020) 44 Cal.App.5th 54, 58,
review granted Mar. 18, 2020, S260410); People v. Lewis, supra,
43 Cal.App.5th at pp. 1139-1140, review granted; see also People
v. Allison (2020) 55 Cal.App.5th 449, 461 [“[n]othing in the
language of section 1170.95 suggests it was intended to provide
redress for allegedly erroneous prior factfinding”].) And, contrary
to Savage’s argument in his reply brief, we generally affirm a
trial court’s ruling if correct on any ground, even if the court’s
reasoning was incorrect. (See, e.g., People v. Brooks (2017)
3 Cal.5th 1, 39; People v. Chism (2014) 58 Cal.4th 1266, 1295,
fn. 12.) But these principles are not applicable here for
three related reasons.
First, although the section 12022.7 great bodily injury
enhancement is properly imposed only on defendants “who
directly perform the act that causes the physical injury to the
victim” (People v. Cole (1982) 31 Cal.3d 568, 579), the jury
instructions given in Savage’s case with respect to that
enhancement were not before the superior court and are not part
of the record on appeal, even as augmented at the request of the
13
Attorney General.5 Accordingly, there is no way to tell if the jury
was properly instructed or if, like the jury in Cole, it was told the
enhancement could be found true if Savage had aided and
abetted the infliction of injury even though he did not personally
inflict it. (See Cole, at p. 577.) The possibility a legally incorrect
instruction was given is underscored by the prosecutor’s
acknowledgement there was compelling evidence at Savage’s trial
that Robinson, not Savage, had thrown the caustic liquid.
(Savage, unlike Robinson and Gilman, apparently did not appeal
his convictions. Thus, there is no appellate decision reviewing
the enhancement instructions or findings.)6
Second, in In re Sakarias (2005) 35 Cal.4th 140, 155-156
the Supreme Court held, in cases involving separate trials of
alleged confederates, “fundamental fairness does not permit the
People, without a good faith justification, to attribute to
two defendants, in separate trials, a criminal act only
one defendant could have committed. By doing so, the state
necessarily urges conviction or an increase in culpability in one of
the cases on a false factual basis, a result inconsistent with the
goal of the criminal trial as a search for truth.” (See id. at
5 We granted the Attorney General’s request to augment the
record with the verdict forms finding Savage guilty of mayhem
and aggravated assault and finding true the personal infliction
enhancements. The related jury instructions were not provided.
6 One of Cole’s jurors, in a posttrial declaration that Savage
then attached to his section 1170.95 petition, stated, “Everyone in
the jury room saw the same special allegation at the bottom of all
the verdict forms regarding the personal infliction of great bodily
injury, and thought it was just meaningless legal jargon and felt
it just went along with a verdict of guilty on each count.”
14
pp. 159-160 [“the People’s use of irreconcilable theories of guilt or
culpability, unjustified by a good faith justification for the
inconsistency, is fundamentally unfair”].) Not only was there
compelling evidence in Savage’s trial that Robinson had thrown
the lye, but also there is a strong indication the People made that
argument during Robinson’s separate trial. (See People v.
Gilman, supra, 156 Cal.App.3d at p. 762 [Robinson’s jury found
him guilty of conspiracy to commit mayhem and assault with a
caustic substance and found true as to the conspiracy count the
section 12022.7 great bodily injury enhancement].) Based on the
limited record before us, it is impossible to conduct what the
Attorney General properly describes as “a complex analysis of
whether the theories in the two trials are irreconcilable and
whether the prosecution acted in bad faith” to conclude the
section 12022.7 enhancement was improperly pleaded and argued
in Savage’s trial in violation of In re Sakarias, supra, 35 Cal.4th
140. What we can determine is that this limited record does not
clearly establish Savage’s ineligibility for resentencing relief
under section 1170.95 as a matter of law.
The Attorney General attempts to finesse the issue by
asserting a challenge by Savage to the section 12022.7
enhancement as imposed in violation of In re Sakarias, supra,35 Cal.4th 140 must be raised in a petition for writ of habeas
corpus, not under section 1170.95. But that mischaracterizes
Savage’s argument, which is that the enhancement finding does
not necessarily mean he could be found guilty of murder under
amended section 188 and 189, not that the enhancement should
be reversed and his sentence modified. In this respect Savage’s
argument is similar to petitioners who have argued in their
section 1170.95 petitions that a felony-murder special-
15
circumstance finding under section 190.2, subdivisions (a)(17)
and (d), made prior to the Supreme Court’s decisions in People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522 clarifying the requirements for such a finding,
does not preclude relief as a matter of law. As we recently held in
People v. Harris (Feb. 16, 2021, B300410) __ Cal.App.5th ___, ___,
[2021 Cal.App. Lexis 127] such a challenge to the purported
preclusive effect of a jury finding may properly be raised in a
section 1170.95 petition. (Accord, People v. York (2020)
54 Cal.App.5th 250, 262, review granted Nov. 18, 2020, S264954;
but see People v. Murillo (2020) 54 Cal.App.5th 160, 168, review
granted Nov. 18, 2020, S264978; People v. Galvan (2020)
52 Cal.App.5th 1134, 1142-1143, review granted Oct. 14, 2020,
S264284.)
Finally, there is something fundamentally troubling about
the prosecutor expressly withdrawing a potential issue before the
superior court only to have the Attorney General contend on
appeal it is a proper basis for us to deny an evidentiary hearing
to a section 1170.95 petitioner. Under the circumstances here
that argument is particularly pernicious. As discussed, the
prosecutor did not simply overlook the potential significance of
the great bodily injury enhancement to Savage’s eligibility for
relief, but affirmatively identified it and expressly declared she
was not relying upon it. As a result, Savage’s counsel did not
have the opportunity to marshal evidence to argue either that the
jury had been misinstructed or that In re Sakarias error had
occurred.
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DISPOSITION
The order denying Savage’s section 1170.95 petition is
reversed, and the matter remanded with directions to issue an
order to show cause and to proceed consistently with
section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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