People v. Grandberry CA2/3

Filed 3/26/21 P. v. Grandberry CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B305238
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A388090-02
v.
ERNEST RONDELL
GRANDBERRY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Reversed
and remanded.
Emry J. Allen, 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, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 1983 Ernest Rondell Grandberry pleaded guilty to first
degree murder as well as two felony sex crimes. He admitted
a firearm enhancement. In accordance with Grandberry’s plea
agreement with the People, the court sentenced him to 27 years
to life in the state prison. In 2019, after the Legislature passed
Senate Bill No. 1437 (SB 1437), Grandberry filed a petition for
resentencing under Penal Code section 1170.95.1 The trial court
denied the petition, stating Grandberry was ineligible for relief
because (1) he “acted with a reckless indifference to human life
and was a major participant in the [felonies underlying the
murder],” and (2) “he, with the intent to kill, aided and abetted
the actual killer in the commission of murder in the first degree.”
On appeal, the Attorney General agrees with Grandberry
that we must return the case to the trial court for an order to
show cause and an evidentiary hearing, because—in the Attorney
General’s words—“[a]lthough the facts overwhelmingly support
the trial court’s conclusion, the court may not actually weigh
the facts without issuing an order to show cause and holding
a section 1170.95, subdivision (d), hearing.”
FACTS AND PROCEDURAL BACKGROUND
1. The murder, attempted murder, sex crimes, and
plea agreement
In the wee morning hours of February 16, 1983, Coleen
Hawkins and Azell Moore were sitting in Moore’s parked car.2
“[T]hree gun-wielding males” approached. They turned out to be
1 References to statutes are to the Penal Code.
2 As the trial court noted, “the factual record [in this case] is
scant.” The case settled before the preliminary hearing. We take
the facts—as did the trial court—from the probation officer’s
report.
2
Grandberry, Bobby Ray Appleberry, and Barry Lee Brookins.
The threesome ordered Moore to get out of the car and into
the trunk. The three men got into the car along with Hawkins.
As one of the men drove,3 Appleberry forced Hawkins to orally
copulate him.
About 20 minutes later, the perpetrators drove into a
garage. “Moore was removed from the trunk. He was told to
keep his head down and was robbed of his watch, wallet, money
and a necklace. He was ordered back into the trunk . . . and was
driven around on surface streets and freeways for approximately
an hour and a half.”
“During this time,” the three perpetrators “sexually
assaulted victim Hawkins, forcing her to orally copulate them
and engage in sex acts with all three.” At some point the car
stopped and “Moore was removed from the trunk and told to
start walking.” Moore begged the men not to kill him. Moore
then “felt a blow to the head and was rendered unconscious.”
When Moore came to, he was on the grounds of a high
school. He walked to a telephone and called the police. Moore
was taken to a hospital. He had been shot and had surgery
to remove bullet fragments from the back of his head. Moore
spent nearly two weeks in the hospital.
Later that day, police saw Appleberry getting out of
Moore’s car, which had been reported stolen. Appleberry
gave authorities information about “where the female victim
of the kidnapping might be found.” Police found Hawkins’s body
in a field, “dead of a gunshot wound to the head.” Appleberry
later admitted he’d shot her. He also implicated Grandberry.
3 The probation report states two of the men got into the
front and one—Appleberry—got into the back, but it doesn’t
reflect who drove.
3
Grandberry “admitted his part in the kidnap, robbery and rape.”
Police later arrested Brookins, who admitted shooting Moore
“because he wanted all of Moore’s money.”
The probation report stated that “although Grandberry
fired no shots, all defendants were equally culpable in the death
of Hawkins.”
Grandberry and his co-defendants were charged with
murder, attempted murder, robbery, kidnapping for robbery,
forcible oral copulation in concert, forcible rape in concert,
forcible oral copulation, and forcible rape.4 On April 28, 1983,
before the preliminary hearing, all three defendants entered
into plea agreements with the People. Grandberry pleaded guilty
to first degree murder, oral copulation in concert, and rape in
concert. He also admitted that he used a firearm within the
meaning of section 12022.5. In exchange, the prosecution
agreed to strike the special circumstance allegations and
dismiss the remaining counts.
As a factual basis for the plea, the prosecutor asked
Grandberry if he was entering his plea “because you were
involved in a situation where Coleen Hawkins was shot and
killed, where Azell Moore was shot but not killed and where,
in fact, you raped and orally copulated Coleen Hawkins on
February 16, 1983?” Grandberry answered, “Yes.”
On June 3, 1983, in accordance with the plea agreement,
the court sentenced Grandberry to 27 years to life in the state
prison: 25 to life for Hawkins’s murder plus two years for the use
of a firearm. The court imposed the midterm of seven years each
4 The record on appeal does not contain a copy of the felony
complaint.
4
on the counts for forcible oral copulation in concert and forcible
rape in concert, to be served concurrently with the murder count.
2. Grandberry’s petition for resentencing and the
trial court’s decision
On February 4, 2019, Grandberry filed a petition for
resentencing under section 1170.95. On a downloadable form,
Grandberry checked boxes 1, 2b, 3, 4, 5 and its subboxes, and 8.
The trial court (the Honorable William C. Ryan)—noting that
the Office of the Public Defender had represented Grandberry in
the 1983 proceedings—reappointed that office to represent him.
On August 14, 2019, the district attorney filed a response
to Grandberry’s petition. The prosecution devoted most of its
response to arguing SB 1437 is unconstitutional. The prosecution
also contended Grandberry “intended to kill and was a ‘major
participant’ who acted with a ‘reckless indifference to human life’
meeting the newly enacted section 189(e).” The prosecution
cited People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522, and then applied the “five-part test”
of Banks to the facts set forth in the probation report. The
prosecution argued the “facts clearly and logically indicate
that petitioner was part of the planning and execution of all
the criminal events that occurred and led to Ms. Hawkins’ death.
If he was not part of the planning, he had multiple opportunities
to stop the events using his own firearm or flee from the events
during their execution. Not doing so and his willing and
enthusiastic participation in the execution proves his
involvement in the planning.”
On November 13, 2019, the public defender filed a reply
on Grandberry’s behalf. Grandberry argued SB 1437 is
constitutional. He then noted he did not shoot Hawkins or Moore
and argued, in cursory fashion, that under Banks and Clark
5
“it is not clear . . . [he] was a ‘major participant’ who acted with
a ‘reckless indifference to human life.’ ”
On January 28, 2020, the trial court issued a memorandum
of decision denying Grandberry’s petition. Citing court of appeal
cases decided after the parties had filed their pleadings, the court
stated SB 1437 was constitutional. The court then recited the
facts set forth in the probation report. Citing Clark and In re
Loza (2017) 10 Cal.App.5th 38, 52, the court listed the “factors
to consider in determining whether a perpetrator acted with
reckless indifference to human life.” The court concluded,
“Here, the facts as established in the plea
transcript placed Petitioner in a situation
where he was armed with a firearm while
raping and forcing Hawkins, the eventual
murder victim, to orally copulate him in
the back of a car. This took place while his
co-defendants, Appleberry and Brookins,
robbed and shot Moore, and raped and
eventually shot and killed Hawkins. . . .
Petitioner, for his part, admitted to being
armed while being part of a ‘situation where
Coleen Hawkins was shot and killed, where
Azell Moore was shot but not killed and where,
in fact [he] raped and orally copulated Coleen
Hawkins.’ . . . [¶] Review of the record as
established in the probation report makes
Petitioner’s involvement even more clear.
Petitioner was one of the three armed men
who robbed Moore at gunpoint and forced
him into the trunk of his own car. Petitioner
was physically present and armed during the
lengthy crime. Petitioner had opportunities
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to discontinue his involvement in the offense
when they stopped the car and got Moore out
of the trunk, robbed him of his belongings and
placed him back in the trunk, and again when
they took Moore out a second time and shot
him in the head, leaving him for dead. If, for
some reason, Petitioner was not already aware
of that which his co-defendants were capable,
at that point he was on notice that his
co-defendants were prepared to kill the victims.
Petitioner, himself armed, could have used his
weapon to stop his co-defendants from carrying
the crime any further; he did not. Petitioner
could have rendered aid to the remaining
victim; he did not. At any point, he could have
determined it had been taken too far and used
his own weapon in defense of the victims in
an effort to stop the crime; he did not. Rather,
Petitioner made no effort to minimize the risk
of violence. Instead, by his own admission, he
sat in the car and raped and forced Hawkins to
orally copulate him during her final moments.
[¶] Petitioner’s acts of robbing Moore at
gunpoint and raping and forcibly orally
copulating the female victim, clearly show that
Petitioner acted with a reckless indifference
to human life and was a major participant in
the underlying felonies. (§ 189, subd. (e)(3).)
Petitioner’s actions also illustrate that he, with
the intent to kill, aided and abetted the actual
killer in the commission of murder in the first
degree. (§ 189, subd. (e)(2).) As Petitioner
7
still would have been convicted of first degree
murder under the amended law (§ 1170.95,
subd. (a)(3)), Petitioner is ineligible for relief
pursuant to section 1170.95.”
DISCUSSION
On appeal, Grandberry—noting “there is no dispute
that [he] was not the actual killer”—concedes he “was a ‘major
participant’ in the underlying felonies.” So, he says, his appeal
“focuses on the ‘reckless indifference to human life’ element.”
Grandberry discusses the Banks and Clark factors. Agreeing
he “and his two cohorts were armed,” Grandberry argues
“the evidence shows simply that the participants intended
to rob the victims and sexually assault Hawkins.” Grandberry
acknowledges he and his co-defendants “held the victims for one
and one-half hours or more.” But, he continues, as to Hawkins
“there is no evidence as to what occurred other than the fact
that she was sexually assaulted and later killed.” Grandberry
argues, “The record is silent as to the actual facts of appellant’s
participation other than he participated in the sexual abuse of
the victim. There is no evidence as to what if anything his actual
participation in the murder entailed or if he was even present
when the actual killing took place.”
The Attorney General agrees with Grandberry that remand
is appropriate. The Attorney General states, “Although the facts
overwhelmingly support the trial court’s conclusion, the court
may not actually weigh the facts without issuing an order
to show cause and holding a section 1170.95, subdivision (d),
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hearing.” Citing People v. Drayton (2020) 47 Cal.App.5th 965,
982,5 the Attorney General notes that, “while the trial court’s
characterization of the facts was correct, there is no indication
in the record that appellant was ineligible for relief as a matter
of law. Therefore, the trial court should have issued an order
to show cause and held an evidentiary hearing under section
1170.95, subdivision (d), to weigh the evidence and decide
whether relief should be granted. The matter should be
remanded for this proceeding to take place.”
DISPOSITION
As the parties essentially stipulate to a reversal and
remand, we reverse the trial court’s order denying Grandberry’s
petition for resentencing and remand the case for the trial court
to issue an order to show cause and to proceed to an evidentiary
hearing under section 1170.95, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P.J. LAVIN, J.
5 Drayton was decided April 17, 2020, nearly three months
after the trial court issued its memorandum of decision.
Accordingly, the trial court did not have the benefit of the
Drayton court’s guidance when it denied Grandberry’s petition.
9