People v. Watson CA4/2

Filed 3/9/22 P. v. Watson CA4/2
Opinion following transfer from Supreme Court
See concurring opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072650
v. (Super.Ct.No. FVA014260)
APRIL LORRAINE WATSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler,
Judge. Reversed
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Daniel B. Rogers, Assistant Attorney
General, Michael Pulos, Lynne G. McGinnis, Melissa Mandel, Alan L. Amann and
Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant April Lorraine Watson filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the court denied. On appeal, defendant
contended the court erred in summarily denying her petition without proceeding to an
evidentiary hearing. On September 18, 2020, we issued an opinion affirming the court’s
order.
On December 1, 2021, the California Supreme Court transferred the matter back to
us with directions to vacate our decision and reconsider the cause in light of People v.
Lewis (2021) 11 Cal.5th 952, 971-972 (Lewis). On December 6, 2021, we vacated our
opinion and permitted the filing of supplemental briefs.
In her supplemental brief, defendant contends the court erred in summarily
denying her petition without proceeding to an evidentiary hearing. The People concede
that defendant made a prima facie case, and the matter should be remanded for an
evidentiary hearing. We agree.
I. FACTUAL AND PROCEDURAL BACKGROUND2
Defendant’s videotaped statement to the police revealed that “on November 5,
2000, defendant along with Jesse Cantu, David Chavez, and Lester ‘Dwayne’ Thomas,
went to a house . . . three separate times, all for the purpose of getting defendant’s
1 All further statutory references are to the Penal Code unless otherwise indicated.
2On the court’s own motion, we take judicial notice of the record in defendant’s
appeal from the original judgment. (See People v. Watson (June 12, 2003, E031790)
[nonpub. opn.] (Watson).) We take much of our factual and procedural recitation from
that opinion, which was included as an exhibit in the People’s motion to strike
defendant’s petition and was relied upon by the trial judge in summarily denying the
petition.
2
belongings back. Defendant had lived in the house and purportedly had left some of her
things there when she moved out. On their first trip, defendant exchanged words with a
heavyset Hispanic woman because the woman refused to let defendant in the house and
had called defendant a bitch. Defendant and her three companions were walking back to
their cars, about to leave, when Dwayne urged the group to try again to get defendant’s
‘stuff.’ Defendant returned to the front porch of the house and banged on the door, but
no one responded. Defendant and her companions drove away after this second
unsuccessful attempt to gain entry to the house.” (Watson, supra, E031790, fn. omitted.)
“Around 10:00 p.m. that night, the group returned to the house . . . . Defendant
knew that . . . Cantu had a gun with him because he had earlier shown it to her and her
grandfather. Defendant, . . . Cantu and . . . Chavez went up to the front door of the house.
No lights were on inside the house and no one responded when defendant knocked on the
door and rang the doorbell. Dwayne . . . , who had parked his Cadillac down the street,
headed to the back of the house by jumping over the fence. After . . . Chavez asked
Cantu, ‘Who’s got Dwayne’s back?,’ Cantu followed Dwayne . . . and the two of them
forced entry into the house by breaking a window and then kicking in the back door.
When defendant heard the glass break, she threw a potted plant through a window located
near the front door. [Dwayne], who by then was inside the house, opened the front door
for defendant and Chavez. Once inside the house, defendant encountered a man whom
she did not know standing in the kitchen near the refrigerator. Dwayne . . . and
. . . Chavez immediately pushed the man into an office area off the garage.” (Watson,
supra, E031790.)
3
“When defendant entered the office after briefly looking around the house for her
things, she found Cantu standing over three people who were lying belly down on the
floor. One of the people on the floor was the man from the kitchen, another was Connie
Estala, the woman with whom defendant had the confrontation earlier that day. The third
person was Jerry McCullen, Cantu’s one-time best friend. Cantu was holding all three
people at gunpoint, although defendant claimed that she did not see the gun until she was
leaving the room. Once in the room, defendant kicked . . . Estala in the head and asked
Estala where defendant’s ‘stuff’ was. . . . Estala had called 911 apparently as the break-in
was occurring. Unbeknownst to defendant and her companions, that phone line was
open, and the call was being recorded as Estala [lay] on the floor in the office. According
to the transcript of that 911 call, defendant yelled, ‘Where is my shit now?’ When Estala
answered, ‘I don’t know . . . ,’ defendant again said, ‘Where’s my stuff at? Huh?’ The
tape then picked up the sound of a gunshot followed by defendant saying, ‘Hey, oh
enough!’ The tape picked up the sound of two more gunshots followed by the sound of
labored breathing.” (Watson, supra, E031790.)
“. . . Cantu testified for defendant and admitted that he shot and killed all three
victims. Cantu stated that he shot and killed . . . McCullen and then had to kill the two
others because they had witnessed that shooting. Cantu testified, in pertinent part, that he
killed McCullen because McCullen had previously made death threats against defendant
whom McCullen believed was a snitch. Cantu stated that as he stood there holding the
gun on McCullen, he remembered those threats and just snapped. Cantu had never told
defendant about the threats McCullen made against her life. According to Cantu,
4
defendant was not in the room when he shot and killed the three victims. Cantu
estimated that the whole incident from the time he entered the house to the time he left
after shooting and killing the victims was possibly less than two minutes.” (Watson,
supra, E031790.)
Since defendant was not the actual killer of the three murder victims, “the
prosecutor relied on two theories of aiding and abetting to prosecute defendant, namely,
that defendant aided and abetted either the crime of first degree murder or the crime of
assault with a firearm of which murder was the natural and probable consequence.”
(Watson, supra, E031790.) The court gave the jury a version of CALJIC No. 3.02,3
which erroneously instructed it that the crime of murder, rather than assault with a
firearm, was the target offense under the latter theory that it must find defendant aided
and abetted in order to convict her of murder. (Watson, supra, E031790.) On April 5,
2002, the “jury found [defendant] guilty . . . of three counts of first degree murder and
one count of residential burglary.” (Ibid.) The jury additionally found true an allegation
that a principal was personally armed with a firearm in the commission of a felony.
(§ 12022, subd. (a)(1).) The court sentenced defendant to a term of imprisonment
consisting of three, consecutive, indeterminate terms of 25 years to life, plus a
determinate term of one year. (Watson, supra, E031790.)
3 On December 27, 2021, defendant filed a request that we take judicial notice of
the jury instructions in this case. On January 14, 2022, we reserved ruling on the request.
We grant the request.
5
On appeal from the judgment, defendant challenged the natural and probable
consequences theory of liability for murder. Defendant contended insufficient evidence
supported the jury’s verdict finding her guilty of aiding and abetting a crime of which
first degree murder was a natural and probable consequence. Defendant also maintained
the jury instructions on the natural and probable consequences theory of criminal liability
were incorrect and that the error violated her due process right to a fair trial. (Watson,
supra, E031790.) This court affirmed the judgment. (Ibid.)
On January 4, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95 alleging she was not the actual killer, did not act with an intent to kill or
aid and abet the murder, and was not a major participant or act with reckless disregard for
human life in the commission of a crime. The People filed a motion to strike defendant’s
petition for resentencing arguing section 1170.95 was unconstitutional; the People further
argued that defendant was ineligible for relief because, in its opinion on appeal from the
judgment, this court had found defendant aided and abetted Cantu with an intent to kill
and/or the evidence established that defendant was a major participant in the burglary
acting with reckless indifference to human life.
At the hearing on defendant’s petition, the court noted it had read the petition, the
People’s response, and this court’s opinion on appeal from defendant’s judgment. The
court noted: “In the Court of Appeals opinion, it does say that they conclude the
evidence is sufficient to support the first-degree murder verdict on both theories of
liability the prosecutor relied on at trial. [¶] So based on the fact that the evidence did
support the fact that the defendant aided and abetted in the commission of first-degree
6
murder, I’ll indicate that she has not made a prima facie showing that she falls within the
parameters for resentencing under [section] 1170.95, and the petition for resentencing is
denied.”
II. DISCUSSION
Defendant contends the court erred in summarily denying her petition without
proceeding to an evidentiary hearing. The People concede that defendant made a prima
facie case and that the matter should be remanded for an evidentiary hearing. We agree.
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 [(2017-2018
Reg. Sess.)] ‘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).) In addition to substantively amending sections 188
and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a
procedure for convicted murderers who could not be convicted under the law as amended
to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
7
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made effective January 1,
2019.’” (Lewis, supra, 11 Cal.5th at pp. 959-960.)
In this case, the superior court denied defendant’s petition at the prima facie stage
under section 1170.95, subdivision (c). “A denial at that stage is appropriate only if the
record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of
law.’ [Citations.] This is a purely legal conclusion, which we review de novo.” (People
v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;
accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted
Oct. 14, 2020, S264284.)
“The record of conviction will necessarily inform the trial court’s prima facie
inquiry under section 1170.95, allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.) “While
the trial court may look at the record of conviction after the appointment of counsel to
determine whether a petitioner has made a prima facie case for section 1170.95 relief, the
prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, ‘“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.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary hearing.’
[Citation.] ‘However, if the record, including the court’s own documents, “contain[s]
8
facts refuting the allegations made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.”’” (Ibid.)
“Appellate opinions . . . are generally considered to be part of the record of
conviction. [Citation.] However . . . the probative value of an appellate opinion is case
specific, and ‘it is certainly correct that an appellate opinion might not supply all
answers.’ [Citation.] In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’” (Lewis, supra, 11 Cal.5th at p. 972.)
“[T]he ‘prima facie bar was intentionally and correctly set very low.’” (Ibid.)
“If the trial court determines that a prima facie showing for relief has been made,
the trial court [shall] issue[] an order to show cause, and then . . . hold a hearing ‘to
determine whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not . . . previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence to meet their respective
burdens.’ [Citation.] At the hearing stage, ‘the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.’” (Lewis, supra, 11 Cal.5th at p. 960.)
First, the court erred in denying defendant’s petition at the prima facie stage.
Defendant alleged she had been convicted pursuant to the natural and probable
consequences doctrine, was not the actual killer, had not intended the death of the victim,
9
and was not a major participant acting with reckless indifference to human life. A review
of this court’s opinion on appeal from the judgment (Watson, supra, E031790) contains
no facts refuting the allegations in defendant’s petition. Thus, defendant demonstrated a
prima facie case for relief.
Second, the court erred in applying a substantial evidence test rather than “acting
as an independent fact finder, to determine beyond a reasonable doubt whether defendant
is guilty of murder under a valid theory of murder.” (People v. Garrison (2021)
73 Cal.App.5th 735, 745.) The existence of sufficient evidence to support defendant’s
murder conviction does not foreclose her from relief under section 1170.95 as a matter of
law.
Third, any error in denying the petition without an evidentiary hearing was not
harmless because it is possible the jury convicted defendant under the natural and
probable consequences theory. Any determination of what theory the jury convicted
defendant, to the extent necessary, must be conducted at an evidentiary hearing where the
court engages in “‘factfinding involving the weighing of evidence or the exercise of
discretion.’” (Lewis, supra, 11 Cal.5th at p. 972.)
In our opinion on appeal from the judgment, we noted that “the prosecutor relied
on two theories of aiding and abetting to prosecute defendant, namely, that defendant
aided and abetted either the crime of first degree murder or the crime of assault with a
firearm of which murder was the natural and probable consequence.” (Watson, supra,
E031790.) We previously held that in its instruction of the jury on the latter theory, the
trial court’s misidentification of the target crime as murder, rather than assault with a
10
firearm, “had the effect of requiring the jury to find beyond a reasonable doubt that
defendant aided and abetted the crime of murder.” (Watson, supra, E031790.) Thus, we
held that even if the court erred in not holding an evidentiary hearing on defendant’s
petition, any error was harmless because, under either theory, the jury had necessarily
determined that she had intended the death of the victim.
Defendant contends that this court’s decision in People v. Jenkins (2021)
70 Cal.App.5th 924 (Jenkins), compels reversal. In Jenkins, “the jury instruction on the
natural and probable consequences doctrine [likewise] erroneously identified murder as
the target offense, thereby requiring that in order to convict [the defendant] of murder on
a natural and probable consequences theory, the jury had to find that he directly aided and
abetted murder.” (Id. at p. 927.) Nonetheless, “a later paragraph of the same instruction
told the jurors that they did not have to agree unanimously on the target offense that [the
defendant] aided and abetted.” (Ibid.) This court held that the “jury therefore did not
necessarily find that [the defendant] directly aided and abetted murder”; thus, this court
reversed the trial court’s order denying the petition without issuing an order to show
cause. (Ibid.)
Here, when instructing the jury with CALJIC No. 3.02, the court misidentified the
target offense as murder; however, the court also instructed the jury, “You are not
required to unanimously agree as to which originally contemplated crime the defendant
11
aided and abetted . . . .”4 We agree with Jenkins that the court’s inclusion of that
paragraph means it is possible that the jury did not find that defendant was a direct aider
and abettor because the jury may not have agreed, unanimously or otherwise, that she
intended to abet the target crime of murder. (Jenkins, supra, 70 Cal.App.5th at p. 936.)
“If the instruction had omitted that additional paragraph, we might have been forced to
conclude that the jury necessarily found [the defendant] aided and abetted murder, under
either the erroneous natural and probable consequences instruction or the direct aiding
and abetting instruction.” (Ibid.) However, “the instruction given does not permit that
conclusion.” (Ibid.)
Thus, we shall reverse the order denying defendant’s petition and remand the
matter with directions to the court to issue an order to show cause under section 1170.95,
subdivision (c), and to hold a hearing under section 1170.95, subdivision (d). We express
no opinion regarding whether defendant is entitled to relief following the hearing.
4 We note that at the time we issued our opinion on appeal from the judgment
(Watson, supra, E031790), the actual jury instruction was not part of the record. (See
fn. 3, ante.)
12
III. DISPOSITION
The order denying defendant’s petition is reversed. The matter is remanded to the
trial court with directions to issue an order to show cause and hold an evidentiary hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
I concur:
MILLER
J.
13
[P. v. Watson, E072650]
MENETREZ, J., Concurring.
I agree that the order must be reversed under People v. Jenkins (2021)
70 Cal.App.5th 924. I therefore concur in the judgment.
MENETREZ
J.
1