People v. Polk CA1/1

Filed 3/11/22 P. v. Polk CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A160074
v.
SUSAN MAE POLK, (Contra Costa County
Super. Ct. No. 031668-7)
Defendant and Appellant.
Defendant Susan Mae Polk appeals from a postjudgment order denying
her petition for resentencing under Penal Code1 section 1170.95. The trial
court found defendant ineligible for relief as a matter of law because she had
not been convicted under the felony-murder rule or the natural and probable
consequences doctrine. The court also concluded the jury’s finding that
defendant personally used a knife indicated that defendant was the actual
killer who acted with malice.
On appeal, defendant contends she is entitled to resentencing because
(1) the trial court improperly considered the record of conviction; (2) the trial
court employed an incorrect standard of review; and (3) the record does not
indicate defendant was the actual killer, had an intent to kill, or acted with
1 All statutory references are to the Penal Code.
implied malice. Defendant further contends the trial court erroneously
denied her motion to disqualify the trial court judge. We affirm the orders.
I. BACKGROUND
An indictment was filed charging defendant with murder of her
husband in violation of section 187. The indictment further alleged
defendant personally used a knife in the commission of the offense.
Following a jury trial, defendant was convicted of second degree murder and
sentenced to 16 years to life. This court affirmed the judgment in People v.
Polk (2010) 190 Cal.App.4th 1183.
Defendant subsequently filed a petition for resentencing pursuant to
section 1170.95. She alleged she was convicted of second degree murder
pursuant to the felony-murder rule or the natural and probable consequences
doctrine. She further asserted she could no longer be convicted of second
degree murder due to changes to section 188.2
The district attorney opposed defendant’s petition. In relevant part,
the district attorney argued defendant was ineligible for relief because she
acted with express or implied malice when she stabbed the victim. The
district attorney thus argued defendant could still be convicted of second
degree murder despite changes to sections 188 and 189.
The trial court summarily denied defendant’s petition. It concluded
defendant had not made a prima facie showing that she was entitled to relief
because she had not identified any material fact showing eligibility for
resentencing relief under section 1170.95. Specifically, the court noted
defendant was not convicted of felony murder or under the theory that the
2 The Legislature passed Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437), which enacted certain changes to sections 188 and 189.
Senate Bill 1437, and the related statutory revisions, are discussed in detail
in part II.A.1., post.
2
murder was a natural and probable consequence of aiding and abetting in a
felony. The court likewise noted that the record does not “support the
conclusion that [defendant] could not be convicted of second degree murder”
under the changes enacted by Senate Bill 1437. The court noted the record
indicates “a reasonable juror could find that [defendant] acted with implied
malice when she stabbed the victim to death. . . . The jury rejected her claim
of self-defense. . . . The jury also found true that she personally used a deadly
weapon. [Citation.] Therefore, it implicitly found [defendant] was the actual
killer who acted with malice and changes to sections 188 and 189 are
inapplicable.” Defendant timely appealed.
II. DISCUSSION
A. Denial of Petition for Resentencing
1. Statutory Background
Effective January 1, 2019, Senate Bill 1437 amended “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); see People v.
Gentile (2020) 10 Cal.5th 830, 842.)
Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be
convicted of murder, a principal must act with malice aforethought; malice
can no longer ‘be imputed to a person based solely on his or her participation
in a crime.’ (§ 188, subd. (a)(3).)” (In re R.G. (2019) 35 Cal.App.5th 141, 144.)
Senate Bill 1437 also “amended section 189, which defines the degrees of
murder, by limiting the scope of first degree murder liability under a felony-
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murder theory. (§ 189, subd. (e).)” (People v. Turner (2020) 45 Cal.App.5th
428, 433.)
Senate Bill 1437 also added section 1170.95, which permits a person
convicted of murder under a now-invalid felony-murder or natural and
probable consequences theory to petition the superior court to vacate the
murder conviction and to be resentenced on any remaining counts. (People v.
Lewis (2021) 11 Cal.5th 952, 959; People v. Gentile, supra, 10 Cal.5th at
p. 843.) A petitioner is eligible for relief if he or she (1) was charged with
murder by means of a charging document that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine; (2) was convicted of first or second degree
murder; and (3) could no longer be convicted of first or second degree murder
due to the changes to sections 188 and 189, effectuated by Senate Bill 1437.
(§ 1170.95, subd. (a).)
In October 2021, the Governor signed into law Senate Bill No. 775 (Reg.
Sess. 2021–2022) (Senate Bill 775). Senate Bill 775 amended
section 1170.95, subdivision (a) to make relief available to those convicted of
“felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted murder under the
natural and probable consequences doctrine, or manslaughter.” (Stats. 2021,
ch. 551, § 2; § 1170.95, subd. (a).) The Legislature identified four purposes in
enacting Senate Bill 775: (1) to clarify “that persons who were convicted of
attempted murder or manslaughter under a theory of felony murder and the
natural probable consequences doctrine are permitted the same relief as
those persons convicted of murder under the same theories”; (2) to codify
People v. Lewis, supra, 11 Cal.5th 952 (Lewis), regarding the right to counsel
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and the standard for determining a prima facie case; (3) to affirm the proper
burden of proof at a resentencing hearing; and (4) to address “what evidence
a court may consider at a resentencing hearing.” (Stats. 2021, ch. 551, § 1,
subds. (a)–(d).)
2. Analysis
Here, nothing in the record of conviction establishes that defendant
was convicted of second degree murder pursuant to the felony-murder rule or
the natural and probable consequences doctrine. To the contrary, applying
the natural and probable consequences doctrine to defendant would have
been absurd because “culpability under the natural and probable
consequences doctrine is vicarious.” (People v. Chiu (2014) 59 Cal.4th 155,
164, superseded by statute on other grounds as stated in Lewis, supra,
11 Cal.5th at p. 959, fn. 3.) When a defendant is the sole perpetrator, his or
her liability for a crime is, by definition, not vicarious. (See People v.
Covarrubias (2016) 1 Cal.5th 838, 901 [“The natural and probable
consequences doctrine applies . . . to aiders and abettors and conspirators.”];
People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [“The actual perpetrator
must have whatever mental state is required for each crime charged” but “the
aider and abettor is guilty not only of the intended, or target, offense, but also
of any other crime the direct perpetrator actually commits that is a natural
and probable consequence of the target offense”].)3
3 Defendant argues there are alternative “versions” of the natural and
probable consequences doctrine eliminated by Senate Bill 1437. However,
she fails to identify what those alternative versions are, and the only cases
she cites involve vicarious liability. (See People v. Chiu, supra, 59 Cal.4th at
pp. 161–162 [discussing aider and abettor liability]; People v. Medina (2009)
46 Cal.4th 913, 920 [addressing whether aiders and abettors were liable for
murder under the natural and probable consequences doctrine].) Moreover,
jury instructions on the natural and probable consequences doctrine
5
Comments by the Second Appellate District in People v. Martinez
(2007) 154 Cal.App.4th 314 apply equally here: “Unlike a case based upon
the ‘natural and probable consequences’ theory of accomplice liability . . . , the
facts of this case did not require the jury to analyze two distinct
transactions—a target crime, such as robbery, and a nontarget crime, such as
murder—and determine whether a murder by a confederate was the natural
and probable consequence of a robbery the defendant accomplice had agreed
to aid and abet.” (Id. at p. 333.) In this matter, defendant was charged as
the sole perpetrator with one count of murder based upon a single
transaction—the stabbing death of the victim. The jury found defendant
guilty of second degree murder and found true that she personally used a
knife to commit the crime. Because the jury was not instructed on felony
murder or the natural and probable consequences doctrine,4 she could not
have been convicted under one of those theories.
Defendant asserts the jury was, in fact, instructed on the natural and
probable consequences doctrine via the definitions of causation in CALJIC
No. 3.40. That instruction addresses the but-for test of causation, and states:
“To constitute the crime of Murder or Manslaughter, there must be in
addition to the death an unlawful act which was a cause of that death. [¶]
The criminal law has its own particular way of defining cause. A cause of the
death is an act that sets in motion a chain of events that produces as a direct,
natural and probable consequence of the act the death [sic] and without which
the death would not occur.” (CALJIC No. 3.40, italics added.) The
reference coparticipants within the elements of the doctrine. (See CALCRIM
Nos. 402, 403.)
4 Jury instructions may also be considered as part of the record of
conviction. (People v. Gomez (2020) 52 Cal.App.5th 1, 16, review granted
Oct. 14, 2020, S264033.)
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instruction thus concerns causation, not mens rea or intent. And the record
does not contain any jury instruction specifically addressing the natural and
probable consequences doctrine.
Because the jury was not instructed on the felony-murder rule or the
natural and probable consequences doctrine, the jury implicitly found
defendant was the “actual killer,” and the changes to sections 188 and 189
are inapplicable. (See People v. Cornelius (2020) 44 Cal.App.5th 54, 58.) In
response, defendant argues the record does not conclusively establish she was
the “actual killer” because she presented evidence that the victim’s heart
condition was the cause of death rather than the knife wounds. But this
argument is inconsistent with reference to the term “actual killer” in Senate
Bill 1437’s legislative history, i.e., that an actual killer is someone who
“personally” commits an act that results in the victim’s death. (Assem. Com.
on Public Safety, Rep. on Sen. Bill 1437, June 25, 2018, pp. 5–6 [“Under the
provisions of this bill, an individual would not be liable for 2nd [degree]
murder under a theory of felony murder unless the individual personally
committed the act that resulted in death.” (italics added)]; Sen. Rules Com.,
Sen. Floor Analysis of Sen. Bill No. 1437, May 29, 2018, p. 1 [“This bill
revises the felony murder rule to prohibit a participant . . . to be imputed to
have acted with implied malice, unless he or she personally committed the
homicidal act.” (italics added)].) Defendant’s argument incorrectly assumes a
person can personally commit an act that results in death only if there is no
other factor that might also have contributed to the death. (See, e.g., People
v. Modiri (2006) 39 Cal.4th 481, 493 [“The term ‘personally,’ which modifies
‘inflicts’ . . . , does not mean exclusive . . . . [¶] . . . [N]othing in the terms
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‘personally’ or ‘inflicts’ . . . , necessarily implies that the defendant must act
alone in causing the victim’s injuries.”].)5
In supplemental briefing requested by this court regarding the impact
of Senate Bill 775, defendant further argued she is entitled to resentencing
because she was convicted based on a “ ‘theory under which malice is imputed
to a person based solely on that person’s participation in a crime.’ ” She
repeats her arguments regarding the natural and probable consequences
doctrine to assert the jury could have imputed malice to her under CALJIC
No. 3.40 based on her participation in a lesser crime, such as assault or
brandishing a deadly weapon. We disagree. Senate Bill 775 added the
phrase “or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime” in connection with felony
murder and the natural and probable consequences doctrine. And, as with
those, the Legislature’s concern was malice imputed from another crime. As
we explain above, defendant was solely indicted for murder, and no other
theory or crime was presented to the jury from which they could have
imputed malice on the murder charge. Accordingly, the revisions enacted by
Senate Bill 775 are inapplicable to defendant.
While defendant also argues the trial court erred by relying on the
summary of evidence in this court’s prior opinion and applying an incorrect
standard of review, we need not reach those issues. Even if the court
procedurally erred when it denied the petition, defendant is ineligible for
5 Defendant’s reliance on People v. Garcia (2020) 46 Cal.App.5th 123 is
unavailing. That case addressed, in relevant part, whether a coparticipant
could be liable as the actual killer for merely handing duct tape to another
participant, who then taped the victim’s mouth and caused asphyxiation. (Id.
at pp. 145, 153.) The court noted the difference between proximately causing
and personally inflicting harm. (Id. at p. 151.) Here, defendant admitted
stabbing the victim.
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relief as a matter of law for the reasons set forth above. Thus, she cannot
demonstrate prejudice, and remand for a hearing on the petition would be
futile. (See People v. Cornelius, supra, 44 Cal.App.5th at p. 58.)
B. Motion to Disqualify
Defendant next argues the court erred in denying her motion to
disqualify the trial court judge. Specifically, she references two events that
she contends demonstrate bias: (1) authorizing use of the term “homicide”
rather than “death” during trial; and (2) forwarding an incident report to the
district attorney and public defender in which defendant allegedly accused
jail personnel of being Nazis and stated she hated Nazis and Jews. She
contends this bias—from over 10 years ago—continued into the court’s recent
ruling on defendant’s section 1170.95 petition and justifies vacating the
court’s order denying her section 1170.95 motion.
As an initial matter, we need not reach this issue because defendant is
ineligible for relief under section 1170.95, as a matter of law. Accordingly,
the matter is not being remanded and there is no need to assign a different
judge.
In any event, even if we were to consider defendant’s constitutional
claim on its merits, we would reject it. To establish such a due process
violation, actual bias need not be proved; however, “based on an objective
assessment of the circumstances in the particular case, there must exist ‘ “the
probability of actual bias on the part of the judge . . . [that] is too high to be
constitutionally tolerable.” ’ ” (People v. Freeman (2010) 47 Cal.4th 993, 996.)
Under this objective standard, “only the most ‘extreme facts’ would justify
judicial disqualification based on the due process clause.” (Ibid.) The due
process clause does not require judicial disqualification based on the mere
appearance of bias. (Id. at pp. 1000, 1006.) Here, none of the examples of
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alleged bias constitute “extreme facts” that justify judicial disqualification
based on the due process clause.
III. DISPOSITION
The orders summarily denying defendant’s section 1170.95 petition and
denying defendant’s motion to disqualify are affirmed.
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MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
EAST, J.
A160074
People v. Polk

Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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