People v. Underwood CA2/5

Filed 5/4/23 P. v. Underwood CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B320234
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A371643)
v.
ANDRE M. UNDERWOOD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Kerry R. Bensinger, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Daniel C. Chang and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Andre M. Underwood appeals from the trial court’s
postjudgment order denying his petition for vacatur of his
murder conviction and resentencing pursuant to Penal Code 1
section 1172.6 (former § 1170.95). Underwood contends the
trial court erred by denying his petition on the basis that he
was the actual killer. We affirm the trial court’s order.
FACTS AND PROCEDURAL HISTORY2
Murder Conviction
In 1981, Underwood was involved in the robbery and
killing of Joe Miyoshi, who died of a gunshot wound to the
chest. Underwood was tried by jury. The prosecution
presented evidence that four young men decided to commit a
robbery and took a 12-gauge shotgun with them to
accomplish the crime. They happened upon Miyoshi in a van
in an alleyway. One of the young men pointed the gun at
Miyoshi, and Miyoshi threw money out of the window.
Miyoshi then tried to back up the van and escape, but hit a
telephone pole. He opened the van door and threw out more
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The facts and procedural history up to the most
recent section 1172.6 evidentiary hearing following remand
are taken from this court’s prior opinion in People v.
Underwood (Nov. 24, 2020, No. B304411 [nonpub. opn.]).
2
money. He begged the young man holding the shotgun not
to shoot him. One of the young men saw Underwood, who
was walking through the alley, and called him over to them.
Underwood joined them and took the shotgun. He held
Miyoshi at bay as the others ran. One of the young men
looked back and saw Underwood shoot Miyoshi in the chest.
Underwood then fled with the others to a friend’s house,
where they divided Miyoshi’s money between them. Under
questioning on two occasions by officers investigating the
robbery and murder, Underwood gave varying accounts, but
consistently admitted happening upon the robbery in
progress, arriving only after Miyoshi had surrendered most,
if not all, of the money. Underwood consistently denied
participation in carrying out the robbery and murder, but he
admitted taking a share of the money.
At trial, the prosecutor proceeded on the alternative
theories that Underwood was either (1) guilty through a
felony murder theory of liability (which could only result in a
verdict of first degree murder), or (2) the actual killer (in
which case he could be found guilty of either first or second
degree murder). The jury found Underwood guilty of second
degree murder (§ 187, subd. (a)) and robbery (§ 211). The
jury found true the allegation that a principal used a firearm
in the commission of both crimes (§ 12022, subd. (a)), but the
jurors were unable to reach a verdict as to the allegations
that Underwood personally used a firearm in the offenses.
(§§ 12022.5, 1203.06, subd. (a)(1).)
3
Underwood was sentenced to 15 years to life in prison
for murder, plus one year for the firearm allegation in that
count. The court imposed and stayed a sentence of one-third
of the middle term of one year on the robbery count, plus one
year for the firearm allegation.
Proceedings in the Court of Appeal and the Supreme
Court
The Court of Appeal affirmed the judgment, but
remanded the matter to the trial court for preparation of a
new abstract of judgment that would correctly reflect
Underwood’s custody credits. Subsequently, the Supreme
Court granted Underwood’s request for a hearing and
transferred the matter back to the appellate court for
reconsideration in light of People v. Croy (1985) 41 Cal.3d 1.3
3 In People v. Croy, supra, 41 Cal.3d at pages 11
through 12, the Supreme Court held that the trial court
erred by giving an aiding and abetting instruction that did
not require the jury to find that the defendant shared the
perpetrator’s intent to commit or facilitate the commission of
the robbery at issue in that case. Croy further held that the
error was prejudicial, and reversed a murder and an
attempted murder conviction in addition to the robbery
conviction, because the jury could have found the defendant
guilty of the murder charges on the basis of a felony-murder
theory of liability for which the robbery charge was the
predicate crime. (Id. at pp. 11–21.)
4
Following the remand, the appellate court held that
Underwood’s culpability as a perpetrator of the robbery had
been established as a matter of law. With respect to the
murder conviction, the appellate court held that, having
found Underwood to be an intentional perpetrator of the
robbery as a matter of law, it necessarily followed that he
was guilty of first degree felony murder. Although the
court’s determination was inconsistent with the jury’s
verdict of second degree murder, it concluded that the
inconsistency was likely an act of leniency on the part of the
jury. The court concluded there was no reason to reverse the
guilty verdict for second degree murder, which was more
favorable to defendant, where defendant was guilty of first
degree felony murder as a matter of law. The Court of
Appeal again affirmed the judgment, but remanded the
matter to the trial court for preparation of a new abstract of
judgment that would correctly reflect Underwood’s custody
credits.
Petition for Resentencing
On July 1, 2019, Underwood filed a petition for vacatur
of the murder conviction and resentencing under former
section 1170.95. The People filed a response on August 30,
2019, contending, as relevant here, that Underwood was
ineligible for relief because he was the actual killer, as
evidenced by the record of conviction. The trial court
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appointed counsel. On January 6, 2020, defense counsel
filed a reply to the People’s response.
At the hearing on the petition, the trial court found
Underwood prima facie ineligible for relief because the Court
of Appeal’s opinion indicated that he was the actual killer.
Underwood timely appealed.
Appeal
On appeal, this court reversed the trial court’s order
because the jury’s inability to reach agreement regarding
Underwood’s personal use of a firearm precluded the trial
court from finding, purely as a matter of law, that
Underwood was the actual killer. Further, the trial court
could not use the facts recited in the appellate opinion to
establish ineligibility as a matter of law.
Remand
Upon remand, the trial court held an evidentiary
hearing. Among other evidence, the court considered
Underwood’s statements made in connection with a parole
eligibility hearing. Specifically, Underwood admitted that
he had killed Miyoshi and expressed remorse for the pain he
had caused. The trial court gave “great weight” to
Underwood’s statements, and after consideration of those
statements and other evidence offered at trial, the court
denied the section 1172.6 petition based on a factual finding
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that Underwood was the actual killer beyond a reasonable
doubt.
DISCUSSION
Section 1172.6
Effective January 1, 2019, the Legislature amended
sections 188 and 189 “as to 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.’ (Sen. Bill No. 1437 (2017–2018 Reg. Sess.);
Stats. 2018, ch. 1015, § 1, subd. (f).) As amended, the law
defining malice provides that except for first degree felony
murder, ‘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); People v. Eynon [(2021)]
68 Cal.App.5th [967,] 974.) By this change, the Legislature
intended that ‘[a] person’s culpability for murder must be
premised upon that person’s own actions and subjective
mens rea.’ (Stats. 2018, ch. 1015, § 1, subd. (g).)” (People v.
Basler (2022) 80 Cal.App.5th 46, 54, fn. omitted.)
As relevant here, pursuant to section 1172.6,
subdivision (a)(1) to (3), a defendant must file a petition in
7
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, 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 . . . . [;] [¶] (2) The petitioner was
convicted of murder . . . following a trial . . . . [;] [¶] [and]
(3) The petitioner could not presently be convicted of
murder . . . because of changes to Section 188 or 189 made
effective January 1, 2019.” (See id., subd. (b)(1)(A).)
Upon receipt of a petition meeting these requirements,
the trial court will appoint counsel, if requested. (§ 1172.6,
subd. (b)(3).) The prosecutor must file a response within
60 days of the service of the petition, and the petitioner may
file a reply within 30 days of the response. (§ 1172.6,
subd. (c).) When briefing has been completed, “the court
shall hold a hearing to determine whether the petitioner has
made a prima facie case for relief. If the petitioner makes a
prima facie showing that the petitioner is entitled to relief,
the court shall issue an order to show cause.” (Ibid.) Within
60 days of issuance of the order to show cause, the trial court
shall hold a hearing “to determine whether the petitioner is
entitled to relief.” (§ 1172.6, subd. (d)(1) & (3).)
“At the hearing . . . the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder . . . under California law as
amended by the changes to Section 188 or 189 made effective
8
January 1, 2019. . . . The prosecutor and the petitioner may
also offer new or additional evidence to meet their respective
burdens. . . . If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated
and the petitioner shall be resentenced on the remaining
charges.” (§ 1172.6, subd. (d)(3).)
The trial court acts as the finder of fact when
determining whether the prosecution has met its burden
beyond a reasonable doubt. (People v. Clements (2022)
75 Cal.App.5th 276, 296–297.)
Analysis
Underwood contends that statements made by prison
inmates in connection with an application for parole should
be deemed presumptively unreliable, and that the trial court
erred by considering his statements. Underwood concedes
that he did not preserve the issue for review because he
failed to object on this basis at the section 1172.6 hearing.
He argues that this court should consider the issue
nonetheless, because it would have been futile for him to
raise an objection in the trial court and/or the issue
presented to this court involves a pure question of law based
on undisputed facts. We agree with the People that
Underwood forfeited this contention by failing to make a
specific objection at the evidentiary hearing. The appellate
courts are barred from reversing a judgment based on an
9
alleged erroneous admission of evidence absent a showing on
the record of a clear, specific objection to the evidence or a
motion to strike it. (People v. Williams (1998) 17 Cal.4th
148, 161, fn. 6; People v. Myles (2021) 69 Cal.App.5th 688,
697.)
Even if Underwood had preserved the issue, we would
reject it. In 2022, the Legislature amended section 1172.6 to
expressly set forth the types of evidence that are admissible
in an evidentiary hearing under subdivision (d)(3). The
statute provides: “The admission of evidence in the hearing
shall be governed by the Evidence Code, except that the
court may consider evidence previously admitted at any
prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and
matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate
opinion. However, hearsay evidence that was admitted in a
preliminary hearing pursuant to subdivision (b) of Section
872 shall be excluded from the hearing as hearsay, unless
the evidence is admissible pursuant to another exception to
the hearsay rule. The prosecutor and the petitioner may
also offer new or additional evidence to meet their respective
burdens.”
Underwood does not contend, pursuant to any
provision of the Evidence Code, that the trial court abused
its discretion by admitting the evidence. Nor does he argue
that statements made in connection with a parole eligibility
hearing are not new or additional evidence within the plain
10
meaning of Penal Code section 1172.6. Instead, he asks this
court to “craft a new legal standard,” and hold that all
statements made by an inmate in connection with parole
proceedings are presumptively unreliable. Underwood cites
to no precedent that would authorize us to announce such a
rule, or explain how such a rule would be consistent with the
Evidence Code or with the standards that have been clearly
set forth in Penal Code section 1172.6 by our Legislature.
Underwood argues that we should adopt this blanket
rule because inmates have an incentive to lie in order to
obtain release on parole. In People v. Mitchell (2022)
81 Cal.App.5th 575, the defendant made a similar argument.
The appellate court rejected the argument as contrary to the
words and purpose of section 1172.6. (Id. at p. 588.)
Mitchell observed, “The overall goal of the petitioning
process here is to make the punishment fit the crime in a
precise and particularized way. The Legislature sought to
ensure murder culpability is commensurate with a person’s
individual actions. [Citation.] [¶] That takes facts.” (Id. at
p. 587.) “The trial judge is ideally situated to determine
whether the incentives at a specific parole hearing mesh
with the statute’s goal of aligning punishment with true
culpability. When there are valid reasons to doubt the
probity of a parole hearing statement, the trial judge can
hear and appraise arguments in the case’s context and
accord the statement due weight. Trial judges are expert at
evaluating—word by word—whom and what to believe in
individual situations. No reason exists to preempt trial
11
judges’ particularized evaluation with our own blanket rule
of exclusion.” (Id. at p. 590.)
Underwood asserts that the “parole board . . . always
assumes that any denial of culpability is evidence of a
psychological shortcoming on the inmate’s part rather than
an expression of a true state of affairs, creating an almost
irresistible compulsion for would-be parolees to admit guilt.”
This mischaracterizes the parole process, which “emphasizes
the importance of voluntary, unvarnished truthtelling.
California regulations for parole hearings provide . . . : ‘The
facts of the crime shall be discussed with the prisoner to
assist in determining the extent of personal culpability.’
(Cal. Code Regs., tit. 15, § 2236.) But the board ‘shall not’
require an admission of guilt and ‘shall not’ hold a prisoner’s
refusal to discuss the crime against the prisoner.” (People v.
Mitchell, supra, 81 Cal.App.5th at p. 590, italics omitted.)
Inmates are permitted to demonstrate signs of remorse,
which may weigh in favor of granting parole, including that
the “prisoner performed acts which tend to indicate the
presence of remorse, such as attempting to repair the
damage, seeking help for or relieving suffering of the victim,
or the prisoner has given indications that he understands
the nature and magnitude of the offense.” (Cal. Code Regs.,
tit. 15, § 2281, subd. (d)(3).) However, the circumstances
tending to show unsuitability for parole do not include lack
of remorse or failure to acknowledge responsibility for the
offense. (Id., subd. (c).)
12
Although Underwood makes no arguments with
respect to his individual case, he could have chosen to
demonstrate remorse to the parole board without admitting
that he personally killed Miyoshi. The jury could not reach a
unanimous decision as to whether Underwood personally
discharged a firearm causing Miyoshi’s death. Instead, he
was convicted on a felony-murder theory of liability, and it
was found true that a principal discharged a firearm causing
death. Even if Underwood felt compelled to confess to a
crime (which the regulations do not require), he could have
admitted that he was involved in the robbery, and stated
that he regretted a man had been killed in the course of that
robbery. It was not necessary for Underwood to admit to
being the actual killer to demonstrate responsibility or
remorse, and it follows that such an admission is not
inherently unreliable.4
4 Underwood further contends that, if we hold
statements in support of parole applications presumptively
unreliable, insufficient evidence supports the trial court’s
denial of relief. As we decline to make such a
pronouncement, the contention necessarily fails.
13
DISPOSITION
We affirm the trial court’s order denying Andre M.
Underwood’s petition for resentencing under Penal Code
section 1172.6.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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