People v. Dor CA2/7

Filed 5/16/23 P. v. Dor CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B321629
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA019858)
v.
RICHARD PIERRE DOR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Darrell S. Mavis, Judge. Reversed and
remanded with directions.
Richard B. Lennon and Olivia Meme, 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, Wyatt E. Bloomfield and Christopher G.
Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________
In 1996, following a jury trial, Richard Pierre Dor was
convicted of the attempted robbery and first degree murder of
John Kradjian. The jury found true the special allegation the
murder was committed while Dor was engaged in the commission
of a robbery. The jury also found true Dor personally used a
firearm in connection with the murder and attempted robbery.
Dor appealed, and this court affirmed. (People v. Dor (Jan. 14,
1998, B103471) [nonpub. opn.] (Dor I).)
In 2021 Dor, represented by counsel, filed a petition for
resentencing pursuant to Penal Code1 former section 1170.95
(now section 1172.6). The superior court found Dor did not
qualify for resentencing because Dor was the actual killer, as
shown by the facts set forth in this court’s opinion in Dor I, supra,
B103471. Dor contends, the People concede, and we agree the
trial court erred by engaging in improper factfinding, and Dor is
not ineligible as a matter of law. We reverse and direct the
superior court to issue an order to show cause and hold an
evidentiary hearing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Killing
As this court explained in Dor I, supra, B103471,2 the
People presented evidence at trial that on the night of the
shooting, Kradjian and his date, Lois Morales, attended a party
1 Further statutory references are to the Penal Code.
2 We provide a recitation of the facts from the trial only as
background.
2
at the Armenian Center in Pasadena. When they left the party,
they walked across the street to where Kradjian had parked. Dor
and another man were standing near the rear of Kradjian’s car.
Kradjian walked Morales to the passenger side of the car and
helped her in. He closed her door and walked to the rear of the
car. Morales looked back and saw Kradjian arguing with Dor
and the other man. Kradjian pushed the men away and started
walking toward the driver’s side door of his car. Dor shot
Kradjian three times, then he and the other man ran away.
Kradjian died from his wounds.
A few months later Dor was a passenger in a car stopped by
the Torrance police for a traffic violation. A gun was recovered
from the driver, which later was determined to be the weapon
that killed Kradjian. In the course of an investigation into
unrelated robberies, Michael Baskerville told the police that on
the night of the shooting Dor said to Baskerville that he had
robbed an Armenian man and shot him. Two of Dor’s friends,
Evans and Mosely, were with him that night, but they had
remained in the car and were not involved in the robbery and
shooting. Dor later told Baskerville he had been pulled over in
Torrance and the police recovered the gun Dor had used in the
shooting. Morales identified Dor from mug shots and a lineup as
the man who shot Kradjian.
Police arrested Dor, Evans, and Mosely. Evans initially
told the police a man named Kevin was the robber and killer, and
Evans, Mosely, and Dor just happened to be in the vicinity.
Later, Evans stated Dor and Kevin tried to rob Kradjian, and Dor
shot Kradjian when he resisted. In a recorded conversation
between Evans and Mosely, Evans told Mosely to “blame [the
3
murder] on Kevin.” At trial, Evans testified it was Kevin, not
Dor, who shot Kradjian.
Dor similarly told the police that Kevin committed the
robbery and murder. Dor explained he was standing by his car
talking with Kevin and his friend Darryl. Dor showed his gun to
Kevin and Darryl. He left the gun with Darryl and walked to his
father’s apartment. After he left the apartment, Dor heard gun
shots and saw Kevin and Darryl running toward him. Dor ran
with them to Kevin and Darryl’s car. Darryl then handed the
gun back to Dor, got into the car with Kevin, and drove off.
Mosely and Evans pulled up in Dor’s car, and Dor drove off with
them.
The jury found Dor guilty of first degree murder and
attempted robbery, and it found true the special allegation the
murder was committed while Dor was engaged in the commission
of a robbery. (§ 187, subd. (a) (count 1); §§ 664, 211 (count 2);
§ 190.2, subd. (a)(17)(A).) The jury also found true that Dor
personally used a firearm in connection with the murder and
attempted robbery. (§ 12022.5, subd. (a).) The trial court
sentenced Dor to life without the possibility of parole, plus five
years on the firearm-use enhancement.
B. Dor’s Petition for Resentencing
On December 7, 2021 Dor, represented by counsel, filed a
petition for resentencing in which he argued he was eligible for
relief under former section 1170.95 because he was convicted
under the now-invalid natural and probable consequences
doctrine or the felony murder rule. Dor submitted with his
petition the jury instructions and a copy of this court’s opinion in
Dor I.
4
The People in their opposition argued Dor was ineligible for
relief because he was either the actual killer, harbored the intent
to kill, or was a major participant who acted with reckless
indifference to human life. The People attached to their
opposition the opinion in Dor I, supra, B103471, the jury
instructions, and the verdict forms.
Dor filed a reply in which he argued that under the
Supreme Court’s decision in People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis), he had made a prima facie showing
of entitlement to relief, and therefore, the court should issue an
order to show cause. Dor also argued the special circumstance
finding could not be used to justify finding him ineligible because
the finding was made before the Supreme Court decided People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522.
After hearing argument from counsel, on June 21, 2022 the
superior court denied Dor’s petition. The court found Dor had not
made a prima facie showing that he was entitled to relief,
reasoning this court’s opinion in Dor I, supra, B103471 provided
“strong evidence of the defendant’s guilt,” discussing “undisputed
evidence that placed the defendant at the scene of the
murder . . . ; that witness Morales identified the defendant as the
killer; and that the jury concluded beyond a reasonable doubt
that the defendant personally used a firearm.” Therefore, “there
is no reason for the court to order an order to show cause for a
hearing.”
Dor timely appealed.
5
DISCUSSION
A. Senate Bill 1437 and Section 1172.6 (Former
Section 1170.95)
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) eliminated the natural and probable consequences
doctrine as a basis for finding a defendant guilty of murder and
significantly limited the scope of the felony-murder rule. (People
v. Strong (2022) 13 Cal.5th 698, 707-708; Lewis, supra, 11 Cal.5th
at p. 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-
848.) Section 188, subdivision (a)(3), now prohibits imputing
malice based solely on an individual’s participation in a crime
and requires proof of malice to convict a principal of murder
except under the revised felony-murder rule as set forth in
section 189, subdivision (e). That section requires the People to
prove specific facts relating to the defendant’s individual
culpability: The defendant was the actual killer (§ 189,
subd. (e)(1)); although not the actual killer, the defendant, with
the intent to kill, assisted in the commission of the murder
(§ 189, subd. (e)(2)); or the defendant was a major participant in
an underlying felony listed in section 189, subdivision (a), and
acted with reckless indifference to human life “as described
in subdivision (d) of Section 190.2,” the felony-murder special-
circumstance provision (§ 189, subd. (e)(3)). (See Strong, at
p. 708.)
Senate Bill 1437 also provided a procedure (now codified in
section 1172.6) for 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 under Senate Bill 1437’s changes to
6
sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; People
v. Gentile, supra, 10 Cal.5th at p. 847.) The ameliorative changes
to the law now apply to attempted murder and voluntary
manslaughter. (§ 1172.6, subd. (a).)
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the sentencing court must appoint counsel to
represent the petitioner upon his or her request pursuant to
section 1172.6, subdivision (b)(3). Further, upon the filing of a
facially sufficient petition, the court must direct the prosecutor to
file a response to the petition and permit the petitioner to file a
reply, and the court must determine whether the petitioner has
made a prima facie showing that he or she is entitled to relief.
(See § 1172.6, subd. (c).) Where a petitioner makes the requisite
prima facie showing he or she falls within the provisions of
section 1172.6 and is entitled to relief, the court must issue an
order to show cause and hold an evidentiary hearing to determine
whether to vacate the murder conviction and resentence the
petitioner on any remaining counts. (§ 1172.6, subds. (c) &
(d)(1).)
B. The Superior Court Erred in Denying Dor’s Petition Without
Issuing an Order To Show Cause
Dor contends the superior court erred in denying his
petition without issuing an order to show cause and holding an
evidentiary hearing because the court improperly engaged in
factfinding in concluding Dor was the actual killer; it improperly
considered the facts as described in Dor I, supra, B103471; and it
should not have relied on the jury’s true finding that Dor
7
personally used a firearm in the commission of the murder. The
People agree that the superior court erred, pointing to the jury
instructions that show Dor could have been convicted under
either the natural and probable consequences doctrine or the
felony murder rule. We agree and reverse.
As discussed, where a defendant makes a prima facie
showing he or she falls within the provisions of section 1172.6
and is entitled to relief, the court must issue an order to show
cause and hold an evidentiary hearing. (§ 1172.6, subds. (c) &
(d)(1).) Dor submitted with his petition the jury instructions that
show the jury was instructed on the natural and probable
consequences doctrine (CALJIC No. 3.02), murder based on a
conspiracy to commit a robbery, the natural and probable
consequence of which was commission of murder (CALJIC
No. 6.11), and the felony murder rule (CALCRIM No. 8.21).
He argued in his petition he was convicted under one of
these theories. The People did not meet their burden in response
to show Dor was ineligible for relief as a matter of law. Rather,
the People argued Dor was the actual killer or harbored an intent
to kill based on the facts set forth in this court’s opinion in Dor I,
supra, B103471.
However, as the Supreme Court instructed in Lewis, in
determining whether the petitioner has made a prima facie
showing he or she is entitled to relief under former
section 1170.95, subdivision (c), “[i]n 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.) Rather, at the prima facie review stage, the court’s
review is limited to “‘readily ascertainable facts’” in the record,
8
such as the jury instructions, the record of the crimes committed,
and jury findings on the enhancements. (People v. Duchine
(2021) 60 Cal.App.5th 798, 815; see People v. Harden (2022)
81 Cal.App.5th 45, 50 [considering jury instructions and verdicts
to determine whether the record of conviction conclusively
established that defendant was actual killer]; People v. Ervin
(2021) 72 Cal.App.5th 90, 106 [considering as part of the record of
conviction the jury instructions, closing arguments, and verdicts,
which did not show defendant was ineligible for relief based on
jury’s true findings on felony-murder special-circumstance
allegation].)
As the People point out, although there was testimony
supporting a finding Dor was the actual shooter (including from
Morales), there was also evidence it was someone named Kevin
who was the actual shooter. The superior court’s finding at the
prima facie review stage that it was Dor who was the actual
shooter was improper factfinding not appropriate at the prima
facie stage.
The superior court’s reliance on the jury’s true finding on
the firearm-use enhancement was also error. As the Supreme
Court explained in People v. Jones (2003) 30 Cal.4th 1084, 1119-
1120, in rejecting the argument the defendant’s admission of
personal use of a firearm necessarily meant he was the actual
killer of a restaurant manager where he and a confederate robbed
the restaurant, “The finding of personal use, however, would not
in itself prove defendant was the actual killer. If two robbers
display guns to intimidate robbery victims and one shoots and
kills a victim, both robbers could be found to have personally
used a gun in the robbery and the felony murder, even though
only one is the actual killer.” (Id. at p. 1120.) Here, the jury was
9
instructed with CALJIC No. 17.19 that “[t]he term ‘used a
firearm’ as used in these instructions, means to display a firearm
in a menacing manner, intentionally to fire it, or intentionally to
strike or hit a human being with it.” Thus, the jury could have
found Dor personally used a firearm in the commission of the
murder based on his using the firearm in a menacing manner
without shooting it.
DISPOSITION
The order denying Dor’s petition for resentencing is
reversed. On remand, the superior court is to issue an order to
show cause and to conduct further proceedings in accordance
with section 1172.6, subdivision (d).
FEUER, J.
We concur:
PERLUSS, P. J.
ESCALANTE, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
10