People v. Sanders CA2/2

Filed 8/1/23 P. v. Sanders CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B321018
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A526192)
v.
GREGORY SANDERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Victor D. Martinez, Judge. Affirmed.
Christine M. Aros, 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, Idan Ivri and Gabriel Bradley, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant and appellant Gregory Sanders appeals from the
trial court’s May 26, 2022, order denying his petition for
resentencing under Penal Code section 1172.6 (former
§ 1170.95).1 Because defendant is ineligible for section 1172.6
relief as a matter of law, we affirm.
BACKGROUND
I. Facts
“[D]efendant, in the course of a robbery which netted him
$150, beat to death an elderly female proprietor of a fish and
chips restaurant.” (People v. Sanders (1983) 145 Cal.App.3d 218,
222 (Sanders), disapproved of on another ground by People v.
Mattson (1984) 37 Cal.3d 85.)
II. Procedural history
A. Conviction and sentencing
In 1981, a jury convicted defendant of first degree murder
(§ 187) and robbery (§ 211). The jury found true allegations that
defendant personally inflicted great bodily injury during the
commission of both crimes. (§ 1203.075.) As to the murder, the
jury also found true the special circumstance allegation that
defendant committed the murder while engaged in the
commission of robbery. (§ 190.2, subd. (a)(17).)
Defendant was sentenced to state prison for life without the
possibility of parole.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
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B. Direct appeal
This court affirmed the judgment on direct appeal. The
California Supreme Court subsequently granted a hearing and
transferred the matter back to this court for further
consideration. (Sanders, supra, 145 Cal.App.3d at p. 221.) Upon
reconsideration, this court again affirmed the judgment. (Id. at
p. 227.)
C. First section 1172.6 petition
In February 2019, defendant filed a petition for
resentencing under section 1172.6. In April 2019, the trial court
summarily denied the petition, finding that defendant was not
entitled to relief as a matter of law. The court’s minute order
provides: “An appellate opinion affirming . . . [defendant]’s
conviction and sentence reflects . . . [defendant] was convicted of
first degree murder and robbery-murder special circumstances as
the actual killer . . . .”
D. Second section 1172.6 petition
In May 2022, defendant filed a second section 1172.6
petition for resentencing. A few days later, on May 26, 2022, the
trial court again summarily denied the petition. The court noted
that the amendments to section 1172.6 effective January 1, 2022,
were not applicable to defendant’s case and, therefore, there was
no basis for defendant to refile the petition.
E. Appeal
Defendant timely appealed from the trial court’s May 26,
2022, order denying his second section 1172.6 petition.
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DISCUSSION
I. Relevant legal principles
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) substantively amended sections 188 and 189 to
“eliminate[] natural and probable consequences liability for
murder as it applies to aiding and abetting[] and limit[] the scope
of the felony-murder rule. [Citations.]” (People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) Now, a murder conviction “requires
proof that the defendant (1) was the actual killer (who acted with
the requisite express or implied malice), (2) directly aided and
abetted the actual killer while acting with the intent to kill, or
(3) was a major participant in a felony who acted with reckless
indifference to the value of human life. [Citations.]” (People v.
Duran (2022) 84 Cal.App.5th 920, 927 (Duran).)
Senate Bill No. 1437 also added what is now section 1172.6,
which provides “the statutory mechanism for determining
whether to retroactively vacate a final murder, attempted
murder, or manslaughter conviction that does not comply with
the new, narrower definitions” of murder. (Duran, supra,
84 Cal.App.5th at p. 927.)
“A defendant seeking relief under section 1172.6 must ‘file
a petition’ alleging entitlement to relief along with ‘[a]
declaration’ attesting to eligibility for relief. [Citation.] If the
defendant ‘makes a prima facie showing’ of entitlement to relief
(that is, if the record of conviction does not establish ineligibility
for relief as a matter of law), then the court must in most cases
convene an evidentiary hearing where the People bear the
burden of establishing beyond a reasonable doubt that the
defendant is guilty of the pertinent crime under the new,
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narrower definitions. [Citation.]” (Duran, supra, 84 Cal.App.5th
at p. 927.)
In determining whether a prima facie showing of eligibility
for section 1172.6 relief has been made, the trial court may rely
on the record of conviction but only after counsel has been
appointed and the parties have been given the opportunity for
briefing. (Lewis, supra, 11 Cal.5th at p. 957; People v. Lopez
(2022) 78 Cal.App.5th 1, 13 (Lopez).) “The record of conviction
may include the underlying facts as presented in an appellate
opinion, the trial evidence, the jury instructions, and closing
arguments of counsel. [Citation.]” (Lopez, supra, at p. 13.)
II. Standard of review
We review de novo the trial court’s denial of defendant’s
section 1172.6 petition at the prima facie stage. (People v. Coley
(2022) 77 Cal.App.5th 539, 545; People v. Ervin (2021)
72 Cal.App.5th 90, 101.)
III. The record of conviction conclusively establishes that
defendant is ineligible for section 1172.6 relief as a matter of law.
Defendant’s sole argument on appeal is that the trial court
erred in denying his section 1172.6 petition at the prima facie
stage because it impermissibly relied on the recitation of facts
contained in the appellate opinion affirming defendant’s
conviction on direct appeal. We conclude that any such error was
harmless because other components of the record of conviction
establish that defendant is ineligible for section 1172.6 relief as a
matter of law.2
2 Although the issue was not raised by defendant, the People
concede that the trial court erred by denying defendant’s
section 1172.6 petition at the prima facie stage without first
appointing counsel. This error, however, was also harmless. (See
5
The jury found defendant guilty of first degree murder after
having been instructed on, as relevant here, malice murder
(CALJIC No. 8.10),3 deliberate and premeditated first degree
murder (CALJIC No. 8.20),4 and first degree felony murder
(CALJIC No. 8.21).5 The verdict forms do not indicate under
which theory—malice murder or felony murder—the jury found
defendant guilty.6 But, “[i]f the jury found [defendant] guilty on
a malice theory, [he] would be ineligible for resentencing because
section [1172.6] applies only where the murder conviction is
based on felony murder, or the natural and probable
People v. Mancilla (2021) 67 Cal.App.5th 854, 864 [where the
record of conviction established the defendant’s ineligibility for
section 1172.6 relief as a matter of law, the failure to appoint
counsel and provide the opportunity for briefing was harmless].)
3 As given, CALJIC No. 8.10 states in part: “The crime of
murder is the unlawful killing of a human being with malice
aforethought.”
4 As given, CALJIC No. 8.20 states in part: “To constitute a
deliberate and premeditated killing, the slayer must weigh and
consider the question of killing and the reasons for and against
such a choice and, having in mind the consequences, he decides to
and does kill.”
5 As given, CALJIC No. 8.21 states in part: “The unlawful
killing of a human being, whether intentional, unintentional or
accidental, which occurs as a result of the commission of or
attempt to commit the crime of ROBBERY, and where there was
in the mind of the perpetrator the specific intent to commit such
crime, is murder of the first degree.”
6 The jury was not instructed on the doctrine of natural and
probable consequences.
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consequences doctrine, or any other theory under which malice is
imputed based on a person’s participation in a crime. [Citation.]”
(People v. Harden (2022) 81 Cal.App.5th 45, 53 (Harden).) And, if
the jury found defendant guilty on a felony murder theory, he
would also be ineligible for resentencing if he was the actual
killer. (Ibid.; see also People v. Garcia (2022) 82 Cal.App.5th 956,
973 [“As a matter of law, resentencing relief under section 1172.6
is not available to an ‘actual killer[]’”].) “Accordingly, the only
possible basis for section [1172.6] relief is if at least one juror
convicted [defendant] of felony murder on a theory other than
being the actual killer. [Citation.]” (Harden, supra, at p. 53,
italics added.)
The People’s theory of the case, as presented during closing
arguments, was that “defendant brutally and viciously beat . . .
[the victim] to death and strangled her to death.” The prosecutor
told the jury that it was defendant “who brutally and viciously
killed” the victim. Consistent with this theory, the jury received
no instructions permitting it to find defendant guilty of murder
based on any theory of vicarious liability.7 In fact, the trial court
7 The jury was instructed with CALJIC No. 2.11.5 as follows:
“There has been evidence in this case indicating that a person
other than defendant was or may have been involved in the crime
for which the defendant is on trial. [¶] You must not discuss or
give any consideration as to why the other person if there was
one is not being prosecuted in this trial or whether he has been or
will be prosecuted.” This unjoined perpetrator instruction
“discourage[d] improper conjecture” and “d[id] not provide the
jury with a path to convict [defendant] of felony murder on a
theory other than . . . being the actual killer.” (Harden, supra,
81 Cal.App.5th at p. 59.)
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expressly refused to instruct the jury with CALJIC Nos. 8.26 and
8.27 on conspiracy and aider and abettor theories of first degree
felony murder. Finally, the jury found true the allegation that
defendant personally and intentionally inflicted great bodily
injury on the victim during the commission of the murder for
which defendant was found guilty. This finding cannot be
reconciled with anything other than convicting defendant as the
actual killer.
Taken together, the verdicts, jury instructions, and closing
arguments “conclusively establish—with no factfinding, weighing
of evidence, or credibility determinations—that . . . [defendant]
was convicted as the actual killer” and is thus ineligible for
section 1172.6 relief as a matter of law. (Harden, supra,
81 Cal.App.5th at p. 47.)8
8 Because we affirm the trial court’s order on this basis, we
need not address the People’s argument that defendant’s
section 1172.6 petition is procedurally barred as a successive
petition.
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DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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