People v. Fisher CA2/5

Filed 8/28/23 P. v. Fisher 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B323408
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A389396)
v.
JAMES HARRIS FISHER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Shelly Torrealba, Judge. Affirmed as
modified.
Jonathan E. Demson, 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, Senior
Assistant Attorney General, Zee Rodriguez and Charles S. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
James Harris Fisher appeals the trial court’s order
summarily denying his petition for vacatur of two convictions of
murder and one conviction of attempted murder, and
resentencing under Penal Code section 1172.6.1
On appeal, Fisher contends that the trial court’s denial of
his petition without issuing an order to show cause or holding an
evidentiary hearing violated section 1172.6 and his state and
federal constitutional rights to due process.
As modified, we affirm the trial court’s order.
FACTS AND PROCEEDURAL HISTORY
On May 12, 1983, the Los Angeles County District
Attorney’s Office filed an information charging Fisher with the
first degree murder of Richard Edward Harrison (§ 187, count 1),
the second degree murder of Jerrie Ann Dabney (§ 187, count 2),
the attempted murder of Debra Thomas (§§ 664 & 187, count 3),
the attempted murder of Romona Edwin Dilworth (§§ 664 & 187,
count 4), and burglary (§ 459, count 5). The information included
special circumstance allegations that Fisher committed more
than one murder (§ 190.2, subd. (a)(3)), and that the murders
were committed while Fisher was engaged in a burglary (§ 190.2,
subd. (a)(17)). The information also alleged as to each count that
Fisher personally used a firearm (§ 12022.5).
On October 13, 1983, Fisher pleaded guilty to first degree
murder in count 1, second degree murder in count 2, and
attempted murder in count 3. He admitted the truth of the
1 All further statutory references are to the Penal Code.
2
personal firearm use enhancements in each count. Counts 4 and
5 and the special circumstance allegations were dismissed
pursuant to the plea.
At the plea colloquy, the prosecutor addressed Fisher:
“[Prosecutor]: Let me tell you basically what the charges
are in this case.
“On March 31, 1983, it’s alleged that you entered an
apartment at 910-1/2 West 94th Street, and that during that
evening, events took place where you eventually shot and killed
Richard Harrison, a gentleman named in Count I, and that you
shot and killed a lady by the name of Dabney in Count II, and
that you shot and injured a lady by the name of Deborah Thomas,
the lady in Count III.
“You understand the nature of the charges against you, sir?
“The Defendant: Yes, sir.
“[Prosecutor]: Is that a little summary of the facts that I
just gave that basically happened that night?
“The Defendant: Yes, sir.
“[Defense Counsel]: We will stipulate, counsel, that the
Court may read and consider the preliminary hearing transcript
as a factual basis for the plea.
“[Prosecutor]: Will counsel also stipulate to a factual basis
for the plea?
“[Defense Counsel]: Yes.
“[Prosecutor]: The People will also stipulate.”
The trial court sentenced Fisher to 25 years to life in
count 1, plus two years for the firearm enhancement. In count 2,
the court imposed a sentence of 15 years to life, plus two years for
the firearm enhancement, to run concurrently with count 1. In
count 3, the court imposed a term of seven years for the
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attempted murder and two years for the firearm enhancement,
also to run concurrently to the sentence in count 1.
On February 1, 2021, Fisher executed a petition for
resentencing pursuant to section 1172.6.2
On June 17, 2021, the trial court held a hearing on the
matter. Appointed counsel stated that he had reviewed the
documents relating to the case and stated that he would “submit
at this point on the informal response filed by the People.”3 The
court informed the parties that it intended to deny the petition
because it appeared that Fisher was the actual shooter and not
eligible for relief. The court stated that it would issue a written
order.
On June 21, 2022, the trial court summarily denied
Fisher’s petition in a written memorandum of decision. The court
stated that it had read and considered Fisher’s plea transcript,
dated October 13, 1983; the sentencing transcript dated
December 2, 1983; the probation report dated November 29,
1983, and the arguments of counsel.4
2 We granted Fisher’s request to augment the record to
include his section 1172.6 petition. The petition indicates that
Fisher executed it on February 1, 2021; however, it does not have
a file stamp from the Los Angeles Superior Court. We permitted
the People to seek reconsideration of our order if the People
believed the original of the attached petition was not filed. We
have had no such request from the People.
3 The People’s response is not included in the record on
appeal.
4 The trial court did not indicate that it had reviewed the
preliminary hearing transcript that formed the factual basis for
4
The court found: “Petitioner was the sole defendant and
actual shooter in this matter, acting with specific intent required
for a conviction pursuant to Penal Code sections 187(a) and 664-
187(a) and personally discharging a firearm causing death and
great bodily injury. Therefore, petitioner/defendant is ineligible
for resentencing pursuant to Penal Code [s]ection 1170.95.”5
Fisher appealed.
Fisher’s guilty plea, and the transcript is not included in the
record on appeal.
5 Although the caption of the trial court’s memorandum of
decision, dated June 21, 2022, identifies Fisher as the defendant
and petitioner, the body of the decision inaccurately reflects that
the petitioner is “Dwight McDowell.” Additionally, the
memorandum of decision reflects Fisher’s convictions for the first
degree murder of Richard Harrison and the attempted murder of
Deborah Thomas, but does not reflect Fisher’s conviction for the
second degree murder of Jerrie Ann Dabney. The same errors
are present in the minute order dated June 21, 2022. On July 21,
2023, we informed the parties of these inaccuracies by letter and
invited them to file letter briefs on the issue if they deemed it
necessary. Fisher declined to file briefing. The People filed a
letter brief asserting that the inaccuracies we identified are
clerical errors that must be corrected. We agree with the People
and order that the minute order and order be modified
accordingly.
5
DISCUSSION
Legal Principles
“[U]ntil recently, when a person aided and abetted a
nonhomicide crime that then resulted in a murder, the natural
and probable consequences doctrine allowed him or her to be
convicted of murder without personally possessing malice
aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 845.)
Under the natural and probable consequences doctrine, “an
accomplice is guilty not only of the offense he or she directly
aided or abetted (i.e., the target offense), but also of any other
offense committed by the direct perpetrator that was the ‘natural
and probable consequence’ of the crime the accomplice aided and
abetted (i.e., the nontarget offense).” (Id. at p. 843.) In the case
of a homicide, then, “[s]o long as the direct perpetrator possessed
malice, and the killing was a natural and probable consequence
of the crime the defendant aided and abetted,” the defendant was
culpable for murder regardless of “whether the defendant
intended to kill or acted with conscious disregard for human life.”
(Id. at p. 845.) Additionally, liability for murder could be imposed
under the felony murder rule even if the defendant did not act
with express or implied malice if the killing occurred during the
commission of certain offenses. The felony-murder rule provided
that “ ‘[a]ll murder . . . which is committed in the perpetration of,
or attempt to perpetrate, [an enumerated crime] . . . is murder of
the first degree.’ ” (People v. Wilkins (2013) 56 Cal.4th 333, 340.)
“Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437) amended section 188[, which sets forth the malice
requirements for murder,] to provide that ‘[e]xcept as stated in
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subdivision (e) of [s]ection 189, 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.’ (Stats. 2018, ch. 1015, § 2.) The
amendment effectively ‘eliminates natural and probable
consequences liability for first and second degree murder.’ ”
(People v. Garrison (2021) 73 Cal.App.5th 735, 742.) With respect
to felony murder, section 189, subdivision (e) now provides: “A
participant in the perpetration or attempted perpetration of a[n]
[enumerated] felony . . . in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person
was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3)
The person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
subdivision (d) of [s]ection 190.2.”
Senate Bill No. 1437 also enacted former section 1170.95
(now § 1172.6), which provides a procedure by which a person
convicted of murder under a theory invalidated under Senate Bill
No. 1437 may petition to vacate the conviction. (People v. Gentile,
supra, 10 Cal.5th at p. 843; former § 1170.95, subd. (a).) Senate
Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill No. 775)
amended former section 1170.95 effective January 1, 2022 to
expand its reach to defendants convicted of attempted murder
and manslaughter. (former § 1170.95, subd. (a); Stats. 2021,
ch. 551, § 2.) Effective June 30, 2022, section 1170.95 was
renumbered section 1172.6, with no changes in text. (Stats. 2022,
ch. 58, § 10.)
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Upon receipt of a complying petition under section 1172.6,
the trial court must appoint counsel, allow briefing, and then
determine if the petitioner has made a prima facie showing that,
inter alia, “[t]he petitioner could not presently be convicted of
murder or attempted murder” under the amendments to the
Penal Code enacted under Senate Bill No. 1437. (§ 1172.6, subd.
(a)(3).) In making the prima facie determination, the trial court
must “ ‘ “take[ ] [the] petitioner’s factual allegations as true and
make[ ] a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved.” ’ ” (People v. Lewis (2021) 11 Cal.5th
952, 971.) “ ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an
evidentiary hearing.’ ” (Ibid.) The court may rely on the record
of conviction in making the prima facie determination, however,
and “ ‘if the record, including the court’s own documents,
“contain[s] facts refuting the allegations made in the petition,”
then “the court is justified in making a credibility determination
adverse to the petitioner.” ’ ” (Ibid.)
Analysis
In the opening brief, Fisher contends that he satisfied the
statutory criteria to make a prima facie showing of eligibility for
resentencing. He argues that because he entered into a plea
agreement no jury or court has made findings regarding his role
in the crimes. Additionally, his plea contained no admissions
regarding his mens rea. Fisher asserts that the trial court’s
ruling was based on premature fact-finding and overly broad
8
conclusions regarding what he admitted to as part of his plea.
We reject the contention.
There is no merit to Fisher’s argument that the trial court
engaged in premature fact-finding. The trial court reviewed and
relied upon the plea colloquy, which is part of the record of
conviction. The trial court may make a credibility determination
adverse to Fisher on this basis. (See People v. Lewis, supra, 11
Cal.5th at p. 971 [court may deny petition at prima facie stage
based on record of conviction].)
At the plea colloquy, Fisher, who was the only person
charged with the crimes of which he was convicted, admitted
that, on March 31, 1983, he entered an apartment, shot and
killed the victims in counts 1 and 2, and shot and injured the
victim in count 3. We disagree with Fisher that the substance of
this admission is unclear. The prosecutor stated that he was
going to summarize the charges, told Fisher he was charged with
shooting and killing two people and shooting and injuring a third
person, and then asked if Fisher agreed with that summary.
Fisher stated that he did. The exchange was not ambiguous.
We also reject Fisher’s assertion that he only admitted that
he was guilty of murder and attempted murder, which did not
require that he harbor malice at that time. Fisher asserts that
he did not admit that he actually killed the victims in counts 1
and 2 and attempted to kill the victim in count 3. Fisher avers
that he could stipulate to a factual basis for the plea without
making an admission. He argues that because it was not
necessary for him to admit to being the actual killer/attempted
murderer to admit guilt, he had no reason to contest the
prosecutor’s summary of events because it would have no impact
on his plea agreement. This explanation is simply not
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reasonable. Regardless of whether Fisher was required to admit
to being the actual killer/attempted murderer, or could stipulate
to particular facts without admitting them, the only reasonable
view of the record here is that Fisher did admit that he was the
actual killer/attempted murderer. Although there may be details
that a defendant would not contest because they are not relevant
to a plea agreement, that the defendant shot and killed two
people and shot and injured a third person is not a detail that
people blithely admit simply because the admissions will have no
immediate consequences. Given that Fisher was not required to
admit to being an actual killer/attempted murderer, we see no
reason that he would make the admission if he did not believe it
to be true.
Fisher’s argument that he did not specifically admit to a
particular mens rea has no teeth. Because he admitted he was
the direct perpetrator of the crimes, Fisher could not have been
convicted under the natural and probable consequences doctrine,
so malice could not have been imputed to him under that theory.
Although Fisher could have been convicted under a felony
murder theory of murder, malice is still not a required element
for actual killers under the exception in section 189, subdivision
(e)(1).
The cases upon which Fisher relies are distinguishable. In
People v. Rivera (2021) 62 Cal.App.5th 217, 233 (Rivera), the
Court of Appeal held that the defendant could not be found prima
facie ineligible under former section 1170.95 as a matter of law
based on the allegation in the indictment that “a murder was
committed “ ‘ “willfully, unlawfully[,] and with malice
aforethought” ’ ” because this was “a well-recognized way of
charging murder in this generic sense.” The appellate court
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explained that the language of the indictment did not limit the
prosecution to seeking a conviction under any particular theory of
murder, including the now-invalid theories of natural and
probable consequences and felony murder. (Ibid.) In the instant
case, Fisher’s ineligibility was not based on generic language in
the indictment; it was based on his express admissions at the
plea colloquy. Rivera is inapposite.
People v. Eynon (2021) 68 Cal.App.5th 967 (Eynon)
presented a similar issue. There, the information generically
alleged that the defendant and his codefendant “ ‘did willfully,
unlawfully, and with deliberation, premeditation, and malice
aforethought [murder the victim].’ ” (Id. at p. 971.) The Eynon
court emphasized that although the defendant admitted that he
was guilty of premeditated and deliberate murder on an
unspecified theory, he did not state that he acted with
premeditation and deliberation, or had the intent to kill, and
made no factual admissions that would render him ineligible for
relief. (Id. at p. 979.) Because Eynon made no specific admission
at the plea colloquy, the appellate court held that he was prima
facie eligible for relief under former section 1170.95.6 (Ibid.)
Fisher, who was the sole defendant, did not merely plead guilty
to murder and attempted murder: he expressly admitted to
shooting and killing two people, and shooting and injuring a third
person.
In People v. Davenport (2021) 71 Cal.App.5th 476, 484, the
defendant was charged with committing murder “ ‘with malice
aforethought,’ ” and pleaded no contest to second degree murder
6 People v. Flores (2022) 76 Cal.App.5th 974 presented the
same issue and the court reached the same conclusion.
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and personal use of a firearm under section 12022.5,
subdivision (a). The Davenport court concluded that the charge
was generic and did not limit the prosecution’s theory of liability.
(Ibid.) Additionally, the court concluded that the defendant’s
admission to the firearm allegation did not preclude the
possibility that he was tried under a felony murder theory of
murder. (Id. at p. 485.) The court held that the defendant was
not prima facie ineligible for relief under former section 1170.95
and reversed the trial court’s order. (Ibid.) In this case, we need
not reach the question of whether Fisher’s admission to firearm
enhancements would render him prima facie ineligible for relief
in light of our holding that his express admissions do. Because
he specifically admitted to shooting and killing two people and
shooting and injuring a third person, he is ineligible for relief as a
matter of law.7
7 Fisher also argues that the trial court’s denial of the
petition without issuing an order to show cause or holding an
evidentiary hearing violated his due process rights. Given our
conclusion that Fisher is ineligible for relief as a matter of law,
the argument necessarily fails.
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DISPOSITION
We order that the trial court’s memorandum of decision
and minute order, dated June 21, 2022, be modified to reflect that
Fisher, and not Dwight McDowell, is the petitioner in this
matter, and to include Fisher’s conviction for the second degree
murder of Jerrie Ann Dabney. As modified, we affirm the trial
court’s order denying Fisher’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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