People v. Harris CA2/4 ( 2021 )

Filed 12/8/21 P. v. Harris CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B306109
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA078478)
v.
BERNARD JEROME HARRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Reversed and
remanded with directions.
Verna Wefald, 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, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________________________
INTRODUCTION
Shortly after appellant Bernard Jerome Harris asked
two men whether they belonged to a rival gang, which was
believed to be responsible for an earlier assault on Harris’s
fellow gang member Richard Theus, Theus opened fire on
the two men and a third who had joined them, killing one.
During opening statement at Harris and Theus’s trial, the
prosecutor briefly mentioned that a former codefendant had
pled guilty. The jury received instructions on a “direct”
aiding and abetting theory and the natural and probable
consequences doctrine, and convicted Harris of one count of
murder and two counts of attempted murder. We affirmed
in an unpublished opinion. (People v. Theus (May 18, 2011)
2011 Cal.App.Unpub. LEXIS 3728 (Theus).) In concluding
that Harris was not prejudiced by the prosecutor’s fleeting
mention of his former codefendant’s guilty plea, we stated
that his conduct before the shooting, viewed in the context of
his alleged gang motive, “independently established” his
“participation and intent to aid the shooting.” (Id. at *17-
*19.) We did not mention that the jury had been instructed
on the natural and probable consequences doctrine.
2
After the enactment of Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437), Harris filed a petition for resentencing
under newly enacted Penal Code section 1170.95 (Section
1170.95), contending his convictions were invalid in the
wake of SB 1437’s elimination of murder liability under the
natural and probable consequences doctrine. The trial court
issued an order to show cause and held an evidentiary
hearing, at which the parties relied on the record of
conviction. During the hearing, the court indicated it would
deny Harris’s petition with respect to his attempted murder
convictions, concluding Section 1170.95 did not apply to
attempted murder. The prosecutor argued Harris was
ineligible for relief from his murder conviction as well,
because the evidence at trial showed he was guilty under a
direct aiding and abetting theory, which was unaffected by
SB 1437. Neither the prosecutor nor the court mentioned
the analysis in our Theus opinion. After taking the matter
under submission, the court issued an order denying Harris’s
petition in its entirety, stating that because we had “already
deemed” him a direct aider and abettor in our Theus opinion,
the prosecution had satisfied its burden to prove he could be
convicted under a still-valid theory.
On appeal from the denial of his petition, Harris
contends the trial court erred in: (1) relying solely on our
Theus opinion to conclude the prosecution had met its
burden to prove his ineligibility for relief beyond a
reasonable doubt; and (2) concluding Section 1170.95 did not
apply to attempted murder. The Attorney General disputes
3
both contentions, and additionally contends the invited error
doctrine and the forfeiture rule bar Harris from challenging
the court’s exclusive reliance on our Theus opinion. After
the appeal was fully briefed, the Governor signed into law
Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective
January 1, 2022. (See Cal. Const., art. IV, § 8, subd. (c)(2).)
As amended by SB 775, Section 1170.95 expressly provides
for relief from attempted murder convictions under the
natural and probable consequences doctrine. (Stats. 2021,
ch. 551, § 2.) We allowed the parties to file supplemental
briefs, in which they agree we should remand for further
proceedings under SB 775.
Considering only the law predating SB 775, we
conclude the trial court erred in denying Harris’s petition
with respect to his murder conviction. Neither the invited
error doctrine nor the forfeiture rule bars Harris’s claim that
the court erred in relying solely on our Theus opinion.
Although the court’s reliance on it was understandable, our
opinion’s analysis of prosecutorial error could not substitute
for the trial court’s independent factfinding regarding
Harris’s guilt under a still-valid theory. Accordingly, we
reverse the order denying Harris’s petition, and remand to
the trial court with directions to hold a new evidentiary
hearing. In light of SB 775’s amendments concerning
attempted murder, we additionally direct the court to hold
the new evidentiary hearing after SB 775’s effective date of
January 1, 2022, and to reconsider whether Harris is eligible
for relief from his attempted murder convictions.
4
BACKGROUND
A. Trial
1. Opening Statement
The People charged Harris and Theus with the murder
of Marcus Peters and the willful, deliberate, and
premeditated attempted murders of Derick Holman and
Aaron Thomas. (Theus, supra, 2011 Cal.App.Unpub. LEXIS
3728, at *1.) During the prosecutor’s opening statement, he
told the jury that Harris and Theus arrived at the scene of
the charged offenses in a car driven and owned by Ryan
Scott, who “was a third defendant in this case and has since
pled out, so that’s why he’s not here.” (Id. at *13.) The trial
court denied Harris’s requests for a mistrial and a special
curative instruction in response to the prosecutor’s mention
of Scott’s guilty plea. (Id. at *13-*14.) However, the court
ordered the prosecutor not to mention Scott’s plea again, and
twice instructed the jury that what the attorneys said was
not evidence, and that the jury was required to base its
decision on facts determined by evidence. (Id. at *14, *17.)
2. Evidence
The parties stipulated that Harris and Theus belonged
to the Boulevard Crips gang, which the prosecution gang
expert, Detective Chris Zamora, identified as a rival of the
Sex Money Murder gang. (Theus, supra, 2011
Cal.App.Unpub. LEXIS 3728, at *10.) In the afternoon of
May 30, 2007, Theus and a companion were riding their
bicycles in an area of Long Beach claimed by Sex Money
5
Murder. (Id. at *3.) Three unidentified men -- who were
members of Sex Money Murder, in Detective Zamora’s
opinion -- assaulted Theus and his companion, and took their
bicycles. (Id. at *4, *10.)
That evening, Derick Holman and Marcus Peters were
walking to a gas station in Long Beach. (Theus, supra, 2011
Cal.App.Unpub. LEXIS 3728, at *4.) Holman noticed Theus
walking near an alley, “‘looking kind of suspicious.’” (Id. at
*4, *6.) Holman and Peters continued to the gas station.
(Id. at *4.) While they were in the station lot, a silver car --
which Holman identified as a car owned by Harris’s former
codefendant Ryan Scott -- drove up. (Id. at *4, *6.) Harris
got out of the vehicle and approached. (Ibid.) Harris asked
Holman and Peters if they were members of Sex Money
1
Murder. (Ibid.) They replied they were not. (Id. at *4.)
A few minutes after their encounter with Harris, as
they walked down the street, Holman and Peters were joined
by Aaron Thomas. (Theus, supra, 2011 Cal.App.Unpub.
LEXIS 3728, at *4.) As the three men stood together on the
sidewalk, a silver car approached. (Id. at *4.) Theus got out
1
Surveillance video from the gas station confirmed the
presence of Holman, Peters, another individual (wearing a
sweatshirt), and a silver car. (Theus, supra, 2011
Cal.App.Unpub. LEXIS 3728, at *4-*5.) After Holman identified
Harris in a photographic lineup, police officers executed a search
warrant at Harris’s apartment and seized a sweatshirt, which
Holman testified looked like the one Harris had worn at the gas
station. (Id. at *5.)
6
of the vehicle and fired multiple rounds at them from a
handgun. (Id. at *4, *6.) Peters was killed, and Holman was
shot three times (Thomas escaped injury). (Id. at *4.)
Holman and Thomas denied that they were gang
members, but Holman acknowledged he associated with
members of Sex Money Murder. (Theus, supra, 2011
Cal.App.Unpub. LEXIS 3728, at *6-*7.) Detective Zamora
testified that Peters also had been affiliated with Sex Money
Murder. (Id. at *10.) Detective Zamora opined that the
shooting was payback for the earlier assault on Theus. (Id.
at *10.) Evidence was presented that during a recorded
custodial interview, Theus’s companion during the assault
told detectives that Theus had admitted shooting some men
as payback. (Id. at *7-*8.)
A deputy sheriff testified that five days before trial
began, inside the lockup area of the courthouse, Harris
asked the deputy to retrieve for him a folder he had left
behind when entering the courtroom, but bailiffs informed
the deputy the folder had been left by Theus. (Theus, supra,
2011 Cal.App.Unpub. LEXIS 3728, at *8-*9.) Inside the
folder, the deputy found a greeting card addressed to Harris,
containing a folded letter. (Id. at *9.) The author of the
letter identified himself as “‘2 Pistols,’” and wrote that
“‘G-Rich’” (Theus’s nickname) was his “‘lil fam Bam.’” (Ibid.)
The letter went on to state in part: “‘I don’t like what [I’]m
hearing. I went to court the other day and I hear[]d a nigga
say G-Rich is snitchin, so I got at cuzz and told cuzz G-Rich
is my lil c[o]usin[.] Why is you speakin up on cuzz if you
7
have[n’t] seen any paper work and cuzz said that’s what he
heard. But anyway let cuzz keep the paperwork so he can
clear his name up. . . . But clear cuzz name up, let niggas
know he ain’t snitchin. But if cuzz is snitchin then you know
he’s a grown man, he got to deal with it. . . .’” (Id. at *9.)
3. Convictions
The jury convicted Harris and Theus of the first degree
murder of Peters and the attempted murders of Holman and
Thomas, which the jury found to be willful, premeditated,
and deliberate. (Theus, supra, 2011 Cal.App.Unpub. LEXIS
3728, at *1.) The jury found true, inter alia, an allegation
that the crimes were committed for the benefit of a criminal
street gang. (Id. at *1-*2.) Harris was sentenced to
imprisonment for 105 years to life, plus 20 years. (Id. at *3.)
B. Our Theus Opinion
On Harris’s and Theus’s direct appeals, we affirmed
the judgment. (Theus, supra, 2011 Cal.App.Unpub. LEXIS
3728, at *35-*36.) We rejected Harris’s contention (joined by
Theus) that the trial court prejudicially erred by denying
Harris’s requests for a mistrial and a special curative
instruction in response to the prosecutor’s reference in
opening statement to the guilty plea of Ryan Scott (Harris’s
former codefendant and the owner of the car Holman said he
saw at the gas station). (Id. at *3, *13.) Although we agreed
that the prosecutor erred by mentioning Scott’s plea, we
8
concluded, as described below, that Harris was not
prejudiced. (Id. at *16-*17.)
As an initial matter, we rejected Harris’s assertion that
the error rendered his trial fundamentally unfair, noting
that the prosecutor’s single comment was “fleeting.” (Theus,
supra, 2011 Cal.App.Unpub. LEXIS 3728, at *17.) We
proceeded to conclude, for several reasons, that Harris had
failed to show a reasonable probability that he would have
obtained a more favorable outcome but for the prosecutor’s
comment. (Ibid.) “First, . . . the reference to Scott’s plea
occurred once and was extremely brief. Second, the jury was
instructed twice [and was presumed to have understood]
that it was to base its decisions on the facts, that the facts
were to be determined by the evidence, and that statements
made by the attorneys were not evidence. . . . Third,
notwithstanding appellants’ claim otherwise, the evidence of
their guilt in the Peters killing was strong.” (Id. at *17-*18.)
We elaborated on the strength of the evidence against
Harris as follows: “Harris’s involvement was established by
Holman’s identification, which was bolstered by the video
from the gas station. Harris asserts that but for Scott’s link
as the driver of the vehicle, the jury could have concluded
that Harris’s presence was mere “‘“happenstance.”’” We are
not persuaded. The gang motive was compelling.
Appellants and the victims were members or affiliates of
rival gangs. Theus was the victim of an attack in rival gang
territory hours before the shooting and the Peters killing
was in retaliation for that attack. The motive puts Harris’s
9
approach of Peters and Holman in the gas station in context.
He confronted them and asked their gang affiliation.
Minutes later, Theus shot at Peters, Holman, and Thomas.
Harris’s participation and intent to aid the shooting is
independently established by his conduct. Finally, Theus
attempted to communicate with Harris in the courthouse
shortly before trial. In the letter that was confiscated, the
author tried to allay Harris’s fear that his codefendant
[Theus] was a snitch. If Harris were simply an innocent
bystander who happened to be in Scott’s vehicle on the night
of the shooting, why would he be concerned that Theus was a
snitch? The answer is clear. Theus could potentially provide
damaging information linking Harris to the crime.” (Theus,
supra, 2011 Cal.App.Unpub. LEXIS 3728, at *18-*19, italics
added.) We concluded, “After considering the totality of the
circumstances, we are satisfied that appellants would not
have received a more favorable verdict in the absence of the
prosecutor’s single comment made during opening
statement.” (Id. at *19.)
C. The Instant Petition
1. Petition and Order to Show Cause
In January 2019, Harris filed a petition for relief under
Section 1170.95, alleging he had been convicted under the
natural and probable consequences doctrine, and could not
10
2
be convicted in the wake of SB 1437. Harris attached an
instruction the jury had received on the natural and
probable consequences doctrine, which read, in relevant
part: “One who aids and abets another in the commission of
a crime or crimes is not only guilty of those crimes, but is
also guilty of any other crime committed by a principal
which is a natural and probable consequence of the crimes
originally aided and abetted. [¶] In order to find the
defendant guilty of the crimes of murder and attempted
murder, as charged in counts 1, 2, and 3, you must be
satisfied beyond a reasonable doubt that: [¶] 1. The crime or
crimes of murder and attempted murder were committed; [¶]
2. That the defendant aided and abetted those crimes; [¶]
3. That a co-principal in that crime committed the crimes of
murder and attempted murder; and [¶] 4. The crimes of
murder and attempted murder were a natural and probable
consequence of the commission of the crime of murder.”
(Italics added.) Harris also attached an excerpt from the
transcript of closing arguments, in which the prosecutor told
2
Before SB 1437 amended Penal Code sections 188 and 189
to eliminate murder liability under the natural and probable
consequences doctrine, that doctrine “made ‘a person who aids
and abets a confederate in the commission of a criminal act . . .
liable not only for that crime (the target crime), but also for any
other offense (nontarget crime) [including murder] committed by
the confederate as a “natural and probable consequence” of the
crime originally aided and abetted.’” (People v. Johns (2020) 50
Cal.App.5th 46, 57-58.)
11
the jury (consistent with the first paragraph of the
instruction) that an aider and abettor is guilty not only of
the crimes originally aided and abetted, but also of any other
crime committed by a principal as a natural and probable
consequence thereof. At Harris’s request, the trial court
appointed counsel for him.
In a written opposition (citing no evidence other than
the trial transcripts), the prosecution argued the jury
necessarily had found Harris acted with the intent to kill,
rendering him ineligible for relief from his murder and
attempted murder convictions, because even the instruction
on the natural and probable consequences doctrine had
required such a finding (by identifying the target crimes as
murder and attempted murder). In reply, Harris argued
that because the instruction on the natural and probable
consequences doctrine was confusing in asking the jury to
determine whether murder and attempted murder were
natural and probable consequences of murder, and because
the trial prosecutor had argued the doctrine to the jury, the
prosecution could not prove beyond a reasonable doubt that
the jury had found intent to kill or otherwise convicted him
under a still-valid theory. Harris additionally argued that
Section 1170.95 applied to attempted murder.
In September 2019, the court issued an order for the
prosecution to show cause why “the relief requested in the
petition” should not be granted.
12
2. Evidentiary Hearing
In February 2020, the court held an evidentiary
hearing on Harris’s eligibility for relief. Neither party
sought to introduce evidence during the hearing.
Harris’s counsel characterized the issue for the court’s
determination as whether the prosecution had proved
beyond a reasonable doubt, “based upon the submission of
the [trial] transcript and no other evidence,” that a still-valid
theory to support Harris’s convictions “exist[ed] within that
transcript.” Counsel argued that because the jury had been
instructed on the natural and probable consequences
doctrine, the prosecution could not meet its burden “based
upon the transcript” to prove beyond a reasonable doubt that
Harris shared Theus’s intent to kill. The court observed that
Harris was not the shooter, and commented, “I couldn’t tell
from what I know of the facts, without reading all of the
transcripts -- which I’ve not yet done -- what your client’s
role [was]. I was having a hard time figuring [that] out,
other than maybe he was in the car [from which the shooter
emerged].” Counsel argued there was no evidence that
Harris was in the car when it arrived at the scene of the
shooting, or that Harris shared Theus’s intent to kill.
The prosecutor argued Harris was ineligible for relief
because he could still be convicted of first degree murder as a
3
direct aider and abettor. The prosecutor argued Harris
3
In the alternative, the prosecutor renewed his argument
that Harris was ineligible for relief because the jury had been
(Fn. is continued on the next page.)
13
shared Theus’s intent to kill the victims in retaliation for the
earlier assault on Theus by members of Sex Money Murder,
as evidenced by Harris’s asking Holman and Peters whether
they belonged to Sex Money Murder, before allegedly
entering the same silver car from which Theus soon emerged
to shoot the victims. The court observed that although there
was evidence Harris arrived at the gas station in a car
similar to the car from which Theus emerged, Harris had
never been identified as “being in the car that the shooter
got out of.” The prosecutor confirmed this was correct.
When asked to identify evidence that Harris was involved in
the shooting, the prosecutor reiterated that Harris entered
the “same” car used by the shooter, and the court responded,
“Which [Harris’s counsel] disputes, and I’ll have to look and
see what the evidence actually says.” In response to further
inquiries from the court, the prosecutor said he did not recall
how much time passed between Holman’s sightings of a
silver car at the gas station and at the scene of the nearby
shooting, but agreed that the time was longer than “a quick
run around the block.” The prosecutor further agreed that
there was no direct evidence (either testimony or video)
placing Harris in the car at the time of the shooting. Neither
required, even under its instruction on the natural and probable
consequences doctrine, to find Harris acted with intent to kill. In
response to inquiries from the court, the prosecutor agreed the
instruction was “nonsensical” in asking the jury to determine
whether murder (or attempted murder, a lesser included offense)
was a natural and probable consequence of murder.
14
the prosecutor nor the court mentioned the analysis in our
Theus opinion.
In rebuttal, Harris’s counsel stated, “[T]he court knows
the facts. The prosecutor accurately stated them to the
court.” He argued, “The court has directly and correctly
evaluated the facts, those are the facts. There is no proof
beyond a reasonable doubt of an intent to kill on Mr. Harris’s
part.” When counsel began to discuss Harris’s convictions
for attempted murder, the court interjected that “the state of
the law now is that SB 1437 does not apply to attempted
murder.” The court took the matter under submission.
3. Ruling
In April 2020, the court denied Harris’s petition in a
memorandum of decision. The court observed the
prosecution had argued Harris was guilty as a direct aider
and abettor, and had directed the court’s attention to our
Theus opinion, “which summarized the evidence presented
at trial: that Petitioner and the victim were members of rival
gangs; that Petitioner’s co-defendant Theus was ‘a victim of
an attack in rival gang territory hours before the shooting;’
and that the murder was retaliation for that attack.” The
court continued, “The Court of Appeal found the gang motive
and Petitioner’s conduct prior to the shooting established his
‘participation and intent to aid the shooting.’ (People v.
Theus, supra, [2011 Cal.App.Unpub. LEXIS 3728,] at
p. [18].) This indicates that Petitioner could have been found
guilty of first-degree murder based on the viable legal theory
15
that he directly aided and abetted Theus in shooting and
killing the victim. [¶] Petitioner argues that because
Petitioner was convicted on a natural and probable
consequences theory of liability, the People must show ‘on
the evidence presented he could have been convicted under
current law.’ [Citation.] As stated, ante, the Court of Appeal
already deemed Petitioner as [sic] an aider and abettor.
Accordingly, that is a viable legal theory based on [Penal
Code] section 188 of which Petitioner could have been
convicted. Therefore, because the People have met their
burden, and [sic] the petition must be denied.”
Harris timely appealed.
DISCUSSION
With respect to his murder conviction, Harris contends
the trial court erred in relying solely on our Theus opinion to
conclude the prosecution met its burden to prove his
ineligibility for relief under Section 1170.95 beyond a
reasonable doubt. With respect to his attempted murder
convictions, Harris contends the court erred by concluding
Section 1170.95 did not apply to attempted murder. The
Attorney General disputes both contentions, and
additionally contends the invited error doctrine and the
forfeiture rule bar Harris from challenging the court’s
exclusive reliance on our Theus opinion.
16
A. Section 1170.95
Section 1170.95 permits a defendant who was
convicted of murder under a natural and probable
consequences theory, but who could not be convicted of
murder following SB 1437’s changes to the law, to petition
the sentencing court to have the murder conviction vacated
and to be resentenced on any remaining counts. (Pen. Code,
§ 1170.95, subd. (a).) Where, as here, the trial court finds
the petitioner has made a prima facie showing of eligibility
for relief, and the parties do not stipulate to relief after
issuance of an order to show cause, the court must hold an
evidentiary hearing on the petitioner’s eligibility for relief.
(Id., § 1170.95, subds. (c)-(d).) “At the hearing to determine
whether the petitioner is entitled to relief, the burden of
proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (Id., § 1170.95, subd. (d)(3).) In determining
whether the prosecution has proved beyond a reasonable
doubt the petitioner could be convicted under a still-valid
theory, the court must independently find the petitioner
guilty under such a theory.4 (See People v. Fortman (2021)
4
SB 775 amends subdivision (d)(3) of Section 1170.95 to
include the following language, which reinforces the trial court’s
duty to independently find the petitioner’s guilt beyond a
reasonable doubt: “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by [SB 1437] . . . . A finding that
(Fn. is continued on the next page.)
17
64 Cal.App.5th 217, 225 (Fortman), review granted July 21,
2021, S269228 [“the People must convince the trial court, as
an independent trier of fact, that the petitioner is guilty of
murder on a still-valid theory beyond a reasonable doubt”];
accord, People v. Clements (2021) 60 Cal.App.5th 597, 615,
review granted April 28, 2021, S267624; People v. Rodriguez
(2020) 58 Cal.App.5th 227, 243-244, review granted March
10, 2021, S266652; People v. Lopez (2020) 56 Cal.App.5th
936, 952, review granted Feb. 10, 2021, S265974; People v.
Duchine (2021) 60 Cal.App.5th 798, 815.)
“The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to
meet their respective burdens.” (Pen. Code, § 1170.95, subd.
(d)(3).) “[A]n appellate opinion [affirming the petitioner’s
conviction] is part of the record of conviction and may be
relied on in deciding a section 1170.95 petition on the merits
. . . .” (People v. Clements, supra, 60 Cal.App.5th at 603, rev.
gr.; see also People v. Lewis (2021) 11 Cal.5th 952, 972.)
“However, as [our Supreme Court] cautioned in [People v.]
there is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Stats. 2021, ch. 551, § 2.) In light of this added
language, the Attorney General states in his supplemental brief
that the trial court applied an incorrect standard of proof. We
note Harris did not contend the court applied an incorrect
standard of proof, instead contending the court erred -- regardless
of the standard of proof it applied -- by relying solely on our
Theus opinion.
18
Woodell [(1998) 17 Cal.4th 448, 457], the probative value of
an appellate opinion is case-specific, and ‘it is certainly
correct that an appellate opinion might not supply all
answers.’”5 (People v. Lewis, supra, 11 Cal.5th at 972; see
also People v. Clements, supra, 60 Cal.App.5th at 613, rev.
gr.)
B. Invited Error and Forfeiture
The Attorney General contends the invited error
doctrine and the forfeiture rule bar Harris from challenging
the trial court’s exclusive reliance on our Theus opinion. The
Attorney General principally relies on Harris’s counsel’s
statements, in his rebuttal argument, that the prosecutor
had accurately stated the facts, and the court had correctly
evaluated them. “The invited error doctrine bars appellate
review of any error which trial counsel deliberately and
consciously, as a matter of trial tactics, induced the trial
court to make.” (People v. Hall (2018) 23 Cal.App.5th 576,
588, fn. 6.) Under the forfeiture rule, “[o]rdinarily, a
criminal defendant who does not challenge an assertedly
5
SB 775 amends subdivision (d)(3) of Section 1170.95 to
delete its reference to “the record of conviction,” and to add, inter
alia, the following language: “The court may also consider the
procedural history of the case recited in any prior appellate
opinion.” (Stats. 2021, ch. 551, § 2.) In their supplemental briefs,
the parties disagree regarding the meaning of this added
language. Because we need not rely on this language, we express
no opinion as to its meaning.
19
erroneous ruling of the trial court in that court has forfeited
his or her right to raise the claim on appeal.” (In re Sheena
K. (2007) 40 Cal.4th 875, 880.) But where the defendant
receives no meaningful opportunity to challenge the ruling
in the trial court, the forfeiture rule does not apply. (See
People v. Gonzalez (2003) 31 Cal.4th 745, 752 [in absence of
meaningful opportunity to object to trial court’s
discretionary sentencing choices, failure to object does not
forfeit appellate challenge]; People v. Jenkins (2000) 22
Cal.4th 900, 1000 [general rule of forfeiture applies “‘“where
an objection could have been, but was not presented to the
lower court by some appropriate method”’” (italics added)].)
We conclude neither the invited error doctrine nor the
forfeiture rule bars Harris’s claim on appeal. During the
hearing, Harris’s counsel encouraged the court to rely on the
trial transcripts. The prosecutor relied on the evidence at
trial, and the court vigorously questioned him about it.
Neither the prosecutor nor the court even mentioned the
analysis in our Theus opinion. In this context, Harris’s
counsel’s statements in rebuttal did not reflect a strategic
decision to induce the court to rely solely on our opinion, as
necessary to support application of the invited error
doctrine. (See People v. Hall, supra, 23 Cal.App.5th at 588,
fn. 6; People v. Stitely (2005) 35 Cal.4th 514, 553, fn. 19
[invited error doctrine did not bar defendant’s challenge to
trial court’s withholding of jury instruction, where court’s
decision to withhold instruction “was not induced by
defendant, but by the court’s unwavering belief that the
20
instruction lacked evidentiary support,” and there “seem[ed]
to be no plausible tactical reason” why defendant would
induce court to withhold instruction].) Moreover, Harris’s
counsel lacked a meaningful opportunity to object to the
asserted error, as the prosecutor did not urge the court to
rely solely on our opinion, and the court did not suggest it
intended to do so. On the contrary, as the Attorney General
acknowledges, “The record [of the hearing] supports the
inference that the trial court read part of the trial
transcripts prior to the evidentiary hearing and intended to
read all of the transcripts before issuing a written ruling.”
In the absence of a meaningful opportunity to challenge the
court’s exclusive reliance on our opinion, Harris’s counsel’s
failure to do so did not forfeit Harris’s claim on appeal. (See
People v. Gonzalez, supra, 31 Cal.4th at 752; People v.
Jenkins, supra, 22 Cal.4th at 1000.)
C. Merits
The trial court erred in relying solely on our Theus
opinion in determining that the prosecution had proved
beyond a reasonable doubt that Harris could be convicted as
a direct aider and abettor, and was therefore ineligible for
relief under Section 1170.95. We cannot fault the court for
relying on the opinion’s unequivocal statement, “Harris’s
participation and intent to aid the shooting is independently
established by his conduct.” (Theus, supra, 2011
Cal.App.Unpub. LEXIS 3728, at *18.) But understood in its
context, this statement had little or no probative value in
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proceedings under Section 1170.95. (See People v. Lewis,
supra, 11 Cal.5th at 972; see also People v. Clements, supra,
60 Cal.App.5th at 613, rev. gr.) We made this statement in
the course of reasoning that the evidence of Harris’s guilt
was sufficiently strong, in conjunction with two other factors
on which we relied, to support our holding that Harris had
not shown a reasonable probability he would have obtained a
more favorable outcome had the trial prosecutor not made
fleeting mention of his former codefendant’s guilty plea.
(Theus, supra, at *18.) We were merely assessing the
probability that the prosecutor’s error affected the outcome
of the trial -- not making a factual finding of Harris’s guilt as
a direct aider and abettor beyond a reasonable doubt. (See
People v. Merritt (2017) 2 Cal.5th 819, 830-832 [our Supreme
Court was “not engaging in appellate factfinding” by
concluding instructional error was harmless beyond a
reasonable doubt, despite reasoning in part that prosecution
evidence was “overwhelming”].) Although the trial court was
entitled to make such a finding, it was required to act as an
independent factfinder in doing so. (See, e.g., Fortman,
supra, 64 Cal.App.5th at 225, rev.gr.) The court improperly
relied on our analysis of prosecutorial error as a substitute
for an independent exercise of its factfinding functions.
The Attorney General does not argue the court was
entitled to rely solely on our analysis. Instead, he argues the
court properly relied on our opinion only as an accurate
summary of the trial evidence, which the court
independently found established Harris’s guilt as an aider
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and abettor beyond a reasonable doubt. The record does not
support the Attorney General’s reading. Although the court
had vigorously questioned the prosecutor about the trial
evidence during the hearing, the court did not discuss the
evidence in its memorandum of decision. Nor did the court
expressly or implicitly agree with our characterization of the
evidence. Instead, in stating that the prosecution had
proved Harris could be convicted under a direct aiding and
abetting theory because we already had deemed him a direct
aider and abettor, the court merely substituted our
characterization of the evidence for its own evaluation. That
was error. (See, e.g., Fortman, supra, 64 Cal.App.5th at 225,
rev.gr.) Accordingly, we will remand for an independent
exercise of the trial court’s factfinding functions.
We need not decide whether the court erred in
concluding that at the time it issued its ruling, Section
1170.95 did not apply to attempted murder. By the time the
court holds a new evidentiary hearing, SB 775’s
amendments to Section 1170.95 will be in effect. (See Cal.
Const., art. IV, § 8, subd. (c)(2).) As amended, Section
1170.95 expressly applies to convictions for attempted
murder under the natural and probable consequences
doctrine. (Stats. 2021, ch. 551, § 2 [amending subdivision (a)
of Section 1170.95 to read, in relevant part, “A person
convicted of . . . attempted murder under the natural and
probable consequences doctrine . . . may file a petition with
the court that sentenced the petitioner to have the
23
petitioner’s . . . attempted murder . . . conviction vacated and
to be resentenced on any remaining counts”].)
In his supplemental brief, the Attorney General
suggests we should direct the trial court to consider whether
Harris is entitled to an order to show cause with respect to
his attempted murder convictions, asserting the court did
not consider the issue. But the court implicitly did consider
the issue, as it ordered the prosecution to show cause why
the court should not grant “the relief requested in the
petition” -- which included relief from the attempted murder
convictions. Accordingly, we will direct the court to hold the
new evidentiary hearing after SB 775’s effective date of
January 1, 2022, and to reconsider at that hearing whether
Harris is eligible for relief from his attempted murder
convictions.
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DISPOSITION
The order denying Harris’s petition for resentencing
under Penal Code section 1170.95 is reversed. The matter is
remanded to the trial court with directions to hold a new
evidentiary hearing, after SB 775’s effective date of January
1, 2022, on Harris’s eligibility for relief from his murder and
attempted murder convictions.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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