People v. James ( 2021 )

Filed 4/27/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159207
v.
ROBERT JAMES, (Solano County
Super. Ct. No. FC23942)
Defendant and Appellant.
Robert James appeals the denial of his petition for resentencing under
Penal Code section 1170.95, entered following a full evidentiary hearing. His
sole contention on appeal is that the denial of his request for a jury trial
violated his rights under the Sixth and Fourteenth Amendments. We follow
the unanimous view of the several courts that have considered the question
that the relief granted by Senate Bill No. 1437 (2017–2018 Reg. Sess.), in
which section 1170.95 was included, is an act of lenity not subject to Sixth
Amendment analysis. We shall therefore affirm the order denying appellant
relief.
Factual and Procedural History
In 1988, appellant was convicted, based on his plea of guilty, of second
degree murder. In short, in the course of a robbery another perpetrator
fatally stabbed the victim while appellant restrained him from escaping. In
February 2019 appellant filed a petition for resentencing under
section 1170.95. The trial court appointed counsel, found that a prima facie
1
case had been made, and issued an order to show cause. After denying
appellant’s motion for a jury trial, the court conducted an evidentiary
hearing1 after which it found that appellant was a major participant in the
robbery who acted with reckless indifference to human life and, therefore,
was not entitled to relief under the new statute. It is not necessary to
elaborate on the evidence, since appellant challenges neither its admissibility
nor its sufficiency. His sole contention is that the court erred in denying him
a jury trial to determine whether the People proved he was a major
participant who acted with reckless indifference to human life.
Discussion
The California Supreme Court recently summarized the changes in the
law of homicide made by Senate Bill No. 1437. The purpose of the new
legislation was to “ ‘[amend] 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.’ ”
(People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
“First, to amend the felony murder rule, Senate Bill 1437 added
section 189, subdivision (e): ‘A participant in the perpetration or attempted
perpetration of [qualifying felonies] 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
1The court received and considered the transcript of the preliminary
hearing, the audio and sound recording of James’s proffer statement to the
prosecutor made in connection with his plea, the transcript of the proffer
statement, the probation report submitted at sentencing. and the transcript
of James’s January 28, 2015 parole hearing.
2
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 . . . .’ . . . [¶] Second, to amend the
natural and probable consequences doctrine, Senate Bill 1437 added
section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for felony murder
liability] as stated in subdivision (e) of Section 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.’ [¶] Third, Senate Bill 1437 added section 1170.95 to provide a
procedure for those convicted of felony murder or murder under the natural
and probable consequences doctrine to seek relief . . . .” (Gentile, supra,
10 Cal.5th at pp. 842–843.)
Such a person, whether convicted after a jury trial or pursuant to a
plea, “must file a petition . . . declaring, among other things, that the
petitioner ‘could not be convicted of first or second degree murder because of
changes to Section 188 or 189.’ [Citations.] Then, the trial court must ‘review
the petition and determine if the petitioner has made a prima facie showing
that the petitioner falls within the provisions of th[e] section.’ [Citation.] If so,
the trial court must issue an order to show cause and hold a hearing to
determine whether to vacate the murder conviction and to resentence the
petitioner on any remaining counts. [Citation.] At the hearing, the
prosecution must ‘prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ ” (Gentile, supra, 10 Cal.5th at p. 853.) In holding
that a criminal defendant cannot seek relief pursuant to section 1170.95 on
direct appeal from a nonfinal conviction, the Gentile court emphasized that
“section 1170.95 by its terms does not automatically provide all defendants
3
with a right to relief” but instead “requires the sentencing court to assess the
defendant’s eligibility for and entitlement to relief through a petition and
hearing process in which the prosecution and the petitioner ‘may rely on the
record of conviction or offer new or additional evidence to meet their
respective burdens.’ ” (Gentile, supra, at pp. 853–854.)
The Attorney General cites several recent opinions holding that an
evidentiary hearing on a section 1170.95 petition does not trigger a Sixth
Amendment right to a jury trial. (See, e,g., People v. Lopez (2019)
38 Cal.App.5th 1087, 1114–1115, review granted Nov. 13, 2019, S258175,
disagreed with on other ground by People v. Larios (2019) 42 Cal.App.5th
956, 964–968, review granted Feb. 26, 2020, S259983; People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156.) Those decisions rely by analogy on People
v. Perez (2018) 4 Cal.5th 1055, 1063–1064 (Perez), which held that an
evidentiary hearing on a petition for resentencing pursuant to Proposition 36
does not trigger the right to a jury trial because that “legislative act of lenity
. . . does not implicate [Sixth Amendment] rights.” (See People v. Lopez,
supra, at pp. 1114–1115 [citing Perez]; People v. Anthony, supra, at p. 1156
[same].)
Similarly, there is no right to a jury trial to determine whether a
defendant is entitled to relief under the ameliorative provisions of
Proposition 47. (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 451–452.)
In Rivas-Colon, the court relied on, among other cases, Dillon v. United
States (2010) 560 U.S. 817, 828–829, in which the United States Supreme
Court held a defendant’s Sixth Amendment right to have essential facts
found by a jury beyond a reasonable doubt does not apply to limits on the
retroactive availability of downward sentence modifications due to
intervening amendments of federal sentencing guidelines.
4
Appellant correctly notes that the relief granted by Senate Bill
No. 1437 differs in kind from the relief granted by Propositions 36 and 47.
Those prior ameliorative provisions merely authorized reductions in the
sentences imposed for convictions of the unchanged underlying offenses (see
People v. Perez, supra, 4 Cal.5th at pp. 1061–1062; People v. Rivas-Colon,
supra, 241 Cal.App.4th at p. 448), whereas Senate Bill No. 1437 has changed
the nature of the offense itself. Therefore, appellant argues, he is
constitutionally entitled to have a jury determine whether the People have
proved beyond a reasonable doubt the redefined elements of the offense.
Nonetheless, appellant was properly convicted of second degree murder
under the law that was in effect at the time of his offense and when he
entered his guilty plea. Section 1170.95 is “an act of lenity” that requires,
under specified circumstances, reduction of the offense for which he was
properly convicted. The constitutional right to a jury trial does not require a
jury determination of those circumstances. “[T]he retroactive relief . . .
afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis.
Rather, the Legislature’s changes constituted an act of lenity that does not
implicate defendants’ Sixth Amendment rights.” (People v. Anthony, supra,
32 Cal.App.5th at pp. 1156–1157.) This reasoning has consistently been
followed in proceedings under section 1170.95. (People v. Lopez, supra,
38 Cal.App.5th at pp. 1114–1115; People v. Perez (2020) 54 Cal.App.5th 896,
review granted Dec. 9, 2020, S265254; People v. Howard (2020)
50 Cal.App.5th 727, 740). No constitutional provision required the
Legislature to authorize relief under the conditions specified in section
1170.95 and none compels it to make the conditions subject to jury
determination.
5
In Gentile, the defendant contended that he should be permitted to rely
on the revised homicide definition on his direct appeal from his murder
conviction because requiring him to seek postconviction relief under section
1170.95 would deny him his Sixth Amendment right to a jury determination
of the facts necessary to establish that his conduct satisfied the redefined
elements of murder. (Gentile, supra, 10 Cal.5th at p. 857.) Allowing the
prosecution to prove the necessary facts to only a court, he argued, would
“violate[] the principle that ‘[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.’ ” (Ibid., quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi).) He distinguished Perez, supra, 4 Cal.5th 1055, reasoning that
“the finding at issue in Perez did not concern a fact essential to the validity of
the underlying conviction or the original sentence when imposed, insofar as
Proposition 36 merely reduced the punishment for particular third strike
convictions without disturbing the validity of those convictions.” (Gentile,
supra, at p. 857.)
The Supreme Court rejected the argument that the Sixth Amendment
concerns entitled Gentile to rely on the new definition of murder on direct
appeal. However, it did acknowledge that Apprendi requires jury availability
to determine facts that increase the punishment to which a defendant is
subject. (Gentile, supra, 10 Cal.5th at p. 857.) Because no section 1170.95
petition was before it, the court held that it had “no occasion . . . to opine on
whether denial of a section 1170.95 petition on the basis of such factual
findings [by the court] would run afoul of Apprendi.” (Ibid.)
The present appeal does present the issue not before the court in
Gentile. Pending further clarification from the Supreme Court, we agree with
6
the many courts that have held that a convicted person litigating a
section 1170.95 petition does not enjoy the rights that the Sixth Amendment
guarantees to criminal defendants who have not yet suffered a final
conviction. As just stated, the Legislature was not constitutionally required
to make the amended definition of murder created by Senate Bill No. 1437
retroactive as to convictions, like appellant’s, that had become final. (See
People v. Conley (2016) 63 Cal.4th 646, 656 [Legislature or electorate “may
choose to modify, limit, or entirely forbid the retroactive application of
ameliorative criminal-law amendments if it so chooses”]; People v. Rossi
(1976) 18 Cal.3d 295, 303 [“Legislature retains the constitutional authority to
preserve criminal sanctions for acts committed prior to repeal” of statute that
criminalized conduct for which defendant was convicted]; see also Gov. Code,
§ 9608 [“The termination or suspension (by whatsoever means effected) of
any law creating a criminal offense does not constitute a bar to the . . .
punishment of an act already committed in violation of the law so terminated
or suspended, unless the intention to bar such . . . punishment is expressly
declared by an applicable provision of law.”].)
Because the authorization of retroactive relief in Senate Bill No. 1437
was an act of lenity, the Legislature was free to condition the availability of
such relief on the convicted person prevailing at an evidentiary hearing
conducted pursuant to the non-jury procedure set forth in section 1170.95.
(See People v. Lopez (2020) 56 Cal.App.5th 936, 957–958, review granted
Feb. 10, 2021, S265974 [holding that section 1170.95 petitioner cannot invoke
Sixth Amendment right to jury], citing People v. Conley, supra, 63 Cal.4th at
p. 656 & Gov. Code, § 9608.) The rule of Apprendi does not apply because the
procedure is designed solely to permit the reduction of a defendant’s
punishment; no increase is possible over the sentence that has already
7
become final. If it were necessary to conduct another jury trial—often, as in
this case, years after the conduct in question—it is unlikely that the
Legislature would have enacted the procedure in the first place. Indeed, a
contrary ruling might well prompt the repeal of section 1170.95.
Disposition
The order denying appellant’s petition is affirmed.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
TUCHER, J.
8
Trial court: Solano County Superior Court
Trial judge: Honorable John B. Ellis
Counsel for Appellant: Robert H. Derham, under appointment by the
Court of Appeal
Counsel for Respondents: Xavier Becerra
Attorney General of California
Lance E. Winters
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Rene A. Chacon
Supervising Deputy Attorney General
Julia Y. Je
Deputy Attorney General
A159207
9