People v. Jones CA3 ( 2022 )

Filed 12/23/22 P. v. Jones CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090630
Plaintiff and Respondent, (Super. Ct. No. 01F07610)
v. OPINION ON TRANSFER
GERALD EDWARD JONES,
Defendant and Appellant.
Defendant Gerald Edward Jones appeals from a postjudgment order denying his
petition for resentencing under Penal Code1 section 1172.6.2 A jury found defendant
1 Further undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, former section 1170.95 was recodified without
substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his
petition under former section 1170.95, but we will refer to the current section 1172.6
throughout this opinion.
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guilty of the first degree murder of Justin Roberts during the course of a burglary; the
trial court sentenced him to life without the possibility of parole, and his conviction was
affirmed on appeal.
Defendant later petitioned the trial court for resentencing based on changes to the
felony-murder rule under Senate Bill No. 1437. (Stats. 2018, ch. 1015, § 4, eff. Jan. 1,
2019.) The trial court summarily denied his petition finding the record established
defendant was ineligible for resentencing given the jury’s true finding on the burglary-
murder special circumstance under section 190.2. The court reasoned that in finding the
special circumstance true, the jury necessarily found defendant was either the actual
killer, aided and abetted the actual killer with the intent to kill, or was a major participant
who acted with reckless indifference to human life during the crimes.
In an unpublished opinion, we affirmed the trial court’s order denying defendant’s
resentencing petition, holding that any error in failing to obtain briefing before summarily
denying the petition was harmless beyond a reasonable doubt given the jury’s true
finding on the burglary-murder special circumstance, which this court had previously
upheld in defendant’s direct appeal. (People v. Jones (Dec. 15, 2020, C090630) [nonpub.
opn.].)
The California Supreme Court subsequently granted review and transferred the
matter back to us with directions to vacate our opinion and reconsider the cause in light
of People v. Strong (2022) 13 Cal.5th 698 and People v. Lewis (2021) 11 Cal.5th 952(Lewis). By separate order, we vacated our decision.
In supplemental briefing after transfer, the parties agree that defendant’s petition
was facially sufficient, and that under Strong neither the jury’s true finding on the
burglary-murder special-circumstance allegation, which was made before our Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522 clarified what it means to be a major participant who acts with reckless
indifference to human life, nor this court’s conclusion on direct appeal that substantial
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evidence supported the special-circumstance finding, precludes defendant from relief
under section 1172.6 as a matter of law. Having reconsidered the matter, we agree and
will reverse and remand for further proceedings under section 1172.6.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts from the unpublished opinion we issued in 2004 affirming
defendant’s convictions in case No. C045098. (People v. Jones (Nov. 24, 2004,
C045098) [nonpub. opn.].)3 In September 2001, defendant and two cohorts, Andre
Craver and Eric Shelmire, planned to steal marijuana from Roberts’s apartment. They
arrived in two cars at the apartment complex; defendant drove his own vehicle and the
codefendants drove in another vehicle. All three were dressed in black so as not to be
seen. Defendant saw Craver pull out a gun before entering Roberts’s darkened
apartment. Craver entered the apartment first through an open window, and defendant
followed; Shelmire remained outside. Immediately upon entering, Craver landed on a
person who was sleeping beneath the open window. They struggled, and upon hearing
the commotion, Roberts came running out and turned on a light. Three gunshots were
fired, and defendant and Craver then left the apartment through the window. Roberts
died of a gunshot wound to the chest.
A jury found defendant guilty of the first degree murder of Roberts and found true
the special circumstance that the murder was committed during a robbery. The jury also
found true that a principal was armed with a firearm during the offense. Defendant was
sentenced to state prison for one year plus a consecutive indeterminate term of life
without possibility of parole.
3 A copy of our unpublished opinion in Jones is included in the record on appeal.
We provide this summary of facts from the prior opinion in defendant’s direct appeal
solely for context and do not rely on these facts for our analysis or disposition here.
(§ 1172.6, subd. (d)(3).)
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Defendant appealed his conviction, arguing, among other things, that insufficient
evidence supported the true finding on the burglary-murder special circumstance. We
found sufficient evidence supported the finding that defendant was a major participant
who acted with reckless indifference to human life, and affirmed the judgment in full.
In January 2019, defendant filed a petition for resentencing under section 1172.6,
alleging that he could not now be convicted of murder because of the changes Senate Bill
No. 1437 made to sections 188 and 189. He also requested appointment of counsel
during the resentencing process.
The court issued an order appointing defendant counsel. The People responded to
the petition, arguing, as relevant here, that defendant failed to establish a prima facie case
for relief because the jury’s true finding on the burglary-murder special circumstance
rendered him ineligible for relief as a matter of law. (§§ 187, 190.2, subd. (a)(17).)
The trial court denied defendant’s petition, concluding that he was ineligible for
relief because in finding the burglary-murder special circumstance true, “the jury
necessarily found that defendant . . . was either the actual killer, acted with intent to kill,
or was a major participant in the underlying crime who acted with reckless indifference to
human life.” The court further noted that this court had previously found sufficient
evidence supported the special-circumstance finding. Defendant timely appealed the trial
court’s denial of his petition.
DISCUSSION
Defendant originally argued the trial court prejudicially erred by denying his
petition without first obtaining his counsel’s reply to the People’s response and because
the jury’s true finding on the burglary-murder special circumstance did not preclude him
from relief as a matter of law. In supplemental briefing, the parties now agree, as do we,
that the trial court erred in summarily denying defendant’s petition.
The Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) to “amend
the felony murder rule and the natural and probable consequences doctrine, . . . to ensure
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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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate
Bill No. 1437 achieves these goals by amending section 188 to require that a principal act
with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by
amending section 189 to state that a person can be liable for felony murder only if (1) the
“person was the actual killer”; (2) the person, with an intent to kill, was an aider or
abettor in the commission of murder in the first degree; or (3) the “person was a major
participant in the underlying felony and acted with reckless indifference to human life.”
(§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)
As pertinent here, Senate Bill No. 1437 also added what is now section 1172.6,
which permits a person convicted of felony murder or murder under a natural and
probable consequences theory to petition the sentencing court to vacate the murder
conviction and resentence the person on any remaining counts if, among other things, the
petitioner could not be convicted of first or second degree murder due to the change in
the law. (§ 1172.6, subd. (a).) Upon submission of a facially sufficient petition that
requests counsel, the court shall appoint counsel and provide the parties an opportunity to
submit briefs. (§ 1172.6, subds. (b)(3) & (c).) Following briefing, the court must hold a
hearing to determine whether the petitioner has made a prima facie case for relief.
(§ 1172.6, subd. (c).) If a sufficient prima facie showing is made, the court must issue an
order to show cause. (§ 1172.6, subds. (c) & (d).)
The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” (Lewis,
supra, 11 Cal.5th at p. 971.) The court “ ‘ “takes petitioner’s factual allegations as true
and makes a preliminary assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved.” ’ ” (Ibid.) Although the court may
rely on the record of conviction (including a prior appellate court opinion) in determining
whether defendant has made a prima facie showing, the court “should not engage in
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‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at
p. 972.)
Since defendant’s convictions, our Supreme Court has refined the analysis for who
qualifies as a major participant acting with reckless indifference to human life in Banks
and Clark. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, abrogated on other
grounds in Lewis, supra, 11 Cal.5th at p. 963.) After we rejected defendant’s claims in
our previous opinion, our Supreme Court decided Strong, which concluded: “Findings
issued by a jury before Banks and Clark do not preclude a defendant from making out a
prima facie case for relief under Senate Bill [No.] 1437. This is true even if the trial
evidence would have been sufficient to support the findings under Banks and Clark.”
(People v. Strong, supra, 13 Cal.5th at p. 710.) Here, the trial court concluded that the
jury’s pre-Banks and Clark finding, which this court upheld against defendant’s
sufficiency of the evidence challenge on direct appeal, precluded defendant from making
a prima facie showing. The trial court’s conclusion does not survive Strong.
Defendant’s resentencing petition, which requested counsel, was facially sufficient
and alleged the essential facts necessary for relief under section 1172.6 if proven.
(§ 1172.6, subds. (a)-(c); Lewis, supra, 11 Cal.5th at pp. 970-972.) Nothing in the record
demonstrates defendant is ineligible for relief as a matter of law, so we must reverse and
remand the matter for the trial court to issue an order to show cause, and, to the extent
necessary, conduct an evidentiary hearing. (§ 1172.6, subd. (d).) We express no opinion
on the ultimate resolution of the petition.
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DISPOSITION
The trial court’s order denying defendant’s Penal Code section 1172.6 petition is
reversed. On remand, the trial court is directed to issue an order to show cause, and, to
the extent necessary, the court shall hold an evidentiary hearing on the petition.
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Boulware Eurie, J.
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