People v. Purcell CA2/8 ( 2023 )

Filed 1/3/23 P. v. Purcell CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or r elying on opinions
not certified for publication or ordered published, ex cept 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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B307038
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA073043)
v.
RANDY PURCELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Robert J. Perry, Judge. Reversed and
remanded with directions.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Charles S. Lee,
Amanda V. Lopez and Christopher G. Sanchez, Deputy Attorneys
General, for Plaintiff and Respondent.
**********
A jury found defendant and appellant Randy Purcell guilty
of first degree felony murder and found true armed-principal,
robbery-murder and burglary-murder special-circumstance
allegations. In 2011, we affirmed defendant’s conviction. (People
v. Purcell (July 14, 2011, B220077) [nonpub. opn.].)
After the Legislature passed Senate Bill 1437 (2017–2018
Reg. Sess.), which, among other things, amended the felony
murder statute, defendant filed a petition for resentencing
pursuant to Penal Code former section 1170.95. During the
pendency of this appeal, former section 1170.95 was renumbered
as section 1172.6 with no change in the text. (Stats. 2022, ch. 58,
§ 10.) We refer to the statute only by its new designation for
clarity.
Without appointing counsel or accepting any briefing, the
trial court summarily denied defendant’s petition, reasoning
there was extensive evidence implicating defendant in the
murder and he had admitted his involvement in the shooting.
The trial court found defendant was the actual killer and
ineligible for resentencing relief as a matter of law.
In a prior unpublished decision, we affirmed the denial of
defendant’s petition. (People v. Purcell (May 27, 2021, B307038)
[nonpub. opn.].) At that time, there was a split in the Courts of
Appeal as to whether a jury’s true finding on a special
circumstance allegation pursuant to Penal Code section 190.2
precluded resentencing relief under section 1172.6. In affirming
the trial court’s denial, we said that pending further guidance
from the Supreme Court, we would follow those cases concluding
a true finding did preclude relief and that defendant’s remedy
was to pursue relief by way of habeas corpus.
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Defendant sought and was granted review by the Supreme
Court. In August 2022, the Supreme Court issued its decision in
People v. Strong (2022) 13 Cal.5th 698 (Strong). Thereafter, the
Supreme Court transferred this case to us with directions to
vacate our decision and reconsider the matter in light of Strong.
In supplemental briefing to this court, the parties agree that
remand is warranted to allow the trial court to conduct further
proceedings in accordance with Penal Code section 1172.6.
Having vacated our prior decision and reconsidered the
issues presented in light of Strong, we reverse and remand with
directions to the superior court to issue an order to show cause
and conduct further proceedings in accordance with Penal Code
section 1172.6.
FACTUAL BACKGROUND
We recite the relevant facts from our prior opinion
affirming defendant’s conviction:
“[Defendant] rented a room in the house of Hawaiian
Gardens gang member Ruben Baltazar. On July 24, 2002,
[defendant] and Baltazar went to the home of Tommy Willis
intending to rob Willis; [defendant] and Willis were acquainted
through work and [defendant] knew Willis kept several hundred
dollars in cash at home. During the robbery, Willis was shot
dead; in [defendant’s] later trial for murder, two of Baltazar’s
gang associates testified [defendant] told them a few hours after
the shooting that [defendant] accidentally shot Willis while Willis
and Baltazar struggled. Before fleeing from the crime scene,
[defendant] and Baltazar took money and a video camera. Later
that evening, Baltazar ordered [defendant] to return to Willis’s
house with Baltazar’s gang associates to clean up the crime scene
and steal some more of the valuables, including a telephone
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answering machine and safe, that he and [defendant] had left
behind. The next day, Los Angeles County sheriff’s deputies
found Willis’s body. He had suffered one gunshot wound to his
face below his left eye, and a second wound to the back of his
neck.” (People v. Purcell, supra, B220077.)
“[Defendant’s] recounting of Willis’s murder changed over
several interviews with sheriff’s investigators and at trial. In a
nutshell, [defendant] initially told investigators he went to
Willis’s home with Baltazar not to rob Willis, but instead to bid
on a carpentry job. As [defendant] and Willis discussed
[defendant’s] cost estimate for the job, Baltazar became angry
with Willis and shot him. After several interviews by
investigators, [defendant] changed his story, however, and
confessed that he shot Willis. But, by the time of trial, he
recanted his confession on the ground he had falsely admitted
shooting Willis because he feared Baltazar’s gang associates
would hurt him or his family if he continued to accuse Baltazar of
killing Willis. At trial [defendant] revived his original accusation
that Baltazar shot Wallis when he became angry with Willis over
the carpentry project.” (People v. Purcell, supra, B220077.)
DISCUSSION
The Supreme Court explained in Strong that its decisions
in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522, “both substantially clarified the law
governing findings under Penal Code section 190.2,
subdivision (d): Banks elucidated what it means to be a major
participant and, to a lesser extent, what it means to act with
reckless indifference to human life, while Clark further refined
the reckless indifference inquiry.” (Strong, supra, 13 Cal.5th at
pp. 706–707.) As a result, Strong concluded that “[f]indings
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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 1437. This is true even if the trial evidence would
have been sufficient to support the findings under Banks and
Clark.” (Strong, at p. 710.)
Here, the jury convicted defendant of felony murder and
made its true findings on the robbery-murder and burglary-
murder special-circumstance allegations before our Supreme
Court issued its decisions in Banks and Clark. The People
therefore concede that remand is appropriate in light of the
Supreme Court’s discussion and holding in Strong.
We agree. We therefore reverse the trial court’s denial of
defendant’s resentencing petition and remand for further
proceedings pursuant to Penal Code section 1172.6,
subdivision (c), and if necessary, subdivision (d).
DISPOSITION
The order summarily denying defendant’s petition for
resentencing is reversed and the case is remanded to the superior
court. On remand, the superior court is directed to appoint
counsel for defendant if requested and conduct further
proceedings pursuant to Penal Code section 1172.6,
subdivision (c). If the court issues an order to show cause, the
court shall conduct further proceedings in accordance with
section 1172.6, subdivision (d).
GRIMES, J.
WE CONCUR:
STRATTON, P. J. WILEY, J.
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