People v. Guillory ( 2022 )

Filed 8/17/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A161952
v.
SHANNON GUILLORY,
(Contra Costa County Super. Ct.
Defendant and Appellant.
No. 50106518.)
The jury that convicted Shannon Guillory of murder
returned a not true finding on one of several special
circumstances allegations. Guillory contends the not true finding
automatically entitles her to vacatur and resentencing under
Penal Code section 1172.6, subdivision (d).1 It does not. Guillory
could have been convicted under theories of murder liability that
remain valid under current law, so she is ineligible for section
1172.6 relief.
Under recent changes to the Penal Code, participants in a
felony that results in a killing can be found guilty of felony
murder only if they were an actual killer, acted with the intent to
kill, or were major participants in the underlying felony and
acted with reckless indifference to human life. (§ 189, subds.
1Former section 1170.95 was amended in ways not
relevant here and renumbered section 1172.6 effective June 30,
2022. (Assem. Bill No. 200 (2021-2022 Reg. Sess.), Stats. 2022,
ch. 58, §10.) Subsequent statutory citations are to the Penal
Code.
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(e)(1)-(3).) Guillory, convicted in 2004 of kidnapping, carjacking,
robbing, and murdering Calvin Curtis, contends she qualifies for
relief under the new law because the jury rejected a special
circumstances allegation regarding the kidnapping. She asserts
this finding triggered section 1172.6, subdivision (d), which
mandates vacatur and resentencing “[i]f there was a prior finding
by a court or jury that the petitioner did not act with reckless
indifference to human life or was not a major participant in the
felony.” (§ 1172.6, subd. (d)(2).)
We disagree. There were viable bases for murder liability
independent of the rejected special circumstances allegation. In
such circumstances, section 1172.6, subdivision (d)(2) cannot
plausibly be read to mandate automatic vacatur of the murder
conviction and resentencing. We also reject Guillory’s claim that
Proposition 57 applies retroactively to her case under People v.
Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara).
BACKGROUND
A.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, changed
the law relating to accomplice liability for murder to better align
punishment with individual culpability. (Stats. 2018, ch. 1015, §
1(b), (f).) To that end, Senate Bill 1437 eliminated the natural
and probable consequences doctrine as to murder and narrowed
the felony murder exception to the malice requirement. (People v.
Mancilla (2021) 67 Cal.App.5th 854, 862.)
As relevant here, Senate Bill 1437 amended section 189 to
require that the perpetrator of a felony murder was either (1) the
actual killer; (2) aided and abetted the killer with the intent to
kill; or (3) was a major participant in the underlying felony and
acted with reckless indifference to human life, as those terms are
used in the statute defining felony murder special circumstances.
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(Stats. 2018, ch. 1015, § 3; § 189, subd. (e); see § 190.2, subd. (d).)
It also created, through former section 1170.95 (now section
1172.6), a path for offenders convicted under the former felony
murder rule to petition the trial court to vacate their conviction
and for resentencing if they could not have been convicted of
murder under the amended statutes. (Stats. 2018, ch. 1015, §
4; Mancilla, supra, 67 Cal.App.5th at p. 862.) A person convicted
of murder, attempted murder, or manslaughter prior to Senate
Bill 1437 may seek retroactive relief under this provision if (1)
the information or indictment allowed the prosecution to proceed
under a theory of felony murder, murder under the natural and
probable consequences doctrine, or any other theory under which
malice is imputed based solely on the defendant’s participation in
a crime; and (2) the petitioner could not be convicted of murder
under current law. (§ 1172.6, subd. (a).)
If the petition makes a prima facie showing that the
petitioner satisfies these requirements, the court must issue an
order to show cause and hold a hearing at which the prosecutor is
required to prove beyond a reasonable doubt that the petitioner is
guilty of murder under current law. (§ 1172.6, subds. (c), (d).)
The parties may rely on admissible evidence in the record of
conviction or offer additional evidence. (§ 1172.6, subd. (d)(3).) If
the prosecutor fails to sustain its burden of proof, the court must
vacate the murder conviction and resentence the petitioner on the
remaining charges. (§ 1172.6, subd. (d)(3).)
B.
The factual and procedural background is drawn from our
opinion affirming Guillory’s direct appeal from her conviction
(People v. Guillory (April 24, 2007, A108688) [nonpub. opn.]), the
record on that appeal (which we judicially notice as necessary),
and the record on her resentencing petition.
Guillory and her boyfriend Josh Burton decided to lure
Curtis to Guillory’s home to rob him and steal his car. Late one
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evening, Guillory invited Curtis over to the apartment where she
was staying. Burton hid in the kitchen with a knife.
When Curtis walked into the apartment and greeted
Guillory, Burton attacked him from behind, held him in a
chokehold with the knife to his neck, and directed Guillory to tie
his hands with a telephone cord. After the two took Curtis’s
money, car keys, and other belongings, they put on latex gloves
and left the apartment with Guillory’s baby and the still-bound
Curtis. Burton got in the driver’s seat of Curtis’s car; Guillory
got in back with Curtis and the baby.
As Burton drove, Curtis struggled and attempted to escape.
Guillory stabbed him in the head with two screwdrivers at least
13 times, using enough force to gouge his skull; clubbed him on
the knee with a car-lock device; and hit him on the head with a
can of baby formula.
Curtis knocked the baby’s car seat over as he struggled.
Burton pulled over, moved the baby to the front, and beat Curtis
with his fists. Curtis begged for his life and offered money, but to
no avail. With Guillory grasping Curtis to prevent his escape,
Burton drove on until Curtis recommenced struggling. Burton
stopped the car again and told Guillory to strangle Curtis with a
cord he handed her. She attempted to comply, but when Curtis
fought her off Burton took over and strangled him as Guillory
watched him slowly die. The pair then dumped Curtis’s body,
dropped the baby off with a friend, and took Curtis’s remaining
valuables from his car.
C.
The jury was instructed on theories of malice murder,
felony murder, and aiding and abetting. It convicted Guillory of
first degree murder, first degree robbery, kidnapping for purposes
of robbery, kidnapping for purposes of carjacking, simple
kidnapping, carjacking, and child endangerment. The jury also
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returned a not true finding on a special circumstance allegation
that Guillory committed the murder during the course of a
kidnapping. It failed to reach a verdict on two other special
circumstance allegations: murder during a robbery, and murder
during a carjacking. The court declared a mistrial as to the
deadlocked allegations, sentenced Guillory to 25 years to life for
first degree murder, and imposed and stayed concurrent terms on
the other counts.
D.
In 2019, Guillory petitioned for resentencing pursuant to
the then newly-enacted section 1170.95 (now section 1172.6).
Following an order to show cause and a hearing on the petition at
which Guillory testified, the court found Burton was the actual
killer and that Guillory (1) aided and abetted the murder with
the intent to kill; and (2) was a major participant in the robbery
and carjacking who acted with reckless indifference to human
life. Accordingly, she was ineligible for relief under section
1172.6.
The court further found that the not-true finding on the
kidnapping allegation did not change this result. First, it
concluded, Guillory could be convicted of felony murder under
current law based on the robbery and carjacking special
circumstances allegations, which were not foreclosed by the
negative finding on the kidnapping allegation. Second, she could
be convicted of murder on an aiding and abetting theory
independently of the felony murder rule. It therefore denied her
petition.
DISCUSSION
A.
Guillory contends the not-true finding on the kidnapping
allegation entitles her to resentencing as a matter of law under
subdivision (d)(2) of section 1172.6. Reviewing this issue of
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statutory interpretation independently (People v. Lewis (2021) 11
Cal.5th 952, 961), we disagree.
If a petition establishes a prima facie case for relief, in most
cases the trial court must issue an order to show cause and hold a
hearing to determine whether the petitioner is entitled to vacatur
and resentencing, as the trial court did here. (§ 1172.6, subds.
(c), (d)(3).) However, section 1172.6 also sets up an abbreviated
procedure where either the parties stipulate to the petitioner’s
eligibility for relief and waive the hearing or “there was a prior
finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major participant
in the felony.” (§ 1172.6, subd. (d)(2).) In the latter case, the
court must bypass a hearing under section 1172.6, subdivision
(d)(3) and proceed directly to vacatur and resentencing. (§
1172.6, subd. (d)(2).)
Although the point is the subject of some legal dispute, we
will assume arguendo that the jury found Guillory did not act
with reckless indifference or was not a major participant in the
kidnapping because it rejected the kidnapping allegation, which
incorporated the reckless indifference/major participant
elements. (See § 190.2, subds. (a)(17), (d); People v. Flint (2022)
75 Cal.App.5th 607, 614 (Flint) [holding acquittal on special
circumstances allegation is a “prior finding” under section 1172.6,
subdivision (d)(2)]; People v. Harrison (2021) 73 Cal.App.5th 429,
439-442 [same]; People v. Clayton (2021) 66 Cal.App.5th 145,154-
158 (Clayton) [same]; but see id. at pp. 159-162 (dis. opn. of
Chavez, J.).)
But we cannot construe subdivision (d)(2) of section 1172.6
to mean, as Guillory argues, that the negative finding on the
kidnapping allegation entitles her to resentencing even though
she could be convicted under other, still valid theories of murder.
First, as the court found, Guillory remains directly liable as an
aider and abettor under the amended law because she intended
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Curtis’s death. (§§ 189, subd. (e)(2), 1172.6, subd. (a)(3).) Second,
neither the jury’s rejection of the kidnapping allegation nor its
deadlock on the remaining special circumstance allegations
would preclude a subsequent court or jury from finding her guilty
of felony murder based on her participation in the robbery and
carjacking. (See § 954 [acquittal of one or more counts is not
deemed an acquittal of any other count]; People v. Hatch (2000)
22 Cal.4th 260, 270-273 [dismissal does not bar future
prosecution absent a showing that it was for insufficient
evidence].) In short, Guillory could be convicted of murder under
current law, and she therefore falls outside the class of
defendants that may benefit from the Legislature’s decision to
narrow liability for murder in other circumstances. (See §
1172.6, subd. (a)(3).)
Guillory asserts the language of section 1172.6, subdivision
(d)(2) nonetheless compels relief as a matter of law. It states: “If
there was a prior finding by a court or jury that the petitioner did
not act with reckless indifference to human life or was not a
major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” (Italics
added.) We disagree. While courts generally defer to statutory
language, we will not do so if it would subvert the legislative
intent, produce absurd consequences, or render other parts of the
statute surplusage. (Flint, supra, 75 Cal.App.5th at p. 617;
Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340, superseded
by statute on another ground in McCormick v. Public Employees’
Retirement System (2019) 41 Cal.App.5th 428, 436.)
This is such a case. Under Guillory’s construction, where a
jury finds one or more special circumstances allegations to be not
true but deadlocks on others, section 1172.6, subdivision (d)(2)
mandates vacatur and resentencing even if the jury could also
have found beyond a reasonable doubt that the petitioner was the
actual killer (§ 189, subd. (e)(1)); aided and abetted the murder
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with the intent to kill (§ 189, subd. (e)(2)); or was a major
participant who acted with reckless indifference in committing a
felony underlying a special circumstances allegation on which the
jury deadlocked. (§ 189, subd. (e)(3).) (Guillory concedes her
theory does not apply if the jury returned a true finding on at
least one special allegation, although her concession is hard to
square with her literal interpretation of section 1172.6,
subdivision (d)(2).)
Guillory’s theory contravenes the Legislature’s decision to
limit relief to offenders who could not be convicted of murder
under current law (§ 1172.6, subd. (a)(3)), contradicts in some
cases the Legislature’s decision to retain some forms of felony
murder liability under section 189, subdivision (e), and turns on
its head the Legislature’s intention to better align the
punishment for murderers with their individual culpability. (See
Flint, supra, 75 Cal.App.5th at pp. 617-618 [rejecting for like
reasons claim that section 1172.6, subdivision (d)(2) mandates
relief for defendant who could currently be convicted of felony
murder of a police officer under section 189, subdivision (f)].)
That is surely not what the Legislature had in mind.
Section 1172.6, subdivision (d)(2) is more reasonably
understood to require automatic vacatur and resentencing where
a special circumstances allegation found to be not true (or the
legal equivalent, see People v. Ramirez (2019) 41 Cal.App.5th
923, 926-927, 930) provides the only viable ground for a murder
conviction. This construction serves the legislative purpose
behind Senate Bill 1437. It is also consistent with section 1172.6,
subdivision (d)(2)’s reference to “the felony” (italics added), which
suggests the Legislature only contemplated felony murder
convictions predicated on a single felony. Finally, it will not, as
Guillory claims, deprive section 1172.6, subdivision (d)(2) “almost
completely, if not completely” of effect. Rather, consistent with
legislative intent, the subdivision affords relief to offenders who
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could not currently be convicted of murder under any still-valid
theory that could have been proven at their trial.
The cases Guillory relies on are consistent with this
conclusion. In People v. Ramirez, supra, 41 Cal.App.5th at pp.
926-927, a court had granted habeas corpus in a prior proceeding
after vacating a true finding on a sole special circumstances
allegation that apparently provided the only basis for murder
liability. The habeas corpus ruling constituted a “prior finding”
requiring vacatur and resentencing under section 1172.6,
subdivision (d)(2). (Ramirez, supra, at p. 933.) In Clayton, supra,
66 Cal.App.5th at pp. 149-150, 154, the jury rejected the sole
special circumstances allegation arising from a robbery gone
wrong. As in Ramirez, there was no suggestion Clayton could be
convicted of murder under any other theory. Neither case
suggests section 1172.6, subdivision (d)(2) applies where a
negative finding on one special circumstances allegation does not
negate potential murder liability on other viable bases.
Guillory’s remaining arguments focus primarily on
whether, as she asserts, a not-true finding on a special
circumstances allegation constitutes a finding that the petitioner
did not act with reckless disregard for life or was not a major
participant in the felony (see Flint, supra, 75 Cal.App.5th at pp.
614-615; People v. Harrison, supra, 73 Cal.App.5th at pp. 439-
442; Clayton, supra, 66 Cal.App.5th at pp. 154-158) or, rather,
section 1172.6, subdivision (d)(2) requires an affirmative finding
of factual innocence. (See Clayton, supra, at pp. 159-162 (dis.
opn. of Chavez, J).) We need not decide this unsettled point
because Guillory is ineligible for resentencing under either view.
Finally, Guillory asserts the mistried special circumstance
allegations are “legal non-entities” that, since the original
prosecutor declined to retry them, did not “form[] a constituent
part of the judgment.” As such, she maintains, the section 1172.6
prosecutor could not rely on them to oppose her resentencing
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petition. We reject this point as lacking any discernable basis in
law or policy.
B.
Guillory, a minor when she helped kill Curtis, argues the
issuance of the order to show cause pursuant to section 1172.6,
subdivision (c) entitles her to retroactive application of
Proposition 57, an ameliorative enactment that, if applicable,
would require remand for a transfer hearing to address whether
she should have been tried as a juvenile. (See Lara, supra, 4
Cal.5th at pp. 303-304.) Here, too, we disagree.
Proposition 57 applies retroactively to all cases in which
the judgment was not final when the proposition went into effect.
(Lara, supra, 4 Cal.5th at pp. 303-304.) After briefing was
completed in this case, our Supreme Court held in People v.
Padilla (2022) 13 Cal.5th 152, 162-163 that a final judgment
becomes nonfinal for purposes of Lara retroactivity when the
sentence is vacated on collateral attack (there, a petition for
habeas corpus). This is so, Padilla indicates, because at that
point the trial court regains jurisdiction to consider the
appropriate punishment and the defendant regains the right to
appeal the new sentence. (Id. at pp. 161-162.) Conversely, filing
a collateral attack does not make a judgment nonfinal. (Id. at p.
162.)
An order to show cause under section 1172.6 does not
vacate the petitioner’s sentence but, like the habeas petition in
Padilla, sets in motion proceedings to determine whether the
petitioner is entitled to vacatur and resentencing. (§ 1172.6,
subd. (d)(1).) The original judgment remains final until that
determination is made. (Padilla, supra, 13 Cal.5th at pp. 161-
162; cf. People v. Ramirez (2021) 71 Cal.App.5th 970, 994
[resentencing following successful section 1172.6 petition
qualified defendant for juvenile court transfer hearing].) Guillory
is thus ineligible for retroactive relief under Proposition 57.
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DISPOSITION
The order denying the petition is affirmed.
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______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
SIMONS, J.
A161952
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Contra Costa County Superior Court No. 50106518, Hon. John
William Kennedy.
Mark David Greenberg, under appointment by the First District
Appellate Project, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant
Attorney General, Rene A. Chacon, Supervising Deputy Attorney
General, Juliet B. Haley and Bridget Billeter, Deputy Attorney
Generals, for Plaintiff and Respondent.
13