People v. Matthews CA2/1 ( 2022 )

Filed 8/18/22 P. v. Matthews CA2/1
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B299219
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A367138)
v.
DONALD MATTHEWS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Reversed.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, David E. Madeo,
Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for
Plaintiff and Respondent.
____________________________
In 1981, petitioner and appellant Donald Matthews pleaded
guilty to one count of murder, and the trial court sentenced him
to 15 years to life. In 2019, petitioner filed a petition for
resentencing pursuant to Penal Code section 1170.95, which is
now Penal Code section 1172.6 (section 1172.6). Section 1172.6
allows a petitioner to obtain retroactive relief based on recent
changes in the murder law. The resentencing court denied
Matthews’ petition at the prima facie stage and, in July 2020,
this court affirmed the resentencing court’s order.
Subsequently, our Supreme Court vacated our opinion and
remanded the case. We now reverse the resentencing court’s
order denying Matthews’ petition at the prima facie stage. We
reverse because the record of conviction does not foreclose the
conclusion that Matthews could have pleaded guilty to murder on
a theory that he aided and abetted an assault with a firearm, the
natural and probable consequences of which was murder.
BACKGROUND
Our record does not include the information or abstract of
judgment.
1. Preliminary Hearing
Counsel represented petitioner at a preliminary hearing in
April 1981. Police Officer William Holcomb testified that he
interviewed petitioner in Louisiana. Petitioner told Holcomb that
a month earlier on March 16, petitioner observed two of his
friends, whose monikers were Snipper and Mugga, with a
.12-gauge shotgun. When Mugga told petitioner that they were
going to “bust on some Six-Deuces,” petitioner volunteered to
drive them. Petitioner “then stated that himself along with
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several of his friends entered a car that he had stolen the day
prior and drove around the area of 60th and San Pedro looking
for some Six-Deuces to shoot.” When his friends exited the car to
shoot the Six-Deuces, petitioner “remained at the location with
the doors open and the engine running . . . so that they could
make a fast getaway.” After the shooting, petitioner drove his
friends home. Officer Holcomb did not define “bust on,” and no
other witness at the preliminary hearing testified as to the
meaning of that term.
2. Plea and Sentence
Petitioner pleaded guilty to murder in violation of Penal
Code section 187. Defense counsel and the prosecutor stipulated
that the murder was in the second degree. At the plea hearing,
petitioner described the murder as follows: Knowing their
purpose to shoot Andre Purnell, petitioner drove Robin and
Donnie Henning to Purnell. Petitioner “drove the car with that
in mind,” that being “their purpose in going over to shoot Andre
Purnell.” Petitioner knew that the Hennings had a shotgun in
the car with them. Petitioner waited in the car during the
shooting and then drove away.
At the hearing in which petitioner pleaded guilty, defense
counsel stated: “He’s 19. But he was not the shooter, and he
openly admits it. He admitted it to the officers when they picked
him up down in Louisiana. He’s been no problem. He’s admitted
it at all times.” The prosecutor recommended that petitioner be
sent to Youth Authority for a “diagnostic study” and did not
object to petitioner serving his sentence at the Youth Authority.
The prosecutor further represented that to his knowledge
petitioner had “no prior convictions of any felonies or prior
convictions of violent crimes.”
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Defense counsel represented that both he and the
prosecutor believed the Youth Authority would accept petitioner.
Defense counsel represented that the shooter was 14 years old
and sentenced as a juvenile. Defense counsel later represented
that after serving 18 months, the shooter was released from
Youth Authority.
Youth Authority denied petitioner admission because it
lacked adequate facilities. The trial court indicated that “but for
the lack of beds they would have taken him . . . .” The trial court
stated: “To make the record perfectly clear, just from my
experience, several people that have been sent to Youth
Authority have been sent back with this same inadequate facility
letter. I think that is a sad state of affairs . . . .” The trial court
sentenced petitioner to 15 years to life.
3. Petition for Resentencing
On April 17, 2019, petitioner filed a petition for
resentencing pursuant to section 1170.95 (now § 1172.6). In his
petition, petitioner described his offense as follows: “On March
16, 1981, gang members of the Six Deuce Crips were at the
corner of 61st Street and San Pedro Avenue. Rival gang
members of the Five Deuce Crips drove by that corner and
parked nearby. The Hennings and Jessie Owens got out of the
car driven by 19-year-old Petitioner who remained in the car as
the getaway driver.” Petitioner’s confederates killed one person
and seriously wounded another.
Petitioner attached his declaration stating that an
information was filed against him that allowed the prosecution to
proceed under the felony murder rule or the natural and probable
consequences doctrine. Petitioner stated, “I did not, with the
intent to kill, aided, abetted, counseled, commanded, induced,
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solicited, requested, or assisted the actual killer in the
commission of murder in the first-degree.” Petitioner declared
that he was eligible for resentencing. Petitioner requested the
appointment of counsel.
4. The Resentencing Court Denied the Petition for
Resentencing
After reviewing the preliminary hearing transcript and
plea colloquy, the resentencing court concluded that petitioner
was not eligible for resentencing. The resentencing court denied
the petition without appointing counsel or holding a hearing.
The court relied on petitioner’s admissions as recounted at the
preliminary hearing. The court also relied on petitioner’s
statements during the plea colloquy. The court explained:
“Based on the record of conviction, there is no evidence of a
natural and probable consequence theory. By his own admission,
petitioner acted with express malice.[1] As such, he is not eligible
for” resentencing.
DISCUSSION
“[U]ntil recently, when a person aided and abetted a
nonhomicide crime that then resulted in a murder, the natural
and probable consequences doctrine allowed him or her to be
convicted of murder without personally possessing malice
aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 845
1 Express malice requires an intent to kill. (People v. Soto
(2018) 4 Cal.5th 968, 970.) Implied malice involves “ ‘ “a
conscious disregard for the danger to life that the [defendant’s]
act poses.” ’ [Citation.]” (People v. Offley (2020) 48 Cal.App.5th
588, 598 (Offley).)
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(Gentile).) Under the natural and probable consequences
doctrine, “an accomplice is guilty not only of the offense he or she
directly aided or abetted (i.e., the target offense), but also of any
other offense committed by the direct perpetrator that was the
‘natural and probable consequence’ of the crime the accomplice
aided and abetted (i.e., the nontarget offense).” (Id. at p. 843.) In
the case of a homicide, then, “[s]o long as the direct perpetrator
possessed malice, and the killing was a natural and probable
consequence of the crime the defendant aided and abetted,” the
defendant is culpable for murder regardless of “whether the
defendant intended to kill or acted with conscious disregard for
human life.” (Id. at p. 845.)
“Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437) amended section 188 to provide that ‘[e]xcept 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.’ (Stats. 2018, ch. 1015, § 2.) The
amendment effectively ‘eliminates natural and probable
consequences liability for first and second degree murder.’
[Citation.]” (People v. Garrison (2021) 73 Cal.App.5th 735, 742.)
Senate Bill No. 1437 also enacted section 1170.95, which
provides a procedure by which a person convicted of murder
under a theory invalidated under Senate Bill No. 1437, including
the natural and probable consequences doctrine, may petition to
vacate the conviction. (Gentile, supra, 10 Cal.5th at p. 843;
§ 1170.95, subd. (a)(3).) Senate Bill No. 775 (2021–2022 Reg.
Sess.) (Senate Bill No. 775) amended 1170.95 effective January 1,
2022 to expand its reach to defendants convicted of attempted
murder and manslaughter. (§ 1170.95, subd. (a); Stats. 2021,
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ch. 551, § 2.) Effective June 30, 2022, the Legislature
renumbered the code section.
Upon receipt of a complying petition under section 1172.6,
the trial court must appoint counsel, allow briefing, and then
determine if the petitioner has made a prima facie showing that,
inter alia, “[t]he petitioner could not presently be convicted of
murder or attempted murder” under the amendments to the
Penal Code enacted under Senate Bill No. 1437. (§ 1172.6,
subd. (a)(3).) In making the prima facie determination, the trial
court must “ ‘ “take[ ] [the] petitioner’s factual allegations as true
and make[ ] a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. . . .” ’ [Citation.]” (People v. Lewis
(2021) 11 Cal.5th 952, 971 (Lewis).) “ ‘[A] court should not reject
the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citation.]” (Ibid.) The
court may rely on the record of conviction in making the prima
facie determination, however, and “ ‘if the record, including the
court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.” ’ [Citation.]”
(Ibid.)
An error in failing to appoint counsel at the prima facie
stage should be evaluated for prejudice under the Watson2
standard. (Lewis, supra, 11 Cal.5th at pp. 973–974.) A petitioner
“ ‘whose petition is denied before an order to show cause issues
has the burden of showing “it is reasonably probable that if [he or
she] had been afforded assistance of counsel his [or her] petition
2 People v. Watson (1956) 46 Cal.2d 818, 836.
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would not have been summarily denied without an evidentiary
hearing.” ’ [Citation.]” (Id. at p. 974.) A petitioner shows
prejudice when the record of conviction does not refute his claim
of eligibility as a matter of law. (People v. Flint (2022)
75 Cal.App.5th 607, 613.)
Turning to this case, upon remand, Matthews
demonstrates that it is reasonably probable if he had been
afforded the assistance of counsel, his petition would not have
been summarily denied without a hearing. Specifically, he
argues that the record does not foreclose the theory that
petitioner aided and abetted an assault with a firearm, the
natural and probable consequences of which was murder. Under
former law, the foregoing theory was viable. (People v. Chiu
(2014) 59 Cal.4th 155, 161 [under former law, “ ‘if a person aids
and abets only an intended assault, but a murder results, that
person may be guilty of that murder, even if unintended, if it is a
natural and probable consequence of the intended assault.’ ”].)
The fact that Matthews knew his confederate had a
shotgun and planned to shoot Purnell does not demonstrate as a
matter of law that Matthews harbored malice aforethought. (See
Offley, supra, 48 Cal.App.5th at p. 598.) Offley involved a
petitioner who was convicted of murder, attempted murder, and
shooting at an occupied motor vehicle after he and several fellow
gang members fired shots into a vehicle, killing one occupant and
seriously wounding another. (Id. at p. 592.) The jury had been
instructed as follows on the natural and probable consequences
doctrine in cases of conspiracy: “ ‘A member of a conspiracy is not
only guilty of the particular crime that to his knowledge his
confederates agreed to and did commit, but is also liable for the
natural and probable consequences of any crime of a co–
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conspirator to further the object of the conspiracy, even though
that crime was not intended as a part of the agreed upon
objective and even though he was not present at the time of the
commission of that crime.’ ” (Id. at p. 593.) The prosecutor
argued to the jury that it could convict on the basis of this
instruction, stating “that the ‘common design of [the] conspiracy’
was ‘assault with a firearm,’ and that any member of the
conspiracy was ‘guilty of, not only that particular crime, but also
the natural and probable consequence of any crime of the co-
conspirator.’ ” (Id. at p. 599.)
We reversed the trial court’s summary denial of petitioner
Offley’s resentencing petition. We could not “exclude the
possibility that the jury believed Offley acted without intending
to kill [the victim] or consciously disregarding that risk. The jury
might have concluded that Offley intended to take part in a
conspiracy to commit assault with a firearm, or to fire into an
occupied vehicle, with the aim of either injuring or merely
frightening” the victim. (Offley, supra, 48 Cal.App.5th at p. 599.)
“The jury could have then concluded that [the victim’s] death was
the natural and probable consequence of the conspiracy and
convicted him of murder without finding beyond a reasonable
doubt that he acted with malice aforethought.” (Ibid.)
Similarly, here we cannot exclude the possibility that
petitioner pleaded guilty because he intended to commit an
assault with a firearm the natural and probable consequence of
which was murder. Matthews admitted that he knew his
confederates would shoot Purnell, but did not admit that he acted
with malice aforethought (either express or implied). As in
Offley, petitioner could have intended to commit an assault with
a firearm with an intent to injure but not kill. For that reason,
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we reject respondent’s argument that Matthews harbored express
intent to kill.3 Because petitioner demonstrated he is not
ineligible for resentencing as a matter of law, the trial court
prejudicially erred in denying his petition without appointing
counsel. The trial court was required to issue an order to show
cause and to hold a hearing at which the prosecution bears the
“burden of proving petitioner’s ineligibility for resentencing
beyond a reasonable doubt, unless such hearing is waived
([citation]).” (People v. Flores (2022) 76 Cal.App.5th 974, 992.)
Finally, respondent correctly points out that courts are
divided as to whether preliminary hearing testimony may be
considered to assess a petitioner’s eligibility for resentencing. In
People v. Davenport (2021) 71 Cal.App.5th 476, 482, the court
held that a resentencing court cannot rely on evidence testified to
at a preliminary hearing absent a stipulation that the evidence
formed a factual basis for a plea. In contrast, People v. Perez
(2020) 54 Cal.App.5th 896, review granted December 9, 2020,
S265254, held that the preliminary hearing transcript is part of
the record of conviction and may be considered to assess prima
facie eligibility. (Id. at pp. 905–907, review granted.)
Respondent argues that it is unnecessary to rely on the
preliminary hearing testimony because petitioner’s statements at
3 Although respondent correctly notes that in our now-
vacated opinion, we stated that petitioner offered no basis to
conclude his conviction was based on the natural and probable
consequences doctrine. Upon remand from our Supreme Court,
petitioner, now with the assistance of counsel, persuasively
argues that his conviction potentially could have been based on
the natural and probable consequences doctrine.
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the plea “indicate that he acted with express malice, i.e, with ‘a
deliberate intention to take away the life of a fellow creature.’ ”
We agree with respondent to the extent respondent argues
that petitioner’s admissions forming the factual basis of his plea
were substantially the same as the evidence presented at the
preliminary hearing. Specifically, petitioner admitted at his plea
hearing that he drove two confederates knowing that they
intended to shoot Purnell. Following petitioner’s testimony, the
court found there was a “factual basis for the plea of guilty.”
However, we disagree that petitioner admitted he acted with
express malice. Petitioner testified only that he knew his
confederates would shoot at rival gang members not that he
intended to kill the rival gang members. Petitioner’s admissions
were insufficient to exclude a natural and probable consequences
theory and the case must be remanded for additional
proceedings. (§1172.6, subd. (c).)
DISPOSITION
The order denying Donald Matthews’ petition for
resentencing is reversed. The case is remanded to the trial court
to issue an order to show cause and to conduct further
proceedings as required by Penal Code section 1172.6,
subdivision (d).
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
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