People v. Crisp CA5 ( 2023 )

Filed 3/14/23 P. v. Crisp CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083355
Plaintiff and Respondent,
(Super. Ct. No. CF91438575)
v.
JOHN MICHAEL CRISP, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell, III, Judge.
Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary, Erin Doering, and William K. Kim, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Peña, Acting P. J., Smith, J. and Meehan, J.
INTRODUCTION
In 1992, a jury convicted appellant John Michael Crisp and codefendants Steven
McGrew, Winona Weathers, and Johnnie Bell of first degree murder (Pen. Code,1 § 187).
In addition, the jury found true enhancement allegations alleging McGrew personally
used a firearm during the commission of the murder and robbery (§ 12022.5, subd. (a)),
and that Crisp, Bell, and Weathers were armed with a firearm during the commission of
the murder and robbery (§ 12022, subd. (a)(1)). As to all defendants, the jury further
found true a special circumstance alleging that the murder occurred during the
commission of a robbery (§ 190.2, subd. (a)(17)).
Upon a motion for new trial, the trial court modified the verdict by striking the
robbery-murder special circumstance, finding that the “jury’s verdict with respect to the
special circumstance … was contrary to the evidence.” Crisp was resentenced to an
indeterminate term of 25 years to life in state prison. Following the passage of Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), Crisp filed a petition for
resentencing under section 1170.95.2 After appointing counsel to represent Crisp, the
superior court denied his petition, finding he had failed to make a prima facie showing for
relief.
On appeal, Crisp contends the trial court erred in denying his petition for
resentencing at the prima facie stage. The Attorney General agrees, as do we. We
therefore reverse the trial court’s order and remand the matter back to the lower court for
further proceedings consistent with this opinion.
1 All undefined statutory citations are to the Penal Code unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no
significant change in text (Stats. 2022, ch. 58, § 10). Crisp filed his petition prior to this
renumbering, and he therefore referred to the statute as section 1170.95 in his petition.
2.
PROCEDURAL HISTORY
In 1992, Crisp was convicted of first degree murder (§ 187), first degree robbery
(§ 211/212.5, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). In addition, the
jury found true an enhancement for the personal use of a firearm (§ 12022, subd. (a)(1)),
and a special circumstance alleging the murder occurred during the commission of a
robbery (§ 190.2, subd. (a)(17)).
In 1993, following a motion for new trial (§ 1181), the trial court struck the jury’s
true finding on the robbery-murder special circumstance, finding insufficient evidence
that Crisp had acted with reckless indifference to human life.
On May 17, 2019, Crisp filed a petition for resentencing under former section
1170.95.
On May 22, 2019, the superior court filed an order appointing Crisp’s original trial
counsel to represent him on his petition for resentencing.
On August 20, 2021, the superior court summarily denied Crisp’s petition. The
August 20, 2021 minute order states, “The Court finds Prima Facie does not meet the
criteria.”
Crisp filed a timely notice of appeal.
STATEMENT OF FACTS
The following statement of facts is derived from this court’s nonpublished opinion
following Crisp’s direct appeal in People v. Mcgrew (Apr. 5, 1996, F020046).
“Deborah Baker was [Johnnie] Bell’s girlfriend in December
1990. The two were living together in Hanford …. Baker also knew
or had met Crisp, [Steven] McGrew, and [Winona] Weathers. On
December 22 she was home when Crisp arrived with his girlfriend
Helen Donnel. McGrew and Weathers were already there. While
cleaning the back bathroom, Baker overheard Bell and Weathers
talking in an adjoining bedroom. The two mentioned people named
Paul [William McClelland] and Tonja [Minnick] in Fresno. They
planned to go to their home and thought no one else besides Paul and
3.
Tonja would be there. They discussed collection of a debt owed
Weathers and the pretext of making a drug purchase. Weathers
would take cash to make the staged transaction look convincing.
Once there, they would take money and whatever else they could
find. Weathers promised that those going with her would get
something out of it. The two discussed whether the victims would
have weapons on hand and whether to take a nine millimeter
weapon. They also discussed the problem of taking care of Tonja
while the robbery took place. Baker also heard them talk about
whether a right-handed or left-handed person would use the gun.
“McGrew and Crisp eventually joined Weathers and Bell in
the bedroom. At that point, Baker left the bathroom. The four were
together in the bedroom about 15 to 20 minutes. When they
emerged, they left the house. A few minutes later, they returned.
Baker noticed Bell, Crisp, and McGrew had changed clothes. Bell
and Weathers had handguns. Baker described the weapon Weathers
was holding as the type without a cylinder. The gun was silver.
Bell’s weapon was dark with a cylinder. Bell told Baker the gun
was for ‘leverage.’ Weathers made a similar comment about using a
gun as leverage.
[¶] … [¶]
“According to Minnick, on the night of the murder she and
McClelland were at their condominium in Fresno at about 2 a.m.
when Weathers and Crisp entered using a key she had given
Weathers. Weathers said she had $3,000 and wanted McClelland to
purchase methamphetamine for her. McClelland agreed, made a
telephone call, and left. After McClelland left, Crisp said he was
going out to get cigarettes. He returned not long after with McGrew
and Bell, whom Weathers introduced as friends from Hanford.
“McClelland called Minnick about 30 to 45 minutes after he
left. He told her he was having difficulty obtaining the
methamphetamine. Minnick was afraid and asked him to come
back. She was concerned because she and Weathers barely spoke,
and the men – Bell, McGrew, and Crisp – said nothing. The men
stared straight ahead, and on occasion their eyes rolled back showing
only the whites.
“McClelland called a second time, about 30 to 45 minutes
after the first call, saying he was still having difficulty obtaining the
4.
drugs because he did not have the cash with him for the purchase.
McClelland called a third time and told Minnick he would be home
shortly and [his brother-in-law Michael] Allen would be with him.
Weathers complained about the delay and said she had to take the
others back to Hanford. Approximately 30 to 45 minutes after the
third call, McClelland returned with Allen. Allen went straight
through the house and into the garage. McClelland embraced
Minnick, and then motioned for Weathers to go with him into the
garage. The two went into the garage while Minnick remained with
Bell, Crisp, and McGrew. McClelland opened the door from the
garage into the house a short time later, and Weathers entered the
house and spoke with Bell and McGrew. Weathers said they should
come into the garage to buy their drugs. McGrew complained he
would not make a purchase without sampling the product first. He
then went into the garage with Bell, joining Weathers, McClelland,
and Allen. Crisp remained in the house with Minnick.
“Minnick next heard loud noises from the garage, including
Weathers shouting, ‘Because you owe me $1,500.’ She also heard
her say ‘Shoot him! Shoot him!’ just before she heard two gun shots.
Minnick ran to the garage with Crisp behind her. Allen was moving
quickly around the corner and pushing things down as if trying to
escape from someone. He had blood on [his] face. McClelland was
lying on the floor with McGrew standing over him. Weathers and
Bell also were still in the garage. McGrew was holding a small
brown revolver and pointed it at Minnick as she entered.
“Minnick hurriedly turned around in an attempt to go back
into the house. She slipped and fell. Crisp grabbed her and pulled
her into the house. He told her what occurred in the garage had
nothing to do with her, only McClelland. He threatened they would
return and kill her if she called police. Minnick attempted to call
police from the same telephone she had used earlier when speaking
with McClelland, but the cord appeared to have been cut. She heard
another loud noise from the garage, looked in, and saw the garage
door had been pulled down and was on McClelland. She also heard
a male voice say more than once, ‘Get the dope.’ Weathers ran back
into the house and fled out the front door. As she left, she told
Minnick not to call the police or she would return and kill her. …
5.
[¶] … [¶]
“At trial Allen denied he was present at the shooting. He also
denied discussing the matter with police and telling an officer a
different version of what occurred that night.
“Detective Chilberto testified he took a detailed
statement from Allen the day after the homicide. According to
Chilberto, Allen said McClelland picked him up at his home and he
rode with him to McClelland’s home. As they entered, McClelland
told him to ‘watch my back.’ Allen saw Weathers, Minnick, and a
man he did not recognize sitting at the kitchen table. Another man,
possibly Hispanic, was sitting on the couch. Allen went into the
garage with McClelland. Two men, one Caucasian and one
Hispanic, entered the garage with Weathers. Allen identified the
Caucasian as McGrew and the Hispanic as Bell. McGrew said,
‘Let’s see the dope,’ and McClelland responded, ‘Let’s see the
money.’ McGew then displayed a .22 caliber handgun. Allen asked
what was happening. Bell said not to worry about it and proceeded
to strike Allen with a chrome .25 caliber pistol. The blow hit him in
the face below the right eye. Allen dropped to one knee and heard
McGew order McClelland to his knees. McClelland asked Weathers
what was going on, and she yelled ‘Fuck you Paul, you owe me
money. Shoot him, shoot him.’ Allen then saw McGew extend his
right arm and shoot McClelland in the head.”
DISCUSSION
Crisp raises several claims on appeal. First, he contends that the trial court
reversibly erred in summarily denying his petition for resentencing, because he is entitled
to resentencing as a matter of law. Second, Crisp asserts that the trial court’s order
appointing Michael Berdinella to represent him was not served upon the attorney,
resulting in the failure to effectively appoint Berdinella. Finally, despite arguing that he
was completely without counsel, Crisp contends that his trial counsel was constitutionally
ineffective in representing him on his petition.
The Attorney General concedes that Crisp “appears to be entitled to have his
murder conviction vacated and to be resentenced” and therefore, agrees that the trial court
6.
erroneously denied Crisp’s petition. The Attorney General contends that Crisp’s
remaining contentions are therefore moot.
We accept the parties’ concession of error as to the denial of Crisp’s petition at the
prima facie stage. The trial court should have issued an order to show cause, and to the
extent necessary, have held an evidentiary hearing on that order. For the reasons
discussed below, we will remand this matter back to the lower court for further
proceedings.
I. Background: Senate Bill No. 1437
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend
the felony murder rule and the natural and probable consequences doctrine ... 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate
Bill No. 1437 accomplished this task by adding three separate provisions to the Penal
Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the
natural and probable consequences doctrine, the bill added section 188, subdivision
(a)(3), which requires a principal to act with malice aforethought before he or she may be
convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to
amend the felony murder rule, the bill added section 189, subdivision (e), which provides
the following:
“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 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, as described
in subdivision (d) of Section 190.2.” (§ 189, subd. (e); accord, Gentile, supra, 10
Cal.5th at p. 842.)
7.
Finally, Senate Bill No. 1437 added section 1170.95 to provide a procedure for
those convicted of a qualifying offense “to seek relief under the two ameliorative
provisions above.” (Gentile, supra, 10 Cal.5th at p. 843.) This procedure is available to
persons convicted of “felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter.”
To seek relief under former section 1170.95, a petitioner must file a petition in the
superior court averring that: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[; and] [¶] (3) The petitioner could not be convicted of
first or second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (Former §§ 1170.95, subd. (a)(1)-(3), see also (b)(1)(A).)
Additionally, the petition must indicate “[w]hether the petitioner requests the
appointment of counsel.” (Id. subd. (b)(1)(C).)
If a petition fails to comply with these requirements, “the court may deny the
petition without prejudice to the filing of another petition.” (Former § 1170.95, subd.
(b)(2).) Where the petition complies with subdivision (b)’s requirements, then the court
proceeds to subdivision (c) to assess whether the petitioner has made “a prima facie
showing” for relief. (Id. subd. (c).)
8.
II. Analysis
A. The Trial Court Erred by Concluding Crisp Had Failed to Make a
Prima Facie Showing for Relief
The jury found true a special circumstance alleging Crisp had acted as a major
participant in the commission of the underlying robbery with reckless indifference to
human life. However, the trial court struck the special circumstance following a hearing
on trial counsel’s motion for new trial. Following an independent review of the evidence,
the trial court concluded that the jury’s true finding on the special circumstance was not
supported by the evidence.
Once the trial court struck the special circumstance, “in the eyes of the law, the
original finding[] never existed.” (People v. Barboza (2021) 68 Cal.App.5th 955, 965.)
Accordingly, we agree with the parties’ assertion that the trial court erred in concluding
that Crisp had failed to make a prima facie showing for resentencing relief. Because
Crisp’s petition contained all necessary averments required under former section 1170.95,
the trial court should have issued an order to show cause and set a hearing on that order.
B. The Remedy
Crisp contends that he is entitled to automatic vacatur of his murder conviction
because the trial court’s finding amounts to a “prior finding by a court … that [he] did not
act with reckless indifference to human life.” The Attorney General concedes that
“[g]iven the trial court’s express finding, [Crisp] appears to be entitled to have his
murder conviction vacated and to be resentenced accordingly. (§ 1172.6, subd. (d)(2).”
(Italics added.) In the same breath however, the Attorney General suggests that this court
should reverse the court’s order denying Crisp’s petition “and remand the matter with the
direction to the superior court to issue an order to show cause as to why [Crisp’s] murder
conviction should not be vacated and [Crisp] should not be resentenced accordingly.”
9.
It is unclear whether the Attorney General is expressly conceding that Crisp is
entitled to resentencing relief under the automatic vacatur provision. There would be no
need to direct the lower court to issue an order to show cause and to hold a hearing on
that order if Crisp is entitled to automatic vacatur of his murder conviction and
resentencing. Such a procedure would only cause unnecessary delay.
Under section 1172.6, subdivision (d)(2), a petitioner who was convicted of felony
murder is entitled to automatic vacatur of the murder conviction and resentencing on any
remaining counts of conviction if there is “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.” No cases have directly addressed whether a trial court’s
finding of insufficient evidence on a felony-murder special circumstance following a
section 1181 motion constitutes “ ‘a prior finding by a [court] that the petitioner did not
act with reckless indifference to human life or was not a major participant in the
[underlying] felony,’ thus triggering the superior court’s duty to vacate the murder
conviction and resentence the petitioner under section 1170.95, subdivision (d)(2).”
(People v. Clayton (2021) 66 Cal.App.5th 145, 149.)3 However, several cases are
instructive.
In People v. Ramirez (2019) 41 Cal.App.5th 923 (Ramirez), Ramirez, the
petitioner, was convicted of first degree felony murder with a special circumstance
alleging that the murder occurred during the commission of a robbery. (Id. at p. 926.)
Following our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 7883 In People v. Barboza, supra, 68 Cal.App.5th at pp. 960-961, the Fourth District
Court of Appeal, Division 3, addressed whether a special circumstance allegation,
stricken upon a motion for new trial, rendered the defendant ineligible for resentencing
relief as a matter of law under former section 1170.95. Here, Crisp contends the court’s
act of striking the special circumstance triggered the automatic vacatur and resentencing
provisions in section 1172.6, subdivision (d)(2).
10.
(Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark), Ramirez successfully challenged
the jury’s special circumstance finding on the basis that there was insufficient evidence to
support the conclusion that he had acted as a major participant in the commission of the
robbery who acted with reckless indifference to human life. (Ramirez, at pp. 926-927.)
The special circumstance finding provided the only basis for murder liability. (Ibid.)
On appeal from the denial of his petition for resentencing under former section
1170.95, the appellate court accepted the parties’ concession that the trial court had erred
in denying the petition and sent the matter back with directions to the lower court to grant
Ramirez’s petition. (Ramirez, supra, 41 Cal.App.5th at pp. 930, 933.) In so doing, the
court declined the Attorney General’s request to direct the lower court to conduct further
proceedings, including the issuance of an order to show cause. (Id. at p. 930.) The
appellate court observed that former section 1170.95, subdivision (d)(2) requires
mandatory vacatur where there has been a prior court finding that the defendant did not
act as a major participant with reckless indifference to human life. (Ramirez, at p. 932.)
The appellate court’s finding on review of Ramirez’s habeas corpus petition constituted a
“prior court finding” within the meaning of subdivision (d)(2). (Ramirez, at p. 933.)
In People v. Hampton (2022) 74 Cal.App.5th 1092 (Hampton), Hampton was
convicted of murder and two counts of robbery. The jury was unable to reach a verdict
on a robbery-murder special circumstance allegation. (Id. at p. 1097.) The prosecutor
moved to dismiss the allegation for insufficient evidence, and the trial court granted the
prosecutor’s motion pursuant to section 1385.4 (Hampton, at p. 1097.) Hampton
4 Under section 1385, a trial judge may order an action dismissed “ ‘in furtherance
of justice,’ ” either “before, during or after trial.” (Mannes v. Gillespie (9th Cir. 1992)
967 F.2d 1310, 1314.) However, the court’s authority to dismiss a special circumstance
is circumscribed by section 1385.1, which prohibits a judge from striking or dismissing a
special circumstance, “Notwithstanding Section 1385 or any other provision of law.”
(§ 12022.53, subd. (h).)
11.
subsequently filed a petition for resentencing under former section 1170.95, which was
granted. (Hampton, at p. 1098.) The People appealed, arguing that the dismissal of the
special-circumstance allegation was not an acquittal which would entitle Hampton to
automatic resentencing relief. (Id. at p. 1096.)
Our colleagues in the Third District affirmed the trial court’s order granting
Hampton’s petition, finding that the dismissal of the special circumstance for
“insufficient evidence” was equivalent to an acquittal, thereby rendering Hampton
automatically eligible for resentencing relief under subdivision (d)(2) of section 1170.95.
(Hampton, supra, 74 Cal.App.5th at pp. 1106-1107.) The court explained that “[s]ection
1385 dismissals should not be construed as an acquittal for legal insufficiency unless the
record clearly indicates the trial court applied the substantial evidence standard.” (Id. at
p. 1104; People v. Hatch (2000) 22 Cal.4th 260, 271.) According to the appellate court,
the term “insufficient evidence” is a term of art; it “means the evidence was insufficient
to support a conviction as a matter of law.” (Hampton, supra, p. 1104, italics added.)
In contrast, in People v. Nieber (2022) 82 Cal.App.5th 458 (Nieber), the petitioner
appealed the trial court’s denial of his petition for resentencing. Nieber alleged that the
magistrate’s ruling finding insufficient evidence of a special circumstance allegation
following his preliminary hearing was a “prior finding by a court” which triggered the
mandatory resentencing provision. (Id. at p. 462.) The appellate court disagreed,
affirming the denial of Nieber’s petition for resentencing. (Ibid.)
The appellate court explained that “the type of ‘prior finding by a court’ must, like
a ‘ “prior finding by a ... jury” ’ be the type of finding that challenges whether the People
have demonstrated guilt beyond a reasonable doubt.” (Nieber, supra, 82 Cal.App.5th at
p. 473.) However, the role of a magistrate at a preliminary hearing is circumscribed.
(Ibid.) The magistrate’s role is limited to determining “whether there is sufficient
evidence to move a case forward” rather than “ ‘the guilt or innocence of the
12.
defendant.’ ” (Ibid.) Thus, the magistrate’s ruling, including an order of dismissal, is not
a bar to another prosecution for the same offense. (Ibid.) Indeed, the magistrate’s
opinion as to the guilt or innocence of the accused “ ‘ “is of no legal significance.” ’ ”
(Id. at p. 474.)
The instant case falls somewhere along the continuum between a magistrate’s
finding following a preliminary hearing (Nieber), and a trial court’s finding that there is
insufficient evidence to support a special circumstance as a matter of law (Hampton).5
The trial court struck the jury’s true finding on the special circumstance allegation
following a motion for new trial. As discussed further below, a motion for new trial may
be granted following an independent examination of the evidence by the trial court, or
upon finding that the evidence is insufficient as a matter of law to support the conviction.
In consideration of a motion for new trial based on grounds asserting that the
jury’s verdict is contrary to the law or evidence (§ 1181, subd. (6)), the judge, acting as a
“ ‘13th juror,’ ” determines whether the charges have been proven beyond a reasonable
doubt. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) In this scenario, a trial
court independently examines all of the evidence and, if it is not convinced that the
charges have been proven beyond a reasonable doubt, it may rule that the verdict is
“contrary to the evidence.” (People v. Veitch (1982) 128 Cal.App.3d 460, 467.) Retrial
is not barred if the trial court grants the motion on this basis, because in determining the
charges have not been sufficiently proven, the judge is acting as the lone holdout juror for
acquittal. (Hudson v. Louisiana (1981) 450 U.S. 40, 45, fn. 5.) “[T]he grant of a section
1181(6) motion is the equivalent of a mistrial caused by a hung jury.” (Porter v. Superior
Court, supra, at p. 133.)
5 The trial court here did not strike the special circumstance pursuant to section
1385. The parties agreed that the trial court was prohibited from striking the jury’s
finding on the special circumstance “in furtherance of justice,” pursuant to section
1385.1.
13.
Conversely, if a motion for new trial is granted on grounds that the evidence is
insufficient, as a matter of law, to support the conviction, retrial is barred. (Hudson v.
Louisiana, supra, 450 U.S. at p. 43, citing Burks v. United States (1978) 437 U.S. 1, 11,
17 [it makes “no difference that the reviewing court, rather than the trial court,
determined the evidence to be insufficient” or that “a defendant has sought a new trial as
one of his remedies, or even as the sole remedy”]; accord, People v. Eroshevich (2014)
60 Cal.4th 583, 591.)
In this scenario, the trial court applies the substantial evidence test. In deciding
whether substantial evidence supports a verdict, a court does not “ ‘ “ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.”
[Citation.] Instead, the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ ” (People v. Lagunas (1994)
8 Cal.4th 1030, 1038, fn. 6, citing Jackson v. Virginia (1979) 443 U.S. 307, 318-319,
original italics.)
Here, although there is some ambiguity in the record, the trial court struck the
special circumstance, finding that the jury’s verdict was contrary to the evidence.6 In so
doing, the court implicitly made credibility determinations and resolved contested facts,
6 The trial court stated its ruling was made under section 1181, subdivision (7),
ostensibly based upon the assumption that doing so would provide Crisp relief without
having to grant him a new trial.
This subdivision provides: “When the verdict or finding is contrary to law or
evidence, but in any case wherein authority is vested by statute in the trial court or jury to
recommend or determine as a part of its verdict or finding the punishment to be imposed,
the court may modify such verdict or finding by imposing the lesser punishment without
granting or ordering a new trial, and this power shall extend to any court to which the
case may be appealed.” (§ 1181, subd. (7).) Whether the trial court erred in striking the
special circumstance on this basis was not challenged by the prosecutor by filing an
appeal. It is undisputed that the court’s ruling cannot be challenged now.
14.
but it did not conclude the evidence supporting the special circumstance was insufficient
as a matter of law. The judge, acting as a “13th juror,” independently examined the
evidence, and determined that the special circumstance had not been proven beyond a
reasonable doubt. (Porter v. Superior Court, supra, 47 Cal.4th at p. 133.) Thus, while
the trial court found insufficient evidence to support the jury’s true finding on the special
circumstance, its finding was not tantamount to an acquittal. (See People v. Hatch,
supra, 22 Cal.4th at pp. 271-272 [“[w]here a court merely ‘disagrees with a jury’s
resolution of conflicting evidence and concludes that a guilty verdict is against the weight
of the evidence,’ … a reversal or dismissal on that ground does not bar retrial’ ”].)
Indeed, “a court has no authority to grant an acquittal in connection with
an 1181 motion.” (People v. Porter, supra, 47 Cal.4th at p. 133.)
This distinction may prove critical in another case. But that is not so here, since
the Attorney General appears to concede that Crisp is entitled to resentencing.
Neither the Attorney General nor the prosecutor below have suggested that new
evidence, such as parole suitability hearing transcripts, can and would be proffered at an
evidentiary hearing to support Crisp’s liability for murder under a still viable theory.
They do not expressly concede this point either. The Attorney General merely argues
that Crisp was not convicted as the actual killer or as an aider and abettor who acted with
express malice. That may be true, but that statement falls short of a clear concession that
the special circumstance allegation is the only viable ground for a murder conviction.
(See People v. Guillory (2022) 82 Cal.App.5th 326, 334 [“[s]ection 1172.6, subdivision
(d)(2) [requires] automatic vacatur and resentencing where a special circumstances
allegation found to be not true (or the legal equivalent, [citation]) provides the only viable
ground for a murder conviction”], italics added.)
We do not suggest that the existing record contains evidence supporting the
conclusion that Crisp could be convicted of murder under a still valid theory. We raise
15.
this issue only to highlight the fact that the Attorney General’s concession does not make
sufficiently clear whether he is conceding resentencing is required under the mandatory
vacatur provision, all things considered. We will therefore reverse the trial court’s order
and remand the matter back to the lower court for further proceedings consistent with
section 1172.6, including, the appointment of Crisp’s original trial counsel. On remand,
the parties may waive an order to show cause hearing and stipulate that Crisp is entitled
to resentencing under section 1172.6, subdivision (d)(2).
In light of our conclusion, Crisp’s remaining contentions concerning the
appointment of his original trial counsel and his claim of ineffective assistance of counsel
are moot.
DISPOSITION
The trial court’s August 20, 2021 order denying Crisp’s petition for resentencing
under former section 1170.95 is reversed. The matter is remanded to the trial court with
directions to conduct further proceedings consistent with section 1172.6, including the
appointment of Crisp’s original trial counsel.
16.