People v. Duckett CA2/4 ( 2021 )

Filed 1/19/21 P. v. Duckett CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B301927
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A308967)
v.
ROOSEVELT DUCKETT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Affirmed.
Cynthia L. Barnes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Charles S. Lee and
Douglas L. Wilson, Deputy Attorneys General for Plaintiff
and Respondent.
__________________________________________________
INTRODUCTION
In 1974, appellant Roosevelt Duckett was convicted of
first degree murder, and sentenced to life in prison. Court
records indicate appellant was not convicted under the
felony murder rule or the natural and probable consequences
doctrine.
Nevertheless, in March 2019, appellant filed a petition
seeking resentencing under Penal Code section 1170.95.1
The court appointed counsel for appellant, received the
People’s opposition to appellant’s petition, and set a hearing
1 Effective January 1, 2019, Senate Bill No. 1437 “‘amend[ed]
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, 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).)”
(People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
It also enacted Penal Code section 1170.95, permitting those who
claimed they could not be convicted of murder under the new
rules to petition for resentencing. (All further undesignated
statutory references are to the Penal Code.) Among other things,
section 1170.95 provides that the People have 60 days to oppose
such a petition, and thereafter the petitioner has 30 days to
reply. (§ 1170.95, subd. (c).)
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“for receipt of petitioner’s response.” However, before any
response was received, and three days before it was due, the
court denied the petition, finding that appellant was not
entitled to relief as a matter of law.
On appeal, appellant does not dispute his ineligibility
for relief. Instead, he argues the denial of his petition before
the receipt of his reply constitutes both statutory error and
structural error requiring reversal. While we agree the
court erred by denying his petition before receiving his reply,
we disagree the error was structural. Because we conclude
appellant is ineligible for relief as a matter of law, we find
the court’s error harmless and affirm the order denying
appellant’s petition.
STATEMENT OF RELEVANT FACTS
In 1974, appellant was convicted by a jury of first
degree murder. According to the probation officer’s report,
appellant and another man stole a car and drove up to a
group of six people. They shouted, “‘Crip here,’” and
appellant’s companion opened fire, killing one, and injuring
two others. Appellant was sentenced to life imprisonment,
with the possibility of parole.
In March 2019, appellant filed a petition for
resentencing under section 1170.95. The court reviewed the
petition and appointed counsel. The People filed a response
in August 2019, contending appellant was not entitled to
relief because he was not convicted under the felony murder
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rule or the natural and probable consequences doctrine.
Attached to the People’s response were:
–The information, showing that appellant was
charged with one count of first degree murder,
two counts of assault with a deadly weapon, one
count of grand theft auto, and one count of
joyriding.
–The jury instructions in the underlying case,
showing that no instructions regarding the
felony murder rule or natural and probable
consequences theory were given.
–The jury verdict form showing appellant was
convicted of first degree murder.
–A transcript from the sentencing hearing, at
which the court recounted that appellant was an
“active participant in the crime of murder,”
“drove the car with” the actual shooter,
“disposed of the killer’s gun,” and was “just as
involved as the man who actually pulled the
trigger.” The court opined that “to say that
[appellant] didn’t know what was going to
happen, you have to be far more naïve than I
am.”
–A parole decision denying parole and reporting
that appellant denied he was the shooter in the
underlying crime, but admitting he was the
“driver of the vehicle.”
4
In August 2019, the court issued a minute order noting
receipt of the People’s response and setting a hearing on
September 23, 2019 “for receipt of petitioner’s response.”
However, on September 20, 2019, before appellant filed a
response, the trial court issued a ruling, summarily denying
appellant’s petition because he was “not entitled to relief as
a matter of law for the following reason: . . . The petitioner
was convicted of murder but the record of conviction reflects
that the petitioner was not convicted under a theory of
felony-murder of any degree, or a theory of natural and
probable consequences. There are no jury instructions for
felony murder or natural and probable consequences.”
Appellant timely appealed.
DISCUSSION
A. Senate Bill No. 1437 Permits Those
Convicted of Felony Murder or Murder
Under a Natural and Probable
Consequences Theory to Petition for
Re-Sentencing
“On September 30, 2018 the Governor signed Senate
Bill 1437, which, effective January 1, 2019, amended
sections 188 and 189, significantly modifying the law
relating to accomplice liability for murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 325, review granted
5
Mar. 18, 2020, S2604932 (Verdugo).) Specifically, “Senate
Bill No. 1437 ‘amend[ed] the felony murder rule and the
natural and probable consequences doctrine, as it relates to
murder, 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).)”
(Martinez, supra, 31 Cal.App.5th at 723.)3
2 The review order states: “Further action in this matter is
deferred pending consideration and disposition of a related issue
in People v. Lewis, S260598 (see Cal. Rules of Court, rule
8.512(d)(2)), or pending further order of the court.” (Verdugo,
S260493, Supreme Court Mins., Mar. 18, 2020.) The review
order in People v. Lewis states: “The issues to be briefed and
argued are limited to the following: (1) May superior courts
consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)[?]” (People v. Lewis, supra, Supreme Court Mins.
Mar. 18, 2020.)
3 Prior to the enactment of SB 1437, the felony-murder rule
made “a killing while committing certain felonies murder without
the necessity of further examining the defendant’s mental state.”
(People v. Chun (2009) 45 Cal.4th 1172, 1182.) “[U]nder the
natural and probable consequences doctrine, an aider and abettor
is guilty not only of the intended crime, but also ‘for any other
offense that was a “natural and probable consequence” of the
crime aided and abetted.’” (People v. McCoy (2001) 25 Cal.4th
1111, 1117.)
6
“Senate Bill 1437 also added section 1170.95 to the
Penal Code, which permits an individual convicted of felony
murder or murder under a natural and probable
consequences theory to petition the sentencing court to
vacate the conviction and to be resentenced on any
remaining counts if he or she could not have been convicted
of first or second degree murder because of Senate Bill
1437’s changes . . . .” (Verdugo, supra, 44 Cal.App.5th at
326, rev.gr.)
Section 1170.95 requires a petition for relief to include
certain basic elements, such as a declaration that the
petitioner is entitled to relief, information regarding the
underlying conviction, and whether the petitioner requests
the appointment of counsel. (§ 1170.95, subd. (b)(1).) “If any
of the required information is missing and cannot be readily
ascertained by the court, ‘the court may deny the petition
without prejudice to the filing of another petition and advise
the petitioner that the matter cannot be considered without
the missing information.’” (Verdugo, supra, 44 Cal.App.5th
at 327, rev.gr., quoting § 1170.95, subd. (b)(2).)
Section 1170.95, subdivision (c), provides for “two
additional court reviews before an order to show cause may
issue, one made before any briefing to determine whether
the petitioner has made a prima facie showing he or she falls
within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides
to determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Verdugo, supra, 44
7
Cal.App.5th at 328, rev.gr.) “Once the order to show cause
issues, the court must hold a hearing to determine whether
to vacate the murder conviction and to recall the sentence
and resentence the petitioner on any remaining counts.” (Id.
at 327, citing § 1170.95, subd. (d)(1).)
B. The Court Erred by Dismissing the Petition
Before Receiving and Considering
Appellant’s Reply Brief
As set forth above, a court makes two prima facie
determinations under section 1170.95, subdivision (c) -- one
before the parties’ briefing, and one after. Because the court
had appointed counsel for appellant, and had received the
People’s opposition to the petition, we conclude the court’s
denial of the petition was a finding that appellant had failed
to make the second prima facie showing. (See Verdugo,
supra, 44 Cal.App.5th at 332, rev.gr. [“The structure and
grammar of [section 1170.95, subdivision (c),] indicate the
Legislature intended to create a chronological sequence:
first, a prima facie showing; thereafter, appointment of
counsel for petitioner; then, briefing by the parties”]; id. at
328 [second prima facie review occurs “after briefing by both
sides”].) The denial order did not mention the People’s
opposition, but the reason given for the denial was one
advocated by the People, viz., that appellant’s murder
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conviction was not based on a theory of felony murder or a
theory of natural and probable consequences.4
Appellant argues the court erred by denying his
petition before receiving and considering his reply. Whether
section 1170.95 permits the court to find the second prima
facie showing was not made under subdivision (c) after
receiving an opposition from the People but before
appellant’s statutorily permitted reply is received or due is a
question of statutory construction, which we review de novo.
(Verdugo, supra, 44 Cal.App.5th at 328, fn. 8, rev.gr.)
The language of the statute is clear: after the People
file an opposition, “the petitioner may file and serve a reply
within 30 days after the prosecutor response is served.”
(§ 1170.95, subd. (c).) As Verdugo noted, under subdivision
(c) of section 1170.95, the court may deny the petition either
“before any briefing to determine whether the petitioner has
made a prima facie showing he or she falls within section
1170.95” or “after briefing by both sides . . . .” (Verdugo, 44
Cal.App.5th at 328, rev.gr.; see also id. at 330 [the second
determination is to be made “with the benefit of the parties’
briefing and analysis” (italics added)].) Here, it is
undisputed that the court summarily denied the petition
after receiving the People’s opposition but without affording
4 Specifically, the People argued: “Petitioner was convicted
by a jury of first-degree murder, two counts of assault with a
deadly weapon and unlawful taking of a motor vehicle. The jury
was not instructed on either felony murder or natural and
probable consequences theories of culpability.”
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appellant an opportunity to file a timely reply. This was
error. We next address whether this error was harmless.
C. The Error Was Harmless
1. Appellant Was Ineligible for Relief as a
Matter of Law
Appellant does not dispute he was ineligible for relief
as a matter of law. Instead, he argues that denying his
petition without receiving or considering his reply brief
amounted to an unconstitutional denial of his rights to due
process and assistance of counsel, and constitutes structural
error, requiring reversal.
People v. Daniel (2020) 57 Cal.App.5th 666 (Daniel)
rejected a similar argument. There, the trial court
summarily denied the appellant’s section 1170.95 petition
without appointing counsel. (Daniel, supra, 57 Cal.App.5th
at 670.) The appellant argued that “‘the deprivation of his
right to counsel is a structural error,’ requiring reversal
without regard to prejudice.” (Id. at 674.) While the court of
appeal agreed that the trial court violated section 1170.95, it
held this violation was not structural.5 Citing People v.
5 The Daniel court acknowledged that it “broke with other
Courts of Appeal and held that ‘the right to counsel attaches
upon the filing of a facially sufficient petition that alleges
entitlement to relief’—that is, a petition that includes all the
information required under section 1170.95, subdivision (b).”
(Daniel, supra, 57 Cal.App.5th at 673.) We express no opinion on
that issue.
10
Perez (2018) 4 Cal.5th 1055, 1063-1064, the court held that
“legislation ‘intended to give inmates serving otherwise final
sentences the benefit of ameliorative changes to applicable
sentencing laws,’ including Senate Bill No. 1437, does not
implicate the Sixth Amendment.” (Daniel, supra, 57
Cal.App.5th at 675.) It further held a constitutional right to
counsel “‘only kicks in once the defendant makes a prima
facie showing of entitlement [to] postconviction relief.’”
(Ibid.) Thus the Daniel court affirmed the denial of the
petition despite the error, finding that, though the defendant
“had a statutory right to counsel upon filing a facially
sufficient petition, the violation of that right was not a
structural error—and thus not reversible per se—because it
was not ‘“analogous to” . . . “the total deprivation of the right
to counsel at trial.”’ [Citations.] Rather, the failure to
appoint counsel upon the filing of a facially sufficient
petition under section 1170.95 is susceptible to review for
prejudice. [Citation.] And harmlessness is established if the
record ‘conclusively demonstrate[s] that [the petitioner] was
ineligible for relief as a matter of law.’” (Ibid.) Because
“records in the court’s own file—in this case the jury
instructions—demonstrate that the petitioner is ineligible
for relief as a matter of law,” Daniel affirmed the denial. (Id.
at 666.)
We agree with Daniel’s analysis. While the trial court
erred by summarily denying appellant’s petition before
receiving and considering his statutorily permitted reply,
this error was harmless because the record conclusively
11
demonstrates that appellant was ineligible for relief as a
matter of law. Appellant does not suggest otherwise.6
2. Appellant’s Cases Are Unhelpful
Appellant cites the dissenting opinion in People v.
Tarkington (2020) 49 Cal.App.5th 892, review granted Aug.
12, 2020, S263219, for the proposition that the Legislature
intended a petitioner to be represented by counsel upon the
filing of a facially sufficient petition, and that this counsel
would help the court determine whether to hold a
resentencing hearing. But as explained above, we agree the
trial court erred in denying appellant’s petition without
waiting for appellant’s reply. The question is whether this
error warrants reversal.
Appellant cites Bell v. Cone (2002) 535 U.S. 685,
695-696 and People v. Doolin (2009) 45 Cal.4th 390, 453 for
the proposition that defendants facing charges have a right
to counsel at “all critical stages,” and cites United States v.
Yamashiro (9th Cir. 2015) 788 F.3d 1231, 1235 and People v.
Rouse (2016) 245 Cal.App.4th 292, 297 for the proposition
that sentencing is a “critical stage.” But appellant was not
6 Appellant also argues that the court’s failure to wait for his
reply brief violated his right to due process, but forfeits the
argument by failing to develop it or support it with citation to
authority. (See, e.g., In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 830 [absence of cogent legal argument or
citation to authority forfeits the contention; “[w]e are not bound
to develop appellants’ arguments for them”].)
12
denied counsel at a sentencing hearing: he was instead
denied the assistance of counsel when the court was deciding
whether a new sentencing hearing might be ordered. As
Daniel stated: “structural error may occur when, after an
order to show cause issues, a defendant is denied counsel at
a hearing under section 1170.95, subdivision (d). Here,
however, the petition was denied before any such order was
issued.” (Daniel, supra, 57 Cal.App.5th at 675.) Here, too,
appellant’s petition was denied before the court ordered a
hearing under section 1170.95, subdivision (d). Because
appellant was ineligible for relief as a matter of law, the
court’s error was harmless.
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DISPOSITION
The court’s order denying appellant’s section 1170.95
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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