People v. Harvey CA2/4 ( 2021 )

Filed 2/23/21 P. v. Harvey 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B304497
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA205676)
v.
DAREION LEE HARVEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Norman J. Shapiro, Judge. Affirmed.
Patricia A. Scott, 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, Assistant
Attorney General, David E. Madeo and Nancy Lii Ladner, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Dareion Lee Harvey challenges the denial of his
petition for resentencing under Penal Code section 1170.951 after
briefing and a hearing at which he was represented by counsel.
He contends the trial court erred by denying the petition without
an evidentiary hearing and by relying on the appellate opinion
from his direct appeal. We find no error and affirm.
FACTUAL BACKGROUND2
A man was shot in an alleyway in Los Angeles, in territory
claimed by the Six-Deuce East Coast Crips. Three eyewitnesses
testified that three or four men beat and punched the victim to
the ground, then kicked him. One of the attackers then drew a
gun and shot the victim five times, including a fatal shot to the
chest. Two of the eyewitnesses identified appellant as the
shooter.
Appellant, an active member of the Six-Deuce East Coast
Crips, told law enforcement that he participated in the murder.
He stated that he and two other gang members encountered the
victim in their neighborhood and asked him where he was from.
They beat the victim when he claimed that he was from the
neighborhood. Appellant beat the victim and drew his gun to
shoot the victim. One of appellant’s companions was in the way,
1All further statutory references are to the Penal Code
unless otherwise indicated.
2Our factual narrative is drawn from our opinion in the
prior appeal in this matter, People v. Harvey (June 25, 2003,
B158517) [nonpub. opn.]. We note that appellant did not include
a factual recitation in his brief “[s]ince this appeal only raises
legal issues involving matters arising after appellant’s
conviction.” He nevertheless refers us to our prior opinion.
Appellant also refers us to the record from his direct appeal, of
which we took judicial notice at his request.
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however, so appellant did not shoot. The companion was the one
who shot the victim.
PROCEDURAL HISTORY
I. Trial and Direct Appeal
A jury convicted appellant of second degree murder. (§§
187, 189.) The jury also found that the murder was committed for
the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that
appellant personally used a firearm (§ 12022.5, subd. (a)(1)), and
that a principal personally and intentionally discharged a firearm
causing death (§ 12022.53, subds. (d), (e)(1)). The trial court
sentenced appellant to a total term of 50 years to life: 15 years to
life for the murder, 10 years for his use of a firearm, and 25 years
to life for the principal’s intentional and fatal discharge of the
firearm.
On direct appeal, appellant contended that the instructions
the jury received were prejudicially erroneous. He argued that
the assault mentioned in the instruction concerning the natural
and probable consequences (NPC) doctrine was “simple
misdemeanor assault,” and “murder cannot be an NPC of a
simple misdemeanor assault; therefore, the trial court erred in
including ‘assault’” in the instruction. Appellant argued in the
alternative that if assault were a proper target crime, the court
should have included involuntary manslaughter “as a possible
NPC of misdemeanor assault.”
We rejected these arguments. As relevant here, we stated:
“Whatever the merits, in the abstract, of the proposition that
murder cannot be an NPC of a simple misdemeanor assault,
appellant’s argument bears little relation to the evidence in this
case and the manner in which this case was tried. [Citations.]
[¶] Appellant admitted to the police that he drew his own gun
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and would have shot the victim himself but for the fact that his
fellow gang member Tiny TC was in the way, and Tiny TC shot
the victim. There was no substantial evidence in this case, that
the victim died as a consequence of a simple misdemeanor
assault. He died as a consequence of a shooting, a shooting that
appellant admitted he intended to encourage or facilitate. [¶] In
his argument to the jury the prosecutor presented a simple
straightforward case that appellant personally intended to kill
the victim and was guilty of either first or second degree murder
as a direct participant, either the actual shooter or an aider who
drew his gun and intended to shoot. Despite having requested
[the NPC instruction], the prosecutor did not rely upon, or even
mention, the NPC doctrine in his argument to the jury. Under
the circumstances, we find no merit to appellant’s suggestion that
one or more jurors might have convicted appellant based on an
invalid theory that he aided and abetted a misdemeanor assault
and could be found guilty of murder as an NPC of simple assault.
[¶] . . . [¶] [A]ppellant’s guilt under the evidence was clearly
based on his own direct encouragement of a shooting and his own
willingness to shoot, not upon a misdemeanor assault coupled
with an abstract theory that murder could be an NPC of a simple
assault. . . .”
We agreed with appellant—and accepted the Attorney
General’s concession—that the trial court erred in sentencing
appellant for both firearm enhancements. We accordingly
modified the judgment to strike the 10-year term for the personal
use enhancement. We affirmed the judgment as modified.
II. Section 1170.95 Proceedings
In January 2019, appellant filed, in propria persona, a
petition for resentencing under section 1170.95. The “Appeal
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Transcript Index” at the front of the CT gives a filing date of
January 31, 2019. The AOB notes that the date of mailing on the
proofs of service is January 24, 2019. In the petition and
accompanying declaration, appellant asserted that he was
convicted under the natural and probable consequences doctrine
and was eligible for resentencing. He asserted that the
prosecutor had argued three theories to the jury: (1) appellant
was the shooter; (2) appellant aided and abetted the shooter; (3)
appellant aided a lesser offense, such as assault, assault with a
deadly weapon, or attempted murder, and first degree murder
was a natural and probable consequence of that. Appellant
further claimed that the jury “did not fully except [sic] either the
defense nor the prosecution’s position” because it convicted him of
second degree murder and found that another principal caused
the victim’s death. Appellant requested the appointment of
counsel. The trial court granted that request.
On August 13, 2019, the prosecution filed an opposition to
appellant’s petition. The prosecution argued that appellant was
ineligible for relief because he was convicted as a direct aider and
abettor. The prosecution attached a copy of our prior opinion to
its opposition.
Appellant’s counsel filed a reply in support of the petition
on January 7, 2020. She argued that appellant was entitled to a
full hearing on the merits because he was not the actual killer,
and that the prosecution ultimately bore the burden of proving
appellant’s ineligibility beyond a reasonable doubt.
The trial court heard the petition on January 7, 2020; the
prosecution and appellant’s counsel were present at the hearing.
Relying on our prior opinion, the court held that appellant was
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ineligible for relief as a matter of law because he was convicted as
a direct aider and abettor. Appellant timely appealed.
DISCUSSION
I. Governing Law
In 2018, the Legislature enacted Senate Bill No. 1437 (SB
1437) “to amend 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).) As amended by SB 1437, section 188, subdivision (a)(3)
now provides that “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.” (§ 188, subd. (a)(3).) Section 189 provides that a
participant in qualifying felonies during which a death occurs
generally will not be liable for murder unless (1) he or she was
“the actual killer,” (2) he or she, “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,” or (3) he or she “was a major participant in the
underlying felony [who] acted with reckless indifference to
human life.” (§ 189, subds. (e)(1)-(3).)
SB 1437 also added section 1170.95, which permits a
person whose murder conviction could have been sustained under
a felony murder theory or pursuant to the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and resentence on any remaining counts. (§
1170.95, subd. (a).) A petition for relief under section 1170.95
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must include: “(A) A declaration by the petitioner that he or she
is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).)
If the petition includes the required information,
subdivision (c) of section 1170.95, prescribes “a two-step process”
for the court to determine if it should issue an order to show
cause. (People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review
granted March 18, 2020, S260493 (Verdugo).) At the first step,
the court’s role “is simply to decide whether the petitioner is
ineligible for relief as a matter of law, making all factual
inferences in favor of the petitioner.” (Id. at p. 329.) In addition
to the allegations of the petition, the court may review readily
ascertainable information in the record of conviction and the
court file, such as the information or indictment, the verdict form,
and the abstract of judgment. (Ibid.) If these documents reveal
that the petitioner is ineligible for relief, the trial court may
summarily dismiss the petition. (Id. at p. 330.)
If the petition and record of conviction do not establish as a
matter of law the petitioner’s ineligibility for resentencing,
evaluation of the petition proceeds to the second step of the prima
facie review. At that step, “the court must direct the prosecutor
to file a response to the petition, permit the petitioner (through
appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis,
whether the petitioner has made a prima facie showing he or she
is entitled to relief.” (Verdugo, supra, 44 Cal.App.5th at p. 330.)
The trial court must accept as true the petitioner’s factual
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allegations and make a preliminary assessment regarding
whether the petitioner would be entitled to relief if the factual
allegations were proved. (Id. at p. 328.) The trial court’s
authority to make factual determinations at this stage extends
only to “readily ascertainable facts from the record (such as the
crime of conviction), rather than factfinding involving the
weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference
to human life in the commission of the crime).” (People v.
Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton).)
If the trial court concludes the petitioner has made a prima
facie showing that he or she is entitled to relief, it must issue an
order to show cause. (Verdugo, supra, at p. 328.) “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.”
(Verdugo, supra, 44 Cal.App.5th at p. 327, citing § 1170.95, subd.
(d)(1).) The parties may rely on the record of conviction or
present “new or additional evidence” to support their positions.
(§ 1170.95, subd. (d)(3).)
We review de novo the predominantly legal question of
whether a petitioner has made a prima facie showing. (See
Drayton, supra, 47 Cal.App.5th at p. 981; see also Smiley v.
Citibank, N.A. (1995) 11 Cal.4th 138, 146 [“Independent review is
called for when the underlying determination involves a purely
legal question or a predominantly legal mixed question.”].)
II. Analysis
Appellant contends the trial court violated “the clear terms”
of section 1170.95 by denying his petition without a full
evidentiary hearing. He asserts that his petition stated a prima
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facie case for resentencing, and the trial court “erred by ignoring
the requirements of section 1170.95, and conflating the
requirements of subdivisions (c) and (d) by stepping outside the
four corners of appellant’s petition to conduct an unauthorized
investigation.” He further argues the trial court erred “by
engaging in an analysis of the evidence as outlined in the Court
of Appeal opinion, adopting the facts stated in the opinion as
true, and adopting the opinion’s credibility determinations . . . to
conclude appellant’s petition was ‘not . . .within the meaning of
Senate Bill 1437,’ without appellant being afforded an
opportunity to present new or additional evidence.”
These arguments are not persuasive. “A court of appeal
opinion, whether or not published, is part of the appellant's
record of conviction.” (Verdugo, supra, 44 Cal.App.5th at p. 333.)
As a general rule, the trial court may consider the entire record of
conviction, including the appellate opinion, when ruling on a
petition for resentencing. (People v. Cruz (2017) 15 Cal.App.5th
1105, 1110.) Analogous petitioning procedures for resentencing
under sections 1170.18 and 1170.126 contemplate a gatekeeping
function in which trial courts review the record of a petitioner’s
conviction to determine if the allegations set forth by the
petitioner are untrue as a matter of law. (See People v.
Washington (2018) 23 Cal.App.5th 948, 955 [§ 1170.18]; People v.
Oehmigen (2014) 232 Cal.App.4th 1, 6-7 [§ 1170.126].) Petitions
brought under section 1170.95 are not an exception to this
general rule.
As appellant points out, section 1170.95 expressly
contemplates use of the record of conviction at the evidentiary
hearing conducted after the trial court has issued an order to
show cause. Subdivision (d)(3) states that both the “prosecutor
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and the petitioner may rely on the record of conviction . . . to
meet their respective burdens.” (§ 1170.95, subd. (d)(3).) The
statute also allows consideration of the record of conviction at the
first stage of prima facie review, in which the court must
determine whether a petitioner “falls within the provisions of this
section” based on “all the requirements of subdivision (a).”
(§ 1170.95, subds. (b)(1), (c).) “If any of the information required”
in the petition is missing, the trial court may deny the petition
unless the missing information can be “readily ascertained by the
court.” (§ 1170.95, subd. (b)(2).) To “readily ascertain[ ]” missing
information, the court must be permitted to consider documents
outside the petition, including the record of conviction; otherwise,
this statutory language would be rendered meaningless. (See
Cooley v. Superior Court (2002) 29 Cal.4th 228, 249.)
When considering any part of the record of conviction,
including a prior appellate opinion, during the first stage of its
prima facie review, the trial court must limit its review to
determining whether the petitioner is ineligible for relief as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at pp. 328-330;
Drayton, supra, 47 Cal.App.5th at p. 980.) A trial court may
“look to a court ruling, including an appellate opinion, for the
nonhearsay purpose of determining the basis of the conviction.”
(People v. Woodell (1998) 17 Cal.4th 448, 459; see also People v.
Trujillo (2006) 40 Cal.4th 165, 180 [“an appellate court decision .
. . can be relied upon to determine the nature of a prior conviction
because it may disclose the facts upon which the conviction was
based”].) It may not make factual findings involving the
weighing of evidence or the exercise of discretion, “such as
determining whether the petitioner showed reckless indifference
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to human life in the commission of the crime.” (Drayton, supra,
47 Cal.App.5th at p. 980.)
Appellant’s claim that the trial court engaged in
impermissible fact-finding here is not supported by the record.
The trial court found that the record of conviction—our prior
opinion—demonstrated that appellant was convicted as a direct
aider and abettor. Indeed, we determined that any possible
instructional error concerning the natural and probable
consequences doctrine was harmless because “appellant’s guilt
under the evidence was clearly based on his own direct
encouragement of a shooting and his own willingness to shoot.”
In relying on this holding, the trial court did not weigh evidence,
exercise its discretion, or “adopt[ ] the opinion’s credibility
determinations.” It correctly ascertained that the question of
whether appellant acted as an aider and abettor had been
litigated and resolved against him. (See People v. Lewis (2020) 43
Cal.App.5th 1128, 1139-1140, review granted March 18, 2020,
S260598.) Our determination that appellant was convicted under
an aiding and abetting theory refutes his conclusory assertions
that the prosecutor argued, and the jury may have relied upon,
the natural and probable consequences doctrine to convict him.
While the trial court must assume all facts in a section 1170.95
petition are true and should not evaluate their credibility, “it
need not credit factual assertions that are untrue as a matter of
law.” (Drayton, supra, 47 Cal.App.5th at p. 980.) The trial court
did not err in denying appellant’s petition.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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