People v. Sims CA2/5 ( 2021 )

Filed 3/22/21 P. v. Sims CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B300244
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA179907)
v.
JERMAINE SIMS,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of the County of Los Angeles, Craig E. Veals, Judge. Reversed
and remanded with directions.
Richard D. Miggins, 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, Kristen J. Inberg and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
Defendant Jermaine Sims appeals from the trial court’s
order summarily denying his petition for appointment of counsel
and resentencing under Penal Code section 1170.95.1 According
to defendant, the court erred by refusing to appoint counsel and
finding instead that he had failed to make the requisite prima
facie showing of entitlement to relief under section 1170.95,
subdivision (c). We agree and therefore reverse the court’s order
and remand with directions.
II. BACKGROUND
A. Robbery/Murder2
“The Nguyen family owned Wit’s Liquor Store in Lawndale.
During the afternoon of December 25, 1998, [S.] Nguyen was
working at the cash register, while her father, Alan Nguyen,
napped on a pillow and blanket set up behind the counter.
“At 2:30 p.m., defendant . . . entered the store, [purchased]
a can of soda . . . , and left the store. A few minutes later,
defendant . . . re-entered the store accompanied by [codefendant
Moses Lee Turner]. Defendant . . . held a gun to [S.] Nguyen’s
head and demanded money from the cash register.
Simultaneously, . . . Turner circled to the back of the counter
1 All further statutory references are to the Penal Code.
2 The facts are taken from the unpublished opinion in the
direct appeal from defendant’s underlying conviction. (People v.
Turner (Dec. 16, 2002, B152074, B157289 [nonpub. opn.].)
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where Alan Nguyen slept, picked up the still-sleeping man, and
violently beat him on the head with his fists and the butt of a
handgun. At one point, . . . Turner smashed Alan Nguyen’s head
against a shelf of bottles. While watching the assault on her
father, [S.] Nguyen attempted to comply with defendant[’s]
demand to empty the cash register’s contents into a paper bag.
Defendant . . . set his soda on the counter, grabbed the bag from
[S.] Nguyen and put in more money from the register, as well as
some credit card receipts. Defendant . . . ordered [S.] Nguyen to
lie on the floor, which she did. Defendants then left the store,
leaving behind both the paper bag full of money ($200) and credit
card receipts, and defendant[’s] . . . soda. A surveillance camera
had captured the entry of both defendants into the store and
defendant[’s] robbery of [S.] Nguyen, although the quality of the
videotape was not clear.
“Alan Nguyen died at the scene from severe brain trauma.
He had suffered multiple head injuries caused by ‘moderate to
severe force.’
“Defendant[’s] fingerprints were found on several items
inside the store, including the soda can and one of the credit card
receipts in the paper bag. In argument to the jury, defendant[’s]
. . . attorney conceded defendant[’s] presence in the store and
robbery at gunpoint of [S.] Nguyen.”
B. Underlying Conviction
On May 18, 2001, a jury found defendant guilty of: first
degree murder in violation of section 187, subdivision (a)
(count 1); and two counts of second degree robbery in violation of
section 211 (counts 2 and 3). The jury also found true, as to all
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three counts, the allegations that defendant personally used a
firearm in the commission of the offenses within the meaning of
section 12022.53, subdivision (b) and that a principal was armed
with a firearm in the commission of the offenses in violation of
section 12022, subdivision (a)(1).
On March 13, 2002, the trial court sentenced defendant to a
term of 25 years to life on count 1, plus an additional consecutive
10-year term pursuant to section 12022.53, subdivision (b), for an
aggregate base term of 35 years to life. The court also imposed,
but stayed, a 15-year sentence on count 2 and imposed a
concurrent 15-year sentence on count 3.
On December 16, 2002, a panel of this Division affirmed
defendant’s conviction. (People v. Turner, supra, (Dec. 16, 2002,
B152074, B157289 [nonpub. opn.].)
C. Petition for Resentencing
Defendant filed his initial petition for resentencing under
section 1170.95 on December 17, 2018. Without defendant being
present or represented by counsel, the court denied the motion,
concluding that “[t]he new legislation restricts accomplice
liability for felony murders to those who harbor a specific intent
to kill and therewith aid, abet, counsel, command or assist the
actual killer, along with those who were ‘major participants in
the underlying felony’ who act with ‘reckless indifference’ to
human life. Petitioner does not claim to fall outside of these
criteria [nor] does he otherwise recite any facts to demonstrate
his entitlement to relief under the new law. His request for a
modification of sentence is therefore denied.”
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On March 7, 2019, defendant filed a supplemental petition
for appointment of counsel and resentencing under section
1170.95, arguing that he was entitled to resentencing on his first
degree murder conviction because neither the trial court nor the
jury found that he acted with reckless indifference to human life
or that he was a major participant in the robbery.
On March 14, 2019, the trial court again summarily denied
the petition, reasoning that defendant was a major participant
who acted with an intent to commit a crime that carried “‘a grave
risk of death.’”
III. DISCUSSION
A. Senate Bill No. 1437’s Amendments to Sections 188 and 189
and Addition of Section 1170.95
“Through section 1170.95, Senate Bill [No.] 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder theory of liability could petition to have
his conviction vacated and be resentenced. Section 1170.95
initially requires a court to determine whether a petitioner has
made a prima facie showing that he or she falls within the
provisions of the statute as set forth in subdivision (a), including
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) [t]he 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]
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[¶] (3) [t]he petitioner could not be convicted of first or second
degree murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (See § 1170.95, subd. (c); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327 . . . , review granted
Mar. 18, 2020, [S260493 (Verdugo)].) If it is clear from the record
of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. (Verdugo,
[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination
of eligibility requires an assessment of the evidence concerning
the commission of the petitioner’s offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. (Verdugo, [supra, 44
Cal.App.5th] at p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th
[1128,] 1140, rev[iew] granted [Mar. 18, 2020, S260598].)”
(People v. Smith (2020) 49 Cal.App.5th 85, 92, review granted
July 22, 2020, S262835, fn. omitted (Smith).)
B. Analysis
Defendant contends that, under section 1170.95,
subdivision (c), the trial court was limited at the outset of the
multi-phase petition review process to determining whether he
had made a prima facie showing of eligibility for relief. According
to defendant, the court instead engaged in the kind of factfinding
that is reserved for the hearing which follows an order to show
cause. Because he alleged facts showing that his first degree
murder conviction could have been based on a felony murder
theory without proof of malice, defendant maintains that he
made the required prima facie showing and therefore that the
matter must be reversed and remanded “with instructions to
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appoint counsel and proceed in accordance with the requirements
set forth in section 1170.95.”
The Attorney General concedes the error and agrees that
defendant “is entitled to a remand for further proceedings
consistent with step two of the prima facie process; i.e., the
appointment of counsel, and a round of briefing in accordance
with [section 1170.95,] subdivision (c).”
We agree with the parties. Here, the record of conviction
affirmatively demonstrated that defendant was charged with first
degree murder, the jury was instructed on first degree felony
murder without proof of malice and aiding and abetting such first
degree felony murder;3 and the jury returned a verdict as to
3 The trial court instructed the jury on first degree felony
murder using then-current CALJIC No. 8.21, which provided:
“The unlawful killing of a human being, whether intentional,
unintentional, or accidental, which occurs during the commission
of the crime of robbery is murder of the first degree when the
perpetrator had the specific intent to commit that crime. [¶] The
specific intent to commit robbery and the commission of such a
crime must be proved beyond a reasonable doubt.” (Italics
added.)
The court also instructed on aiding and abetting first
degree felony murder with then-current CALJIC No. 8.27, which
provided: “If a human being is killed by any one of several
persons engaged in the commission of the crime of robbery, all
persons who either directly and actively commit the act
constituting that crime or with knowledge of the unlawful
purpose of the perpetrator of the crime and with the intent or
purpose of committing, encouraging, or facilitating the
commission of the offense, aid, promote, encourage, or instigate,
by act or advice its commission, are guilty of murder of the first
degree, whether the killing is intentional, unintentional, or
accidental. In order to be guilty of being an aider or abettor to a
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defendant of first degree murder. In light of that record, the trial
court could not determine at the initial stage of the process—as a
matter of law and without resort to factfinding—that the jury did
not base its first degree murder finding on a felony murder theory
without proof of malice. (Smith, supra, 49 Cal.App.5th at p. 92.)
Accordingly, the order denying the petition must be reversed and
remanded.
felony murder, the accused and the killer must have been jointly
engaged in the commission of the robbery at the time the fatal
blow was struck.” (Italics added.)
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IV. DISPOSITION
The order denying the petition for appointment of counsel
and resentencing under section 1170.95 is reversed and
remanded with directions to appoint counsel for defendant and
hold further proceedings on the petition consistent with this
opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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