People v. Trotter CA3 ( 2022 )

Filed 4/25/22 P. v. Trotter CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089578
Plaintiff and Respondent, (Super. Ct. No. 05F03192)
v. OPINION ON TRANSFER
ANDY OTIS TROTTER,
Defendant and Appellant.
Defendant Andy Otis Trotter appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1170.95, arguing the trial court erred in finding he
was ineligible for relief as a matter of law, based on his attempted murder convictions.
(Statutory section citations that follow are to the Penal Code.) Defendant also contends
we must remand the matter to give the trial court the opportunity to strike the two 20-year
firearm enhancements. In our original unpublished decision, we disagreed and affirmed
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the trial court’s order. Defendant appealed this denial to the California Supreme Court,
which granted his petition for review, and on January 26, 2022, transferred the matter
back to us with directions to vacate the previous decision and reconsider the matter “in
light of Senate Bill No. 775 (Stats. 2021, ch. 551) [(Senate Bill 775)]and People v. Lewis
(2021) 11 Cal.5th 952 [(Lewis)].” Upon reconsideration, we conclude that a review of
defendant's original trial record, which we previously incorporated by reference,
demonstrates he is ineligible for relief as a matter of law. Accordingly, we affirm the
trial court's order.
FACTS AND PROCEDURAL HISTORY
Defendant and his codefendant, known gang members, were embroiled in an
ongoing war with a rival gang. One night, defendants drove down a street and fired shots
at people outside a house known to be a hangout for the rival gang. (People v. Trotter
(Jan. 15, 2009, No. C055472) [nonpub. opn.].) A jury found defendant guilty of two
counts of attempted murder (§§ 664/187), discharging a firearm from a vehicle (§ 12034,
subd. (c)), and shooting at an occupied vehicle (§ 246). As to the attempted murder
counts, the jury found true the allegations that they were committed willfully,
deliberately, and with premeditation. The jury also found gang and firearm
enhancements true (§§ 186.22, subd. (b)(1), 12022.53, subd. (c)). The trial court
sentenced defendant to an aggregate prison term of 30 years to life plus 40 years, which
included two 20-year consecutive terms imposed on the firearm enhancement. (People v.
Trotter (Jan. 15, 2009, No. C055472) [nonpub. opn.].) We affirmed the judgment in
2009, and the case became final in 2009.
Defendant filed a petition for resentencing under section 1170.95. Defendant
declared the prosecution proceeded “under a theory of felony murder or murder under the
natural and probable consequences doctrine,” he “was convicted of 1st or 2nd degree
murder pursuant to the felony murder rule or the natural and probable consequences
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doctrine,” and he “could not now be convicted of 1st or 2nd degree murder.” Noting
defendant was convicted of two counts of attempted murder, the trial court found
defendant had not shown he came within the provisions of section 1170.95 and having
been convicted of attempted murder defendant was ineligible for statutory relief under
section 1170.95. Accordingly, the trial court denied the petition.
DISCUSSION
I
Relevant Law
Senate Bill No. 1437 (Senate Bill 1437) amended “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(f).) The bill amended section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2, 3.) Under new section 188,
subdivision (a)(3), “[m]alice shall not be imputed to a person based solely on his or her
participation in a crime.” It thus “eliminated natural and probable consequences liability
for murder and limited the scope of the felony-murder rule.” (Lewis, supra, 11 Cal.5th at
p. 957; Stats. 2018, ch. 1015, § 2.) The bill also added new section 1170.95, which
provides a procedure by which those convicted of murder can seek retroactive relief if the
changes in the law would affect their previously sustained convictions. (Stats. 2018, ch.
1015, § 4.)
At the time the trial court considered defendant's petition, section 1170.95 did not
expressly permit a petition for resentencing on convictions for attempted murder. (§
1170.95, former subd. (a).) However, Senate Bill 775, which was signed into law on
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October 5, 2021, amended section 1170.95 to read, in pertinent part: “A person convicted
of . . . attempted murder under the natural and probable consequences doctrine, or
manslaughter may file a petition with the court that sentenced the petitioner to have the
petitioner’s . . . attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts . . . .” (Stats. 2021, ch. 551, § 2.)
Senate Bill 775 also amended section 1170.95 to codify the holding in Lewis,
supra, 11 Cal.5th 952 that a petitioner has the right to appointment of counsel, if
requested, prior to the court making the prima facie finding. (Cal. Const., art. IV, § 8;
Stats. 2021, ch. 551, § 1(b); § 1170.95, subd. (b)(3); Lewis, at pp. 960-962, 966.) In
addition, Senate Bill 775 added requirements to the process for evaluating a petitioner’s
prima facie eligibility for relief: after the parties have had the opportunity to submit
briefing, the trial court must hold a prima facie hearing to determine whether the
petitioner has made a prima facie case for relief; and, if the trial court declines to issue an
order to show cause, it must provide a statement fully setting forth its reasons for doing
so. (§ 1170.95, subd. (c).)
Lewis also held that once the court has appointed counsel and received briefing
from the parties, it may rely on the record of conviction in determining whether that
single prima facie showing has been made. (Lewis, supra, 11 Cal.5th at pp. 970-972.)
Although a court should not reject a petitioner’s factual allegations on credibility grounds
without first conducting an evidentiary hearing (id. at p. 971), the court need not credit
factual assertions that are untrue as a matter of law. (People v. Drayton (2020)
47 Cal.App.5th 965, 980 (Drayton).) Thus, “ ‘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.” ’ ” (Lewis, at
p. 971; Drayton, at p. 979.) The record of conviction includes jury instructions. (People
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v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020, S263939
(Soto).)
Senate Bill 775 was passed as nonurgency legislation during the regular session
and became effective on January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(1); see also
People v. Camba (1996) 50 Cal.App.4th 857, 862.) The statute applies to acts predating
its enactment as either an ameliorative statute under In re Estrada (1965) 63 Cal.2d 740,
748 or a clarification of law (Western Security Bank v. Superior Court (1997) 15 Cal.4th
232, 243; People v. Lee (2018) 24 Cal.App.5th 50, 57). In either case, defendant is
entitled to the benefit of the new provisions to section 1170.95.
II
Application to These Proceedings
Following transfer from the California Supreme Court, defendant argues that
despite the fact the jury was not instructed on the natural and probable consequences
theory of attempted murder, the instructions as a whole permitted the jury to convict him
under an imputed malice theory. Specifically, he contends that the direct aiding and
abetting instruction given, which included the language that an aider and abettor is
equally guilty as the direct perpetrator, combined with the prosecutor’s argument could
have confused the jury as to determining defendant’s culpability. The People disagree,
arguing that remand for further proceedings is unnecessary because defendant is
ineligible for relief as a matter of law given that he was not prosecuted under the natural
and probable consequences doctrine.
Defendant was not prosecuted for attempted murder under a natural and probable
consequences theory; the amended information does not make such an allegation and the
jury was not instructed on a natural and probable consequences theory. Rather, the
information alleged the attempted murder was committed willfully, deliberately, and with
premeditation, and the jury was so instructed and so found. This instruction informs the
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jury that “[t]he defendant acted willfully if he intended to kill when he acted.” That is, to
find defendant guilty of willful, premeditated and deliberate attempted murder requires
the jury had to find defendant had the intent to kill. The jury was also instructed on direct
aiding and abetting, and that the required mental state for murder was either express or
implied malice. These instructions informed the jury someone aids and abets a crime if
he knows the perpetrator’s criminal purpose and specifically intends to aid, facilitate,
promote, or encourage the commission of that crime, here murder. Under these
instructions to find defendant guilty of attempted murder, it was required to find “ ‘that
the aider and abettor . . . [knew] and share[d] the murderous intent of the actual
perpetrator.’ ” (Soto, supra, 51 Cal.App.5th at p. 1058, review granted.) Thus, under the
instructions given, the jury necessarily found defendant acted with the intent to commit
murder or aided and abetted his codefendant with the intent to commit murder, and acted
with malice aforethought. That is, the jury made precisely the same finding that it would
now be required to make to convict defendant of attempted murder.
Contrary to defendant’s claim, the jury instructions in this case demonstrate that
defendant was not and could not have been convicted of attempted murder under the
natural and probable consequences doctrine. This is so because the jurors were not
provided any instruction on which they could have found defendant guilty of attempted
murder under that doctrine. Rather, under the instructions given, the jury necessarily
found defendant culpable for the attempted murders based on his own actions and mental
state. (See Soto, supra, 51 Cal.App.5th at p. 1055, review granted.) Part of the
legislative intent animating Senate Bill 1437, as indicated in the uncodified statutory
findings and declarations, was to ensure that punishment was commensurate with an
individual's culpability and premised upon that individual’s “own actions and subjective
mens rea.” (Stats. 2018, ch. 1015, § 1(g); People v. Alaybue (2020) 51 Cal.App.5th 207,
213.) The Legislature recognized a need to “more equitably sentence offenders in
accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1(b), see id.
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§ 1(d).) Imposing liability on an individual who actually intends a homicide does not
implicate these concerns or run afoul of these purposes. In this situation, the individual
has the mens rea and culpability for murder. Punishment for attempted murder is
commensurate with that culpability.
The record on appeal shows that defendant was not prosecuted on the natural and
probable consequences doctrine, and thus, was not tried on a theory to which the
amendments of Senate Bill 1437 could arguably apply. (§§ 664/189, subd. (e)(1),
1170.95, subd. (a)(3); Lewis, supra, 11 Cal.5th at p. 971.) Nor was the jury instructed on
any such theory. Summary denial of defendant’s petition was appropriate under these
circumstances. (See People v. Daniels (2020) 57 Cal.App.5th 666, 676-677 [summary
denial of 1170.95 petition appropriate given failure to instruct on natural and probable
consequences doctrine].)
III
Senate Bill No. 620
Defendant contends the matter must be remanded to the trial court to allow it to
exercise its discretion to strike the section 12022.53, subdivision (c) firearm
enhancements pursuant to Senate Bill No. 620 (Stats. 2018, ch. 682) (Senate Bill 620).
Defendant acknowledges the amendment does not create an independent right to
resentencing for final cases, but applies to “any resentencing that may occur pursuant to
any other law.” Relying on this language, he argues the appellant is before the court
pursuant to his petition for resentencing under section 1170.95; therefore, the trial court
was entitled to consider exercising its Senate Bill 620 discretion.
When defendant “was originally sentenced in 2009, the trial court had no
discretion to strike or dismiss a firearm use enhancement. [Citation.] However, Senate
Bill 620 amended the statute, effective January 1, 2018, to give the trial court discretion,
in limited circumstances, pursuant to section 1385, to strike a firearm enhancement in the
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interest of justice. [Citation.] Subdivision (h) of section 12022.53 now provides, ‘The
court may, in the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required to be imposed by this
section. The authority provided by this subdivision applies to any resentencing that may
occur pursuant to any other law.’ [Citation.]” (People v. Johnson (2019) 32 Cal.App.5th
938, 941.) This provision extends the benefits of Senate Bill 620 to defendants who have
exhausted their rights to appeal and for whom a judgment of conviction has been entered
but who have obtained collateral relief by way of a state or federal habeas proceeding or
other post judgment motions. (Id. at p. 942; see also People v. Arredondo (2018) 21
Cal.App.5th 493, 507.)
Contrary to defendant’s claim, he was not before the court for resentencing. The
statute itself is explicit that the sentence is not recalled by virtue of the filing of the
petition. Rather, it is only after the court has determined the petitioner made a prima
facie showing that petitioner falls within the provisions of the statute and is entitled to
relief (§ 1170.95, subd. (c)), and the prosecution has failed to carry its burden of proving
the petitioner is ineligible for resentencing (id., subd. (d)(3)), that the murder conviction
may be vacated and the sentence recalled (ibid.). As above, defendant did not meet the
initial threshold showing he was entitled to relief, as he was not convicted under a natural
and probable consequences theory. Filing a petition seeking relief to which you are not
entitled does not reopen one’s case for purposes of resentencing. Thus, defendant’s
petition for resentencing under section 1170.95 did not “extend the date on which his
judgment became final for purposes of Senate Bill 620 because, although he sought it,
[defendant] did not ‘obtain[ ] collateral relief’ ” by virtue of the petition. (People v.
Johnson, supra, 32 Cal.App.5th at p. 942.) Because he did not obtain collateral relief,
appellant was not eligible for “resentencing . . . pursuant to any other law” (§ 12022.53,
subd. (h)), and section 12022.53, subdivision (h), as amended by Senate Bill 620, does
not apply.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed and the
judgment is affirmed.
HULL, Acting P. J.
We concur:
DUARTE, J.
RENNER, J.
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