Court of Appeal:
Panel Disregards Concession by Attorney General That Evidentiary Hearing Should Be Held to Determine If Man Convicted in 1998 Would Be Guilty of Murder Under Current Law; Says Trial Evidence Shows He Would Be
By a MetNews Staff Writer
A gang member who—according to evidence adduced at his trial in 1998, at which he was convicted by a jury of second degree murder, egged on the actual killer by exhorting, “You got a knife, you got a knife, stick him, stick him”—would be guilty of murder even now, after changes in the Penal Code, and is not entitled to an evidentiary hearing to determine the extent of his culpability, Div. Six of the Court of Appeal for this district has held.
The opinion, filed Wednesday, spurns the concession by the Office of Attorney General that such a hearing is warranted and repudiates a recent opinion by the Sixth District Court of Appeal.
San Luis Obispo Superior Court Judge Jacquelyn H. Duffy’s order denying a petition by inmate Oscar Armando Garcia, under Penal Code §1170.95, to have his conviction vacated and to be resentenced was affirmed. That section, added by SB 1437, which went into effect on Jan. 1 of last year, requires an evidentiary hearing where a prima facie case is made that the petitioner’s degree of participation in criminal activity resulting in a death would not currently constitute murder.
Current Assertions Refuted
Although the attorney general called for a reversal, saying that Garcia made such a showing through the proclamations by him in his petition, the appeals court disagreed, pointing out that his statements “conflict with the evidence presented at trial,” as that evidence was recited in the 2001 Court of Appeal opinion affirming the conviction of Garcia and four codefendants.
Justice Kenneth Yegan wrote:
“We hold that where, as here, the record of conviction contains substantial evidence based on which a reasonable trier of fact could find the petitioner guilty of murder beyond a reasonable doubt under current law despite the changes made by S.B. 1437, the petitioner has failed to carry his burden of making a prima facie showing that he could not presently be convicted of murder because of changes made by S.B. 1437….The petition must be denied even though the assertions in the petition, if true, would satisfy the statutory criteria for relief.”
A contrary view was expressed by the Sixth District on April 17 in People v. Drayton. There, Justice Adrienne Grover said:
“We conclude the trial court should accept the assertions in the petition as true unless facts in the record conclusively refute them as a matter of law. If, accepting the petitioner’s asserted facts as true, he or she meets the requirements for relief listed in section 1170.95, subdivision (a), then the trial court must issue an order to show cause.”
Yegan remarked that the court in Drayton failed to consider the need to apply a substantial evidence test and declared:
“The trial court should not accept the petitioner’s assertions as true and issue an order to show cause if substantial evidence in the record supports a murder conviction under current law. The petitioner’s assertions need not be ‘conclusively refut[ed]...as a matter of law.’ ”
(A majority of Div. Three of this district’s Court of Appeal on June 2, in the course of affirming the denial of a §1170.95 petition because the petitioner had been the actual killer, cited Drayton with approval. Presiding Justice Lee Edmon said in People v. Tarkington that a judge, in ruling on such a petition, “must take petitioner’s factual allegations as true and make a preliminary assessment regarding whether he or she would be entitled to relief if the factual allegations were proved,” and if so, must conduct a hearing. The California Supreme Court granted review in that case on Aug. 12 because it deals with the issue of at what stage of proceedings must counsel must be appointed for an inmate seeking §1170.95 relief, a question presented by a case already before that court.)
Amending Murder Statute
SB 1437 amended the murder statute, Penal Code §189, as it relates to the felony murder rule and the natural and probable consequences doctrine. Under a new subdivision, a person who participates in the commission of enumerated felonies, with a resulting death from the acts, is a murderer under only three circumstances.
They are: If that person was the “actual killer,” acted “with reckless indifference to human life,” or—the circumstance which Yegan said pertains to Garcia—“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.”
Yegan wrote that based on the facts set forth in the 2001 opinion, “under S.B. 1437 appellant could still be convicted of second degree murder” inasmuch as he “directed” the actual killer to stab the victim.
The jurist went on to say:
“If appellant has made a prima facie showing of entitlement to relief under section 1170.95, almost every defendant convicted of murder who, like appellant, ‘artfully pleads’ his section 1170.95 petition in conclusory language, and who was not the actual killer, gets an evidentiary hearing where he can retry the case. In evaluating whether or not a petitioner has made a prima facie showing, the trial court must utilize common sense. It is not required to accept a petitioner’s conclusory declarations that conflict with the evidence presented at trial.
“There is a gatekeeping function to be performed here….
“The gate in the instant matter should remain closed. The ameliorative statute was not designed to benefit a gang member who participated in a brutal gang assault upon a helpless victim ‘green-lighted’ by the gang and who, according to the trial testimony of percipient witnesses, directed the actual killer to stab the victim. Despite appellant’s averment in his petition that he ‘did not, with the intent to kill, aid [or] abet...the actual killer,’ substantial evidence supports a murder conviction based on a direct aiding and abetting theory.”
“In determining whether a petitioner has made a prima facie showing of entitlement to relief under section 1170.95, the courts should not ignore the evidence in the record of conviction that shows the petitioner is ineligible for relief. Where, as here, the record of conviction contains substantial evidence based on which a reasonable trier of fact could presently find petitioner guilty of murder despite the changes made by S.B. 1437, it would be a waste of judicial resources to require a full-blown evidentiary hearing at which the court may rely on the record of conviction.”
Presiding Justice Arthur Gilbert and Justice Steven Z. Perren joined in the opinion.
Yegan added commentary of his own in a concurring opinion, in which he said:
“The statute has a serious flaw on a theory not previously raised. The People of the State of California have a constitutional right to trial by jury in criminal cases….This, of course, includes the right to have a jury decide a case by verdict. The Legislature may not pass a statute which has the effect of abolishing, curtailing, or interfering an express constitutional right. In the guise of an ‘ameliorative’ retroactive resentencing statute, it may have retroactively interfered with the People’s constitutional right at the initial trial by voiding the jury verdict. It again may have interfered with the constitutional right to jury trial by allowing a “retrial” to the superior court, sitting without a jury.
“The Legislature may reduce punishment for crime. It may even allow the reduction to apply retroactively. But can it tamper with a constitutional right afforded to the People? I do not reach any conclusion on this issue on this appeal. A record on this issue and briefing on this issue, is not here presented. But make no mistake, this issue lurks beneath the calm surface of a roiling constitutional sea.”
The case is People v. Garcia, 2020 S.O.S. 5319.
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