C.A. Division Rejects Judge’s Interpretation of Opinion by Its Predecessors 34 Years Earlier
Justice Moor Says Los Angeles Superior Court Erred in Concluding That Inmate Now Seeking Resentencing Was Determined in 1986 to Have Been ‘Actual Killer,’ Thus Ineligible for Relief
By a MetNews Staff Writer
Div. Five of the Court of Appeal for this district has declared that a judge misread the division’s 1986 opinion affirming a second-degree murder conviction of a man, saying that the decision provides no support for the notion underlying a Los Angeles Superior Court order earlier this year, denying the inmate’s motion for resentencing, that he had been the triggerman.
An actual killer is barred from relief under Penal Code §1170.95, which went into effect on Jan. 1, 2019. It provides that “[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts,” under specified circumstances.
Sec. 1170.95 was enacted under SB 1437 which declares that a “person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea,” as opposed to an intent imputed to a co-conspirator by virtue of the action of a cohort. It amends the Penal Code to bar liability for murder to a participant in a felony who did not commit a killing, had no personal intent to cause a death, and was “not a major participant in the underlying felony who acted with reckless indifference to human life” and, in §1170.95, it provides for relief for those whose convictions could not have been obtained under the current law.
At issue before Div. Five was Los Angeles Superior Court Judge Douglas Sortino’s denial of a petition filed in 2019 under §1170.95 by Andre Underwood, who was convicted by a jury in 1982 of second degree murder and robbery. The offenses were committed the previous year, when Underwood encountered a robbery in progress, and joined the enterprise.
Div. Five affirmed the convictions on Dec. 16, 1985; Underwood sought review in the California Supreme Court, which bounced the case back for reconsideration in light of a recent decision; Div. Five found that decision inapplicable, and again affirmed on June 5, 1986 (though remanding the matter for an amendment of the judgment to correctly reflect custody credits).
The Div. Five opinions were authored by Presiding Justice Robert Feinerman, since deceased, and joined in by Justice David Eagleson (later a justice of the California Supreme Court, also now deceased) and Justice Herbert Ashby, currently on active bar status, with his office listed at his Thousand Oaks residence.
Interpretation of Opinion
“[I]t appears to me, based on the appellate court opinion,” Sortino said in denying Underwood’s petition, “Mr. Underwood was the actual killer in this case.”
He remarked that if he had been aware of the 1986 opinion earlier, he would have denied the petition at the first step—determining whether the petitioner has put forth a prima facie claim for relief—and would not have proceeded to the second step by appointing counsel, seeking briefing, and holding a hearing.
In an opinion that was not certified for publication, filed Tuesday, Justice Carl H. Moor said:
“Here, the trial court denied Underwood’s petition based on a misreading of the analysis of the facts and law underlying his conviction as set forth in a prior appeal. The Court of Appeal’s prior opinion stated only that a witness testified that Underwood shot the victim, not that Underwood actually shot the victim. In fact, the question of whether Underwood personally used a firearm was before the jury, and the jury was unable to reach a decision as to the truth of that allegation. Given that a gunshot wound undisputedly caused the victim’s death, the jury’s inability to find Underwood personally used the gun necessarily means there was no jury finding that he was the actual killer. Thus, the appellate court’s prior opinion provides no basis for the conclusion that Underwood was the actual killer…as a matter of law.”
Felony Murder Rule
Applying the felony murder rule—under which the actual killer’s intent was imputed to a participant in a dangerous felony that was in progress, irrespective of the co-conspirator’s own state of mind—Feinerman said in the 1986 opinion (as he had in the 1985 version):
“If defendant was as a matter of law an intentional perpetrator of the robbery, then it is equally clear as a matter of law that the killing was ‘committed in the perpetration of’ the robbery…as that statutory phrase has been construed by the cases….”
“Where a defendant is guilty of first degree felony murder as a matter of law, there is no reason to reverse a second degree verdict which is more favorable to defendant than warranted by the evidence.
“Given the state of the record in this case, the second degree verdict had to be the product, not of erroneous instructions or prejudicial confusion on the part of the jury, but rather of an attempt by the jury to show unwarranted leniency. Having already received the benefit of jury leniency not supported by the evidence, defendant is in no position to seek outright reversal.”
In light of that language, Sortino rejected the contention by the defense lawyer that Underwood had been convicted under the felony murder. He recited at a hearing on the resentencing petition that the jury had convicted Underwood of second degree murder, and said that if the jury had resorted to the felony murder rule, it would necessarily have found him guilty, under the instructions, of murder in the first degree.
Sortino remarked that Div. Five “expressly acknowledges in its opinion” that “the only explanation” for a finding of murder in the second degree “is an attempt for the jury to show leniency in contravention of the law.”
He expressed doubt that it’s “really a sound position to take” that the jury applied the felony murder rule “in light of the record of conviction.”
“Rather, in Underwood, the Court of Appeal held, based on a review of the undisputed evidence and the jury’s verdicts, that Underwood was guilty of felony murder as a matter of law. This conclusion was based on the undisputed evidence that Underwood was present and shared in the stolen money—meaning he was ‘an intentional perpetrator of the robbery’—and the undisputed evidence that the murder was committed in perpetration of that robbery….The court concluded that the jury’s faulty second degree murder conviction ‘had to be…an attempt by the jury to show unwarranted leniency,’ reducing a first degree felony murder conviction to second degree murder….
“The court held that it was Underwood’s second degree murder conviction that was problematic, and not the jury’s inability to reach consensus regarding whether he personally used a firearm in the offenses….The trial court’s reliance on the jury’s second degree murder conviction to conclude Underwood was the actual killer, and therefore not eligible for relief under section 1170.95 as a matter of law, was error.”
Further proceedings were ordered.
The case is People v. Underwood, B304411.
Awaiting clear guidance from the California Supreme Court on issues relating to resentencing petitions, trial judges continue to grapple with issues that are raised. In other unpublished decisions by Court of Appeal divisions in this district on Tuesday relating to resentencing petitions under §1170.95:
• Div. Four, in an opinion by Acting Presiding Justice Thomas L. Willhite Jr., found that Thomas P. Warren was ineligible for relief, as determined by Los Angeles Superior Court Judge David W. Stuart, following briefing and a hearing. Willhite set forth:
“The information charged defendant with the following two felony counts: first degree murder (count 1) and conspiracy to commit murder (count 2). The information did not charge or list another crime for which defendant could be held liable for felony murder, or for murder under the natural and probable consequences doctrine. In other words, no predicate felony was identified that could give rise to either theory of liability for first degree murder….
“Defendant has provided no circumstance in which a defendant convicted of murder and conspiracy to commit murder, and without a predicate felony on which to base felony murder or a theory of natural and probable consequences, could still be entitled to relief under section 1170.95.”
That case is People v. Warren, B304544.
• Div. One, in People v. Hunter, B305511, affirmed Los Angeles Superior Court Judge Lisa B. Lench’s order denying Edward Hunter’s petition, also following a hearing.
Presiding Justice Frances Rothschild noted that §1170.95 denies relief not only to an actual killer but also to “a major participant in the underlying felony who acted with reckless indifference to human life.” She pointed to the July 5, 2007 unpublished opinion affirming the conviction which said of Hunter that “the evidence not only placed him at the scene with his fellow gang members but showed that he shared their intent and acted to facilitate the shootings.”
She set forth in Tuesday’s opinion:
“Here, although Hunter was neither a shooter nor the actual killer, the record of conviction, which includes our opinion in Hunter’s direct appeal, establishes that he was convicted based on a theory of direct aiding and abetting of murder.”
• Div. One reversed an order by Los Angeles Superior Court Judge John J. Lonergan Jr. denying Jerome Evan Mallet’s petition for resentencing. San Luis Obispo Superior Court Judge Rita Coyne Federman, sitting on assignment, wrote in People v. Mallet, B301369:
“The appeal centers on a common issue faced by trial courts in applying section 1170.95, namely, the scope of the trial court’s prima facie review of the petition. In this case, the People agree the trial court exceeded the scope of this review by making factual findings.”
Lonergan found, based on the appellate record, that Mallet, even if he did not pull the trigger, “clearly aided and abetted in the killing” and “had the specific intent to kill” the victim. Federman said that Lonergan “engaged in the type of factfinding that is not permissible prior to the issuance of an order to show cause” pursuant to §1170.95.
• Div. Five decided that Los Angeles Superior Court Judge Connie R. Quinones erred in determining, at the initial stage, that Julio Perez was not entitled to appointment of counsel. Acting Presiding Justice Lamar Baker said, in People v. Perez, B300470:
“While a court may summarily deny a petition before appointing counsel if a petitioner is ineligible for relief as a matter of law…, defendant is not so ineligible. It is undisputed his jury was instructed on felony murder (and the natural and probable consequences doctrine) and the trial court’s only basis for denying section 1170.95 relief turned on its assessment of the trial evidence. As the Attorney General recognizes, that type of assessment is not permitted at the prima facie stage.”
• Div. Two, in an opinion by Justice Judith Ashmann-Gerst, joined with other panels in concluding that §1170.95—which refers to vacating murder convictions—“does not provide a mechanism to vacate an attempted murder conviction.”
Ashmann-Gerst’s opinion, affirming an order by Los Angeles Superior Court Judge George Gonzalez Lomeli summarily denying a petition by Claudia Valencia, comes in People v. Valencia, B299957.
The issue of whether §1170.95 applies too attempted murders is presently before the California Supreme Court.
In unpublished opinions, from this district alone, other appeals from resentencing denials were decided on Wednesday, including these:
• Div. One in an opinion by Justice Victoria Chaney, affirmed an order by then-Los Angeles Superior Court Judge Michael Cowell (who retired June 15). Cowell had been the sentencing judge in 1981.
He said he recalled “this case well,” reciting the details. Cowell announced he was denying the petition ““in the commission of this offense, the defendant, even if not the actual killer, was a major participant in the underlying felony and acted with reckless indifference to human life.”
Inmate Charles Hall appealed, arguing that Cowell erred in relying upon his personal recollection. Chaney said that “[b]ecause the record demonstrates that Hall is ineligible for relief as a matter of law”—because the record reflects a conviction based on aiding and abetting—“we make no determination whether the trial court erred by considering its own recollection of Hall’s trial.”
The decision came in People v. Hall, B297868.
• Div. Five reversed an order by Los Angeles Superior Court Judge Robert Perry summarily denying a petition. Acting Presiding Justice Lamar Baker said, in People v. Rodriguez, B298424:
“The trial court denied defendant’s petition after the prosecution filed its opposition but before defendant’s attorney had an opportunity to file a reply. That is reversible error.”
Perry also ruled that §1170.95 was unconstitutionally adopted because it intrudes on prerogatives of the judicial and executive branches, in contravention of the separation of powers doctrine. Baker expressed disagreement with the theory, the validity of which is before the California Supreme Court.
• Div. Five, in People v. Lee, B297947, affirmed an order by Los Angeles Superior Court Judge Allen J. Webster Jr. summarily denying a petition filed by Marquis Trevon Lee. Baker noted that the jury “was not instructed on the principles of felony murder or natural and probable consequences murder; rather, the jury received instructions only on direct aiding and abetting, plus the elements of malice murder.”
He said “[t]hat means, as a matter of law,” that Lee was not convicted under the felony murder rule or under a natural and probable consequences theory, and does not qualify for a resentencing.
• Div. Four affirmed Webster’s summary denial of Kevaughn Harris’s resentencing petition as it relates to his conviction on three counts of attempted murder, but reversed as to the summary denial of the petition with respect to his conviction for murder. Presiding Justice Nora M. Manella explained that Webster engaged in impermissible fact-finding, at the first stage, by “relying on unspecified sources to find appellant had been one of the shooters and had aided and abetted ‘a gang murder.’ ”
This did not appear from the record, she said. The Office of Attorney General had conceded the issue.
That case is People v. Harris, B299340.
• Div. Six, said in an opinion by Justice Steven Z. Perren that “[e]very court to address the issue has concluded that individuals convicted of attempted murder are ineligible for relief under section 1170.95.”
In People v. Austin, B301152, he said that this does not create an “irrational result,” does not violate equal protection, and does not result in cruel and unusual punishment.
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