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Appeals Court Incorporates by Reference Reasoning Set Forth in Opinion in Earlier Same-Facts Case
By a MetNews Staff Writer
The Court of Appeal for this district, in a display of regard for judicial economy, has issued an opinion in which it withheld its reasoning, instead incorporating by reference an earlier opinion involving the defendant’s co-defendants who had raised the identical issues.
Div. Eight’s unpublished five-page slip opinion, filed Wednesday, reverses an order by Los Angeles Superior Court Judge Daviann L. Mitchell denying inmate Randy D. Sullivan’s petition, pursuant to Penal Code §1170.95, for resentencing. San Diego Superior Court Judge Albert T. Harutunian III, sitting on assignment, authored the opinion.
Mitchell in 2019 denied Sullivan’s petition at the same time she denied those of Joshua Lockett and Terrell Henderson, issuing a single order covering the three bids for an order vacating their second-degree murder convictions. The trio had been convicted in 2014 of the 2012 slaying of Brandon Houston.
None of the three fired the fatal shot.
2015 Affirmance
The convictions of all three had been upheld in a Nov. 6, 2015 unpublished opinion by Div. Eight’s then-presiding justice (now retired), Tricia Bigelow. She said that “substantial evidence supported the jury’s second degree murder conviction based on a natural and probable consequences theory.”
Under SB 1437, enacted in 2018, that theory was repudiated. It created §1170.95(a) which provides that “[a] person convicted of…murder under the natural and probable consequences doctrine…may file a petition with the court that sentenced the petitioner to have the petitioner’s murder…conviction vacated,” with a resentencing on any remaining counts. But that applies only if the person could not have been convicted under current law.
A person who aids and abets the actual killer, sharing in an intent to cause a death, may still be held criminally liable under the murder statute.
2021 Opinion
In an opinion filed on July 23, 2021, in People v. Lockett, Div. Eight reversed the order denying the §1170.95 petitions of Lockett and Henderson. Los Angeles Superior Court Judge Sam Ohta, sitting on assignment, wrote that opinion, which was not certified for publication.
Ohta declared that substantial evidence does not support Mitchell’s finding that the petitioners were ineligible for relief because they were principals in the crime who had acted with the requisite intent.
Wednesday’s opinion in Sullivan’s case is unusual insofar as Harutunian did not discuss why the finding by Mitchell (a judge who is only rarely reversed) is not sustainable.
No Purpose Served
He wrote:
“No purpose would be served by repeating everything we have already said in Lockett, so we incorporate that opinion herein by this reference. We believe the rationale for the decision in Lockett applies with equal force to Sullivan. If his appeal had been considered at the same time as Lockett and Henderson’s, the result for Sullivan would have been the same as it was for his co-defendants.”
Harutunian said there were a few factual circumstances unique to Sullivan, but they were not of consequence, and that “[t]he same lack of substantial evidence of an intent to kill as to Lockett and Henderson that we identified in Lockett is present as to Sullivan as well.”
The case is People v. Sullivan, B308785.
Copyright 2022, Metropolitan News Company