Metropolitan News-Enterprise


Thursday, July 13, 2023


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Determination at Resentencing Hearing That Rejects Jury’s 1992 Finding Is Reversed


By a MetNews Staff Writer


A jury’s 1992 rejection of a sentencing-enhancement allegation that the defendant personally used a knife in a gang’s slaying of a man invalidates a judge’s 2022 pronouncement, in rejecting a resentencing petition, that the man did, in fact, fatally stab the victim, Div. Two of the Court of Appeal for this district has held.

Penal Code §1172.6 and the predecessor statute provide for a resentencing where “[t]he petitioner could not presently be convicted of murder or attempted murder” in light of legislative changes. Under Penal Code §189(e)(1), a person may now be convicted of murder only if he or she was the “actual killer” or on two other bases that do not entail fictionally imputed malice.

Acting Presiding Justice Judith Ashmann-Gerst authored the unpublished opinion, filed Tuesday, reversing Los Angeles Superior Court Judge Laura F. Priver’s denial of a petition filed by Anthony Arnold. Priver found, after an evidentiary hearing, that Arnold was the actual killer.

On Dec. 15, 2020, Div. Two, also in an opinion by Ashmann-Gerst, reversed an adverse ruling by Priver on Arnold’s petition, finding that Arnold had made a prima facie showing of entitlement to relief and the judge was therefore remiss in making her determination in the absence of an evidentiary hearing.

Collateral Estoppel

On Tuesday, Ashmann-Gerst observed that it is unsettled whether collateral estoppel applies at a resentencing hearing or is only relevant where there are successive prosecutions.

She noted that last year, in People v. Cooper, the First District Court of Appeal (Div. One) reversed the denial of a resentencing petition, discerning from the wording of resentencing statutes a legislative intent that “a trial court cannot deny relief…based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented.” Cooper was applied last year in People v. Henley (decided by the Fourth District’s Div. One) in the context of a resentencing hearing at which a judge determined that a defendant had personally used a firearm, contradicting a jury’s finding.

Ashmann-Gerst wrote:

“We need not decide between these two approaches to resolve this appeal; assuming arguendo that either Cooper or the collateral estoppel doctrine apply, both compel the same result.”

Preclusive Effect

The Office of Attorney General argued that in declaring that the enhancement allegation against Arnold was “not true,” the jury did not make a factual finding with a preclusive effect. Ashmann-Gerst said:

“We agree that the jury did not make a factual finding as to whether defendant used a knife. But the question of defendant’s factual innocence on the knife allegation is irrelevant to our inquiry. The pertinent question for collateral estoppel purposes is not whether the jury and the trial court reached identical factual findings, but whether they decided identical factual allegations….

“And in this case, the issues were identical: Both the jury and the trial court decided whether the prosecution proved beyond a reasonable doubt that defendant stabbed the victim to death.”

No Outright Reversal

Arnold asked that the appeals court direct that his petition be granted. His request was denied.

Ashmann-Gerst said the evidence shows that Arnold delivered several blows to the victim, even striking him after he was down on the ground. She wrote that “the record contains evidence that could support a finding that, despite not stabbing the victim, defendant acted with express or implied malice,” which would support a murder conviction.

“Accordingly, we conclude that it is appropriate to remand the matter for a new hearing to determine whether the prosecution proved, beyond a reasonable doubt, that defendant is guilty under a permissible theory of murder,” the justice declared.

The opinion instructs that on remand, “the court shall not make any finding or rely on any evidence which contradicts the jury’s finding that the personal use of a knife sentencing enhancement was not true.”

The case is People v. Arnold, B321031.


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