Case Information
*1 Filed 10/2/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B300575 Plаintiff and Respondent, (Los Angeles County Super. Ct. No. PA022581) v.
ANTWAN ALLISON,
Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Eric P. Harmon, Judge. Affirmed.
____________________________
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
This case presents the same question we addressed
rеcently in
People v. Galvan
(2020)
In 1997, a jury convicted defendant and appellant Antwan
Allison of murder on the basis of his participation in а home
invasion robbery in which either Allison or a cohort shot and
killed two victims. The jury, however, was deadlocked on the
prosecution’s allegation of felony-murder special circumstances
(§ 190.2, subd. (a)(17)), which required the jury to find either
that Allison was the actual killer, that he acted with the intent
to kill, or that he was a major participant in the robbery who
acted with reckless indifference to human life. To avoid a retrial
of that issue and a possible sentence of life in prison without the
possibility of parole, as part of a plea bargain, Allison admitted
Subsequent statutory references are to the Penal Code.
The opinion in
York
followed two other opinions by
Division 5 applying similar reasoning on the same issue:
People v. Torres
(2020)
the truth of the felony-murder special circumstances, and the court found there was a factual basis for the admission and accepted the plea.
In 2019, relying on recently enacted section 1170.95, Allison petitioned thе trial court to vacate his murder conviction and resentence him. The court denied the petition because, based on the special circumstance finding, Allison could still be convicted of murder and therefore was ineligible for resentencing under section 1170.95.
Allison, however, contends that his 1997 special
circumstance admission can no longer support a felony-murder
conviction in light of our Supreme Court’s decisions in
People v.
(2015)
(See Galvan , supra, 52 Cal.App.5th at pp. 1141-1142.)
FACTS AND PROCEEDINGS BELOW The following account of the facts underlying Allison’s conviction is taken from our opinion in his original appeal. ( People v. Allison (Jan. 31, 2000, B121801) [nonpub. opn.].)
Allison’s codefendant, Ricky Smith, was an acquaintance of 15-year-old Jonathan Landau (Jonathan) and had visited the Landau residence several times. Smith and Allison agreed to a plan by which Smith would meet with Jonathan аt the Landau home. After Jonathan’s parents went to bed, Smith For clarity, we use the first names for the Landau family members, intending no disrespect.
would leave the front door unlocked, and Allison would enter and rob the residents. Smith would pretend to be a victim. Allison told police that the plan was Smith’s idea, and that Smith provided Allison with a ski mask, gloves, and a gun.
The two defendants put their plan into action on the evening of January 2, 1996. Allison entered the house through the unlocked front door, gathered Jonathаn and Jonathan’s parents (Richard and Donna Landau) together in the hallway, struck Richard on the forehead with his gun, and ordered the Landaus to lie down on the floor. Allison ordered Smith to restrain the Landaus with tape. Smith placed tape over all three Landaus’ eyes, and bound their hands.
The defendants also placed plastic bags over the Landaus’ heads. Richard and Donna complained that it was difficult to breathe, at which point one of the defendants fired several gunshots, killing Riсhard and Donna and wounding Jonathan in the leg. Jonathan, whose eyes were covered by tape, could not see who fired the shots. Jonathan pretended to be dead and remained still until he was sure the defendants had left, at which point he called the police. The defendants stole jewelry, credit cards, checks, and Donna’s checkbook.
Allison’s first trial resulted in a hung jury. At the second trial, the jury convicted him of two counts of first degree murder (§§ 187, subd. (a), 189), one count of assault with a firearm (§ 245, subd. (a)(2)), one count of burglary (§ 459), and one count of robbery (§ 211). The jury could not reach a verdict as to whether felony-murder special circumstances applied to the murder counts. (See § 190.2, subd. (a)(17).) Rather than proceed to a third trial on the special circumstances, Allison agreed to a plea bargain, according to which he admitted the *5 special circumstances. In exchange, the prosecution agreed to request that the trial court exercise its disсretion not to impose a sentence of life without parole. The court imposed two consecutive terms of 25 years to life for the murders, plus an additional four-year consecutive sentence for assault with a firearm. The court stayed its sentence on the robbery and burglary counts pursuant to section 654.
In 2018, the Legislature enacted Senate Bill No. 1437
(2017 – 2018 Reg. Sess.) (Senate Bill No. 1437), which,
among other changes, amended section 188 to eliminate
felony-murder liability in cases in which the defendant
was not a major participant in the underlying felony or did
not act with reckless indifference to human life. (
People v.
Lamoureux
(2019)
On January 21, 2019, Allison filed a petition for resentencing under section 1170.95 in which he declared that he had been convicted of murdеr under the felony-murder rule or the natural and probable consequences doctrine and that he could not now be convicted of murder because of the changes Allison admitted four felony-murder special circumstances: one for robbery and one for burglary of each of the two murder victims. (See § 190.2, subd. (a)(17)(A) & (G).) Because all the special circumstances were based on the same conduct, they all required that Allison was a major participant in the home invasion and that he acted with reckless indifference to human life.
made to sections 188 and 189. Upon receipt of the petition, the trial court appointed counsel to represent Allison.
The district attorney filed an opposition challenging the constitutionality of Senate Bill No. 1437, and a separate opposition arguing that Allison was ineligible for resentencing because he was a major participant in the underlying crimes and acted with reckless indifference to human life and therefore met the new criteria for felony murder. Allison’s counsel filed a repl y brief arguing that Senate Bill No. 1437 was constitutional and that Allison had established a prima facie case for relief.
The trial court held a hearing, then issued a written order denying the petition on the ground that Allison had failed to make a prima facie case. The court reasoned that, by admitting the special circumstances, Allison had admitted that at minimum he was a major participant in the undеrlying felony and acted with reckless indifference to human life. The court concluded that the enactment of Senate Bill No. 1437 therefore did not allow Allison’s conviction to be vacated.
Allison appealed, and we appointed counsel to represent
him. Counsel filed a brief pursuant to
People v. Wende
(1979)
DISCUSSION
A. Background on Section 1170.95 Section 1170.95 allows a defendant serving a sentence for felony murder who could not be convicted of murder because of the amendments to sections 188 and 189 contained in Senate Bill No. 1437 to petition for resentencing. The statute requires a defendant to submit a petition affirming that he or she: (1) was charged with murder in a manner “that allowed the prosecution to proceed under a theory of felony murder or murder under the natural an d probable consequences doctrine” (§ 1170.95, subd. (a)(1)); (2) was “ convicted of ” or pleaded guilty to “first degree or second degree murder” (§ 1170.95, subd. (a)(2)); and (3) “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made” in Senate Bill No. 1437 (§ 1170.95, subd. (a)(3)). As described above, those changes eliminated the natural and probable consequences doctrine as a basis for murder liability, and added a requirement for felony murder that a defendant must have been at least a major participant in the underlying felony who acted with reckless indifference to human life.
Upon receipt of a facially sufficient petition, the trial court reviews the matter to determine whether the petitioner has made a prima facie showing that he or she “falls within the provisions” of the statute. (§ 1170.95, subd. (c).) If the petitioner meets this requirement, the court shall appoint counsel for the defendant upon request and allow for briefing. ( Ibid. ) “If the petitioner makes a prima facie showing that he or she is entitled to relief,” the court issues an order to show cause and holds a hearing to determine whether to vacate the murder conviction. (§ 1170.95, subds. (c) & (d)(1).) In this case, the trial court denied the petition at the second stage of prima faсie review under section 1170.95, subdivision (c), after appointing counsel to represent Allison.
B. A Defendant with a Felony-murder Special Circumstance Finding Is Ineligible for Resentencing Under Section 1170.95 To be eligible for resentencing under section 1170.95, Allison must make a prima facie showing that he “ could not be convicted of first or second degree murder because of changes to Section 188 or 189 made” in Senate Bill No. 1437. (§ 1170.95, subd. (a)(3), italics added.) Under the newly amended version of section 189, a defendant cаn be convicted of felony murder only if he: was the actual killer; acted with the intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in first degree murder; or “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3).) These are identical to the requirements of a felony-murder special circumstance now and in 1997 when Allison made his admission. (See § 190.2, *9 subds. (b) – (d); Prop. 196, as approved by voters, Gen. Elec. (Mаr. 26, 1996) [amending § 190.2].) Thus, the special- circumstance admission shows as a matter of law that Allison could still be convicted of felony murder even under the newly amended version of section 189, and prevents Allison from making a prima facie case that he is eligible for resentencing.
Allison attempts to avoid this conclusion by attacking
the validity of the felony-murder special circumstances. He
notes that after his conviction of felony murder, the Supreme
Court decided
Banks
and
Clark
, clarifying the interpretation
of the concepts of major participation and reckless indifference
to human life. In
Banks
, the Court evaluated existing
United States Supreme Court jurisprudence on the issue and
set out a series of considerations relevant to determining whether
a particular defendant was a major participant in the underlying
felony. (See
Banks
,
supra
,
We disagree, just as we did in
Galvan
. Allison’s argument
exaggerates the effect of
Banks
and
Clark
. Those opinions did
not change the law, but “merely clarified the ‘major participant’
and ‘reckless indifference to human life’ principles that existed
when defendant’s conviction became final.” (
In re Miller
(2017)
(See CALCRIM No. 703; People v. Gomez (2020) 52 Cal.App.5th 1, 14, fn. 6 [setting forth CALCRIM No. 703 prior to Banks and Clark ].) The instruction currently includes optional language suggested by the Banks and decisions, but even so, the inclusion of the optional language does not materially change the instruction. The bench notes to the instruction state that The optional language in CALCRIM No. 703 is as follows: “[ When you decide whether the defendant acted with reckless indifference to human life , consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are:
[• Did the [defendant know that [a] lethal weapon[s] would be] * present during the < insert underlying felony >?]
[• Did the defendant know that [a] lethal weapon[s] would be present during the < insert underlying felony >?]
[• Did the defendant know that [a] lethal weapon[s] (was/were) likely to be used?]
[• Did the defendant know that [a] lethal weapon[s] (was/were) used?]
[• Did the defendant know the number of weapons involved?]
[• Was the defendant near the person(s) killed when the killing occurred?]
[• Did the defendant have an opportunity to stop the killing or to help the victim(s)?]
[• How long did the crime last?] [• Was the defendant aware of anything that would make a coparticipant likely to kill?]
[• Did the defendant try to minimize the possibility of violence?]
“stopped short of holding that the court has a sua sponte duty to
instruct on those factors,” and “did not hold that the court
has a sua sponte duty to instruct on those factors.” ( Bench Notes
to CALCRIM No. 703 (2020 ed.) p. 452; see
People v. Gomez
(2020)
Moreover, Allison had the same incentive at his original trial to attempt to minimize his involvement in the robbery [• < insert any other relevant factors >]] [When you decide whether the defendant was a major participant , consider all the evidence. No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are:
[• What was the defendant’s role in planning the crime that led to thе death[s]?]
[• What was the defendant’s role in supplying or using lethal weapons?]
[• What did the defendant know about dangers posed by the crime, any weapons used, or past experience or conduct of the other participant[s]?]
[• Was the defendant in a position to facilitat e or to prevent the death?]
[• Did the defendant’s action or inaction play a role in the death?]
[• What did the defendant do after lethal force was used?] [• <insert any other relevant factors.> ]] ”
_____________________
* We note that the language within the internal brаckets in the first factor —“defendant know that [a] lethal weapon[s] would be”— is not included in the 2020 edition of CALCRIM and the omission appears to be a clerical error. The language included here appears in Westlaw’s online version of the instruction.
and his culpability for the killings as he would have had if his trial had taken place after Banks and Clark . In short, there is no reason to believe that Allison’s admission of the special circumstance after his original trial was any different in meaning or effect than it would have been if he had made it today. If defendants like Allison were able to petition for relief under section 1170.95, it would create a disparity by giving defendants with pre- Banks and Clark special-circumstance findings an opportunity to retry their cases, even as more recently convicted defendants are denied this opportunity. (See Galvan , supra , 52 Cal.App.5th at pp. 1142-1143.)
The
York
court also stated that our opinion in
Galvan
was flawed for ignoring section 1170.95, subdivision (d)(2),
which requires th e trial court to grant relief “[i]f there was a
prior finding by a court or jury that the petitioner did not act
with reсkless indifference to human life or was not a major
participant in the felony.” (§ 1170.95, subd. (d)(2).) Because
there is no equivalent subdivision requiring the denial of relief
where a court or jury previously found that the petitioner
did
act with reckless indifference to human life and was a major
participant in the underlying felony, the court in
York
reasoned that we should infer that the Legislature meant to
allow a defendant in that situation to pursue relief under
section 1170.95. (
York
,
supra
,
We disagree. The Legislature could not and did not need
to spell out every ground for denying a petition. For example,
the Legislature did not specify that a defendant “who was found
to have personally and intentionally discharged a firеarm causing
great bodily injury or death in a single victim homicide within
the meaning of section 12022.53, sub division (d)” is ineligible for
relief, but a court would be correct to summarily deny a petition
in such a case because the defendant could not make a prima
facie claim that he was entitled to relief. (
People v. Verdugo
(2020)
Allison’s argument fails for another reason. To be eligible for resentencing under section 1170.95, a defendant must show that he “ could not be сonvicted of first or second degree murder because of changes to Section 188 or 189 made ” in Senate Bill No. 1437. (§ 1170.95, subd. (a)(3), italics added.) But Senate Bill No. 1437 alone does nothing to help defendants like Allison. Under the new law, to convict a defendant of felony murder, the prosecution must prove that the defendant at a minimum was a major participant in a felony and acted with reckless indifference to human life. But that is precisely what Allison *15 admitted as part of his plea bargain. He now claims that his special circumstance is no longer valid because of Banks and Clark , not “because o f ” anything in Senate Bill No. 1437. (§ 1170.95, subd. (a)(3); see Galvan , supra , 52 Cal.App.5th at p. 1142.)
The court in
York
disagreed with our analysis, explaining
that “[w]hat permits a defendant convicted of felony -murder to
challenge his or her murder conviction based on the contention
that he or she was not a major participant in the underlying
felony who acted with reckless indifference to human life,
are the changes Senate Bill [No.] 1437 made to sections 188
and 189, and in particular the addition of section 189,
subdivision (e)(3), not the rulings in
Banks
and
Clark
.” (
York
,
supra
,
We are not persuaded by York because, notwithstanding York ’s cautious footnote, the consequence of York ’s analysis is that no prior jury findings would ever preclude relief under section 1170.95. No matter how conclusively the prior findings establish the defendant’s liability for murder under amended sections 188 and 189, the defendant would always be able to make the same argument endorsed in York : What permits the defendant to challenge his murder conviction based on the contention that the prior findings were wrong are the changes made to sections 188 and 189, and that is all that subdivision (a)(3) of section 1170.95 requires. Thus, even if *16 the jury found that the defendant was the actual killer or acted with intent to kill or otherwise acted with malice, relief under section 1170.95 might still be available — none of those findings was required for murder liability before Senate Bill No. 1437 (because a dеfendant who lacked malice and was not the actual killer could still have been convicted on a felony murder or natural and probable consequences theory). As a result, the petitioner could contend, under York , that he or she was not the actual killer or did not act with malice and therefore could not be convicted of murder because of the changes Senate Bill No. 1437 made to sections 188 and 189. Thus, every convicted murderer who could make a prima fаcie showing (whatever that might be) that the prior findings were factually incorrect would be entitled to a bench trial de novo on those findings.
We do not believe it is reasonable to interpret section 1170.95 as allowing for such challenges, namely, challenges based on attacks on prior factual findings. Nothing in the language of section 1170.95 suggests it was intended to provide redress for allegedly erroneous prior fact-finding. In particular, subdivision (a)(3) of section 1170.95 says nothing about erroneous prior findings or the possibility of proving contrary facts if given a second chance. Rather, it requires that the petitioner could not be convicted of murder because of the changes to sections 188 and 189 , not because a prior fact finder got the facts wrong . The purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.
For these reasons, we disagree with
York
and believe that
Verdugo, supra,
DISPOSITION
The trial court’s order is affirmed .
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
SINANIAN, J. * * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.