THE PEOPLE, Plаintiff and Respondent, v. TIMOTHY PATRIC ANTONELLI, Defendant and Appellant.
2d Crim. No. B321947
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 7/18/23
CERTIFIED FOR PUBLICATION; (Super. Ct. No. CR27515-2) (Ventura County)
This is the second time that appellant has filed a
Appellant claims the trial court erred in denying the second petition without conducting an evidentiary hearing. He argues he made a prima facie case for relief based on S.B. 775‘s amendment of
Because appellant was convicted of provocative act murder, as a matter of law he is not eligible for
The summary of the horrific facts of this case is primarily taken from our prior unpublished opinion, Antonelli, supra, slip opn. at pp. 3-5.
On January 1, 1991, Phil Shine called Leslie Phipps in the early morning hours and asked Phipps to come to a New Year‘s Eve party at Melody Hatcher‘s and Paul Blair‘s house in Ojai. Shine asked hеr to bring marijuana. Phipps declined but told her roommate, appellant, about the party. Appellant called Shine 20 minutes later, asked for directions, and said he would bring marijuana.
Appellant and Frank Stoddard hatched a plan to rob everyone at the party. Phipps overheard Stoddard say something about two guns and splitting something three wаys. Stoddard told appellant they would “‘pick up Ronnie [Brown] and go on up there.‘” Brown told his roommate, Shane Allen, he was going with Stoddard and appellant to “‘hit a party in Ojai.‘” Appellant and Stoddard picked up Ron Brown. Stoddard and Brown armed themselves with a .30-06 semiautomatic rifle and a .22 semiautomatic pistol.
Appellant knocked on the front door of Melody Hatcher‘s house and looked to his right outside the doorway as Hatcher opened the door. Wearing ski masks, Stoddard and Brown burst into the house brandishing the rifle and pistol. Appellant cleared the doorway, threw Hatcher down on a couch and got down next to her. Party guests Billie Joe Gregory, August Howard and John Schommer were sitting at the dining room table. Scott Blair was in the bedroom.
Shouting “‘police, everybody down,‘” Stoddard and Brown herded everyone into the living room and demanded money,
Fearing for his life, Gregory turned over his wallet with five dollars in it. Stoddard hit Gregory in the head with the rifle, knocking him unconscious. Angry about the paucity of the take, Stoddard yelled “‘if this is all the money you guys could come up with, we‘ll just go over here [and] blow this fucking bitch‘s [Hatcher‘s] brains out.‘” Stoddard dragged Hatcher by the hair into the kitchen.
August Howard tried to rescue Hatcher but was shot in the eye by Stoddard. Shine thought they were all going to die and grabbed for Stoddard‘s pistol. A melee ensued. It was appellant and his armed cohorts versus six or more angry partygoers.
Brown hit Shine with the rifle as Stoddard stood close by with the pistol. Shine fought back and grabbed the rifle and pistol barrels, as Brown bit down on Scott Blair‘s thumb.
Gregory jumped into the fray, grabbed the rifle, and clubbеd Brown with it until Brown released Blair‘s thumb. Brown and Schommer fought one another until Brown held a buck knife to Schommer‘s neck. Fearing that Schommer would be killed, Gregory fired two shots, killing Brown. Someone called 911.
The fighting continued. Shine and Stoddard struggled to get control of the .22 pistol. Gregory shot a round at Stoddard, ran out of bullets, and beat Stoddard with the rifle stock until it broke. Stoddard let go of the pistol and ran. A white Ford Escort was outside the house with the engine running. As Gregory ran toward it, appellant drove away and left Stoddard behind.
As to appellant‘s first petition, the trial court ruled that appellant had made a prima facie case for relief. After an evidentiary hearing, the court denied the petition becаuse “the People have proven beyond a reasonable doubt that [appellant] is guilty . . . under the theory that [he] was ‘a major participant’ and ‘acted with reckless indifference to human life.‘” The court considered the “major participant” and “reckless indifference” factors set forth in People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522.
Prior Appellate Opinion
In our prior 2020 opinion, we noted that S.B. 1437 “рermits defendants convicted of murder pursuant to the felony murder rule or natural and probable consequences doctrine to petition for resentencing based on changes to
In Antonelli we observed: “[T]here is a separate and distinct reason why we affirm. Even if [appellant] had been convicted of felony murder and/or [murder under] the natural and probable consequences theory, and even if provocative act murder is a ‘subset’ of these theories, appellant would still not prevail.” (Antonelli, supra, slip opn. at p. 3.) This is because substantial evidence supports the trial court‘s finding that appellant “was a major participant and acted with a reckless indifference to human life.” (Id. at p. 11.) “Regardlеss of what murder theory was used to convict before the enactment of S.B. 1437, a defendant is not eligible for resentencing if he or she was a major participant in the underlying dangerous felony and acted with reckless indifference to human life. [Citations.] This equates to malice, and more specifically implied malice.”3 (Id. at p. 7.) Appellant argues, “While this Court found substantial evidence supported the trial court‘s major participant and reckless indifference finding, the Court‘s reasoning was not necessary to the decision and [is] therefore dicta.”
As to the second petition, appellant argued in the trial court that his murder “conviction falls under [amended] section [1172.6‘s] ambit as he was convicted on a theory of murder whereby malice murder was imputed to him bаsed on his [accomplices‘] commission of provocative acts during the robbery. . . . After S.B.[] 775[‘s] amendment to section [1172.6], the prosecutor would have been barred from making an argument for murder liability based on . . . a provocative act theory whereby malice was imputed to [appellant] based on his participation in the robbery.”
The trial court denied the second petition without conducting an evidentiary hearing. It concluded that appellant had failed to make a prima facie case for relief under
The trial court‘s minute order states: “The Court notes that [appellant] has previously been afforded a hearing under
Provocative Act Murder
“When someone other than the defendant or an accomplice kills during the commission or attempted commission of a crime, the defendant is not liаble under felony-murder principles but may nevertheless be prosecuted for murder under the provocative act doctrine.” (People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez).) Pursuant to this doctrine, “’ “when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder. [Citations.] ‘In such a case, the killing is attributable, not merеly to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.’ [Citation.]” [Citation.] [¶] “. . . [A] participant in the underlying crime who does not actually commit a provocative act himself may nevertheless be vicariously liable for the killing caused by his provocatеur accomplice based upon having aided and abetted commission of the underlying crime. [Citations.] Thus, under the provocative act doctrine, a defendant may be vicariously liable for the provocative conduct of his surviving accomplice in
“‘As to the mental element of provocative act murder, the People must prove “that the defendant personally harbored . . . malice.” [Citations.] But, malice may be implied . . . .‘” (Johnson, supra, 57 Cal.App.5th at p. 265.)
Appellant Failed to Make a Prima Facie Case for Relief
In our prior 2020 opinion, we held that “the provocative act murder theory survives Senate Bill No. 1437” and therefore a
Appellant contends, “[T]his Court‘s holding in the previous appeal that [the] provocative act murder theory survives Senate Bill No. 1437 is not the law of the case [as] to the issue of whether provocative act murder, as applied to [appellаnt], also survives S.B. 775.” Appellant relies on S.B. 775‘s amendment of
S.B. 775‘s amendment of
“Thus,
Appellant contends, “[T]he provocative act jury instruction provided to the jury in this case authorized the jury to impute malice to [him] based on Stoddard and Brown‘s provocative acts.” We need not examine the jury instructions to determine whether appellant‘s contention has merit. Irrespective of the instructions, appellant was not convicted of murder pursuant to a “theory under which malice is imputed to a person based solely on that person‘s participation in a crime . . . .” (
Moreover, appellant fails to meet the criterion of
Disposition
The order denying appellant‘s second
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
Superior Court County of Ventura
Claudia Y. Bautista, Public Defender, William Quest, Snr. Deputy Public Defender, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.