THE PEOPLE, Plаintiff and Respondent, v. RAFAEL CAMPBELL, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ANTHONY B. PRICE, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. STEPHON ANTHONY, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. SAMUEL FLOWERS, Defendant and Appellant.
A162472 (Alameda County Super. Ct. No. 164869D); A162488 (Alameda County Super. Ct. No. 164869B); A162623 (Alameda County Super. Ct. No. 164869A); A163277 (Alameda County Super. Ct. No. 164869C)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 28, 2023
Opinion following rehearing
CERTIFIED FOR PUBLICATION
Regarding the first, Appellants, who were jointly convicted of first degree murder in connection with a gang-related shooting, appeal from the trial court‘s decision denying them resentencing relief under
Appellants fled from police after they shot and killed the brother of a rival gang member, and two bystanders were hit and killed during the ensuing vehicle chase. This resulted in two second degree murder convictions for each of the Appellants, which convictiоns were also the subject of the resentencing petition. The trial court granted relief under
Appellants’ second request seeks relief from this court directly, concerning the verdicts imposing a gang-related gun enhancement and a gang-murder special circumstance on each of them. They ask us to apply retroactively an ameliorative change in the law governing gang-related crimes that the Legislature adopted between the time of the trial court proceedings and the filing of these appeals. The People argue that the change in law was not a valid amendment to the gang-murder special circumstance. We disagree based on the reasoning of two of our sister courts, which we adopt and therefore reverse the gang-murder special circumstance. The People also contend the instruction on the pre-amendment gang statute was harmless error as tо the gang-related gun enhancement found by the jury. We disagree and reverse the enhancement as well. We also reverse the 25-years-to-life sentences resulting from the enhancement and the life without parole sentences resulting from the gang-murder special circumstance. We remand the gang enhancement and gang special circumstance for retrial at the option of the People or, if the People choose not to retry Appellants on the gang enhancement and gang special circumstance, for resentencing without them.
Finally, these appeals also challenge the trial court‘s decision, on remand under a recent statute providing it with discretion to strike enhancements and prior strikes, declining to strike either the enhancements or the prior strikes. We conclude the trial court did not abuse its discretion in declining to strike the enhancements and the prior strikes.
A. Trial and Direct Appeal
In 2013, after a 39-day trial, a jury found Appellants guilty of the first degree murder of Charles Davis, after Anthony drove them into the territory of a rival gang in Berkeley and Flowers used a semi-automatic assault rifle to fire 17 bullets at the brother of a member of the rival gang. There was evidence that the killing was motivated by the desire to retaliate against the Berkeley gang Appellants believed had murdered Ngo Nguyen, a member of the Oakland gang to which Appellants belonged. The jury found true an enhancement for gang-related use of a firearm by a principal. The jury also found Appellants guilty of two counts each of vehicular evasion of a police officer causing death and two counts each of second degree murder, both based on the killings of a pedestrian (Ross) and the driver of a car (Perea), who were killed in a collision in which Anthony drove Appellants in a high speed vehicle chase seeking to evade police after the shooting.
As to the first degree murder count, the jury also found true as to each Appellant two special circumstance allegations: first, that he intentionally killed the victim while he was an active participant in a criminal street gang and the murder was carried out to further the activities of the gang (
On direct appeal, this court affirmed the convictions. In our opinion, we addressed, among other things, Appellants’ claim of Chiu error3 and held
B. Remand and Resentencing
While the remand was pending, each of the Appellants sought resentencing under
As to the remand, the court declined tо strike either the gang-related gun use enhancement or the prior serious felony conviction enhancements. Explaining its exercise of discretion, the court stated that the evidence “was overwhelming” that Flowers was the shooter and Anthony, Price and Campbell were not. However, the latter was “not of any moment” because the gang-related gun use enhancement applied “vicariously” to each Appellant where any principal in a gang offense personally and intentionally discharged a firearm proximately causing great bodily injury or death. (See
Before ruling on the
Counsel for the People conceded that under the change in the murder statutes, Price, Campbell and Flowers were еntitled to relief from their convictions of second degree murder as to victims Ross and Perea, who were struck and killed during the high speed chase, because they were not the actual killers of those two victims and there was no evidence that they had intended to kill those victims. The court accepted the People‘s concessions, vacated the second degree murder convictions as to Price, Campbell and Flowers and resentenced them on the separate counts for vehicular evasion causing death.
Anthony did not seek relief from the second degree murder charges against him, and the People made no such concession as to him because, as the driver of the car, he was “therefore the direct perpetrator of the murders.” Thus, he had not been convicted based on a theory of vicarious liability or aiding and abetting but on a finding that he acted with implied malice (conscious disregard for life) in causing Ross‘s and Perea‘s deaths.
As to Appellants’ first degree murder convictions, the trial court denied relief without issuing an order to show cause or holding an evidentiary
Although the California Supreme Court issued its decision in Lewis, supra, 11 Cal.5th 952 two months after the trial court made these observations, the trial court‘s comments accurately presaged the high court‘s holding in Lewis that, at the prima facie stage, trial courts should not reject petitioners’ allegations on credibility grounds or engage in weighing of evidence or factfinding. (Id. at pp. 971-972.) The trial court also predicted Lewis‘s holding that trial courts may consider documents in the record оf conviction, such as the jury‘s findings of fact, where relevant to whether a petitioner has established a prima facie case, including whether the petitioner could not presently be convicted of first or second degree murder because of changes to the murder statute. (Id. at pp. 970-972 & fn. 6.)
The trial court did not weigh evidence, make credibility determinations or engage in factfinding of the kind Lewis held should not occur without an evidentiary hearing. It did, however, consider the record to determine whether the petitions were “foreclosed as a matter of law.” Specifically, it consulted findings the jury necessarily made in issuing the true verdicts on the two special circumstances (murder to benefit a street gang and multiple murders)—that Appellants intended to kill Davis. The jury made
The court in essence reiterated this analysis when ruling on the Flowers petition in August 2021, after the Supreme Court issued the Lewis decision. “The procedural posture is that there‘s a petition, I look to the facial sufficiency of the petition and I can take judicial notice of certain court records, which I believe includes the information and the verdict forms. But I‘m not sure I can consider the evidence.” The court concluded that the jury‘s finding beyond a reasonable doubt that each of the Appellants intended to kill Davis demonstrates “that the jury did not use [the] natural and probable consequences doctrine to get to murder.”
C. The Current Appeal
On appeal from the trial court‘s resentencing decisions, each Appellant raises challenges to a number of aspects of the trial court‘s rulings, and complicating matters further, joins in some of the challenges raised by the other Appellants. Most significantly, all Appellants challenge the trial court‘s denial of resentencing on their first degree murder convictions, claiming among other things that the jury‘s verdicts on the gang-related killing and multiple-murder special circumstances, and specifically, the findings reflected by those verdicts that Appellants intended to kill, do not demonstrate as a matter of law that they are guilty of first degree murder for the shooting death of Davis.
Price, joined by Campbell, contends the
Appellants raise a plethora of other claimed abuses of discretion in the trial court‘s handling of the remand issues and claimed errors in its decision on the resentencing petitions, each of which we will address below.
DISCUSSION
A. Appellants’ Claims of Error in Resentencing Under Section 1172.6
1. The Trial Court Erred in Deciding at the Prima Facie Stage That the Intent to Kill Findings by the Jury Precluded Relief from the First Degree Murder Conviction As a Matter of Law and Remand Is Necessary.
Appellants challenge the trial court‘s denial, in connection with their resentencing petitions under
Second, Appellants also argue the jury‘s findings that each Appellant intended to kill Davis do not as a matter of law establish the elements of aiding and abetting first degree murder. Specifically, the intent to kill finding does not establish as a matter of law that the Appellants who did not shoot Davis “performed act[s] which ‘aided or encouraged the commission of the murder.’ ” To determine whether there was such aiding and abetting, Appellants posit, the court would have to look at the evidence, and making findings based on evidence involves weighing and balancing that should not occur at the prima facie stage but only at an evidentiary hearing held after issuance of an order to show cause. (See Lewis, supra, 11 Cal.5th at pp. 971-972 [“In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion’ “]; People v. Duchine (2021) 60 Cal.App.5th 798, 815 [“[T]he time for weighing and balancing and making findings on the ultimate issues arises at the evidentiary hearing stage rather than the prima facie stage, at least where the record is not dispositive on the factual issues“].)
As to the second, they quote the jury verdicts finding each Appellant ” ‘intentionally killed [Davis] while the defendant was an active participant in NSO gang,5 . . . and . . . the murder was carried out to further the activities of the criminal street gang.’ ” These findings, coupled with the instruction that to find the special circumstance true, it had to decide whether any defendant who was not the actual killer acted with intent to kill, the People argue, indicate the jury found defendants acted with express malice, that is, ” ‘a deliberate intention to unlawfully take away the life of a fellow creature.’ ” The intent to kill findings in both the gang-murder special circumstance and the multiple-murder special circumstance, they further argue, “established, as a matter of law, that Appellants possessed the requisite malice to disqualify them from relief.”
a. Assembly Bill 333‘s Amendment of Section 186.22 Did Not Vitiate or Preclude Consideration of the Jury‘s Findings That Appellants Intended to Kill.
We agree with the People that Appellants’ first argument lacks merit, albeit not for the reasons argued by the People. Rather, we reject Appellants’ assumption that an amendment—assuming it retroactively applied to the
By way of background, the gang-murder special circumstance is set forth in
In its recent decision in Curiel, supra, __ Cal.5th __ [2023 WL 8178140], our Supreme Court addressed an intent-to-kill finding that, as in this case, was made as part of a gang-murder special circumstance allegation made long before the amendments to the gang statutes enacted by Assembly Bill 333 took effect in 2022. (See Curiel, at p. *1.) The court applied issue preclusion principles to the finding after concluding there was no change in the law affecting the intent-to-kill finding that would justify an exception to issue preclusion. (Id. at p. *11.)8 Further, the court observed that issue
b. The Jury‘s Findings That Appellants Intended to Kill Davis Do Not As a Matter of Law Establish They Are Ineligible for Relief Under Section 1172.6 and Thus an Evidentiary Hearing Was Required.
Appellants’ second argument, on the other hand, is viable, especially in view of new case law developments. Earlier this year, our high court addressed the effect of a gang special circumstances finding on harmless error analysis as applied to invalid theory error. (In re Lopez, supra, 14 Cal.5th 562.) The court reviewed a decision reversing a trial court‘s grant of habeas corpus to a petitioner who had been convicted of first degree murder. (Id. at p. 567.) As in this case, the jury had been instructed on both valid (premeditated murder and aiding and abetting premeditated murder) and invalid (natural and probable consequences) theories. (Id. at pp. 576-578.) The appellate court had held the jury‘s true finding on the gang murder special circumstanсe rendered the instruction on the natural and probable consequences theory harmless beyond a reasonable doubt. (Id. at pp. 567-568.)
The Supreme Court reversed, holding the jury‘s gang-killing special circumstance verdict finding of “intent to kill” did not “necessarily establish all of the elements of directly aiding and abetting first degree murder. Thus, it does not in and of itself show the jury made the necessary findings for a valid theory.” (In re Lopez, supra, 14 Cal.5th at p. 588, italics added; see also People v. Pacheco (2022) 76 Cal.App.5th 118, 127-128, review granted
The In re Lopez court‘s holdings—first, that a jury‘s gang-murder special circumstance finding does “not in and of itself show the jury made the necessary findings” to support conviction for aiding and abetting first degree murder; and second, that the appellate court was required look beyond the verdict to the evidence at trial (see In re Lopez, supra, 14 Cal.5th at pp. 588-589, italics added)—have a bearing here, even though the procedural aspects
In In re Lopez‘s holding that a finding of intent to kill is not alone sufficient to establish the defendant was guilty of first degree murder leads us to conclude that the trial court erred in ruling that the special circumstance findings of intent to kill rendered Appellants ineligible for
In In re Lopez‘s further holding that resort must be had to the evidence at trial to resolve the question also implicates the procedural error Appellants claim the trial court committed. At the prima facie stage of a
The trial court here appears to have ruled that, as a matter of law, the special circumstance findings of intent to kill precluded Appellants from eligibility for relief under
In a petition for rehearing filed after we initially issued our opinion in these appeals, the People argued our reliance on In re Lopez was misplaced because, unlike the habeas proceeding in that case, this appeal is from a petition for resentencing under
After the People filed their petition for rehearing, our Supreme Court recently rejected these arguments in Curiel. As the court there explained,
The court went on to consider and reject the People‘s further argument in Curiel that the findings required to establish murder under the natural and probable consequences theory, combined with the jury‘s finding of intent to kill, covered all the elements of murder under the theory of direct aiding and abetting. (Curiel, supra, __ Cal.5th __ [2023 WL 8178140, at p. *16].) Finding the argument “analogous” to the “one [it had] considered recently in [In re Lopez],” the court held the jury‘s findings under
The latter theory requires the prosecutor to show ” ‘that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.’ ” (Curiel, supra, __ Cal.5th __ [2023 WL 8178140, at p. *18].) The court concluded “the jury did not necessarily find the requisite mens rea for direct aiding and abetting liability,” (ibid.) i.e., either ” ‘knowledge of the direct perpetrator‘s unlawful intent and an intent to assist in achieving those unlawful ends’ ” (id. at p. *19) or “[a]lternatively, in the context of implied malice murder, [knowledge] [that] the perpetrator intends to commit a life-endangering act, inten[t] to aid the perpetrator in the commission of that act,” “know[ledge][that] the act is dangerous to human life, and act[ion] in conscious disregard for human life.” (Ibid.)10 Rather, under the court‘s natural and probable consequences instruction, “the jury was required to find only that Curiel knew that [the perpetrator] intended to commit one of
The high court‘s analysis in Curiel applies with equal force here. The instructions given in this case on aiding and abetting and natural and probable consequences murder are almost identical in all material respects to those given in Curiel. The jury here was instructed on the target offense, assault with a firearm. It was instructed that “under some specific circumstаnces, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime,” and that to convict a defendant under this theory, it had to find, first, that “[t]he defendant aided and abetted the crime of assault with a firearm.” The jury was instructed that “[t]o prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶]1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant‘s words or conduct did in fact aid and abet the perpetrator‘s commission of the crime.” The jury was also instructed that to find a defendant guilty of other crimes that occurred during the commission
Also as in Curiel, the jury in this case “found [Appellants] guilty of first degree murder and found true the gang-murder special circumstance” but “was not required to identify which theory it found persuasive.” (Curiel, supra, __ Cal.5th __ [2023 WL 8178140, at p. *18].) Nor were the jurors required to agree on whether any defendant was guilty as a perpetrator, aider and abettor or co-conspirator.
Curiel is thus on all fours, and the parallel instructions given in this case did not require the jury to find that the defendant had ” ’ “knowledge of the direct perpetrator‘s unlawful intent and [with] an intent to achieve those
In providing for an evidentiary hearing in
The People argue, in the alternative, that, although the trial court did not rely on in it, our determination that the Chiu error was harmless beyond a reasonable doubt was “a proper basis for denying relief at the prima facie stage.” The People contend that our decision falls within the law of the case doctrine and must therefore be adhered to by the trial court and this court in proceedings subsequent to it.
We are not persuaded. As the People concede, the doctrine applies “when a court decides a legal issue” and binds the courts going forward in the same case ” ‘as to questions of law (though not as to questions of fact).’ ” (Italics added.) “Under the law of the case doctrine, when an appellate court ’ “states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case‘s] subsequent progress, both in the lower court and upon subsequent appeal . . . .” ’ [Citation.] Absent an applicable exception, the doctrine ‘requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.’ [Citation.] As its name suggests, the doctrine applies only to an appellate court‘s decision on a question of law; it does not apply to questions of fact.” (People v. Barragan (2004) 32 Cal.4th 236, 246.)14
It seems to us that harmless error analysis is not always a purely legal issue and indeed, more often than not, involves a review of the trial evidence and the inferences that logically flow from it. In determining whether error is harmless, appellate courts typically assess the weight of the evidence. (People v. Aranda (2012) 55 Cal.4th 342, 367 [“[T]he harmless error inquiry for the erroneous omission of instruction on one or more elements of a crime focuses primarily on the weight of the evidence adduced at trial“]; People v. Aledamat (2019) 8 Cal.5th 1, 17 (conc. & dis. opn. of Cuellar, J.) [courts “performing harmless error review . . . must weigh how an error affected the proceedings without displacing the jury as finder of fact,” italics added]; see People v. Doolin (2009) 45 Cal.4th 390, 449 [any error in admitting population frequency statistics for DNA was “harmless in light of the other weighty evidence of defendant‘s guilt,” italics added]; People v. Villasenor (2015) 242 Cal.App.4th 42, 70 [” ‘confessions carry “extreme probative weight,” [and] the admission of an unlawfully obtained confession rarely is harmless error,’ ” second italics added].)
Harmless error analysis under Chapman v. California (1967) 386 U.S. 18 (Chapman) entails ” ‘examining the entire cause, including the evidence, and considering all relevant circumstances’ ” to determine whether, beyond a reasonable doubt, the error did not contribute to the verdict. (In re Ferrell, supra, 14 Cal.5th at p. 602.) If ” ’ ” ‘[n]o reasonable jury’ ” would have found in favor of the defendant on the’ valid theory, ‘given the jury‘s actual verdict and the state of the evidence, the error may be found harmless beyond a reasonable doubt.’ (In re Lopez [, supra, 14 Cal.5th at p. 580], quoting
In analyzing the harmless error question on direct appeal in this case, we did not reach a conclusion as a matter of law based on the instructions and verdict alone. Rather, we assessed and considered the weight of the evidence in concluding beyond a reasonable doubt that the jury‘s verdicts of first degree murder were based on a theory of conspiracy to commit murder or aiding and abetting first degree murder rather than a theory of natural and probable consequences. We observed that, given the evidence, there could be no question that “Flowers, who the evidence plainly indicated was the shooter,”15 acted with intent to kill when he “fir[ed] a barrage of bullets at Charles.”16 (Anthony I, supra, 32 Cal.App.5th at p. 1146.) Further, we explained that “[t]he jury‘s findings that Anthony, Price and Campbell, none of whom was proven to be the actual killer, intended to kill Charles strongly suggest[ed] that its first degree murder verdicts for each of them were based on its conclusion that each aided and abetted or conspired to murder Charles,
In short, our harmless error analysis and our conclusion that the Chiu error was harmless beyond a reasonable doubt because rational jurors could not have found intent to kill on the part of defendants without finding premeditated murder was heavily fact- and evidence-based. The People have failed to persuade us that our ruling falls within the law of the case doctrine.
Additionally, the requirement under
“[T]he law-of-the-case doctrine governs only the principles of law laid down by an appellate court, as applicable to a retrial of fact, and it controls the outcome on retrial only to the extent the evidence is substantially the same.” (People v. Boyer (2006) 38 Cal.4th 412, 442, second italics added.) Because the parties may present new evidence on remand, it is not clear that the evidence will be substantially the same. As the court stated in Boyer, “Our discussion of suppression issues in [People v. Boyer (1989) 48 Cal.3d 247 (Boyer I)] was based on the record then before us. Even if the law-of-the-case doctrine makes Boyer I conclusive on the legal principles there established, the doctrine did not foreclose new evidence on retrial indicating that the dispositive facts are materially different than those we addressed.” (Id. at p. 443.) The same is true here as to the
For the foregoing reasons, we remand the
The jury found true as to all Appellants a gang-related gun enhancement that applies to principals in the commission of a murder in which any principal personally and intentionally discharged a firearm and proximately caused great bodily injury or death, where the offense was for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members. (§§
As to each Appellant, the jury also found true the allegations supporting two special circumstances set forth in
Appellants contend that Assembly Bill 333, which amended the statute defining certain terms that are incorporated into these sections, applies retroactively to their cases and requires a reversal and remand for retrial on the enhancement and special circumstance.
As the People concede, the amendments Assembly Bill 333 made apply retroactively to the gang-related gun use enhancement under
The amendments wrought by Assembly Bill 333 impose additional elements on both the gang-related gun enhancement and the gang-murder special circumstance that were beyond those required at the time of Appellants’ trial. Relevant here are the following changes. “First, [Assembly Bill 333] narrowed the definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, organized association or group of three or more persons.’ (§
The gang-murder special circumstance,
1. Assembly Bill 333 Validly Amended Proposition 21.
In our original opinion in this appeal prior to granting rehearing, we аddressed the People‘s argument that Assembly Bill 333 amended the gang-murder special circumstance in a way that was not permitted by Proposition 21, the initiative measure that enacted the gang-murder special circumstance. We found persuasive the analysis of a Second District panel holding that the bill did not violate the constitutional prohibition on legislative amendment of a statute adopted by initiative. (See Lee, supra, 81 Cal.App.5th at pp. 240-245, review granted.) We also found persuasive the decision of the Fifth District following Lee in holding the gang conspiracy statute, which like the gang-murder special circumstance was also enacted by Proposition 21, was not unconstitutionally amended by Assembly Bill 333. (People v. Lopez (2022) 82 Cal.App.5th 1, 14-25.) We disagreed with a decision by a different panel of the Fifth District which held that Assembly Bill 333 did not validly amend the gang-murder special circumstance and that the changes to the definitions of “criminal street gang” and “pattern of gang criminal activity” in
2. The Instructions on the Gang-Related Gun Enhancement and Gang-Murder Special Circumstance Were Not Harmless Beyond a Reasonable Doubt.
The People acknowledge that the standard for prejudice resulting from the omission of the elements added by Assembly Bill 333 from the instructions on the gang enhancement is the constitutional standard under Chapman, supra, 386 U.S. 18. We agree. “When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant‘s right to a jury trial under the Sixth Amendment, and rеversal is required unless ‘it appears beyond a reasonable doubt’ that the jury verdict would have been the same in the absence of the error.” (Tran, supra, 13 Cal.4th at p. 1207.) The People argue this strict standard is met because “the prosecution presented evidence to satisfy [Assembly Bill] 333‘s requirements beyond a reasonable doubt, including evidence that both the charged and predicate crimes were committed for a reason beyond the reputational benefit to the gang.”
Specifically, they argue that, as we observed on direct appeal, the “admissible evidence that [Appellants] were NSO gang members who
For example, the People contend, “There was evidence of at least four predicate offenses, committed on separate occasions, the most recent of which was less than three years prior to the charged offenses,” and that two of those offenses were committed by two or more gang members. Further, they contend that the gang expert, John Cunnie, testified that these offenses not only increased the reputation of the NGO gang but were a source of income to the gang and, in the case of illegal gun possession, enabled gang members to protect themselves from rival gangs.
The evidence may have been sufficient to show predicate offenses that met the new standards for a pattern of criminal gang activity. But the Chapman standard requires more than sufficient evidence. (People v. Sek (2022) 74 Cal.App.5th 657, 668 (Sek).)23 And the People do not address the
possible impact on the jury of the instructions (no longer correct) that, in determining whether a pattern of criminal activity had been proved, “[t]he crimes, if any, that establish a pattern of criminal activity, need not be gang-related” and that if it found a defendant guilty of a crime in this case it could consider that crime as one of the predicate acts.
Further, the jury was instructed on the definition of criminal street gang as it existed under the
Finally, complicating the assessment of prejudice here is the fact that the trial of this case took place before People v. Sanchez, 63 Cal.4th 665 was decided, and therefore, not surprisingly, on direct review we identified aspects of Cunnie‘s testimony that did not meet the standards established in that case. (Anthony I, supra, 32 Cal.App.5th at pp. 1140-1141.) We found the Sanchez error harmless in the context of the then current law (Anthony I, at pp. 1141-1142), but that does not mean we can now conclude that, coupled with the instructional error crеated by the amendment of
We agree with Appellants that “when a change in the law makes evidence relevant which was not relevant at the time of trial,” “the defense did not have notice of what the elements were or a motive to introduce evidence related to those elements.” The same, of course, is true for the People. For these reasons, the proper remedy for the instructional error regarding the elements of the gang-related gun enhancement and the gang special circumstance here, as Appellants acknowledge, is a reversal and remand of the enhancement and special circumstance, for retrial at the
C. The Trial Court Did Not Abuse Its Discretion in Refusing, on Remand, to Dismiss the Prior Serious Felony Enhancements.
Appellants contend that the trial court abused its discretion in declining to strike the gang-related gun enhancements on remand from the direct appeal. We remanded for the trial court to exercise the discretion conferred on it by new legislation to strike or dismiss the consecutive 25-years-to-life sentences imposed for a gang-related principal‘s use of a firearm. (Anthony I, supra, 32 Cal.App.5th at p. 1158.) Specifically,
We need not address Appellants’ arguments that the court abused its discretion in declining to strike the gang-related gun enhancements.25
Having reversed those enhancements and remanded for possible retrial, the issue whether the court should have stricken enhancements that were based on the law as it existed prior to the amendment of the gang statute is moot. If the Appellants are retried and convicted on the gang-related gun
At the original sentencing, the trial court imposed consecutive five-year sentences for Price and Campbell under
“Case law and legislative history indicate that courts ‘must evaluate the nature of the offense and the offender in deciding whether to strike a
“A trial court‘s refusal to strike a prior strike is an abuse of discretion only in limited circumstances. Examples are where the trial court was unaware of its discretion to dismiss; where the court considered impermissible factors; or where the sentencing norms established by the Three Strikes law produce an arbitrary or patently absurd result. It is not enough to show reasonable people might disagree about whether to strike a prior conviction. There is no abuse of discretion unless the trial court‘s decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Edwards (2022) 76 Cal.App.5th 523, 528.)
“The trial court is not required to state reasons for declining to exercise its discretion to strike a strike. We presume the trial court has considered all relevant factors in the absence of an affirmative record to the contrary. When the record is silent as to the trial court‘s reasons for declining to strike a prior strike, we presume the court correctly applied the law. Only in an extraordinary case—where the relevant factors manifestly support the striking of a prior conviction and no reasonable minds could differ—would the failure to strike be an abuse of discretion.” (People v. Edwards, supra, 76 Cal.App.5th at p. 529.)
Counsel for Campbell stated she believed trial counsel for Campbell had filed a Romero motion at the time of the original sentencing and that the court had denied it. She sought to incorporate that earlier motion by reference. The trial court appears to have accepted her representation but, contrary to Price and Campbell‘s current argument, did not purport to incorporate or otherwise rely on any prior Romero ruling or decision.
Rather, the court observed, “[T]his is not a question of striking the prior for Romero purposes because that is not why this was sent back to me because that was done. The Court had that authority at the time of sentencing. It was denied. This is a separate, quite related authority the Court has to strike or not the five-year enhanсement, but on the same representations and presentation you are submitting?” After Campbell‘s counsel submitted, the court denied the request to strike the five-year
The reference to “again” was plainly to the court‘s statement two pages prior in the transcript stating, with respect to the gang-related gun enhancement, that “this is indeed . . . a classic case for [the] applicability [of the vicarious gang gun enhancement applicable to any principal],” reciting the evidence indicating the three non-shooters, Anthony, Price and Campbell, were present at the time of the shooting, more than one of them was armed at the time, and there was “substantial planning” as indicated by the timing of the killing of Davis soon after the death of their fellow gang member, Ngo, coupled with the numerous telephone conversations in the days leading up to the killing of Davis.
In short, Price and Campbell have failed to demonstrate that the trial court abused its discretion in declining to dismiss their prior strike convictions.
Price and Campbell also contend the trial court erred by failing to obtain an updated probation report so it could consider whatever such a report may have shown about their conduct since the trial. The People argue that Price and Campbell waived the argument because they failed to request that the trial court obtain an updated probation report, citing People v. Franco (2014) 232 Cal.App.4th 831 (Franco).
In Franco, the court held that the failure, by a defendant who was not eligible for probation, to request a supplemental probation report or object to proceeding without one resulted in “waiver of a supplemental report in the trial court and forfeiture of the right to object to the absenсe of such a report on appeal.” (Franco, supra, 232 Cal.App.4th at p. 834.) This is so, the court held, “even where, for instance, the issue before the sentencing court was whether to exercise discretion to dismiss a strike under
Finally, Price and Campbell argue that Franco and People v. Johnson were not decided in the context of resentencing under
We note that the waiver and forfeiture in this instance may be of little consequence since we are remanding both for further proceedings in connection with
Price, Campbell and Flowers, none of whom was driving the car during the escape attempt in which the driver and pedestrian were killed, argue the court failed to strike the multiple-murder special circumstance after it vacated the second degree murder convictions for those killings. The People agree that “once the court vacated counts 2 and 3, the multiple-murder special-circumstance finding also had to be vacated” as to Price and Campbell.29 The People concede that the trial court did not explicitly do so although they point out that the abstracts of judgment do not reflect that (or the gang-related) special circumstance finding. We agree that a remand is appropriate for the trial court to explicitly strike the multiple-murder special circumstance as to Price, Campbell and Flowers. Further, the life without parole sentences for these Appellants must likewise be vacated until and unless the People retry the gang-related special circumstance allegations and the jury, based on instructions under the amended statute, again finds them true.
F. Appellants Price, Campbell and Flowers Are Not Entitled to Relief Under Section 1172.6 from Their Convictions for Evading a Peace Officer and Causing Death.
Appellants Price, Campbell and Flowers contend that they were entitled to relief under
The People contend that
We agree with the People and find Appellants’ arguments meritless.
Finally,
Appellants’ contention that they are entitled to relief from the conviction for that offense, which is less serious than murder and, unlike murder, does not now and did not ever require a finding of malice aforethought, is not supported by the language or history of Senate Bill 1437. Nor do Appellants argue, much less cite any authority indicating that, in eliminating the natural and probable consequences doctrine as a basis for attempted murder or manslaughter liability in 2021, the Legislature intended to eliminate that doctrine or for other crimes involving homicide.31 Appellants do not contend that the 2021 amendment encompassed
For the foregoing reasons, we reject Price, Campbell and Flowers‘s argument that they were entitled to relief from their
Price and Campbell argue that the sentences imposed by the trial court for the Count 4 and Count 5 violations of
The People contend that Appellants forfeited these issues by failing to object below. The People also contend that any error was harmless because it is not reasonably probable that a result more favorable to Appellants would have been reached in the absence of the error. As to Count 4, the People point out that at the original sentencing, the court imposed (and then stayed) the aggravated term and stated as reasons that: the victims were vulnerable; each Appellant engaged in a pattern of violent conduct and is a serious danger to society; their prior convictions are numerous and of increasing seriousness; they previously served a term in prison; they were on probation or parole at the time of the offense; their performance on probation or parole was unsatisfactory; and these aggravating circumstances outweighed those in mitigation. As to the consecutive sentence on Count 5, the People contend any error was harmless because there was no reasonable probability of a different sentence on remand, as Counts 4 and 5 involved the deaths of two separate victims, in addition to the victim of the first degree murder, and the court stated at the original sentencing that it was imposing consecutive sentences on counts 1, 2 and 3 due to the “three separate victims . . . and . . . separate acts of violence.”
We agree with the Peоple that Appellants forfeited their claims of error concerning the trial court‘s failure to state reasons for imposing an upper term on Count 4 and a consecutive term on Count 5 by failing to raise the issue in the trial court.32 (People v. Scott (1994) 9 Cal.4th 331, 353, 356.) However, the argument raised in Price‘s reply brief regarding Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) was neither forfeited nor waived because that legislation was enacted well after completion of the trial court proceedings that are the subject of this appeal and after Price‘s and Flowers‘s opening briefs were filed. (See Jones, supra, 79 Cal.App.5th at p. 44, fn. 11 [Sen. Bill 567 was signed by Governor on October 8, 2021].) We therefore turn to that argument.
Senate Bill 567, which took effect on January 1, 2022, “amended
H. Price‘s Argument That the Trial Court Erred When It Denied His Section 1172.6 Petition Without Prejudice After Appointing Counsel to Represent Him Fails Because He Has Not Established Any Prejudice.
Price (joined by Anthony and Flowers) contends the trial court exceeded its statutory jurisdiction in denying the form petition he filed on his own behalf without prejudice after it appointed counsel to represent him and stated that counsel would be responsible for filing any petition under
As Appellant acknowledges, counsel subsequently filed a petition for resentencing on Price‘s behalf accompanied by a declaration of counsel. According to Appellant, however, that petition was “defective on its face because it did not include a declaration by [A]ppellant—the petitioner.” A declaration such as the one Price executed under penalty of perjury is “necessarily part of the prima facie stage and is evidence in support of the mandatory prerequisite [that] ‘[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189’ . . . (former
The People contend, and we agree, that Price has shown no prejudice from the claimed error because counsel filed the new petition and the trial court “considered and denied [it] on the merits.” Price is, therefore, “in the same position as he would have been if the court had ruled on his original petition.”33 Our review of the record confirms the People‘s assertion that the court treated counsel‘s declaration as true as to all statutory elements, “notwithstanding the absence of the required declaration by Price, and proceeded to determine whether Price established a prima facie case for relief. The People did not object to the lack of a personal declaration.”
I. Price‘s and Campbell‘s Arguments About Claimed Errors in the Abstracts of Judgment Regarding Calculation of Custody Credits, Administrative Fees and Clerical Errors Are Moot.
Price and Campbell contend that the trial court erred by failing to ascertain and order custody credits and delete unpaid administrative fees and that there are clerical errors in the abstracts of judgment. The People agree that there is an error in the abstract of judgment for Price, in regard to custody credits, and as to Price, Campbell and Flowers that, in light of new legislation (
We need not address these arguments at this juncture because, as to Price, Campbell and Flowers, we are remanding the matter for full resentencing. Appellants may raise any arguments pertaining to sentencing at that time.
Price also contends he received ineffective assistance of counsel at the resentencing and remand proceedings. We have addressed all of the claimed failures he attributes to his resentencing counsel and our rulings on those matters render the ineffective assistance of counsel claim moot, because, as to each, we have found no error or have granted relief on the merits.
Flowers‘s brief on apрeal is primarily a joinder in the other Appellants’ arguments. He makes two new points, although he fails to explain their impact on the issues presented here. The first is that the jury did not explicitly find that he was the shooter. The second is that the prosecutor repeatedly referred during closing argument to the natural and probable consequences theory and that this rendered the instruction on that theory prejudicial.
We agree that the instructions and verdicts on the special circumstances did not require the jury to make an explicit finding as to which of the Appellants shot and killed Davis. Specifically, it was instructed, based on CALCRIM No. 702, that “[i]n order to prove these special circumstances [gang murder and multiple murder] for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or conspirator, the People must prove the defendant acted with the intent to kill”35 and that “[t]he People do not have to prove that the actual killer acted with the intent to kill in order for these special circumstances to be true.” Given this instruction, the jury‘s finding on the special circumstances as to any particular Appellant, including Flowers, meant either that he intended to kill Davis or that he was the actual killer.
Flowers may, on remand, argue that the evidence does not show he was the actual killer and/or that it does not show he acted with intent to kill. As indicated by our opinion on direct appeal, the trial record will make such
As to the argument about the effect of the closing arguments, again, Flowers and the other Appellants may make such arguments again in the evidentiary hearing, at which they can discuss the trial evidence, any new evidence and the record of conviction, including but not limited to the effect of the jury instructions and counsels’ closing arguments. Such arguments are relevant but not necessarily dispositive of the resentencing issues. (Cf. In re Lopez, supra, 14 Cal.5th at p. 590 [prosecutor‘s mere reliance on invalid theоry will not overcome strong showing of harmlessness based on review of entire cause, including evidence, and consideration of all relevant circumstances].)
In short, Flowers‘s arguments, while providing support for the argument that an evidentiary hearing should be conducted under
DISPOSITION
The trial court‘s denial of relief from Appellants’ first degree murder conviction under
The People have not challenged the trial court‘s decision to grant relief under
We also affirm the trial court‘s denial of resentencing relief under
We reverse the gang-murder special circumstances and gang enhancements based on the recent amendments to
In all other respects, the trial court‘s rulings are affirmed.
STEWART, P. J.
We concur.
MILLER, J.
MARKMAN, J. *
People v. Campbell (A162472); People v. Price (A162488); People v. Anthony (A162623); People v. Flowers (A163277)
* Judge of the Alameda Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Judge: Hon. Thomas M. Reardon
Counsel:
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant Rafael Campbell.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Price.
Cliff Gardner and Brooke Acevedo, under appointment by the Court of Appeal, for Defendant and Appellant Stephon Anthony.
Barry Morris, under appointment by the Court of Appeal, for Defendant and Appellant Samuel Flowers
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Respondent.