THE PEOPLE, Plаintiff and Respondent, v. DARRYL CLAYTON, JR., Defendant and Appellant.
B308524
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 7/2/21
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. NA041958)
APPEAL from an order of the Superior Court of Los Angeles County. Judith Levey Meyer, Judge. Reversed and remanded with directions.
Richard B. Lennon, Cheryl Lutz and Olivia Meme under
Darryl Clayton, Jr., appeals the summary denial of his petition to vacate his 2000 murder conviction and resentence him pursuant to
FACTS2 AND PROCEDURAL BACKGROUND
On May 3, 1999, Jenny Kim and Gary Kim were working at a jewelry and music store in Long Beach. Around noon, appellant and three other men entered the store. As two of the men held Gary Kim at gunpoint, appellant grabbed Jenny Kim by her clothing and pulled her over the counter. Appellant dragged her to the back of the store and ordered her to get down on the floor. Appellant was not armed. As he rifled through her pockets he repeatedly asked her what she had, and he threatened to hurt her if she moved.
Unable to open the cash register himself, appellant directed Jenny Kim to open it. After she did so, he ordered her to return to the back of the store and lie face down on the floor. Jenny Kim could not see what was happening elsewhere in the store, but she heard Gary Kim being beaten and kicked, and
Three of the perpetrators were arrested soon after the murder, and some of the jewelry taken during the robbery was recovered. Several months later, appellant was arrested. In an interview with police, appellant initially denied any knowledge of the crimes. But eventually he admitted he had spent the night before the offenses with one of the perpetrators and confessed he was in the store during the robberies and murder. However, appellant denied involvement in any plan to commit a robbery and insisted he did not know a robbery was about to take place when he entered the store. Appellant also asserted he pushed Jenny Kim over the counter for her protection when it appeared that one of the perpetrators was going to shoot her. After Jenny Kim had opened the cash register and appellant had walked her back to the rear of the store, appellant saw one of the men taking money from the cash register. Appellant decided to leave, and as he reached the door he heard the gunshot. Appellant maintained he had no part in the killing.
On July 10, 2000, a jury convicted appellant of one count of first degree murder (count 1) and two counts of robbery, as charged. As to all three counts, the jury found the allegation that a principal was armed with a firearm to be true. However, the jury found the special-circumstance allegation that the murder was committed while appellant was engaged in the crime of robbery to be not true.
The trial court sentenced appellant to 25 years to life plus one year for the firearm enhancement on count 1, plus seven years four months for the remaining counts and the enhancement. This court affirmed the judgment on appeal. (Clayton, supra, B143748.)
On April 23, 2019, appellant filed a petition for resentencing pursuant to
I. Appellant Stated a Prima Facie Case for Relief Under Sectiоn 1170.95; the Superior Court‘s Summary Denial of the Petition Based on Its Own Findings of Fact Violated the Statutory Procedures Mandated Under Section 1170.95, Subdivisions (c) and (d)
The Legislature enacted Senate Bill No. 1437 to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile); People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) To accomplish this objective, Senate Bill No. 1437 amended the natural and probable consequences doctrine by adding
The Legislature also “amended section 189 to limit the scope of liability for murder on a felony-murder theory.” (People v. Drayton (2020) 47 Cal.App.5th 965, 972 (Drayton).) As amended,
If the record of conviction does not indicate ineligibility as a matter of law, the superior court must appoint counsel (if requested) and accept briefing from the parties on the issue of whether the petitioner is ” ‘entitled to relief.’ ” (Drayton, supra, 47 Cal.App.5th at p. 976; Verdugo, supra, 44 Cal.App.5th at pp. 332-333, rev.gr.) At this stage, with the benefit of the parties’ briefing, the superior court may conduct a more thorough review of the record, including the jury instructions, verdict form(s), and any special findings or enhancement allegations the jury found true to determine if the petition makes a prima facie showing of entitlement to relief. ( People v. Duchine (2021) 60 Cal.App.5th 798, 815 (Duchine); People v. Gomez (2020) 52 Cal.App.5th 1, 16, review granted Oct. 14, 2020, S264033; see Verdugo, at pp. 335-336.)
In conducting its prima facie review under
If, after the parties’ briefing, the petitioner has made a primа facie showing that he is entitled to relief because there remains no proof of ineligibility as a matter of law, “the court shall issue an order to show cause” why relief should not be granted. (
Upon issuance of the order to show cause under
But the jury had already unanimously found the evidence insufficient to prove beyond a reasonable doubt that appellant was an aider and abettor with actual malice or was a major participant in the robbery who acted with reckless indifference to human life. Given this finding, there was nоthing in the record of conviction to support the superior court‘s determination at the prima facie stage that appellant was ineligible for relief under
II. The Superior Court Is Required to Vacate the Murder Conviction and Resentence Appellant Based on the Jury‘s Unanimous Finding Beyond a Reasonable Doubt that the Special-circumstance Allegation Was Not True
The Attorney General agrees with appellant that the superior court erred in summarily denying the petition at the prima facie review stage, but argues that the correct remedy is to remand the matter for an evidentiary hearing in accordance with
The prosecution‘s burden in an evidentiary hearing under
In Ramirez, before the defendant sought relief under
Although Ramirez involved a court finding on habeas that the evidence did not support the jury‘s special circumstance finding, our analysis of
Like our determination on habeas that substantial evidence did not support Ramirez‘s special circumstance, the jury‘s rejection of the special-circumstance allegation in this case constitutes a prior finding by the jury that appellant did not act with reckless indifference to human life or was not a
Respondent‘s arguments that the matter should nevertheless be remanded to afford the prosecution a second opportunity to attempt to prove appellant was a major participant who acted with reckless indifference to human life—the very facts the jury already unanimously and beyond a reasonable doubt rejected—are without merit.
As we explained in Ramirez, “Each section of a statute must be construed in context, keeping in mind the statutory purpose, and harmonizing related sections to the extent possible. [Citation.] The first sentence of subdivision (d)(2) expressly provides that the parties may waive a hearing and stipulate to eligibility for relief. The next sentence mandates vacatur and resentencing due to a prior court finding. The provision‘s placement in the same subparagraph suggests that both sentences are meant to streamline the process, one with a waiver, the other with a presumption. If we directed the trial court to issue an order to show cause and hold a hearing to cоnsider whether to vacate defendant‘s murder conviction, as respondent suggests, this would not change the subdivision‘s mandate. It would serve no purpose other than delay.” (41 Cal.App.5th at p. 932.)
Respondent maintains that “the ‘not true’ finding by the jury as to the special circumstance does not prove, as a matter of law, that a court or jury affirmatively found appellant was not a major participant who acted with reckless indifference.” In so arguing, the Attorney General appears to suggest that only a finding of factual innocence would trigger mandatory resentencing under
Given the clear mandate in subdivision (d)(2) that the superior court vacate the conviction and resentence the petitioner if there was a prior jury finding “that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony,” and in accordance with our decision in Ramirez, supra, 41 Cal.App.5th 923, we conclude that remand for the purpose of an evidentiary hearing in this case would serve no purpose other than delay. The jury‘s acquittal on the special circumstance in this case demonstrates that the jury unanimously found that the People had failed to prove beyond a reasonable doubt that apрellant was an aider and abettor with intent to kill or a major participant in the underlying felony who acted with reckless indifference to human life. Under these circumstances,
DISPOSITION
The order denying Clayton‘s petition to vacate his murder conviction and for resentencing is reversed. The matter is remanded to the superior court with directions to grant the petition, vacate Clayton‘s murder conviction, and resentence him on the remaining counts.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
I concur:
ASHMANN-GERST, J.
CHAVEZ, J., Dissenting.
I respectfully dissent.
While I agree with the majority and the parties that the trial court erred in denying appellant‘s petition at thе prima facie stage, I disagree with the majority that the proper remedy is to grant the petition. Rather, I adopt the Attorney General‘s position that the matter should be remanded for the superior court to consider evidence presented by the prosecutor at a hearing at which new evidence may be permitted (
(
Here, in contrast, the “not true” finding by the jury as to the special circumstance does not prove, as a matter of law, that a court or jury affirmatively found appellant was not a major participant who acted with reckless indifference. “[A] jury verdict acquitting a defendant of a charged offense does not constitute a finding that the defendant is factually innocent of the offense or establish that any or all оf the specific elements of the offense are not true.” (In re Coley (2012) 55 Cal.4th 524, 554, citing United States v. Watts (1997) 519 U.S. 148, 155.) The not true finding on the special circumstance was a general verdict indicating reasonable doubt existed as to the special circumstance overall, not that the jury affirmatively found appellant “did not act” a certain way. (See
The jury here was instructed with the standard CALJIC instructions that both the felony-murder theory and the felony-murder special circumstance required it to find that appellant committed a robbery or aided and abetted a robbery, and that he or the perpetrator of the robbery caused the death of a person. The jury was further instructed that in order to find the special circumstance true, it had to make the additional finding that appellant had the intent to kill, was a major participant in the robbery and acted with reckless indifference to human life, or was the actual killer; conversely, for a felony-murder conviction without the special circumstance, it could find the killing was accidental or unintentional. However since the jury found appellant guilty of felony murder but the special circumstance not true there was no requirement that the jurors had to agree why the elements of the special circumstance were not met. Thus the not true finding in this case does not trigger
There are at least two ways the jury could have come to its verdicts without affirmatively rejecting the theory that aрpellant was a major participant who acted with reckless indifference. First, it could have rejected the
Second, the jury was instructed pursuant to CALJIC No. 8.832 which stated, “if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the truth of a special circumstance and the other to its untruth, you must adopt the interpretation which points to its untruth, and reject the interpretation which points to its truth.” Finally, CALJIC No. 8.83.13 instructed the jury, “if the evidence as to any specific intent mental state is susceptible of two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to the absence of the specific intent or mental state, you must adopt that interprеtation which points to the absence of the specific intent or mental state.”
Given these instructions it is possible that the jury found appellant was a major participant in the robbery who acted with reckless indifference to human life and that the murder occurred “during” the robbery, but did not find the murder occurred in order to carry out or advance the robbery. The jury could have been unable to determine appellant‘s exact role in the murder and returned a not true finding without affirmatively determining whether he was a major participant who acted with reckless indifference to human life. In People v. Santamaria (1994) 8 Cal.4th 903 (Santamaria) the defendant was convicted of murder, but the jury found the knife use allegation not true. The defendant‘s conviction was overturned on appeal, and a new information charging the defendant with murder but omitting the knife use allegation was filed. Based on the prior verdicts, the defendant argued that the prosecution should be prohibited (under collateral estoppel) from arguing that the defendant used a knife in commission of the murder. (Id. at pp. 908-909; see People v. Palmer (2001) 24 Cal.4th 856, 865.)
Our Supreme Court explained, however, that in California, “as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of
As in Santamaria, the not true finding on the special circumstance allegation does not mean the jury affirmatively found appellant was not the actual killer or that he was not a major participant with reckless indifference to human life—that verdict may have only reflected that the jury was unsure about appellant‘s precise role. The jury was instructed that “[i]f you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime....” The jurors were also instructed that the special circumstance finding had to be unanimous.
Reading those instructions together it is reasonable to conclude that the jurors either all had to agree appellant was the killеr, or all agree he had an intent to kill or was a major participant who acted with reckless indifference to human life. (See People v. Covarrubias (2016) 1 Cal.5th 838, 927.) Thus, the jury could have understood the instructions as requiring a not true finding on the special circumstance if some jurors believed that the victim was killed unintentionally, while others believed appellant was a major participant who acted with reckless indifference to human life. The evidence could have supported both of these possibilities. Convicting appellant of felony murder would be permissible given such a disagreement, but the jury may have issued a not true finding based on their inability to unanimously agree on a theory under the special
As in Santamaria, there may have been a reasonable doubt that appellant was the direct perpetrator, that he was an aider and abettor, or that he was a major participant with reckless indifference to human life, but no such doubt that he was one of the three. (Santamaria, supra, 8 Cal.4th at p. 919.) In that scenario the jury would have to return a not true finding on the special circumstance enhancement but would be permitted to find appellant guilty of felony murder. Under Santamaria, that outcome reflects that the jury may hаve simply been unable to determine appellant‘s role.
I recognize that the motivation for enactment of
CHAVEZ, J.