THE PEOPLE, Plaintiff and Respondent, v. DOMINIC DANIEL, Defendant and Appellant.
A157422
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
November 20, 2020
CERTIFIED FOR PUBLICATION; (Alameda County Super. Ct. No. 171810)
Daniel filed a petition for relief under
On appeal, Daniel contends that the order denying the petition must be reversed because the judge who ruled on the petition failed to appoint him counsel and was not the sentencing judge. Although we agree that
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Tsegay was killed in 2012, and three years later Daniel was tried and convicted of second degree murder. The jury was not instructed on either
Later that month, Judge Morris Jacobson, who had not sentenced Daniel, summarily denied the petition. Daniel did not appear, and counsel was not appointed to represent him. Relying on this court‘s opinion in Daniel‘s direct appeal, the trial court determined that relief under
In June 2019, Daniel appealed from the order denying the petition. His appellate counsel asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. In February 2020, after Daniel submitted a brief on his own behalf raising various issues, we asked his counsel to brief “whether the trial court erred by denying appellant‘s resentencing petition, on the basis of materials outside the petition itself, without first appointing an attorney to represent appellant as he requested.” Over six months later, after the opening brief and respondent‘s brief were filed, we granted Daniel‘s request to file a supplemental opening brief on the issue whether reversal is required because a different judge than the sentencing judge decided the petition, and briefing was completed in September 2020.
DISCUSSION
A. General Legal Standards
“Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under
Senate Bill No. 1437 also enacted
doctrine‘; (2) ‘[t]he petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder‘; and (3) ‘[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ (
”
B. The Failure to Appoint Counsel for Daniel Was Harmless.
Daniel claims that the trial court erred by summarily denying his petition under
Earlier this year, our state Supreme Court granted review to decide when the right to counsel arises under
We reached a different conclusion, explaining that, in our view,
before performing any review under
The Attorney General filed the respondent‘s brief before we issued Cooper. In addressing the right-to-counsel issue, the Attorney General relies on the reasoning of Lewis and other decisions discerning a two-part review process under
We therefore turn to whether this error requires reversal. Daniel claims that it does. He argues that “the deprivation of his right to counsel is a structural error,” requiring reversal without regard to prejudice. We disagree.
“‘[T]he total deprivation of the right to counsel at trial’ ” is structural error under both the federal and state Constitutions. (People v. Lightsey (2012) 54 Cal.4th 668, 699 (Lightsey), quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309.) We “presume[] a violation of the right to counsel had a prejudicial effect on the trial ‘where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When [there has been such a denial], the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.‘” (Lightsey, at pp. 699–700, quoting
Mickens v. Taylor (2002) 535 U.S. 162, 166.) Even if the right to counsel arises under a California statute, its denial may be ” ‘analogous to’ [the] structural error” of the total deprivation of counsel at trial if it ” ‘operate[s] to deny a criminal defendant the constitutionally required “orderly legal procedure.” ’ ” (Lightsey, at p. 699.) “Whether a violation of state law or federal constitutional law, structural error results in per se reversal.” (People v. Gonzalez (2018) 5 Cal.5th 186, 196; e.g., Lightsey, at pp. 700–701 [deprivation of right to counsel under
Daniel argues that these principles apply to a proceeding under
Even though “neither the federal nor the state Constitution mandates an unconditional right to counsel to pursue a collateral attack on a judgment of conviction,” California decisions recognize that ” if a postconviction petition by an incarcerated defendant “attacking the validity of a judgment
states a prima facie case leading to [the] issuance of an order to show cause, the appointment of counsel is demanded by due process concerns.” ’ ” (People v. Fryhaat (2019) 35 Cal.App.5th 969, 980–981 [hearing on motion under
At best, these authorities support an argument that structural error may occur when, after an order to show cause issues, a defendant is denied counsel at a hearing under
In Cooper,
defendant like Daniel whose petition is denied before an order to show cause issues has the burden of showing “it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.” (Cooper, at p. 123, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see, e.g., People v. Hill (2013) 219 Cal.App.4th 646, 652.)
To determine whether Daniel met this burden, we first address his claim that the trial court improperly relied on materials outside the petition to deny it. Daniel originally raised this claim in the context of arguing that the court substantively erred under
The issue whether a trial court may consider the record of conviction in determining if the petitioner has made a prima facie showing of entitlement to relief under
petition on the basis that the petitioner “was not charged or convicted of second degree felony murder or murder under the natural [and] probable consequences doctrine directed at accomplice liability.” (Edwards, at p. 674.) As a subsequent decision explained, “[t]he jury instructions given at a petitioner‘s trial may provide ‘readily ascertainable facts from the record’ that refute the petitioner‘s showing,” permitting a trial court to determine that a petitioner is not entitled to relief without engaging in ” ‘factfinding involving the weighing of evidence or the exercise of discretion,’ ” which must wait
In his opening brief, Daniel argues that the text and legislative history of
Accordingly, consistent with Edwards and Soto, we conclude it is appropriate to consult the jury instructions in determining whether the trial court‘s failure to appoint counsel for Daniel before denying the petition was prejudicial. The given instructions demonstrate that Daniel was convicted of second degree murder on a theory that survives Senate Bill No. 1437‘s changes to
petition may be “prejudicial because it prevented [the petitioner] from further developing the record to demonstrate potential entitlement to relief.” (Cooper, supra, 54 Cal.App.5th at pp. 125–126.) When a petitioner is, unlike Daniel, not categorically ineligible for relief, it is possible that further facts could be developed to show that he or she was in fact convicted under a now-invalid theory of murder. In Cooper, for example, we concluded that where the petitioner entered a plea to second degree murder and the limited record suggested another man participated in the killing, the denial of counsel was prejudicial because further facts might be developed to show that the petitioner was not the actual killer, did not act with the intent to kill, and was not otherwise ineligible for relief under
Here, however, Daniel has not carried his burden to demonstrate a reasonable probability that “his petition would not have been summarily denied without an evidentiary hearing” had the trial court appointed counsel for him. (Cooper, supra, 54 Cal.App.5th at p. 123.) He posits that at trial “he may have had no incentive to try to present evidence that he was not the actual killer if it would have identified him as an aider and abettor, or supported an argument that he could be found guilty under a natural and probable consequences theory, since it would not have been likely to result in his acquittal under the law at that time,” whereas now he “could present new evidence to support his petition, including evidence that would support a claim he could not be convicted under the law in effect now, which might include information from counsel about different tactical decisions in presenting the case that might have been made were it tried under the current law.” We cannot agree that
theory of murder, effectively retrying the case. In other words, even if Daniel could conceivably muster some evidence that he did not act alone in killing Tsegay and intentionally participated in only a lesser felony, that evidence would not require an order to show cause in light of the jury‘s determination that he was directly, not vicariously, liable for her murder. As a result, the trial court‘s denial of the petition before appointing counsel was harmless under Watson.
C. The Petition‘s Denial by a Judge Other than the Sentencing Judge Was Also Harmless.
Daniel claims that reversal is also required because Judge Jacobson, who was not the sentencing judge, ruled on the petition. Although the record on
The Attorney General does not claim that Santos was wrongly decided. He also concedes that the record before us contains no evidence that Judge Thomas Reardon, “the original sentencing judge[,] was unavailable to rule on
the
Santos had no occasion to assess the prejudice stemming from a petition‘s assessment by a different judge, because remand was required regardless based on a separate error in the denial of the defendant‘s petition. (Santos, supra, 53 Cal.App.5th at p. 472.) The Court of Appeal did note that “[a]lthough both the petitioner and the prosecution are permitted to present additional evidence beyond that introduced at the time of conviction, a judge who is familiar with the facts, evidence, and law already part of the record is better equipped to rule on a petition than a different judge, unfamiliar with the case, who is reviewing a cold record.” (Id. at p. 474.) Although Daniel generally asserts that “the decision of the petition by the wrong judge . . . [was] prejudicial” (emphasis omitted), he does not identify any possible prejudice resulting from Judge Jacobson‘s unfamiliarity with his case. Since, as discussed above, the jury instructions decisively establish that Daniel is ineligible for relief under
DISPOSITION
The April 30, 2019 order denying Daniel‘s petition for relief is affirmed.
Humes, P.J.
WE CONCUR:
Margulies, J.
Banke, J.
People v. Daniel A157422
Trial Court:
Superior Court of the County of Alameda
Trial Judge:
Hon. Morris Jacobson
Counsel for Defendant and Appellant:
Jeffrey A. Glick, under appointment by the Court of Appeal
Counsel for Plaintiff and Respondent:
Xavier Becerra, Attorney General
Lance E. Winters, Chief Assistant Attorney General
Jeffrey M. Laurence, Senior Assistant Attorney General
Seth K. Schalit, Supervising Deputy Attorney General
Lisa Ashley Ott, Deputy Attorney General
People v. Daniel A157422