THE PEOPLE, Plаintiff and Respondent, v. YOLANDA HARDEN, Defendant and Appellant.
D078191
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 7/12/22
Opinion following rehearing 7/12/22
OPINION ON REHEARING CERTIFIED FOR PUBLICATION (Super. Ct. No. SCN124346)
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Heather M. Clark and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
Recent amendments to California‘s homicide statutes significantly limit the circumstances in which someone who did not actually kill the victim can be convicted of murder.
Invoking
FACTUAL AND PROCEDURAL BACKGROUND
A. The Murder
In October 2000, Alfred and Marion P., then in their 80‘s, lived in a retirement community. (People v. Harden (2003) 110 Cal.App.4th 848 (Harden I).) Harden tricked her way inside on the pretext of needing to use their telephone to call a taxi. Once inside and while Marion was asleep, she stole jewelry and credit cards. After Harden left, Marion awakened to find Alfred dead in the living room. He had been strangled. (Id. at pp. 851-852.)
Marion‘s stolen credit card was used that day to place telephone calls to Harden‘s family members and boyfriend. (Harden I, supra, 110 Cal.App.4th at pp. 852-853.) Later the same day, Harden pawned Marion‘s jewelry. (Id. at p. 853.)
At Harden‘s trial in 2001, the People‘s theory was that she entered the home intending only to steal, but decided to kill once insidе. In closing argument, the prosecutor told the jury that the nature of Alfred‘s injuries evidenced a deliberate and premediated killing. Outside the jury‘s presence, he conceded that felony murder was the stronger of the two theories.
The court instructed the jury on murder (CALJIC No. 8.10 (6th ed. 1996)2), deliberate and premediated murder (CALJIC No. 8.20) as well as felony murder (CALJIC No. 8.21). The court also gave a modified version of CALJIC No. 8.80.1 (1997 rev.) on first degree murder with special circumstances. The jury was also asked to find whether Harden “personally inflicted great bodily injury” in committing the offenses.
The jury convicted Harden of first degree murder with special circumstances and found that she personally inflicted great bodily injury.3 She was sentenced to life in prison without the possibility of parole, to be served consecutively to an aggregate term of six years four months for other convictions. (Harden I, supra, 110 Cal.App.4th at p. 855.)
In February 2019, Harden filed a petition to vacate her murder conviction and for resentencing under
C. The Second 1170.95 Petition
In August 2019, Harden filed another
The People filed an “initial response,” primarily asserting that having been convicted of first degree murder with “found-true” special circumstances, Harden could not establish a prima facie case. In the reply, defense counsel maintained that Harden‘s declaration established a prima facie case, despite being contradiсted by facts recited in Harden I.
The court denied the petition without issuing an order to show cause. Quoting several paragraphs from the factual background in Harden I, the judge concluded that Harden‘s declaration was “completely inconsistent” with trial testimony showing “[Harden] as the killer, not anyone else.”
D. The Initial Opinion Affirming on Law-of-the-Case Grounds and Rehearing Granted
During the pendency of this appeal, in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the Supreme Court held that a trial court “may look at the record of conviction . . . to determine whether a petitioner has made a prima facie case for section 1170.95 relief.” (Lewis, at p. 971.) At Harden‘s counsel‘s request, we granted lеave to file a supplemental brief addressing Lewis and Senate Bill No. 775, which amended
After oral argument was waived, we affirmed the order denying Harden‘s petition, albeit on grounds other than those relied on by the trial court. We
Following that decision, we granted Harden‘s petition for rehearing and invited additional briefing on the law-of-the-case analysis. In response, Harden argues thаt law of the case cannot be invoked where there is a ” ‘substantial difference in the evidence’ ” on retrial of the particular issue. (See People v. Barragan (2004) 32 Cal.4th 236, 246.) Harden acknowledges that if at a hearing under subdivision (d) of
At the prima facie stage of an 1170.95 proceeding, it is of course impossible to know what the evidence will ultimately be at an evidentiary hearing that has not yet occurred. We thus agree with Harden that prior to a
hearing under
DISCUSSION
A. The Section 1170.95 Framework
Effective January 1, 2019, Senate Bill No. 1437 amended the felony-murder rule by adding
Under
proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person‘s participation in a crime . . . . [,] [and] (2) The petitioner was convicted of murder . . . following a trial . . . . [,] [and] (3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019.” (
If the
The prima facie inquiry under
hearing.” (People v. Duchine (2021) 60 Cal.App.5th 798, 811-812, fn. omitted.)
Nevertheless, the
We independently review a trial court‘s determination on whether a petitioner has made a prima facie showing. (People v. Arias (2021) 66 Cal.App.5th 987, 999, review granted Sep. 29, 2021, S270555.) But before doing that here, we address a procedural argument raised by the Attorney General which if correct would dispose of the appeal.
B. The People Forfeited the Argument That Harden‘s Second Petition Is Barred by Collateral Estoppel
The Attorney General contends Harden was barred by collateral estoppel from filing a second рetition because her first one was denied on the merits and the second raised the same claims. However, the prosecution did not raise the issue of collateral estoppel in the trial court and has therefore forfeited that issue. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1185 [“collateral estoppel is waived if not raised in the trial court“].)
In any event, Harden makes claims in this second petition based on new law (e.g., Lewis, supra, 11 Cal.5th 952 and Stats. 2021, ch. 551 (Sen. Bill No. 775)) that did not exist when she filed her first petition. Accordingly, the second petition would not be barred by issue preclusion. (See People v. Ruiz (2020) 49 Cal.App.5th 1061, 1069 [collateral estoppel not applied if there has been an intervening change in the law].)
C. Harden Cannot Establish a Prima Facie Case Because the Record of Conviction Conclusively Establishes She Was Convicted as the Actual Killer
We begin with the jury instructions on murder, felony murder, special circumstances, and personal infliction of great bodily injury to determine if they chart a path where even one juror could have convicted Harden on a theory other than as Alfred‘s actual killer.
On murder, the court instructed on malice aforethought and felony murder with CALJIC No. 8.10, which states in part:
“Every person who unlawfully
kills a human being with malice aforethought or during the сommission or attempted commission of a robbery or burglary, is guilty of the crime of murder . . . .”
The jury found Harden guilty of first degree murder, but was not asked to indicate whether the basis was malice aforethought or felony murder. If the jury found her guilty on a malice theory, Harden would be ineligible for resentencing because
not on the natural and probable consequences doctrine or any “other theory” of imputed malice. Accordingly, the only possible basis for
Interestingly, the prosecutor initially contemplated asking for aiding and abetting instructions. But once all the evidence was in he decided otherwise, noting “there‘s no evidence that there was anyone in the house other than this one intruder [Harden], not two people. There‘s no evidence there was a man in the house.”6 Thus, the jury was not instructed that it could convict Harden as an aider and abettor, accomplice, or as a major participant in the burglary and robbery who acted with reckless indifference to human life.
Turning to instructions that were given to the jury—on first degree felony murder, the court gave CALJIC No. 8.21 as follows:
“The unlawful killing of a human being, whether intentional, unintentional or accidentаl, which occurs during the commission or attempted commission of the crimes of Robbery [sic] or burglary, is murder of the first degree when the perpetrator had the specific intent to commit that crime.”
For the special circumstances allegations, the court gave only a portion of CALJIC No. 8.80.1, stating:
“If you find the defendant in this case guilty of murder of the first degree, you must then determine if one or more of the following special circumstances are true or not true: [¶]
“1. That Alfred [P.] was murdered during the commission of a robbery. [¶] “2. That Alfred [P.] was murdered during the commission of a burglary. [¶] . . . [¶]
“If you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true.” (Italics added.)
With respect to the personal infliction of great bodily injury enhancements, the court instructed with CALJIC No. 17.20 (1999 rev.):
“It is alleged in Counts 2 [robbery] 3 [burglary] and 4 [willful cruelty to elder], that in the commission or attempted commission of the crimes therein described the defendant [Harden] personally inflicted great bodily injury on [Alfred P.], a person 70 years of age or older at the time of the crime.”
In closing, the prosecutor argued that Harden alone killed the victim, stating, “The killer of Alfred [P.] is here in court . . . and that‘s the defendant . . . . That‘s the рerson who murdered Mr. [P].” Conversely, defense counsel argued, “whoever that was” who strangled Alfred, it “was not Yolanda Harden . . . . [S]he did not do it.”
The jury convicted Harden of first degree murder with special circumstances—that is, murder “while engaged in the commission” of robbery and burglary. It also found that “in the commission” of burglary, robbery, and willful cruelty to an elder, she “personally inflicted great bodily injury.”
The key question in determining whether the trial court properly denied Harden‘s petition is whether it was possible for a juror to have (1) found her guilty of felony murder, and (2) found to be true the
robbery/burglary special circumstances allegations, as well as the personal infliction of great bodily injury allegations, without also finding she personally killed the victim? (See People v. Lopez (2022) 78 Cal.App.5th 1, 14 (Lopez).) We conclude the answer is “no” and that, as instructed, no juror could have voted to convict Harden as anything other than being the actual killer.7
First and foremost, the jury was instructed that “every person who unlawfully kills a human being with malice aforethought or during the commission”
Moreover, the instruction on murder was followed by CALJIC No. 8.80.1, which defines the requisite mental state for a true finding of special circumstances. That instruction begins by stating: “If you find the defendant in this case guilty of murder of the first degree, you must then determine if one or more of the following special circumstances are true or not true[.]”
Thus, the jury would not even reach the issue of special circumstances unless it first convicted Harden of murder. And as just explained, under CALJIC No. 8.10 a murder conviction required a finding that Harden “unlawfully killed“—that is, she was the actual killer. A hypothetical juror who was not persuaded that Harden actually killed Alfred P. could not have voted that the special circumstance was true. Thus, the unanimous true finding necessarily means the jury convicted Harden as the actual killer.8
Further, the jury found true that Harden “personally inflicted great bodily injury” on Alfred P. The natural meaning of “personally inflicted” is that the defendant herself inflicted the injury. (See People v. Cole (1982) 31 Cal.3d 568, 578-579 [under
Jones (2002) 30 Cal.4th 1084, 1120
Without weighing conflicting evidence or making credibility determinations, the record of conviction irrefutably establishes as a matter of law that the jury determined Harden was the actual killer. The instructions and verdicts show the only path to convicting Harden of first degree felony murder with special circumstances and a personal-infliction-of-great-bodily-injury enhancement was based on a finding she actually killed Alfred P.
In urging the opposite conclusion, Harden maintains that no inferences can be drawn from the jury‘s true finding on special circumstances because under CALJIC No. 8.80.1 as given, “the jury wаs not instructed as to the felony murder theory.” We disagree. CALJIC No. 8.80.1 as given clearly applied to felony murder because it instructed the jury regarding the situations in which it could find the felony murder special circumstance true.
And while the statute would theoretically permit a true finding in any of three factual settings, the jury was only instructed on one—where the defendant was the actual killer.10
After we granted rehearing, Division Three of the Fourth Appellate District considered similar issues in Lopez, supra, 78 Cal.App.5th 1. On its record, the Lopez court reversed an order denying an 1170.95 petition at the prima facie stage. Before oral argument, we notified the parties to be prepared to address the case.
The Lopez trial was in 2011 and the court instructed using CALCRIM instructions on murder and special circumstances. For instance, on murder the Lopez court instructed with CALCRIM No. 520, which states as the first element: “The defendant committed an act that caused the death of another person.” It also instructed with CALCRIM No. 540A that to find the defendant guilty of felony murder, the jury had to conclude that while committing robbery, he “caused the death of another person.” (Lopez, supra, 78 Cal.App.5th at p. 25.) On the special circumstance allegation, the jury was instructed that to find it to be true, jurors had to conclude the defendant “did an act that caused the death of another person.” (Id. at p. 25.)
The defendant in Lopez appealed an order denying his 1170.95 petition at the prima facie stage. In light of the jury instructions, the appellate court concluded that by returning guilty verdicts and a true finding on the robbery-murder special circumstance, “the jury necessarily found that the victim‘s death” was a consequence of the defendant‘s act. (Lopez, supra, 78 Cal.App.5th at p. 16.) However, the court noted that a person who commits an act causing death is not necessarily the actual killer. (Ibid.) Indeed, at trial the defendant testified that he accompanied another person tо the victim‘s apartment and never went into the bedroom where the killing occurred. Accordingly, the Lopez court concluded that the record did not conclusively establish that the jury found the defendant personally killed the victim. (Id. at p. 17.)
We agree with that analysis, but applying the same methodology we reach the opposite result here because at Harden‘s 2001 trial, the court gave CALJIC instructions that were materially different from the CALCRIM
| Instruction | Lopez | Harden |
|---|---|---|
| Murder | The People must prove that: “The defendant committed an act that caused the death of another person.” (CALCRIM No. 520, boldface added; Lopez, at p. 17.) | “Every person who unlawfully kills a human being with malice aforethought or during the commission . . . of a robbery or burglary, is guilty of murder . . . .” (CALJIC No. 8.10, boldface added.) |
| Felony Murder | “While committing [the felony], the defendant caused the death of another person.” (CALCRIM No. 540A, boldface added; Lopez, at p. 16.) | “The unlawful killing of a human being . . . which occurs during the commission of . . . robbery or burglary, is murder of the first degree when the perpetrator had the specific intent to commit that crime.” (CALJIC No. 8.21.) |
| Instruction | Lopez | Harden |
|---|---|---|
| Special Circumstances | “To prove that this special circumstance is true, the People must prove that: [¶] . . . [¶] The defendant did an act that caused the death of another person.” (CALCRIM No. 730, boldface added; Lopez, at p. 16.) | “If you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true.” (CALJIC No. 8.80.1 (1997 rev.), boldface added.) |
Unlike the Lopez jury, by returning guilty verdicts on murder with special circumstances, the jury here necessarily found that Harden “kill[ed] a human being” (CALJIC No. 8.10) and “actually killed a human being” (CALJIC No. 8.80.1). Unlike Lopez, the jury in this case was not asked whether the defendаnt merely “committed an act that caused the death.” (CALCRIM No. 520, italics added.) Moreover, there is no mention in Lopez of any instructions regarding the defendant‘s personal infliction of great bodily injury. In contrast here, Harden‘s jury also found that she “personally inflicted great bodily injury.”
At trial in Harden I, there was evidence that the 80-year-old victim had a “heart condition,” “aneurysms,” and “the family talked about how ill he was.” Ovеr defense objection, the court instructed with CALJIC No. 8.58 that “If a person unlawfully inflicts a physical injury upon another person and that injury is a cause of the latter‘s death, that conduct constitutes an
unlawful homicide . . . even if: [¶] 1. The person injured had been already weakened by disease, injury, physical condition or other cause; or [¶] 2. It is probable that a person in sound physical condition injured in the same way would not have died from the injury; or [¶] 3. It is probable that the injury only hastened the death of the injured person; or [¶] 4. The injured person would have died soon thereafter from another cause or other causes.” Thus, CALJIC No. 8.58 instructs that if Alfred‘s preexisting medical conditions contributed to his death, that would not relieve Harden‘s culpability. The instruction would not have permitted a juror to convict Harden on a theory that she committed an act that contributed to causing his death, but someone else was the actual killer.
Turning to CALJIC No. 2.11.5, it merely tells the jury not to speculate whether someone else might or might not be prosecuted for the same crime:
“There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial. [¶] Therе may be many reasons why that person is not here on trial. Therefore, do not discuss of give any consideration as to why the other person is not being prosecuted in this trial or whether she has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guild of the defendant on trial.”
The purpose of this instruction is to discourage improper conjecture. Contrary to Harden‘s contention, it does not provide the jury with a path to convict her of felony murder on a theory other than her being the actual killer.
In sum, although the question presented here and in Lopez is the same, the result is different beсause the jury instructions were materially dissimilar. Harden‘s record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that she was
the actual killer. Harden complains that because the jury was not asked to “expressly” find that she was the actual killer, the record of conviction does not refute her petition as a matter of law. But given the “kills” language in CALJIC No. 8.10, along with “actually killed” in CALJIC No. 8.80.1, and “personally inflicted great bodily injury on Alfred [P.]” in CALJIC No. 17.20, in returning
DISPOSITION
The order is affirmed.
DATO, J.
WE CONCUR:
O‘ROURKE, Acting P. J.
IRION, J.