THE PEOPLE, Plaintiff and Respondent, v. CALEB JAMES HARRIS, Defendant and Appellant.
B300410
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 2/16/21
CERTIFIED FOR PUBLICATION
(Los Angeles County Super. Ct. No. YA023031-02)
APPEAL from an order of the Superior Court of Los Angeles County, Laura C. Ellison, Judge. Reversed and remanded with directions.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
After two mistrials a jury in January 1997 found Caleb James Harris guilty on two counts of first degree murder (
On February 13, 2019 Harris, represented by counsel, petitioned for resentencing pursuant to newly enacted
FACTUAL AND PROCEDURAL BACKGROUND
1. Harris‘s Murder Convictions
a. The firebombing
Valerie Rivers confronted Dwayne Moore on January 28, 1995 about an incident in her apartment two days earlier when Rivers, in labor, was waiting for her mother to take her to the hospital. As they argued on the street outside Rivers‘s apartment building, Damone Dellano, Rivers‘s boyfriend, joined them and pointed a gun at Moore. Moore began to cry and asked Rivers, “You gonna let him do this to me?” Dellano put down the gun and went back into the apartment with Rivers.
Later that afternoon Moore went to the apartment where Eric Bowden was staying; Harris was also present. Bowden told detectives he saw Moore and Harris fill beer bottles with gasoline and put cut-up bedsheets into the bottles. Bowden had heard Moore say he was “going to get the dude back,” referring to Dellano. During his police interview Bowden said Harris was “pumping up” Moore to get revenge against Dellano. Moore and Harris left the apartment complex around 8:00 p.m. According to a second witness, Ernest Bowman, when Moore and Harris left the apartment complex, they were carrying Molotov cocktails.
Around 8:30 that evening Rivers heard people talking outside her apartment. She recognized Moore‘s voice. A speaker she could not identify said, “If the home girl is cool and she got kids, then I wouldn‘t fuck with her. But if she—if she‘s not, then fuck it. Whatever.” Rivers heard Moore respond, “I ain‘t going out like that. Meet me back here in 30 minutes.” Less than 30 minutes later, Rivers heard Moore call out, “Valerie,” followed by a “ball of fire” coming through her bedroom window. The firebomb hit Rivers in the face. The bedroom was quickly engulfed in flames.
Robert Alcaraz, Jr. testified he was waiting outside for a friend when he saw two young Black men in dark, loose clothing outside Rivers‘s apartment lighting a rag and throw an object through the window. Alcaraz saw a flame and heard the sound of breaking glass. The two men ran off. Neither Alcaraz
The Hawthorne Fire Department arrived at the scene at approximately 9:15 p.m. The firefighters pulled Rivers, her newborn daughter and her young son from the burning apartment. Rivers suffered severe burns and was hospitalized for two months. Both her young children died from their burns.
Moore and Harris returned together to Bowden‘s apartment that evening around 10:00 p.m. Harris told Bowden he went over to Rivers‘s apartment but had not thrown the Molotov cocktails.
b. Harris‘s three trials
Harris and Moore were charged by information in June 1995 with the first degree murder of Rivers‘s two children, the attempted murder of Rivers and arson causing great bodily injury. The information further alleged as special circumstances that the murders were committed by means of a destructive device, were committed during the commission of arson and constituted multiple murders. At trial Bowden recanted his prior statements implicating Harris. Bowden explained he had simply repeated what the police told him and had lied out of fear because the investigating officer said he was a suspect. The prosecutor impeached Bowden with his statements to the police. The first trial ended in a mistrial when the jury was unable to reach a verdict as to either defendant and declared itself hopelessly deadlocked after 10 days of deliberations.
At the retrial Moore was convicted on all four charges. The second jury was unable to reach a verdict as to any of the charges against Harris, however, and another mistrial was declared as to him.
Bowden was unavailable as a witness for Harris‘s third trial (as he had been for the second trial); so the People read his testimony from the first trial, including his statements to the police identifying Harris as one of the individuals making the Molotov cocktails. The jury also heard Bowden‘s subsequent repudiation of those statements as fabrications. Bowman testified two individuals had made Molotov cocktails in the laundry room behind the apartment complex and said he saw Moore and Harris carry the Molotov cocktails to a parked van and drive away together. However, Bowman answered inconsistently to repeated questions whether Harris had been one of the men actually making the Molotov cocktails—stating he was one of the bombmakers on direct examination; but conceding on cross-examination Harris had just been standing in the doorway to the laundry room while two
c. Denial of Harris‘s new trial motion
Harris, represented by new counsel, moved for a new trial, challenging the credibility of Bowman‘s testimony and arguing the evidence was insufficient to prove Harris had aided and abetted either arson or murder. The motion also asserted Harris‘s trial counsel, who presented no defense witnesses, provided constitutionally ineffective representation. The court denied the motion, observing, “I agree with the jury. I thought [Bowman] was credible. I have no problem with it. I had no problem with the decision. I think it was a proper decision. I would have had a problem with the case if the jury had based their decision on any kind of finding by innuendo that this defendant intended these babies be killed or injured, or the woman. But there was nothing in that. But my conclusion, from what the jury came up with, is that he basically was an aider and abettor, as far as the arson is concerned. And that testimony came out. And there was nothing wrong with the verdict.”
d. The trial court‘s comments at sentencing
The prosecutor asked the court to sentence Harris to consecutive state prison terms of life without parole for the murder of the two young children. The trial court instead sentenced Harris to concurrent indeterminate terms of 25 years to life, plus seven years for the aggravated arson. Explaining its decision, the court stated, “I‘ve considered the fact that both the jury and I personally feel that the defendant did not intend the happening that did occur. I know the People tried to show that the defendant may have thrown one of them. But there‘s just no evidence of that at all. I think that, because of the nature of his participation in this matter, that life without possibility of parole would not be the proper sentence.”2
Harris, represented by Loyola Law School‘s Center for Juvenile Law and Policy, petitioned for resentencing pursuant to
In an accompanying memorandum Harris stated that the prosecutor had proceeded at his third trial primarily on a felony-murder theory, arguing Harris had assisted Moore in making and transporting the firebombs to Rivers‘s apartment building. Pointing to the finding he was not guilty of attempted murder, which requires proof of an intent to kill, Harris asserted there was insufficient evidence he was either the actual killer of the children or had acted with an intent to kill when he assisted Moore. Relying on the Supreme Court‘s analysis in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, and emphasizing he was a juvenile at the time of the firebombing, Harris also argued that under the current requirements for proof of a felony-murder special-circumstance allegation, he had not been a major participant in the arson and had not acted with a reckless indifference to human life.
The District Attorney filed a response to Harris‘s petition, contending the resentencing provisions in
Harris filed a reply to the District Attorney‘s opposition memorandum, which addressed both the constitutional issues and the argument he was a major participant who had acted with reckless indifference to human life under Banks and Clark.
The trial court denied Harris‘s petition after hearing argument from counsel at a hearing on August 1, 2019, ruling, “[T]he facts show that Mr. Harris was a major participant and acting with reckless disregard and did act with implied malice.”3
Explaining its ruling, the court stated, “The facts show that Mr. Harris participated with Mr. Moore in filling beer bottles with gasoline, cutting-up bed sheets, and putting them into bottles with the stated purpose of going to the apartment, and getting back or getting somebody named Dellano back, that is Ms. Rivers‘s boyfriend, or was Ms. Rivers‘s boyfriend at the time.
“The facts indicate that Mr. Harris was pumping Moore up, which was his co-defendant, and telling him he should get him back for what he had done. The facts indicate that Mr. Harris, along with Mr. Moore, went to an apartment, and changed into dark clothing, and that the two left together.
“The testimony was given also that Harris had told Bo[w]den that he had gone over to the apartment in question. He also said he did not throw the Molotov cocktails. And again, the People are not suggesting that the record indicates that it was Mr. Harris who actually threw the Molotov cocktails. From the testimony, he not only prepared the incendiary devices, he did so with the intent to hurt somebody, to get somebody back. That he went to the location where the cocktails, Molotov cocktails were thrown into an apartment, and as we all know the end of the result of that was two young children were killed. The mother was severely injured.
“As a result of that testimony, the jury did find him guilty of the crime of arson. He was found guilty of preparing whatever incendiary devices were needed to do the arson. He was found guilty of murder of the two children. There was more than sufficient evidence to find that he was an aider and abettor. So I am going to deny his request to be resentenced.”4
CONTENTIONS
The Attorney General concedes the superior court erred to the extent it engaged in factfinding rather than evaluating the record of conviction solely to determine whether it established Harris‘s ineligibility for relief under
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile))6 and significantly limited the felony-murder exception to the malice requirement for murder. (See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1081.)7
Senate Bill 1437 also authorized, through new
If the petition contains all required information,
The exact nature of this procedure is the focus of disagreement between People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted March 18, 2020, S260598, Verdugo, supra, 44 Cal.App.5th 320, review granted, and the many subsequent cases that have agreed with their interpretation of
In Verdugo we held subdivision (c) prescribes a two-step process for the court to determine if an order to show cause should issue, “one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within
As to the first step, we explained, “[B]ecause a petitioner is not eligible for relief under
The court in People v. Cooper, supra, 54 Cal.App.5th 106, review granted, disagreed that
We do not find persuasive the Cooper court‘s interpretation of
Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (
2. The Superior Court Properly Considered This Court‘s Prior Opinion Affirming Harris‘s Convictions
This court in Verdugo, supra, 44 Cal.App.5th at page 333, review granted, explained, “A court of appeal opinion, whether or not published is part of the appellant‘s record of conviction” and held it was proper for the superior court to consider the information in an opinion affirming the petitioner‘s murder conviction on direct appeal “in determining whether he had made a prima facie showing of eligibility for relief under
Harris‘s citation to Gilmore v. Superior Court (1991) 230 Cal.App.3d 416 to argue factual statements in an appellate opinion are inadmissible hearsay and not properly considered in determining eligibility for relief under
3. Harris May Challenge the Special Circumstance Finding in a Section 1170.95 Petition
a. Banks and Clark
in assessing such a felony-murder special-circumstance finding were clarified in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, nearly two decades after Harris‘s conviction. (See In re Scoggins (2020) 9 Cal.5th 667, 671; In re Miller (2017) 14 Cal.App.5th 960, 977-978.)
In Banks the Supreme Court identified factors courts should consider in determining whether a defendant was a “major participant” under
In both Banks and Clark the Court explained that, to determine whether the defendant acted with reckless indifference, courts must “look to whether a defendant has ‘knowingly engag[ed] in criminal activities known to carry a grave risk of death.‘” (Banks, supra, 61 Cal.4th at p. 801.) Specifically, “[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.” (Ibid.) As further refined in Clark, “reckless indifference” “encompasses both subjective and objective elements. The subjective element is the defendant‘s conscious disregard of risks known to him or her. . . . [R]ecklessness is also determined by an objective standard, namely what ‘a law-abiding person would observe in the actor‘s situation.‘” (Clark, supra, 63 Cal.4th at p. 617.)
The Supreme Court in Clark set out a series of considerations relevant to determining whether a defendant had acted with reckless indifference to human life (with some obvious overlap with the major-participant factors specified in Banks). Among others, was the defendant aware that guns would be used; did the defendant himself or herself use a gun; did the defendant have an opportunity to reduce the overall risk of violence during the felony or to aid the victim; did the defendant know his or her cohorts were likely to use lethal force? (Clark, supra, 63 Cal.4th at pp. 618-622.) Specifically with respect to the facts before it, the Clark Court emphasized, “[W]hile the fact that a robbery involves a gun is a factor beyond the bare statutory requirements for first degree robbery felony murder, this mere fact, on its own and with nothing more presented, is not sufficient to support a finding of reckless indifference to human life for the felony-murder aider and abettor special circumstance.” (Id. at p. 618.)12
The felony-murder special-circumstance allegations required the jury to find that Harris had acted with reckless indifference to human life and as a major participant in the arson that resulted in the death of Rivers‘s two children (
In People v. Galvan (2020) 52 Cal.App.5th 1134, review granted October 14, 2020, S264284, our colleagues in Division One of this court concluded that allowing a petition under
These decisions misperceive the nature of the
To be sure,
Similarly, although Harris‘s jury was instructed that to find true the special circumstance allegation under
Because the evidence supporting Harris‘s special circumstance finding has never been reviewed under the standards set forth in Banks and Clark, the superior court could properly determine he was ineligible for relief as a matter of law only after reviewing the available record of conviction in light of the Banks and Clark factors. (See Verdugo, supra, 44 Cal.App.5th at p. 330, review granted [“[t]he record of conviction might also include other information that establishes the petitioner is ineligible for relief as a matter of law because he or she was convicted on a ground that remains valid notwithstanding Senate Bill 1437‘s amendments to
The superior court did not deny Harris‘s petition based solely on the jury‘s true finding on the felony-murder special-circumstance allegation—the argument advanced by the Attorney General, which we reject. Rather, the court, citing to evidence in the record including portions of the factual statement from our opinion on Harris‘s direct appeal, ruled “the facts show” that Harris was a major participant in the arson who had acted with reckless disregard for human life. Yet some of the facts made particularly significant by the Supreme Court‘s decisions in Banks and Clark were disputed at trial and not clearly resolved by the jury‘s finding.
Our opinion stated that Bowden saw Harris, as well as Moore, fill bottles with gasoline and put torn pieces of bedsheet into the bottles and that Bowden heard Harris “pumping Moore up,” telling him he should get Dellano back for what he had done.13 At trial, however, Bowden recanted, claiming his
description of Harris‘s involvement was false. In addition, Moore in his testimony at the first trial, read at Harris‘s third trial, denied that Harris had encouraged him to seek revenge. For his part, Bowman was at most equivocal whether Harris had participated in making the firebombs or had simply been a passive observer, who then helped Moore transport the firebombs to Rivers‘s apartment complex. And neither Alcaraz nor the other individuals who witnessed the firebombing identified Harris as one of the two men they saw lighting rags and throwing objects through Rivers‘s apartment window. Indeed, the court at Harris‘s sentencing hearing stated there was no evidence Harris had thrown any of the firebombs and it did not appear he intended the devices to hurt, let alone kill, anyone. Nor was there evidence Harris was physically present when Moore hurled the firebombs through Rivers‘s bedroom window, rather than waiting for him in the van they had driven to the apartment complex.
Harris unquestionably aided and abetted the arson that killed Rivers‘s two young children, making him guilty of felony murder as defined at the time. Prior to Banks and Clark, even the most benign of these depictions
Similarly, although Harris‘s jury was instructed reckless indifference to human life requires proof the defendant was aware his acts “involved a grave risk of death to an innocent human being,”14 the Supreme Court in Clark, supra, 63 Cal.4th at page 617, clarified reckless indifference encompasses a willingness to assist another in killing to achieve a particular goal,
Objectively, firebombing the apartment of a family with two young children at 9:00 p.m. creates a high risk that someone may be killed. However, Harris‘s subjective willingness to assist an act of revenge that he understood involved such a grave risk is not established as a matter of law by the record of conviction. Again, factfinding following an evidentiary hearing is necessary to determine whether Harris could be convicted of felony murder under the current version of
DISPOSITION
The order denying Harris‘s
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.