People v. JonesPeople v. Jones
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
Henry Jones appeals from the denial of his petition to vacate his murder conviction under
On appeal, Jones argues the trial court erred by denying his petition without the benefit of briefing from his counsel. He argues he can demonstrate a prima facie case for relief because his special circumstance finding no longer supports a felony-murder conviction after our Supreme Court‘s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of “major participant” and “reckless indifference to human life.”
Our appellate courts have recently split ovеr whether such a pre-Banks/Clark special circumstance finding renders a petitioner ineligible for relief under
I
FACTS
The underlying facts of Jones‘s murder conviction are not relevant to our analysis, so we recount them only briefly, taking from our unpublished opinion in his direct appeal People v. Bishop et al. (June 27, 2001, E027001) (Bishop). (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1134, 1138, review granted Mar. 18, 2020, S260598 [court may review record of conviction in assessing sufficiency of a
The jury convicted Jones of attempted murder (
After Banks and Clark were decided in 2015 and 2016, respectively, Jones did not file a petition for writ of habeas corpus challenging the sufficiency of the evidence to support his special circumstance finding. However, in early 2019, shortly after SB 1437 went into effect, he filed a
The court held a status conference on the petition. The prosecutor maintained that the special circumstance finding was reason enough to deny the petition. Jones‘s original trial attorney appeared on his behalf and asked for a four-month continuance. The court reviewed its files and verified that the instruction given at Jones‘s trial on the special circumstance allegation had required the jury to find he was a “major participant” in the robbery who acted with “reckless indifference to human life.” The court didn‘t rule on the continuance request but concluded the special circumstance rendered Jones ineligible for relief as a matter of law and denied the petition.
II
ANALYSIS
Jones argues the trial court erred by not granting the request for a continuance to give his counsel an opportunity to file a reply brief. If allowed to file such a brief, he argues, he would be able to demonstrate a prima facie case for relief under
A. SB 1437 and Section 1170.95
SB 1437 took effect on January 1, 2019. Among other things, the legislation amended
SB 1437 also added
As relevant here, to demonstrate entitlement to an evidentiary hearing, a petitioner must make a prima facie showing that they could not be convicted of first or second degree murder “because of changes to
B. Jones Cannot Challenge His Special Circumstance Finding Under Section 1170.95
A defendant with a special circumstance finding under
A petitioner with a pre-Banks/Clark finding faces the same bar to relief under
If a judicial decision announces a new rule of law, the decision “may not be retroactive,” and if it is not, then a defendant with a final conviction cannot take advantage of the new rule on a collateral attack on the judgment. (Woosley v. State of California (1992) 3 Cal.4th 758, 794.) If, however, a judicial decision only clarifies existing law, that means the decision simply “give[s] effeсt ‘to a statutory rule that the courts had theretofore misconstrued.‘” (Ibid.) “Where a decision clarifies the kind of conduct proscribed by a statute, a defendant whose conviction became final before that decision” is entitled to postconviction, habeas relief if “the undisputed facts” in the trial record demonstrate their conduct “‘was not prohibited by the statute’ as construed in the decision.” (Scoggins, supra, 2020 WL 3525184 at *2-3, quoting
In a habeas proceeding challenging a pre-Banks/Clark special circumstance finding, the petitioner bears thе burden of demonstrating that the finding must be vacated for insufficient evidence. (People v. Duvall (1995) 9 Cal.4th 464, 474.) As the court explained in Miller, a postconviction challenge to a special circumstance finding under Banks and Clark presents a legal question for the reviewing court. (Miller, supra, 14 Cal.App.5th at pp. 979-980.) The challenge “does not require resolution of disputed facts; the facts are a given” — the appellate court simply determines if they are sufficient to support the special circumstance finding under the multi-factor guidance articulated in Banks and Clark. (Miller, at p. 980.) “When a defendant seeks habeas corpus relief, the underlying judgment is presumed valid. . . . In a habeas corpus challenge to the sufficiency of the evidence to support a special circumstance finding, the ‘standard of review . . . is whether, when evidence that is reasonable, credible, and of solid value is viewed “in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.“‘” (In re Bennett (2018) 26 Cal.App.5th 1002, 1018, quoting Clark, supra, 63 Cal.4th at p. 610.)
We recognize the Torres/Smith/York line of cases have concluded that petitioners with pre-Banks/Clark findings are entitled to challenge those findings in an evidentiary hearing under
Torres, Smith, and York describe Banks and Clark as opinions that construed “major participant” and “reckless indifference” “‘in a significantly different, and narrower manner than courts had previously.‘” (York, supra, 54 Cal.App.5th at p. 258, citing Torres, supra, 46 Cal.App.5th at p. 1179 and Smith, supra, 49 Cal.App.5th at p. 93.) Smith reasoned that it would be error to deny a
We agree with Allison that this view exaggerates the impact of Banks and Clark. As Allison observed, “[t]he phrases ‘major participant’ and ‘reckless indifference to human life’ do not have specialized definitions, but are interpreted as they are used in common parlance. [Citations.] Jury instructions regarding the mental state required for a felony-murder spеcial circumstance are not defective if they do not include the Banks and Clark factors. [Citation.] Indeed, the pattern jury instruction regarding major participation and reckless indifference remains the same as it was before Banks and Clark.” (Allison, supra, 2020 Cal.App. Lexis 925 at *11.) We also agree with Allison that petitioners like Jones “had the same incentive” at their original trials to attempt to minimize their involvement in the robbery and their culpability for the killings as they would have had if their trials “had taken place after Banks and Clark.” (Allison, at *12.) In short, Banks and Clark did not significantly narrow the definitions of “major participant” and “reckless indifference,” and there is no basis for concluding that Jones‘s jury was asked to resolve different factual issues than a correctly instructed post-Banks/Clark jury would be asked to resolve.
We also find the holdings and reasoning in Torres, Smith, and York to be inconsistent with the text and structure of
This interpretation alsо finds support in the structure of the statute, specifically the burden and standard of proof the Legislature has imposed for obtaining relief at a
DISPOSITION
We affirm the order denying Jones‘s petition.
CERTIFIED FOR PUBLICATION
SLOUGH J.
I concur:
RAMIREZ P. J.
I concur in the majority opinion. I write separately to articulate my views on several of the issues presented concerning recent case law and
I. Section 1170.95 and the Scope of Banks and Clark
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) clarified the meaning of the phrases “major participant” and “reckless indifference to human life” for purposes of special circumstances allegations under
Banks and Clark did not state a new rule of law but rather clarified the already-existing meaning of the statutory phrases “major participant” and “reckless indifference to human life.” (In re Miller (2017) 14 Cal.App.5th 960, 978-979 (Miller).) In addition, Banks and Clark did not expressly require that juries be instructed on those clarifications.
Accordingly, in the wake of Banks and Clark, no mandatory language was added to the CALCRIM instructions on special circumstances under
Even the optional language that was added to the CALCRIM instructions in light of Banks and Clark does not require the jury to consider any additional questions or resolve any additional issues. As to reckless indifference, the optional language states, “When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are,” followed by a list of the factors identified in Clark. (CALCRIM No. 703.) The optional language concerning major participant is identical. The only requirement imposed on the jurors is that they consider all the evidence. Everything else is optional (the jury “may” consider the listed factors, among others). (CALCRIM No. 703.)
Consequently, a correctly instructed post-Banks/Clark jury that found the defendant was a major participant who acted with reckless indifference to human life will not necessarily have received instructions that differ at all from those given to a pre-Banks/Clark jury that made such a finding. And even if the post-Banks/Clark jury was instructed with the new, optional language, those additional instructions merely required
As a result, I agree with the majority opinion that the only necessary difference between a pre-Banks/Clark special circumstance finding and a post-Banks/Clark finding is at the level of appellate review: If the finding was challenged on direct appeal before Banks and Clark, then appellate review of the sufficiency of the еvidence to support the finding was not guided by Banks and Clark. Similarly, it is also possible that a defendant appealing before Banks and Clark did not challenge the sufficiency of the evidence because then-existing case law did not provide a basis for such a challenge, but the same defendant might now have a colorable appellate argument in light of Banks and Clark.
I also agree with the majority opinion that several recent cases involving
The same misunderstanding of the impact of Banks and Clark appears in both People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres), and People v. York (2020) 54 Cal.App.5th 250, 258 (York). Torres concluded that it was error for the trial court to treat a pre-Banks/Clark finding as if it “resolved key disputed facts.” (Torres, supra, at p. 1180.) York likewise reasoned that “the factual issues that the jury was asked to resolve in a trial that occurred before Banks and Clark were decided are not the same factual issues оur Supreme Court has since identified as controlling.” (York, supra, at p. 258.) Similarly, York observed that a defendant with a pre-Banks/Clark special circumstance finding should not be treated differently from a defendant with no special circumstance finding at all, because “[a] jury has not determined whether the defendant was a ‘major participant’ who acted with ‘reckless indifference’ under correctly articulated standards in either case.” (York, at p. 258.) That is, under York a defendant who was found before Banks and Clark to be a major participant who acted with reckless indifference to human life should be treated (for purposes of
A proper understanding of the impact of Banks and Clark also has implications for the preclusive effect of special circumstance findings. Smith, Torres, and York all conclude that a pre-Banks/Clark finding should not be treated as preclusive (at least for purposes of
For all of these reasons, there does not appear to be a sound doctrinal basis for treating the preclusive effect of a pre-Banks/Clark special circumstance finding differently from the preclusive effect of a post-Banks/Clark finding.
II. Prior Jury Findings, Section 1170.95‘s Requirements for Relief, and Harmless Error
Gomez and People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan) held that a petition under
York disagreed with Galvan‘s analysis. York explained that “[w]hat permits a defendant convicted of felony murder to challenge his or her murder conviction based on the contention that he or she was not a major participant in the underlying felony who acted with reckless indifference to human life, are the changes Senate Bill 1437 made to
I believe York‘s analysis is unsound for the reasons given in People v. Allison (Oct. 2, 2020, No. B300575) __ Cal.App.5th __ [2020 Cal.App. Lexis 925] (Allison). As Allison explains, “notwithstanding York‘s cautious footnote, the consequence of York‘s analysis is that no prior jury findings would ever preclude relief under
“We do not believe it is reasonable to interpret
“For these reasons, we disagree with York and believe that People v. Verdugo (2020) 44 Cal.App.5th 320, review granted March 18, 2020, S260493, correctly describes the role of prior factual findings in analysis of a petition under
For all of the foregoing reasons, I agree with the majority opinion that Galvan and Gomez are correct:
I further agree with the majority opinion that one possible source of York‘s missteps is its failure to attend carefully to the terms of the statute. The second sentence of the opinion states that
York relied on Torres and Smith, both of which are problematic for similar reasons. Both Torres and Smith focused on whether the jury‘s pre-Banks/Clark special circumstance finding is preclusive. (Torres, supra, 46 Cal.App.5th at pp. 1178-1180; Smith, supra, 49 Cal.App.5th at pp. 93-94.) But neither case addressed the question of whether the petitioner made any showing that he met the requirements of
For example, Torres concluded that reversal was required because there was “a possibility that [the petitioner] was punished for conduct that is not prohibited [under current law].” (Torres, supra, 46 Cal.App.5th at p. 1180, italics added.) But
Torres did not analyze whether the petitioner made a prima facie showing in the trial court that he could not be convicted under current law. Nor did Torres analyze whether the petitioner demonstrated on appeal that it was reasonably probable that he would be able to make such a showing on remand. If the petitioner did not do so, then he failed to show prejudice, so reversal was not warranted. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) Indeed, Torres did not even answer the question whether it was possible that the petitioner could make such a showing on remand.
Smith is similar. Smith reversed because it was “conceivable that [the petitioner] may be able to provide evidence not presented at trial that would demonstrate either that he was not a major participant in the robbery or did not act with reckless indifference to human life.” (Smith, supra, 49 Cal.App.5th at p. 95, italics added.) Again, the analysis applies the wrong standard, both for the trial court‘s determination of eligibility or entitlement to relief and for the appellate court‘s determination of prejudice. The petitioner‘s burden in the trial court is not merely to show that he was not a major participant who acted with reckless indifference but rather to show that he could not be found to be a major participant who acted with reckless indifference (and hence could not be convicted of murder). And in order to find any error by the trial court prejudicial, the appellate court must find not merely that it is conceivable that the appellant could have obtained a better result absent the error but rather that it is reasonably probable that the appellant would obtain а better result. Smith contains no analysis applying the proper standards. That is, it did not analyze whether the appellant showed on appeal that it was reasonably probable that on remand he would be able to show that he could not be convicted of murder because of Senate Bill 1437‘s changes to
There is one additional aspect of York‘s criticism of Galvan that is puzzling. The majority opinion in York asserts that Galvan mischaracterizes prior case law as holding that “a defendant may challenge a felony murder special circumstance by means of a
It is not clear what point the York opinions are making here, or what error in Galvan they purport to identify. On the one hand, Galvan expressly agreed with the proposition that
Thus, it appears to be universally agreed that
III. Section 1170.95 and Due Process
Torres suggested that failing to reverse the denial of the appellant‘s petition would implicate due process: Because the pre-Banks/Clark jury‘s special circumstance finding did not actually “resolve[] key disputed facts,” it was possible that the petitioner “was punished for conduct that is not prohibited by
In Miller, the court granted a habeas petition seeking to vacate a pre-Banks/Clark special circumstance finding on the ground that it was not supported by substantial evidence. (Miller, supra, 14 Cal.App.5th at pp. 974-977Banks/Clark direct appeal. (Id. at p. 977.) The court disagreed, because (1) “[f]or purposes of legal analysis, Banks and Clark did not create new law; they simply stated what
I agree with all of that reasoning from Miller, but Torres misapplied it. Miller concluded that the special circumstance finding was not supported by substantial evidence under Banks and Clark, so it would violate due process to punish the defendant on the basis of that finding. But in Torres, the court did not conclude that the special circumstance finding was not supported by substantial evidence under Banks and Clark.
For all of the foregoing reasons, I agree with the majority that we should follow Gomez and Galvan, not Smith, Torres, and York. There is no basis to disregard pre-Banks/Clark special circumstance findings, which should have the same preclusive effect as post-Banks/Clark findings (subject to post-Banks/Clark substantial evidence review on habeas, as in Miller).
MENETREZ
J.