THE PEOPLE, Plaintiff and Respondent, v. RICHARD CURTIS MORRIS, JR., Defendant and Appellant.
G061916
(Super. Ct. No. 08CF1591)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed 3/22/24
CERTIFIED FOR PUBLICATION
OPINION
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
This case calls on us to address the actus reus required to convict a nonkiller of first degree murder under the amended felony-murder statute when the nonkiller acts with an intent to kill. (
We disagree with defendant on the law and its application in this case. A person who, with an intent to kill, directly commits or aids and abets an enumerated felony in which a death occurs commits the actus reus necessary for felony murdеr under the amended felony-murder statute by acting in furtherance of the common design of the felony. (See People v. Curiel (2023) 15 Cal.5th 433, 464 (Curiel).) The jury instructions and jury verdicts in this case establish the jury necessarily concluded defendant possessed an intent to kill during the commission of the underlying felonies and aided and abetted the actual killer in committing those felonies. Because the record of conviction establishes, as a matter of law, defendant is not eligible for resentencing, the trial court properly denied the Petition without issuing an order to show cause and holding an evidentiary hearing. Accordingly, we affirm the postjudgment order.
FACTS2
“James Stockwell owned the Mustang Club topless bar. On January 1, 1987, Stockwell returned to his condominium with his girlfriend, [S.]F., about 11:00 p.m. As they entered the condominium from the garage, [S.F.] and Stockwell were attacked by a man carrying a gun. As instructed, [S.F.] and Stockwell lay down on the dining room floor. As Stockwell was being handcuffed, [S.F.] noticed the presence of a second man. [S.F.] and Stockwell offered the men money and jewelry, and Stockwell offered to take them to his club to obtain more money.
“One of the men took Stockwell upstairs. The other man then took [S.F.] upstairs; she saw Stockwell face down at the top of the stairs, where he was
“After the men left in Stockwell‘s Camaro, [S.F.] saw Stockwell on the floor, and realized he had been shot. [S.F.] had not heard any gunshots. [S.F.] ran to a neighbor‘s home for help. When she and the neighbor returned to her condominium, they discovered Stockwell was dead. A .22-caliber shell casing was found near Stockwell‘s body. Stockwell died as a result of a single gunshot wound to the head from a small caliber bullet.
“A standard forensic sexual assault examination was performed on [S.F.] at the hospital, and various samples were collected from [S.F.]‘s clothes and body. In 1987, blood type analysis was performed on the samples; DNA analysis was not then available. The samples were analyzed again in 2009 and 2012, using DNA testing. Defendant‘s DNA matched the DNA from the samples on all 15 markers used. . . .” (Morris I, supra, G048926.)
PROCEDURAL BACKGROUND
In 2013, a jury found defendant guilty of first degree murder (
Roughly nine years later, defendant filed the Petition seeking resentencing pursuant to
The trial court held a hearing at which it summarily denied the Petition. In a written statement of decision, the court explained: although the jury was instructed on two theories of first degree murder, namely premeditated and deliberate murder and felony murder, the jury was also instructed on three felony-murder special circumstances; the special circumstance instructions
Defendant timely appealed.
DISCUSSION
Defendant contends the denial of the Petition at the prima facie stage was error because the jury could have convicted him of first degree murder under a now invalid felony-murder theory. Specifically, he argues nothing in the record of conviction evidences the jury made a finding that would satisfy the applicable actus reus required under the amended felony-murder statute. From his perspective, this means the record of conviction does not establish his resentencing ineligibility as a matter of law, and therefore, he is entitled to an evidentiary hearing. We conclude defendant‘s position is based on a misintеrpretation of the relevant law, and application of the correct law demonstrates the trial court did not err.
I. The Section 1172.6 Framework and Standard of Review
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was enacted 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).) It accomplished that purpose by substantively amending
Under
Persons convicted of felony murder or murder under a natural and probable consequences theory may seek resentencing pursuant to
If the record of conviction establishes, as a matter of law, the petitioner is not eligible for resentencing, the court may summarily deny the petition without further proceedings. (Strong, supra, 13 Cal.5th at p. 708; Harden, supra, 81 Cal.App.5th at p. 52.) If, on the other hand, the petitioner would be entitled to relief if his or her factual allegations were proven, the court must issue an order to show cause. (Strong, at p. 708.) At a subsequent hearing, the parties may offer new evidence and the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is ineligible for resentencing — i.e., would be guilty of murder under the amended statutes. (
We apply the de novo standard of review to an appeal from a trial court‘s denial of a
II. The Jury Instructions
At defendant‘s trial, the court instructed the jury on two theories of first degree murder liability: a premeditated and deliberate murder, and the former felony-murder rule. The jury was also instructed on aiding and abetting in the context of a felony murder: “In order to be guilty of murder[] as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the [r]ape and/or [r]obbery at the time the fatal wound was inflicted.”
With respect to the special circumstance allegations, the court instructed the jury with general special circumstance instructions, as well as instructions specific to the rape, robbery, and financial gain allegations against defendant. A CALJIC 8.80 instruction provided, in relevant part: “If you find the defendant in this case guilty of murder of the first degree, you must then
III. The Dispute
The prosecution contended below, and maintains on appeal, defendant is not eligible for resentencing as a matter of law because of the jury‘s true findings concerning the special circumstance allegations. So the argument goes, the jury instructions required the jury to find defendant acted with an intent to kill and a finding of such an intent precludes defendant from obtaining
Defendant does not dispute the jury‘s mens rea finding of intent to kill or the relevance of such a finding on liability under the amended felony-murder statute. Instead, for the first time on appeal, he focuses on the actus reus component of felony murder fоr an aider and abettor. Specifically, he notes a subtle difference in language between the CALJIC 8.80 instruction given to the jury in his case and the portion of amended
As amended,
Unlike the actual killer, a person who is not the actual killer must both have a certain mental state (mens rea) and have engaged in a specified act (actus reus) to be convicted of felony murder under the amended statutes. (
The statute speaks of aiding “the actual killer in the commission of murder in the first degree.” (
The Supreme Court‘s recent decision in Curiel lends credence to such an interpretation.3 There, in providing a contrasting example to the direct aiding and abetting and natural and probable consequences case before it, the court discussed the jury findings that would ordinarily preclude a nonkiller felony-murder defendant from resentencing eligibility. (Curiel, supra, 15 Cal.5th at p. 464.) Citing
Our reading of the statute is also consistent with the Supreme Court‘s earlier decision in People v. Dickey (2005) 35 Cal.4th 884 (Dickey). At issue there was the meaning of nearly identical statutory language formerly applicable to felony-murder special-circumstance findings: “Every person whether or not the actual killer found guilty of intentionally aiding, abetting . . . or assisting any actor in the commission of murder in the first degree shall . . . .” (Id. at p. 900, citing former
Our interpretation is also consistent with the legislative history of Senate Bill 1437. Among the Legislature‘s expressed purposes for adopting the statutory amendments was “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 wаs not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1.) The focus for the second category of persons was the mens rea, not the actus reus. This is underscored by statements in the final Senate report concerning the legislation: “This bill does not eliminate the felony murder rule. The purpose of this bill is to merely revise the felony murder rule to prohibit a participant in the commission or attempted commission of a felony that has been determined as inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1437 (2017–2018 Reg. Sess.) as amended Aug. 30, 2018, p. 7.)
Defendant urges us to interpret the statute to require an act that aids the killer in committing the killing for a person who possesses an intent to kill to be convicted under a felony-murder theory. This is not only inconsistent with the Supreme Court‘s statement in Curiel and the language of the statute discussed above which references “murder in the first degree,” not “killing,” but it also runs contrary to express legislative intent. An overarching goal of the Legislature was to ensure a person would be punished “according to his or her own level of individual culpability,” or stated differently, to “more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1.) Under defendant‘s interpretation, a person harboring the heightened mental state of аn intent to kill (i.e., express malice) would need to engage in a more significant act vis-à-vis the killing, namely assist the killing itself, than someone with the less culpable mental state of reckless indifference to human life, who would simply have to be a major participant in the underlying felony. Well-established principles of statutory interpretation caution against adopting an interpretation that runs counter to express legislative intent. ( Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227; People v. Crowles (1993) 20 Cal.App.4th 114, 118.)
People v. Ervin (2021) 72 Cal.App.5th 90 (Ervin), a murder resentencing case on which defendant heavily relies, is unavailing. There, in the underlying trial, the prosecution pursued two theories of first degree murder liability related to the death of a person whom defendant allegedly shot while committing a robbery with others: premeditated and deliberate murder, and felony murder. (Id. at p. 103.) The jury convicted the defendant of first degree murder and found true two felony-murder special-circumstance sentencing enhancement allegations. (Ibid.) It simultaneously found not true an allegation the defendant personally used a firearm in the commission of the murder. (Ibid.) The special circumstance instruction given stated that if the jury could not decide whether the defendant was the actual killer or an aider and abettor, then to find the special circumstance allegations true it needed to find the defendant “‘intended either to kill a human being or to aid another in the killing of a human being[.]‘” (Id. at p. 107, italics omitted.)
At the prima facie stage concerning the defendant‘s resentencing petition, the trial court agreed with the prosecution that the jury‘s felony-murder special-circumstance findings precluded the defendant from resentencing eligibility and denied the petition. (Ervin, supra, 72 Cal.App.5th at p. 100.) Another panel of this court reversed on appeal, concluding the special circumstance findings were not conclusive as a matter of law. (Id. at p. 111.) Two particularities led to that conclusion. First, at multiple points during the closing arguments, the prosecutor wrongly conveyed the jury could find the special circumstances true by simply finding the defendant participated in the underlying felony during which a person was killed without any mens rea finding. (Id. at pp. 109-110.) Second, the prosecutor based its case on the defendant being the actual shooter, but the jury found not true the allegation he used a firearm in committing the murder. (Id. at pp. 110-111Ervin reasoned “it [was] possible the jurors misinterpreted the [special circumstance] instruction” to mean they could find the special circumstances true by generally finding the defendant aided and abetted the commission of the underlying felonies and nothing more. (Id. at pp. 108-109.) According to Ervin, such a possible finding was not enough to preclude resentencing as a matter of law because the amended felony-murder statute requires the more specific finding of “aid[ing] and abet[ing] ‘the actual killer . . . with the intent to kill.‘” (Id. at p. 109.)
Ervin is not determinative of the matter raised in this case. With respect to the law, there is no indication the parties in that case raised a
V. Application of the Law to Defendant‘s Circumstances
Turning to the circumstances in this case, the record of conviction demonstrates as a matter of law defendant is not eligible for resentencing. Two jury instructions, and the verdicts related thereto, lead us to so conclude.
First, a special circumstance instruction specified that if the jury could not decide whether defendant was the actual killer or an aider and abettor, the jury needed to “find beyond a reasonable doubt the defendant with an intent to kill aided and abetted аn actor in the commission of the murder in the first degree” in order to render a true finding on any of the special circumstances. As previously stated, there is no dispute the jury‘s true findings on the three special circumstances necessarily mean it concluded defendant possessed a mens rea which would be sufficient for a felony-murder conviction under amended
Second, the court gave a felony-murder aider and abettor instruction, which provided in relevant part: “In order to be guilty of murder[] as an aider and abettor to felony murder, the accused and the killer must have been jointly engaged in the commission of the [r]ape and/or [r]obbery at the time the fatal wound was inflicted.” Thus, if the jury‘s first degree murder guilty verdict was based on a cоnclusion that defendant was simply an aider and abettor to felony murder, not the actual killer or a direct aider and abettor of premeditated murder (both of which would preclude entitlement to resentencing), the jury necessarily found defendant was engaged in committing the underlying
Because the jury‘s verdicts embody findings that could lead to defendant being convicted under amended
DISPOSITION
The postjudgment order is affirmed.
DELANEY, J.
I CONCUR:
O‘LEARY, P. J.
Moore, J., Dissenting.
A participant in a designated felony (e.g., a robbery or a rape) may be liable for first degree felony murder if a death occurs during the underlying felony. This appeal concerns only one theory of liability under California‘s revised (current) felony-murder rule: “The person was not the actual killer, but with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.” (
Here, there is no dispute that the record of conviction (the jury instructions and the verdicts) establishes as a matter of law that Richard Curtis Morris, Jr., acted with the requisite intent to kill (the mens rea). The dispositive issue is whether the record of conviction establishes as a matter of law that Morris also committed the requisite acts (the actus reus). (See People v. Curiel (2023) 15 Cal.5th 433, 463 (Curiel) [“A finding of intent to kill does not, standing alone, cover all of the required elements“].)
““When interpreting statutes, we begin with the plain, commonsense meaning of the language used by the Legislature. [Citation.] If the language is unambiguous, the plain meaning controls.“” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131.) “‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature[.]‘” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 850.) Our role “is simply to
ascertain and declare what the statute сontains, not to change its scope by reading into it language it does not contain or by reading out of it language it does.” (Vasquez v. State of California (2008) 45 Cal.4th 243, 253 (Vasquez).)
The language of
This plain meaning interpretation of
Conversely, the majority interprets the current felony-murder rule to mean that for a nonkiller participant in the underlying felony who acts with the
(the mens rea), the People need merely to prove as to the required acts (the actus reus) that the defendant “was engaged in committing the underlying felonies with ‘the killer’ at the time the homicidal act took place.” (Maj. opn., ante, p. 15.)
I respectfully disagree. The majority departs from the plain meaning of
To be clear, I agree with the majority that the jury instructions and verdicts in the instant case establish as a matter of law that Morris intended to kill, and he was engaged in committing the underlying felonies (rape and robbery) with the killer at the time the homicidal act took place. (See Maj. opn., ante, pp. 14–15.)
However, without considering the underlying facts, the record of conviction does not establish as a matter of law that Morris “aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.” (
Thus, I would reverse the trial court‘s ruling, which denied Morris‘s petition at the prima facie stage and remand the matter for an evidentiary hearing. (Former
The majority‘s holding largely relies on the Supreme Court‘s analysis in People v. Dickey (2005) 35 Cal.4th 884 (Dickey). But in Dickey, the Court was not interpreting the current felony-murder rule: aiding and abetting ”the actual killer in the commission of murder in the first degree.” (
However, the Supreme Court‘s analysis in Dickey was explicitly premised on the former felony-murder rule: “All persons aiding or abetting the commission of burglary or robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design.” (Dickey, supra, 35 Cal.4th at p. 900Dickey. (See People v. Strong (2022) 13 Cal.5th 698, 703 [“the Legislature significantly narrowed the scope of the felony-murder rule“].)
When the Legislature amended
In short, the Supreme Court‘s nearly two-decades-old analysis in Dickey does not apply to California‘s current felony-murder rule. (See, e.g., People v. Stevens (1996) 48 Cal.App.4th 982, 985 [the party‘s “position is based on an anаlysis no longer viable under California law“]; see also Dickey, supra, 35 Cal.4th at p. 901 [“It is axiomatic a decision does not
It may be helpful to illustrate the distinction between the two divergent interpretations of the current felony-murder rule by way of a hypothetical bank robbery involving three coparticipants. Defendant A entered the bank with a firearm and accidentally shot and killed a bank teller during the robbery. Defendant B also entered the bank with a firearm, but he did not intend to kill anyone. Defendant C was an unsavory character with the intent to kill, but his role in aiding and abetting the robbery was limited to keeping the getaway car running and watching the front door.
Defendant A is аlmost certainly liable for first degree felony murder because he was the actual killer, regardless of his mental state. (See
the People are able to prove he was a major participant in the robbery who acted with reckless indifference to human life. (See
Defendant C had the intent to kill, so under the majority‘s interpretation of
In this case, there must be a weighing of the evidence to determine if the People will meet their burden to prove Morris is guilty under one of the three liability theories under the current first degree felony-murder rule (analogous to the hypothetical), or some other viable murder liability theory under current law.
gang special circumstance]; People v. Strong, supra, 13 Cal.5th at p. 721 [defendant entitled to an evidentiary hearing despite jury‘s true finding as to a felony-murder special circumstance]; People v. Reyes (2023) 14 Cal.5th 981, 992 [defendant entitled to a second evidentiary hearing where trial court misunderstood the legal requirements of implied malice murder]; People v. Lewis, supra, 11 Cal.5th at pp. 962–964 [defendant entitled to the appointment of counsel upon the filing of a facially sufficient petition].)
For all the foregoing reasons, I respectfully dissent.
MOORE, J.