People v. SecreasePeople v. Secrease
In an unpublished opinion, this court affirmed the conviction, but remanded for resentencing because the trial court failed to consider a discretionary reduction of the sentence to 25 years to life based on Secrease‘s youth at the time of the crime. (People v. Secrease (Feb. 21, 2001, A084777) [nonpub. opn.] (Secrease I).) On remand, Secrease was again sentenced to life
In July 2019, represented by privately retained counsel, Secrease filed a verified
We are asked to decide whether a felony-murder special-circumstance finding by the jury that convicted Secrease in 1998 bars him from pleading a prima facie case for
Because no court has ever determined whether the felony-murder special-circumstance finding rendered against Secrease meets the minimum standards of personal culpability enunciated in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), we hold that he is entitled to such a determination before his
I. BACKGROUND
A. Facts
We take the following facts from our unpublished opinion in Secrease I:
“On September 15, 1996, a police officer found David Iano lying on the road near the Vallejo waterfront; he was bleeding profusely from a gunshot wound to the head. He died from the gunshot wound, which was fired from a range of two to twelve inches. The bullet entered the right front of his head and exited the left rear, with a slightly upwards trajectory. Earlier that afternoon the victim had left his pickup truck at his residence with a ‘for sale’ sign on it.
“On September 29, 1996, a San Pablo police officer found the victim‘s pickup truck parked across the street from Ericc Pickett‘s house. The engine was lying on the ground. There was blood spatter on the passenger floorboard. Pickett approached the officer and claimed that the vehicle belonged to him. He had the keys to the truck. A search of his residence led to the discovery of a manual on how to rebuild similar truck engines.3 A criminalist later found human blood smears across the truck seat from left to right and inside the frame of the passenger door. There was human blood spatter on the ceiling of the truck cab.
“Defendant made two statements to the police regarding the crime. On the date that the victim‘s truck was discovered, the police contacted defendant
at his sister‘s house in San Pablo. Defendant indicated that two weeks earlier he had given his friend Ericc Pickett a ride to Vallejo to purchase a pickup truck. Defendant‘s girlfriend4 accompanied them. Defendant said he gave Pickett a ride to the gas station, dropped him off, and observed him go to a pay phone. Defendant stated that he and his girlfriend then drove back to Contra Costa County. According to defendant, a day or two later he went to Pickett‘s house and helped him remove the engine from the truck, which was parked across the street from Pickett‘s house. Defendant claimed that he did not see any blood in the truck. He returned to Pickett‘s house a couple of other times and the truck was still there.
“The next day, September 30, 1996, defendant was arrested and interviewed by a detective. Defendant stated that on September 15, 1996, he and the woman he referred to as Belinda Anderson drove to Vallejo; he gave Ericc Pickett a ride. Defendant said that Pickett was interested in a pickup truck that had a large engine he wished to remove. Defendant told the detective that Pickett indicated during the drive to Vallejo that after he looked at the truck, he would return and steal it and that if the owner got in his way, he was going to ‘whip his ass,’ or something to that effect. Defendant believed that Pickett was carrying a gun. Defendant indicated that while Pickett did not directly state that he had a firearm, his comments made defendant believe that he did. According to defendant, he parked the car at a Raley‘s shopping center across the street from the victim‘s home. Defendant said that ‘Anderson’ stayed in his car, while he walked with Pickett to the victim‘s house. Defendant told the detective that Pickett contacted the victim and arranged for a test drive. Defendant indicated that the victim drove,
“According to defendant, as the victim slowed to make a U-turn, Pickett pulled out a gun and shot him once in the head. The victim collapsed into defendant‘s lap as the truck came to a stop. Defendant said that he asked Pickett why he shot the victim; Pickett replied, ‘Shut up or you‘ll get yours.’ Defendant stated that he then crawled over Pickett and got out of the car. Pickett dragged the victim out of the vehicle and left him on the road. Defendant claimed that Pickett yelled at him to get back into the truck. The floor of the truck was covered in blood and defendant had blood on his face, arms, and hands. Pickett also had blood on his body and clothes. Defendant said that he got back into the truck and they drove to the Raley‘s shopping center, where he retrieved his car, and then drove back to San Pablo with ‘Anderson.’ According to defendant, Pickett threatened him if he talked about the incident. Defendant told police that he would not have accompanied Pickett had he known what was going to happen; he thought Pickett was going to return later, on his own, to steal the truck.
“Defendant stated that he returned to Pickett‘s house on at least two occasions to assist in removing the engine from the pickup and to clean up the blood. He said that he spoke to Vivian Patton (his girlfriend‘s real name) in order to arrange for an alibi.
“Defendant made statements to two civilian witnesses, indicating that he had shot the victim. Ericc Pickett‘s former girlfriend, Renea Monique Webb, was at Pickett‘s house a few days after the shooting. Defendant was present. She asked them how they acquired the truck. Defendant told her the
“Defendant‘s now former girlfriend, Vivian Patton, testified that she accompanied defendant and Ericc Pickett to Vallejo on September 15, 1996; she intended to visit her mother in Vallejo. During the drive, defendant sang along with a rap song that referred to killing someone and taking their possessions. They parked near a Raley‘s store and defendant and Pickett got out of the car; Patton remained behind. Approximately 30 to 45 minutes later, defendant returned without Pickett. He drove back to Patton‘s home. When they got to her residence, she noticed blood on his jacket, jeans, and shoes. She confronted him and asked what had happened. She said that defendant told her that he and Ericc went to Vallejo about a truck and that ‘he had shot the guy. Like I said, he said he shot the guy.’ Because the odor of blood
“Patton‘s account to the police changed over time. When interviewed, she first told the police that she knew of Pickett, but that she had never seen him. She later said she went to Raley‘s with defendant and Pickett but denied knowing anything else. She subsequently told them about seeing the blood on defendant‘s clothing and told them that defendant said he was the shooter.” (Secrease I, supra, A084777.)
B. Trial, Verdict, and Appeal6
The prosecution pursued alternative theories of first degree murder liability at Secrease‘s trial in 1998. It presented the case to the jury on the theory that Secrease could be convicted as a direct perpetrator based on his statements to Webb and Patton that he was the shooter, or, alternatively, as an aider and abettor based on his participation in the plan to carry out a carjacking and his knowledge that Pickett was armed and willing to use violence if necessary. The jury returned a verdict convicting Secrease of both first degree murder and carjacking, without specifying the basis for the murder conviction. It found the felony-murder special-circumstance allegation true, but found not true two firearm use allegations under
We went on to conclude that the evidence was “sufficient to support defendant‘s conviction of first degree murder, either under the theory that he was the shooter or [that he] . . . aide[d] and abet[ted]” felony murder, with carjacking as the underlying felony. (Secrease I, supra, A084777.) In upholding the alternative theory of aiding and abetting felony murder, we cited then well-established precedent applying the doctrine of natural and probable consequences, which no longer applies to murder charges in light of Senate Bill 1437. (See ibid., citing People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; People v. Escobar (1996) 48 Cal.App.4th 999, 1018–1019.) Our opinion does not address whether, as another basis for first degree murder liability, the evidence was sufficient to support conviction on the ground that Secrease
Our sufficiency-of-the-evidence analysis for the felony-murder special-circumstance finding under
Relying solely on the jury‘s
II. DISCUSSION
A. Senate Bill 1437
Senate Bill 1437 “significantly modif[ied] the law relating to accomplice liability for murder” (People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review granted Mar. 18, 2020, S260493 (Verdugo)) by amending sections 188 and 189. (See People v. Gentile (2020) 10 Cal.5th 830, 842–847.) “In its uncodified findings and declarations the Legislature stated, ‘It is necessary to amend the felony murder rule . . . 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
term ‘special circumstance,’ did ‘not even state that the murder was committed during the carjacking,’ and did not call for findings as to whether defendant was the actual killer, an aider and abettor with the intent to kill, or an aider and abettor who acted as a major participant with reckless indifference to human life.” (Secrease I, supra, A084777.) We rejected this line of argument, explaining that “[w]e fail to see how the jury could have been misled or confused by the verdict form when it is considered in conjunction with the instructions provided to them.” (Ibid.)
Senate Bill 1437 also enacted
The initial procedural steps required for resolution of a
prosecution ordered before any determination of the adequacy of a prima facie case is made. (Id. at pp. 112, 123.)
This split in authority is not implicated here. We are dealing only with prima facie entitlement to relief.
B. Prima Facie Showing of Entitlement to Relief
1. Applicable Standards
Because we are tasked with applying the
In applying the de novo standard, we accept the pleaded facts as true (Drayton, supra, 47 Cal.App.5th at p. 980), but evaluate those facts in light of facts readily ascertainable from the record of conviction, including our opinion in Secrease I. (People v. Lewis, supra, 43 Cal.App.5th at pp. 1137–1138, review granted; id. at p. 1136, fn. 7 [in determining the sufficiency of a
The Legislature‘s use of prima facie case entitlement to relief as the gateway determination that dictates whether a petitioner may proceed to an evidentiary hearing tracks the approach courts have taken to the preliminary processing of resentencing petitions in Proposition 47 proceedings. (People v. Page (2017) 3 Cal.5th 1175, 1188–1189; Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) The Drayton court‘s application of this concept
Under the habeas standard of pleading practice—a model we join Drayton in adopting—the trial court stands ready to reject any allegation of the petition that is conclusively refuted by the record of conviction, but otherwise accepts the allegations of the petition as true, and must proceed to “[a]n evidentiary hearing . . . if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner‘s entitlement to relief depends on the resolution of an issue of fact.” (Cal. Rules of Court, rule 4.551(f).)
2. The Petition and Allegations of Prima Facie Entitlement to Relief in This Case
With the guidance of counsel, Secrease filed a detailed, verified petition alleging (1) “he is a person against whom a[n] ‘information . . . was filed . . . that allowed the prosecution to proceed under a theory of felony murder’ “; (2) he ” ‘was convicted of first degree [] murder following a trial’ “; and (3) he ” ‘could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ ” (
The first two elements of Secrease‘s claimed entitlement to resentencing relief are undisputed. The linchpin issue in this case is whether his attempt to plead the third requisite element—that he could not be convicted of murder today because of changes brought about by Senate Bill 1437—is conclusively refuted by the record. That issue in turn depends on Secrease‘s further
The Attorney General urges us to affirm on the ground that Secrease‘s jury found the felony-murder special-circumstance allegation to be true. In support of this contention, he offers the same rationale that the trial court relied upon: The felony-murder special-circumstance finding necessarily required the jury to find Secrease was a major participant in the carjacking and in carrying it out acted with reckless indifference to Iano‘s life. That, we are told, is sufficient to support a first degree murder conviction even today under section 189, as revised by Senate Bill 1437, which defeats Secrease‘s ability to allege a prima facie case for entitlement to
But when probed as to the basis for this contention at oral argument, the Deputy Attorney General took a position consistent with the approach we took in Secrease I in analyzing the sufficiency of the evidence supporting the special circumstance finding. She pointed to evidence that Secrease may have been the shooter or may have directly aided and abetted the shooter. Under this slightly expanded version of the argument for affirmance, Secrease would be foreclosed from alleging all of the key facts supporting his claim that he could not be convicted of murder under current law—not only his denial that he was a major participant in the carjacking who acted with reckless indifference to human life, but also his denial that he was the actual killer or that he aided and abetted the killing while sharing the intent to kill.
If, following People v. Garcia (2020) 57 Cal.App.5th 100, 106, review granted February 10, 2021, S265692, we were to read the conditional phrase “could not be convicted of first . . . degree murder” (
While that question may be answered adversely to the petitioner as a matter of law at the prima facie case stage of a
Taking this vicarious liability theory out of the equation, as we must, it is certainly not “readily ascertainable” on this record that the jury found Secrease was the shooter or shared the murderous intent of the shooter. Because we must focus on what the jury actually found in 1998, not what it could have found, Secrease‘s ability to plead a prima facie case for resentencing relief turns on what we can discern, objectively, from the verdict as read in light of the record of conviction. What we know is that the jury found Secrease guilty of carjacking and first degree murder (possibly under the pre-Senate Bill 1437 formulation of the felony-murder rule), but was unable to find he was the shooter or that he used a gun in the carjacking. We also know that the jury necessarily found at least that Secrease was a major participant in the carjacking and acted with reckless indifference to human life, since under CALJIC No. 8.80.1 as given, those two subsidiary findings were required in order to find the felony-murder special-circumstance charge to be true.
Is this enough to defeat Secrease‘s resentencing petition as a matter of law at the prima facie entitlement-to-relief stage of this
C. Leading Cases Construing the Felony-murder Special-circumstance Statute: People v. Estrada, People v. Banks, and People v. Clark
The background legal context is crucial here, so we begin our analysis by summarizing the legal parameters of the felony-murder special-circumstance statute, as well as the evolution of the case law construing it. Felony murder is one of 22 special circumstances that determine eligibility for the death penalty or life without possibility of parole in murder cases. (
1. Estrada
Although
To accurately convey the concept of ” ‘grave risk of death’ “—which is the language used in Tison v. Arizona (1987) 481 U.S. 137, 157 (Tison), a capital case decided by the United States Supreme Court that served as the model for
2. Banks
In Banks, defendants Banks, Gardiner, Daniels, and Matthews robbed a medical marijuana dispensary. (Banks, supra, 61 Cal.4th at p. 795.) Matthews, driving an SUV, dropped his armed coperpetrators off at the dispensary, and then parked nearby, staying in touch with them by cell phone message while the robbery was taking place. (Id. at pp. 795-796, 805.) Confronted by a security guard while escaping, Banks shot the guard to death in an exchange of gunfire. (Ibid.) There was no evidence of Matthews‘s role other than as a driver. He did not procure any of the weapons used; he was not present when the shooting took place; and he had no knowledge that his accomplices had killed before. (Id. at p. 805.) While Estrada addressed the meaning of the statutory language used in
The opinions in Banks and Estrada began from the same premise—that the language of
To illustrate this spectrum of culpability, the court undertook a close comparison of the facts in Enmund and Tison, starting with the facts in Enmund, where the defendant acted solely as a getaway driver and had no advance knowledge of his coperpetrators’ murderous intent. (Banks, supra, 61 Cal.4th at p. 799.) The court contrasted that scenario with the facts in Tison, which involved two brothers, Ricky and Raymond Tison, who helped their father, Gary Tison, and his cellmate, who were both serving life sentences for murders, plan and carry out a prison escape. (Id. at pp. 799, 802-803.) In doing so, they supplied weapons for the prison break and held guards at gunpoint. (Id. at pp. 802-803.) Following the escape from prison, the brothers participated in the armed carjacking of a passing car. (Id. at
” ‘Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery,’ ” the Banks court pointed out, the Tison brothers were ” ‘actively involved in every element of the kidnapping-robbery’ ” and were ” ‘physically present during the entire sequence of criminal activity culminating’ ” in the four murders. (Banks, supra, 61 Cal.4th at p. 802.) They held the doomed family at gunpoint while “the two murderers deliberated whether [they] should live or die, then stood by while [they] were shot.” (Ibid.) On these facts, in a holding that became the source of the language in
Based on this factual comparison of Tison and Enmund, the Banks court identified the following specific factors as relevant in making culpability distinctions: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.) “No one of these
Applying the above criteria to the facts before it, the Banks court held the evidence there was insufficient to support a jury‘s felony-murder special-circumstance finding against Matthews. With respect to the issue of major participation, “[t]he evidence in the record places Matthews at the Enmund pole of the Tison-Enmund spectrum.” (Banks, supra, 61 Cal.4th at p. 805.) The court concluded that “[he] was, in short, no more than a getaway driver, guilty like Earl Enmund of ‘felony murder simpliciter’ [citations] but nothing greater.” (Ibid.) And as for the mental component, the evidence showed that although Matthews was aware he was a participant in an armed robbery, “nothing at trial supported the conclusion beyond a reasonable doubt that [he] knew his own actions would involve a grave risk of death.” (Id. at p. 807.)
3. Clark
In Clark, the court applied and built upon the Banks framework of analysis, focusing its holding on the mens rea component. William Clark, the defendant, was one of a group of perpetrators of the armed robbery of a computer store. (Clark, supra, 63 Cal.4th at pp. 536-537Id. at pp. 613, 620-621Id. at pp. 612-613Ibid.) Ervin, who had a single live round in his gun, shot Lee to death. (Ibid.) But there was no evidence that “Ervin was known to have a propensity for violence, let alone evidence indicating that [Clark] was aware of such a propensity.” (Id. at p. 621.)
The court emphasized, as it did in Banks, that special circumstance felony murder requires a greater level of culpability than felony murder per se. (Clark, supra, 63 Cal.4th at pp. 615-616section 190.2, subdivision (d). (Clark, supra, at pp. 616-617Id. at pp. 617-618.)
To assess whether the evidence is sufficient to cross the threshold to death eligibility, the court outlined the following five factors as pertinent: (1) the defendant‘s knowledge of weapons, number of weapons, and whether the defendant used a weapon; (2) the defendant‘s physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the felony; (4) the defendant‘s knowledge of a cohort‘s likelihood of killing; and (5) the defendant‘s efforts to minimize the risks of violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-622Id. at pp. 614, 623.) Ervin was the only shooter; Clark had planned the robbery to minimize violence; and because Clark was not present at the
4. Cases Applying Banks and Clark
In the years immediately following the decisions in Banks and Clark, courts applied the standards enunciated in those cases in the setting of habeas corpus (In re Miller (2017) 14 Cal.App.5th 960, 973-974), and in
The courts so holding point out that major participation and reckless disregard of human life have always been required elements of a special circumstance finding under
These courts see no basis to graft what is, in effect, an exhaustion requirement onto
D. Preclusive Effect of Pre-Banks and Clark Felony-murder Special-circumstance Finding in Section 1170.95 Proceedings
1. A Prior Jury Felony-murder Special-circumstance Finding Cannot Defeat a Prima Facie Case for Entitlement to Relief Under Section 1170.95, Subdivision (c) Absent a Judicial Determination That the Evidence Was Sufficient To Support It Under Banks and Clark
We agree with the panels in Torres, Smith, and York that a murder defendant facing a pre-Banks and Clark felony-murder special circumstance may properly allege that the murder conviction is no longer valid “because of changes to
While it is true that the language of
Although overall we find Torres, Smith, and York to be more persuasive, we agree with a central premise of the reasoning in Jones and Allison. We think it is correct that
As is always the case with sufficiency-of-the-evidence review, the application of Banks and Clark to a given set of facts ultimately presents an issue of law. Presumably, that is why even the panels requiring pre-Banks and Clark felony-murder special-circumstances defendants to proceed in habeas corpus as a prerequisite to seeking
Our focus must be on what the Legislature intended, starting with its expressed intent in the statutory language, and always keeping in mind the statute‘s evident purpose. (People v. Valencia (2017) 3 Cal.5th 347, 357-358.) The most natural reading of
The Jones and Allison courts downplay the significance of Banks and ClarkBanks and Clark merely clarified the law as it always was and that the current form of CALCRIM jury instructions designed to capture the Supreme Court‘s guidance in those cases is merely optional. (Allison, supra, 55 Cal.App.5th at pp. 458-459; Jones, supra, 56 Cal.App.5th at pp. 482-485, review granted.) But the heart of the problem we deal with here is not that Secrease‘s jury received inadequate instructions in 1998; under Estrada, the instructions were correct as given, as we confirmed in Secrease I.15 Rather, the problem is that no court has ever reviewed that jury‘s special circumstance finding under Banks and Clark standards. (Torres, supra, 46 Cal.App.5th at p. 1180, review granted.) Surely no one
If the factual findings underlying a jury‘s felony-murder special-circumstance determination are legally insufficient under Banks and Clark, we do not see how those findings can conclusively refute a prima facie showing of entitlement to resentencing relief. Because the changes made to
2. Statutory Text, Structure, Purpose, and Legislative History
Three features of the statute convince us that the approach taken in Torres, Smith, and York to pre-Banks and Clark felony-murder special-circumstances petitioners is correct. First, the statutory text suggests the Legislature saw the new
Third, we find it significant that
Looking beyond statutory text to a consideration of statutory purpose, at that level, too, we see no basis for requiring felony-murder petitioners to resort first to habeas corpus. The Attorney General correctly describes
The remedy of habeas corpus, by contrast, is subject to an array of judge-made rules designed to protect presumptively valid final judgments from endlessly repetitive collateral attacks as the law evolves over time. (In re Reno (2012) 55 Cal.4th 428, 451-452; In re Clark (1993) 5 Cal.4th 750, 764.) The Galvan and Allison courts express concern about allowing pre-Banks and Clark felony-murder special-circumstances defendants to invoke
It is true that, beginning in 2015, with the decision in Banks, the remedy of habeas corpus has been available to pre-Banks and Clark defendants, but no habeas court must entertain such a petition on the merits or give reasons for a denial of relief. As a result, the problem of differential treatment cuts in favor of the Torres, York, and Smith reading of
Taking one final step in the interpretative process, since
Given the citation to Banks in the legislative history to illustrate trends toward needed reform, it strikes us as implausible that the Legislature intended to exclude every defendant facing a felony-murder special-circumstance finding from eligibility for
With all of the above considerations in mind—statutory text and structure, statutory purpose, and legislative history—we think the better approach is to analyze the binding effect of a
E. The Preclusive Effect of the Prior Jury Finding of a Felony-murder Special Circumstance in This Case
1. On the Limited Record Before Us, We Cannot Say the Evidence Is Sufficient To Meet the Banks and Clark Standards, Foreclosing Relief
Turning to the specific facts of this case as alleged in Secrease‘s verified petition: The carjacking was Pickett‘s idea and the motive for it—to steal Iano‘s truck and remove its engine as a replacement for the engine in Pickett‘s truck—was Pickett‘s idea as well; of the two perpetrators, Pickett was the only one who was armed; Iano died of a single gunshot and there was only one shooter; the jury acquitted Secrease of using a weapon in the carjacking or in the murder; Secrease was unaware Pickett intended to shoot Iano and did not know Pickett to be someone who was capable of homicidal violence; Secrease thought that he and Pickett were simply going for a test drive, and that Pickett was going to return later to steal the truck; the shooting and Iano‘s death occurred rapidly, leaving Secrease no time to intervene or render aid; Secrease reacted with horror to the shooting when it occurred; Pickett told others he, not Secrease, shot Iano, and in the aftermath of the shooting, Pickett coerced Secrease into helping to cover up the crime by threatening him. None of this contradicts anything the jury necessarily found in Secrease I.
Banks and Clark hold that evidence showing no more than that a defendant is guilty of felony murder simpliciter, even if he knows a coperpetrator is armed, is insufficient to meet the minimum individual culpability standard of reckless indifference to human life. Taking what Secrease now alleges to be true, Pickett‘s plan was to steal the truck after the test drive, a scenario in which it was not clear the victim would have even been present, let alone harmed, in the course of the crime. Under the prevailing law in 2001, we addressed this scenario in Secrease I, since it was
2. A Banks and Clark Sufficiency-of-the-Evidence Review Must Be Undertaken by the Trial Court Before the Preclusive Effect of the Felony-murder Special-circumstance Finding Can Be Determined
Although the facts alleged by Secrease suggest that the Banks and Clark standards cannot be met, the record of conviction before us—which consists almost entirely of what we can discern from Secrease I—is too sparse to make a definitive assessment of that issue one way or another. There may be aspects of the record the prosecution had no need to bring forward when it opposed relief solely on the ground that the special circumstance finding, without examination of the evidence behind it, justified denial as a matter of law. We will therefore remand so that a sufficiency-of-the-evidence review under Banks and Clark may be undertaken in light of the full record of conviction, including the trial evidence. Ultimately, the felony-murder special-circumstance finding against Secrease may foreclose resentencing as a matter of law, but only if the court concludes on review of the trial record that the evidence meets the minimum threshold of personal culpability set by Banks and Clark.
People v. Price (2017) 8 Cal.App.5th 409, one of the cases cited by the Attorney General, raises the question whether, on remand, and as part of its Banks and Clark sufficiency-of-the-evidence review, the court may consider evidence that Secrease was the actual killer, despite the jury‘s not true finding on the weapons use allegations. In Price, the victim, Merrill, was shot to
On appeal, defendant Price unsuccessfully argued the evidence was insufficient to support the special circumstance finding under Banks and ClarkPrice, supra, 8 Cal.App.5th at pp. 451-454.) After considering “all of the evidence presented to the jury regarding Price‘s role in the murder, including the evidence indicating Price was the actual shooter“—testimony from Fells pointing the finger at Price—the court concluded that “the evidence of felony murder against Price was strong” and that “the jury could readily have concluded that she was the person who played the most prominent role both in planning to rob Merrill and in robbing him and killing him, and that she intended to shoot him and did so.” (Id. at pp. 452-453.) Then, in an alternative holding, the panel concluded that the evidence of Price‘s prominent role in Merrill‘s murder was so strong that, even disregarding Fells‘s testimony identifying Price as the shooter, it “would make no difference.” (Id. at p. 453.)
Notably, Price did not show any error in the vicarious liability instructions given in that case, and as a result, the court was not called upon to consider whether the availability of a legally invalid theory of murder may have affected the special circumstance finding under review. Here, by
We recognize the Rodriguez court found this mode of analysis inappropriate when reviewing a subdivision (d) determination (People v. Rodriguez, supra, 58 Cal.App.5th at pp. 239-240, review granted), but this context on review of a subdivision (c) determination is different. In order to give the special circumstance finding rendered along with Secrease‘s conviction preclusive effect at the subdivision (c) stage, we must first decide what that finding actually and necessarily adjudicated. And on the limited record before us, applying the Aledamat framework of analysis by analogy, we can say no more than this: While there is some evidence that in the aftermath of Iano‘s murder Secrease told others he was the shooter and that on the ride to Vallejo he sang along to a rap song suggesting homicidal intent, this evidence is not so strong that it justifies the conclusion beyond a reasonable doubt that the jury would have found true the special-circumstance felony
3. Guidance on Remand
On remand, the trial court is free to draw a different conclusion after review of the record of conviction in its entirety, subject to the following guidance. First, we are remanding the case for resumption of proceedings at the
Second, in conducting its review under Banks and Clark, the trial court may take into account anything in the trial record the parties bring to its attention,24 but must disregard the prosecution‘s theories that Secrease was
the shooter or acted with intent to kill. Because nothing in the verdict or the findings accompanying the verdict indicates that the jury actually and necessarily adopted either of those alternative theories, they are not relevant at this stage. Under the pleading standards enunciated in Drayton, Secrease‘s allegations that he was not the actual killer and did not intend to kill are not irrefutably rebutted by the record of conviction. The focus of the Banks and Clark sufficiency-of-the-evidence review will be solely on whether Secrease is a “person, not the actual killer” who acted as “a major participant” in an enumerated felony “with reckless indifference to human life” (
Third, should the case eventually proceed to an evidentiary hearing, it remains possible that the court may determine Secrease was the shooter, or had the intent to kill and thus is liable for directly aiding and abetting murder or felony murder. The reasoning in our Secrease I opinion, which relies on People v. Santamaria, supra, 8 Cal.4th 903, remains sound. Under Santamaria, the not true finding on use of a weapon does not mean the
F. Harmless Error
The Attorney General argues that, even if the trial court erred by denying Secrease‘s verified petition without an evidentiary hearing, the error was harmless. Whether the facts are sufficient to support an allegation of special-circumstance murder, the Attorney General points out, is an issue of law. It ” ‘does not require resolution of disputed facts; the facts are a given,’ ” and the only question is whether they are ” ‘legally insufficient under section 190.2 as elucidated in Banks and Clark.’ ” (In re Miller, supra, 14 Cal.App.5th at p. 980.) We have no quarrel with that premise, but it assumes a sufficient record to make such a determination, which is missing here. The remainder of the Attorney General‘s argument rests on flawed logic. We disagree that if this court “were to hold that the petitioner‘s conviction falls short of the Banks and Clark standard,” we “would essentially be making a finding under
The issue the trial court decided here—and the issue we are reviewing—is not the merits of entitlement to relief, but more narrowly entitlement to an evidentiary hearing under
III. DISPOSITION
The order denying Secrease‘s verified
STREETER, Acting P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
Trial Judge: Hon. Tim Kam
Counsel: Law Office of Charles Carbone and Charles Carbone, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon and Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.
A158342
Notes
We take this instructional language from Secrease‘s petition for review by the California Supreme Court, filed in 2001 (of which we take judicial notice (