THE PEOPLE, Plаintiff and Respondent, v. DERRICK DANTE SWANSON, Defendant and Appellant.
B299638
(Los Angeles County Super. Ct. No. NA015162)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 11/19/20
CERTIFIED FOR PUBLICATION
APPEAL from an order of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
Derrick Swanson was convicted of first degree murder under the provocative аct doctrine. He filed a petition in the superior court under
Swanson contends
BACKGROUND
We take the facts from our opinion affirming Swanson‘s conviction. “On March 8, 1993, at approximately 8 p.m., appellant and Anthony Chapple robbed four individuals at gunpoint at a Long [B]each gas station. One of the victims, Ruben Garcia, worked at the gas station. The other victims were Garcia‘s wife Rosa, his brother, and a female customer.
“Appellant and Chapple forced the victims into a storage room where they took Rosa‘s jewelry and purse and several cartons of cigarettes. Then appellant, who had been told that Rosa was pregnant, grabbed her by the hair and dragged her into the front office. He called her a “fucking bitch” and told her he would kill her if she did not open the safe. After Rosa stated that she did not have the keys to the safe, аppellant shoved her toward the ground. When Garcia tried to stop appellant, Chapple threatened to shoot Garcia‘s brother. Meanwhile, the two assailants emptied the cash register and took all of the money that Garcia had in his wallet.
“Chapple died as a result of two bullet wounds inflicted by Garciа.
“In his defense, appellant claimed that Garcia unreasonably responded to the situation by shooting at him and Chapple. In support of his claim, appellant offered Garcia‘s initial statement to the defense investigator that he fired at the robbers because he wanted to retrieve the stolen money.” (People v. Swanson (July 31, 1995, B085170) [nonpub. opn.].)
Swanson was convicted of first degree murder (
Swanson claimed on appeal that insufficient evidence sustained the murder conviсtion under the provocative act doctrine, which holds that when an accomplice is killed by a victim during the commission of a robbery, the principal may be convicted of murder based on direct liability arising from the principal‘s own acts. (People v. Superior Court (Bennett) (1990) 223 Cal.App.3d 1166, 1172.) In affirming the conviction, we noted that Swanson not only assaulted Garcia‘s pregnant wife, but also gratuitously shot at the couple, conduct that was unnecessary to the underlying robbery. Given Swanson‘s apparent willingness to engage in needless acts of violence, the jury could conclude that Garcia reasonably believed the assailants might return to kill the victims even though they appeared to have fled, and killed Chapple in a “reasonable response to [Swanson‘s] provocative conduct.” (People v. Swanson, supra, B085170, at p. 4.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), which limited the felony murder rule and “amend[ed] . . . 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
SB 1437 added
On May 13, 2019, Swanson filed a petition for writ of habeas corpus alleging he was eligible for relief pursuant to
DISCUSSION
Swanson contends he made a prima facie showing of entitlement to relief under
I. Legal Principles
“A conviction for murder requires the commission of an act that causes death, done with the mental state of malice aforethought (malice).” (People v. Gonzalez (2012) 54 Cal.4th 643, 653 (Gonzalez).)
Prior to the enactment of SB 1437, however, the felony-murder rule provided a theory under which a defеndant could be found guilty of murder when the defendant or an accomplice killed someone during the commission of an inherently dangerous felony, whether or not the defendant harbored intent to kill or malice. (Gonzalez, supra, 54 Cal.4th at p. 654.)
Also before SB 1437, malice could be imputed to an aider and abettor under the natural and probable consequences doctrine.
” ’ “A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the
Thus, before SB 1437, an aider and abettor who lackеd express malice but merely engaged in activity of which murder was a natural and probable consequence could have implied malice imputed to him or her, and could therefore be convicted of second degree murder. (People v. Chiu, supra, 59 Cal.4th at p. 164.)
On September 11, 2018, Governor Brown signed SB 1437 into law, which eliminated the natural and probable consequences doctrine for murder and restricted felony murder to circumstances where the defendant harbored malice or was a major participant in the underlying felony and acted with reckless indifference to human life.
A primary purpose of SB 1437 was to align a person‘s culpability for murder with his or her mens rea. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To effectuate that purpose, SB 1437 amended
SB 1437 also added
To determine whether a petitioner has made a prima facie case for relief under
We review de novo whether the trial court properly interpreted and fulfilled its duty under the statutе. (See Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 287.)
II. Analysis
Swanson contends summary denial of his petition was premature, and denied him a fair opportunity to respond to the trial court‘s erroneous conclusion that he was not convicted under a natural and probable consequences or felony murder theory. He argues he is eligible for resentencing under
A. Provocative Act Murder is Not a Natural and Probable Consequences Theory
The record of conviction in this case demonstrates that Swanson was convicted of first degree murder not under felony-murder or natural and probable consequences theories, but under the provocative act doctrine established by the Supreme Court in People v. Gilbert (1965) 63 Cal.2d 690 (Gilbert). There, the Court declared: “When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a
It is apparent, therefore, that “[a] murder conviction under the provocative act doctrine . . . requires proof that the defendant personally harbored the mental state of malice.” (Gonzalez, supra, 54 Cal.4th at p. 655; see People v. Mejia (2012) 211 Cal.App.4th 586, 603 [“a defendant . . . must personally possess the requisite mental state of malice aforethought when he . . . causes the death through his provocative act“].)
This malice requirement for provocative act murder was well established in 1995 when we affirmed Swanson‘s conviction. (See, e.g., People v. Mai (1994) 22 Cal.App.4th 117, 124 [“an element of the provocative act doctrine is implied malice“], disapproved on other grounds in People v. Nguyen (2000) 24 Cal.4th 756, 757; see also Gilbert, supra, 63 Cal.2d at pp. 703-704 [defendant‘s murder conviction based on police officer‘s killing of accomplice required proof of malice].)
The malice requirement stands in marked contrast to the mens rea contemplatеd by the natural and probable consequences doctrine. As discussed above, liability under that doctrine arose when “a reasonable person in the defendant‘s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” (People v. Chiu, supra, 59 Cal.4th at p. 162, italics added.) The provocative act doctrine, on the other hand, requires that the perpetrator exhibit a “conscious disregаrd for life.” (Gilbert, supra, 63 Cal.2d at p. 704; see People v. Smith (2018) 4 Cal.5th 1134, 1165 [knowledge of danger and conscious disregard for human life is essential to a finding of implied malice]; People v. Lee (2020) 49 Cal.App.5th 254, 261 [the natural and probable consequences doctrine is not an implied malice theory].)
Swanson argues provocative act murder has been characterized by the courts as one particular subset of the natural and probable consequences doctrine. He finds this characterization in sеveral cases discussing the requirement, under the provocative act doctrine, that the victim‘s death result from the victim‘s or a police officer‘s “reasonable response” to the defendant‘s actions. (Gilbert, supra, 63 Cal.2d at p. 704.) Swanson misconstrues the courts’ discussions.
In Gonzalez, upon which Swanson relies, the court stated, “An important question in a provocative act case is whether the act proximately caused an unlawful death. ‘[T]he defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. [Citation.] “In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant‘s liability will depend on whether it can be demonstrated that [the defendant‘s] own conduct proximately caused the victim‘s death . . . .” [Citation.] “[I]f the eventual victim‘s death is not the natural and probable consequence of a defendant‘s act, then liability cannot attach.” [Citations.]’ ” When the defendant commits an inherently dangerous felony, the victim‘s self-defensive killing is generally found to be a natural and probable response to the defendant‘s act, and not an independent intervening cause that relieves the defendant of liability. [Citations.] The question of proximate cause is ordinarily decided by the jury . . . .” (Gonzalez, supra, 54 Cal.4th at pp. 655-656.)
Thus in any provocative act case, where by definition an intermediary‘s act killed the victim, an important question will be whether the defendant‘s conduct proximately caused the death. (See In re Aurelio R. (1985) 167 Cal.App.3d 52, 57 [“A ‘provocative aсt’ murder is yet another breed. Here neither the defendant nor his accomplices intend to kill the victim. Nor indeed do any of them pull the trigger“].) The Court‘s analysis of proximate cause in terms of foreseeability of the natural and probable consequences of the defendant‘s malicious conduct does not somehow bring a provocative act killing within the malice-free natural and probable consequences doctrine.
The remaining cases upon which Swanson rеlies for this point are similarly distinguished. In People v. Fowler (1918) 178 Cal. 657, the Supreme Court upheld a murder conviction where the death may have resulted not directly from the defendant‘s conduct but from the action of a
In People v. Roberts (1992) 2 Cal.4th 271, an inmate stabbed by the defendant staggered away and stabbed a guard to death. In uрholding the defendant‘s conviction for the guard‘s murder, the Court held “there was sufficient evidence of proximate cause for the jury to decide that liability attached for defendant‘s acts,” because “the evidence sufficed to permit the jury to conclude that [the guard‘s] death was the natural and probable consequence of defendant‘s act.” (Id. at p. 321.)
In People v. Medina (2009) 46 Cal.4th 913, the Court explained, “Liability under the natural and probable consequences doctrine ‘is measured by whether a reasоnable person in the defendant‘s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’ [Citation.] [¶] ‘[A]lthough variations in phrasing are found in decisions addressing the doctrine –“probable and natural,” “natural and reasonable,” and “reasonably foreseeable“– the ultimate factual question is one of foreseeability.’ [Citation.] Thus, ’ “[a] natural and probable consеquence is a foreseeable consequence.” ’ ” (Id. at p. 920.)
In People v. Gardner (1995) 37 Cal.App.4th 473, the court stated, “the term ‘reasonable response,’ which the Gilbert court used to delineate the scope of murder liability, was simply a shorthand way of expressing the principle that the killing must, on an objective view of the facts, be proximately caused by the acts of the defendant. . . . [¶] It is, therefore, clear that a defendant may be liable for murder, as here, for a killing when his acts were the ‘proximate cause’ of the death of the victim, even though he did not administer the fatal wound. Our Supreme Court has also phrased this same requirement of ‘proximate cause’ interchangeably, on the same page, with the question of ‘natural and probable consequence.’ ” (Id. at p. 479.)
None of these cases held that a provocative act murder falls under the natural and probable consequences theory of malice-free murder. They held merely that a provocative act murder requires a showing that defendant‘s act was the proximate cause of death, which can be shown where the death was a natural and probable consequence of the act.
Swanson argues that because first degree provocative act murder is “inextricably intertwined” with the felony murder rule, the change in the rule effected by SB 1437 applies to convictions for provocative act murder. We reject the premise, and thus the argument.
A “[p]rovocative act murder may be either of the first or second degree.” (People v. Mejia, supra, 211 Cal.App.4th at p. 604.) Like any other murder, a provocative act murder committed without deliberation and premeditation is murder of the second degree. (Ibid.) However, a provocative act murder of the second degree can be elevated to first degree murder when it occurs “during the course of a felony enumerated in section 189 that would support a first degree felony-murder conviction.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
The mere fact that a sеcond degree provocative act murder may be elevated to first degree murder pursuant to felony murder principles neither intertwines provocative act murder with felony murder nor transforms the former into the latter under Gilbert. On the contrary, our Supreme Court has held that the provocative act doctrine is “distinguished from the felony murder rule.” (Gonzalez, supra, 54 Cal.4th at p. 654.)
Felony murder is a “murder . . . that is committed in the perpetration of, or attempt to perpetrate arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under [specified sections of the Penal Code].” (
The
Swanson argues that elevation of an otherwise second degree provocative act murder to first degree murder pursuant to felony murder principles attaches first degree murder liability where the mens rea was no different from that required in a felony murder prosecution, because it is only by felony murder principles that the mens rеa required for first degree murder is imputed to a provocative act defendant. (See People v. Sanchez, supra, 26 Cal.4th at p. 852 [“provocative act implied malice murders are first degree murders when they occur during the course of a felony enumerated in section 189 that would support a first degree felony-murder conviction“]; Pizano v. Superior Court (1978) 21 Cal.3d 128, 139, fn. 4 [“The killing [of the robbery victim], having been committed by the policeman to thwart the robbery, cannot be said to have been committed in perpetration of it. But the act which made the killing a murder attributable to the robber—[the robber‘s] initiating the gun battle [with the policeman]—was committed in the perpetration of the robbery. Therefore, . . .
Perhaps so. But that does not mean the killing was “committed to perpetrate the felony” (People v. Washington, supra, 62 Cal.2d at p. 781), nor that Swanson was “[a] person convicted of felony murder,” as
Swanson argues that his first degree provocative act murder conviction may signify no more than thаt the jury found that the killing occurred during the commission of a robbery. We disagree. To find Swanson guilty of provocative act murder in the first instance, the jury necessarily found he acted with malice. (See Gonzalez, supra, 54 Cal.4th at p. 655 [“A murder conviction under the provocative act doctrine . . . requires proof that the defendant personally harbored the mental state of malice“].)
C. Remand is Not Appropriate
Swanson argues remand is necessary because the trial court could not determine whether he was entitled to relief without permitting the statutory process to take place, and he was denied an opportunity to counter the court‘s misconceptions and establish an appellate record. We disagree.
The right to counsel under
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.