People v. Bodely

95 Cal.App.5th 1193

313 Cal.Rptr.3d 547

The PEOPLE, Plaintiff and Respondent,

v.Darrell Anthony BODELY, Defendant and Appellant.

H050142

Court of Appeal, Sixth District, California.

Filed September 11, 2023

Attorneys for Defendant and Appellant: Darrell Anthony Bodely, Alex N. Coolman, 3268 Governor Drive #390, San Diego, CA 92122-2902

Attorneys for Plaintiff and Respondent: The People, Ron Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Alisha M. Carlile, Deputy Attorney General, Office of the Attorney General, 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004.

Sixth District Appellate Program, 95 S. Market Street, Suite 570, San Jose, CA 95113, for Other Sixth District Appellate Program.

BAMATTRE-MANOUKIAN, ACTING P.J.

I. INTRODUCTION

In 1993, a jury convicted defendant Darrell Anthony Bodely of first degree murder, burglary, and robbery ( Pen. Code, §§ 187, 211, 212.5, subd. (b), 459, 460, subd. (b) ).¹ The jury found true the allegation that defendant personally used a deadly and dangerous weapon (an automobile) in the commission of the murder (§ 12022, subd. (b)). The trial court sentenced defendant to prison for 26 years to life for the murder, consecutive to his sentence on the burglary and robbery counts.

Defendant challenges the trial court's denial of his former section 1170.95 (now section 1172.6 ) petition to have his murder conviction vacated and to be resentenced. The trial court denied defendant's petition, ruling that defendant failed to make a prima facie showing of entitlement to relief because the record established that defendant was the actual killer of the victim. Defendant contends that the trial court erred because the record left open the possibility that he did not intentionally kill the victim and thus he may not have been the actual killer of the victim, warranting relief under section 1172.6. For reasons that we will explain, we will affirm the trial court's denial of defendant's petition.

II. BACKGROUND

This court previously summarized the facts of defendant's case as follows: "Defendant entered a supermarket, grabbed $75 out of a cash register and ran. Several supermarket employees pursued him. He ran out of the supermarket into the parking lot and got into his car. Joseph Andre, who was in the parking lot at the time, joined in the chase. Andre ran in front of defendant's car and put his hands on the hood as if to stop the car. Andre then went to the driver's side window of defendant's car, put his arm inside the car and told defendant to stop. Defendant drove away, jerking the car sharply to the left. Defendant's car hit Andre, knocking Andre onto the hood of the car. Andre then fell off of the hood and struck the back of his head on the pavement. This impact resulted in Andre's death. Defendant sped up and drove away. Defendant was convicted of first degree murder [citation], burglary and an unrelated robbery and committed to state prison." ( People v. Bodely (1995) 32 Cal.App.4th 311, 312, 38 Cal.Rptr.2d 72, fn. omitted ( Bodely ).)

The prosecutor relied on a theory of felony murder to prove defendant's guilt on the murder count. While the taking of the $75 from the grocery store was charged as a burglary and the jury found defendant guilty of burglary, the prosecution argued that the jury could also find that the incident could be characterized as a robbery, and thus defendant would still be guilty of first degree felony murder for Andre's death. The jury was instructed, consistent with the felony-murder rule, that defendant could be found guilty of murder if the "killing was done with malice aforethought or occurred during the commission or attempted commission of burglary or robbery," and that the "unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime or as a direct causal result of burglary or robbery is murder of the first degree when the perpetrator had the specific intent to commit such crime." The prosecutor's closing argument began by telling the jury: "[M]urder, in the way it occurred in this case, is what we call felony murder. [¶] [A] killing which occurs during the course of certain felonies, and burglary or robbery are two of those felonies, is first-degree murder. What we call it is felony murder. And that is a killing which is unintended, unintentional, could even be accidental."² The prosecutor concluded his closing argument by stating: "The law says a human life is valuable and a human life taken during the commission of a serious felony is nothing more and nothing less than first-degree murder." Likewise, on appeal, this court summarized its holding as follows: "The question presented by this case is whether a killing which occurs during the perpetrator's flight from a burglary occurs ‘in the perpetration’ of the burglary and therefore is felony murder. We conclude that such a killing is felony murder and affirm the judgment." ( Bodely, supra , 32 Cal.App.4th at p. 312, 38 Cal.Rptr.2d 72.)

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) took effect on January 1, 2019, imposing "statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).) Senate Bill 1437 added section 1170.95 (now section 1172.6 ), which provides an avenue for a person convicted in a case involving felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and to be resentenced. Under this statute, after the parties have had the opportunity to submit briefings on a petition, the trial court "shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." ( § 1172.6, subd. (c).)

Defendant filed a petition under former section 1170.95 in March 2022, asserting that he could not presently be convicted of murder because of changes made to sections 188 and 189. The prosecutor opposed the petition, asserting that defendant "was convicted as a direct perpetrator and direct perpetrators, even if convicted of felony murder, are ineligible" for relief. The prosecution's opposition relied on section 189, subdivision (e)(1), which states that a participant in the perpetration or attempted perpetration of a listed felony (including robbery or burglary) in which a death occurs is liable for the murder if "[t]he person was the actual killer."

The trial court took judicial notice of several documents from defendant's record of conviction in considering whether defendant's petition presented a prima facie case for relief. The trial court then denied the petition, finding that the record of conviction established defendant was not eligible for resentencing as a matter of law. The trial court ruled as follows:

"Here, in the face of Petitioner's form petition, this Court can use several sources to conclude that his declaration is not legally or factually correct as a matter of law.

"The jury instructions demonstrate Petitioner's ineligibility for resentencing. The instructions simply did not contemplate or include any reference to an accomplice. [Citations.] Indeed, a review of the evidence presented at trial [citations] demonstrates that there was no evidence of any accomplice. [Fn. omitted.] Because there was zero evidence of any accomplice, this Court is not weighing facts, but rather acknowledging that the jury's verdicts, coupled with the absence of any accomplice instructions, necessarily rested on Petitioner being the direct perpetrator and therefore the actual killer. In other words, it is a legal impossibility for Petitioner to be eligible for resentencing, as his conviction could not have been based on an impermissible theory of accomplice liability. [Fn. omitted.] Moreover, while Petitioner's personal use of a car is not dispositive of ineligibility, it can be considered as further support for the fact that Petitioner was the actual killer.

" ‘The purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.’ [Citations.] Yet, that is exactly what Petitioner is attempting to do by asserting eligibility. Because a ‘do-over on factual disputes that have already been resolved’ is not permitted under section 1170.95, the petition must be denied."

The trial court thus concluded that "[t]he jury necessarily determined that Petitioner was the direct perpetrator because there is no evidence in the record that suggests an accomplice—not in the jury instructions, not in the verdicts, and not in the evidence presented at trial. The record of conviction established Petitioner's ineligibility as a matter of law." This appeal followed.

III. DISCUSSION

Defendant contends that the trial court erred by denying his petition without issuing an order to show cause and conducting an evidentiary hearing. He asserts that he established a prima facie case for relief in two respects. First, defendant asserts the record does not establish as a matter of law that he was the actual killer of Andre, because the petition established "the possibility that [defendant] could have been convicted of ‘murder’ based on an accidental death." Defendant cites Court of Appeal decisions in People v. Vang (2022) 82 Cal.App.5th 64, 297 Cal.Rptr.3d 806 ( Vang ) and People v. Jennings (1966) 243 Cal.App.2d 324, 52 Cal.Rptr. 329 ( Jennings ) to support this argument. Second, defendant contends that "an instruction on producing a death via the ‘natural and probable consequences’ of other acts encouraged the jury to treat the question of causation in the broadest possible terms," thus indicating that defendant may not have been...