People v. Campbell

316 Cal. Rptr. 3d 638

The PEOPLE, Plaintiff and Respondent,

v.Rafael CAMPBELL, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.Anthony B. Price, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.Stephon Anthony, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.Samuel Flowers, Defendant and Appellant.

A162472

A162488

A162623

A163277

Court of Appeal,

First District, Division 2.

Filed December 28, 2023

Trial Court: Alameda County Superior Court, Trial Judge: Hon. Thomas M. Rear- don (Alameda County Super. Ct. No. 164869D)(Alameda County Super. Ct. No. 164869B)(Alameda County Super. Ct. No. 164869A)(Alameda County Super. Ct. No. 164869C)

Audrey R. Chavez, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant Rafael Campbell.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Price.

Cliff Gardner and Brooke Acevedo, under appointment by the Court of Appeal, for Defendant and Appellant Stephon Anthony.

Barry Morris, Hayward, under appointment by the Court of Appeal, for Defendant and Appellant Samuel Flowers.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Respondent.

STEWART, P. J.

In this appeal, Appellants Stephon Anthony, Rafael Campbell, Samuel Flowers and Anthony B. Price (collectively, Appellants) seek relief on three bases: claimed errors by the trial court in ruling on their petitions for resentencing under Penal Code section 1172.6;¹ retroactive relief directly from this court based on ameliorative amendments to the statutes governing gang-related enhancements and special circumstances; and relief from the trial court’s ruling after we remanded the case under ameliorative legislation conferring discretion on trial courts to strike enhancements and prior strikes.

Regarding the first, Appellants, who were jointly convicted of first degree murder in connection with a gang-related shooting, appeal from the trial court’s decision denying them resentencing relief under section 1172.0 from their first degree murder convictions at the prima facie stage. (§ 1172.6, subd. (c).) They contend the trial court erred in relying on the jury’s intent-to-kill findings in connection with two special circumstances to conclude that as a matter of law they are not eligible for relief. We agree with the People that the trial court was entitled to consider the finding at the prima facie stage but, based on two recent decisions by our high court (In re Lopez (2023) 14 Cal.5th 562, 306 Cal.Rptr.3d 348, 526 P.3d 88 and People v. Curiel (2023) 15 Cal.5th 433, 315 Cal.Rptr.3d 495, 538 P.3d 993 (Curiel)), conclude the intent to kill findings do not preclude relief as a matter of law. Because the trial court must consider the trial evidence and assess the strength and credibility of the evidence, section 1172.6 requires that it issue an order to show cause and conduct an evidentiary hearing. We remand the section 1172.6 proceedings for that purpose.

Appellants fled from police after they shot and killed the brother of a rival gang member, and two bystanders were hit and killed during the ensuing vehicle chase. This resulted in two second degree murder convictions for each of the Appellants, which convictions were also the subject of the resentencing petition. The trial court granted relief under section 1172.6 to Price, Campbell and Flowers² from these two second degree murder convictions. These three Appellants argue the trial court did not go far enough and should also have granted them relief from their convictions under Vehicle Code section 2800.3 arising out of the same two bystander killings. They also contend that, after granting them relief on the second degree murder convictions, the trial court erred by failing to explicitly strike the multiple-murder special circumstance found true by the jury as to each of them. Finally, these three Appellants seek resentencing on the Vehicle Code convictions based on recent legislation constraining sentencing decisions about whether and when to impose upper, middle and lower terms of imprisonment. We agree in part and disagree in part with the contentions of these three Appellants. We remand for the trial court to strike the multiple murder special circumstance as to these three Appellants. We affirm the trial court’s denial of relief under section 1172.6 for the Vehicle Code convictions but remand for resentencing based on an amendment to section 1170, subdivision (b) that could affect the sentences imposed for those convictions.

Appellants’ second request seeks relief from this court directly, concerning the verdicts imposing a gang-related gun enhancement and a gang-murder special circumstance on each of them. They ask us to apply retroactively an ameliorative change in the law governing gang-related crimes that the Legislature adopted between the time of the trial court proceedings and the filing of these appeals. The People argue that the change in law was not a valid amendment to the gang-murder special circumstance. We disagree based on the reasoning of two of our sister courts, which we adopt and therefore reverse the gang-murder special circumstance. The People also contend the instruction on the pre-amendment gang statute was harmless error as to the gang-related gun enhancement found by the jury. We disagree and reverse the enhancement as well. We also reverse the 25-years-to-life sentences resulting from the enhancement and the life without parole sentences resulting from the gang-murder special circumstance. We remand the gang enhancement and gang special circumstance for retrial at the option of the People or, if the People choose not to retry Appellants on the gang enhancement and gang special circumstance, for resentencing without them.

Finally, these appeals also challenge the trial court’s decision, on remand under a recent statute providing it with discretion to strike enhancements and prior strikes, declining to strike either the enhancements or the prior strikes. We conclude the trial court did not abuse its discretion in declining to strike the enhancements and the prior strikes.

BACKGROUND

A. Trial and Direct Appeal

In 2013, after a 39-day trial, a jury found Appellants guilty of the first degree murder of Charles Davis, after Anthony drove them into the territory of a rival gang in Berkeley and Flowers used a semi-automatic assault rifle to fire 17 bullets at the brother of a member of the rival gang. There was evidence that the killing was motivated by the desire to retaliate against the Berkeley gang Appellants believed had murdered Ngo Nguyen, a member of the Oakland gang to which Appellants belonged. The jury found true an enhancement for gang-related use of a firearm by a principal. The jury also found Appellants guilty of two counts each of vehicular evasion of a police officer causing death and two counts each of second degree murder, both based on the killings of a pedestrian (Ross) and the driver of a car (Perea), who were killed in a collision in which Anthony drove Appellants in a high-speed vehicle chase seeking to evade police after the shooting.

As to the first degree murder count, the jury also found true as to each Appellant two special circumstance allegations: first, that he intentionally killed the victim while he was an active participant in a criminal street gang and the murder was carried out to further the activities of the gang (§ 190.2, subd. (a)(22)), and second, that he intended to kill Davis and committed multiple murders in this case (id., subd. (a)(3)). Two of the Appellants waived a jury trial on allegations that they had prior felony convictions, and the trial court found the allegations true.

On direct appeal, this court affirmed the convictions. In our opinion, we addressed, among other things, Appellants’ claim of Chiu error³ and held any error in the instruction on natural and probable consequences in connection with Appellants’ first degree murder convictions was harmless beyond a reasonable doubt. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1142-1146, 244 Cal.Rptr.3d 499 (Anthony I).) We remanded the case for the trial court to exercise the discretion newly conferred on it by legislation enacted after the trial to strike or dismiss consecutive 25-years-to-life sentences imposed on all Appellants for a gang-related principal’s use of a firearm (see Stats. 2017, ch. 682; § 12022.53, subd. (h)) and, with respect to Price and Campbell, to strike additional consecutive five-year enhancements for prior serious felony convictions. (See Stats. 2018, ch. 1013, §§ 1-2, amending §§ 667, subd. (a) and 1385, subd. (b).)

B. Remand and Resentencing

While the remand was pending, each of the Appellants sought resentencing under section 1172.6, asserting that a complaint was filed against him that allowed the prosecution to proceed under a theory of murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime; that he was convicted of murder following a trial; and that he could not presently be convicted of murder because of changes to sections 188 or 189 made effective January 1, 2019.

In April 2021, the Honorable Thomas M. Reardon, who had presided over Appellants’ 2013 trial, heard the section 1172.6 petitions of Anthony, Price and Campbell together with our directive on remand that the court exercise its discretion whether to strike the gun and prior serious felony enhancements. The court heard Flowers’s petition in August, having continued the hearing at his counsel’s request.

As to the remand, the court declined to strike either the gang-related gun use enhancement or the prior serious felony conviction enhancements. Explaining its exercise of...