People v. Daley

THE PEOPLE, Plaintiff and Respondent, v. ALCLIFF M. DALEY, Defendant and Appellant.

B301243

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

January 29, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SA052445)

APPEAL from an order of the Superior Court of Los Angeles County, Mark E. Windham, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Alcliff M. Daley appeals from the trial court's denial of his Penal Code section 1170.95 petition¹ for vacation of his first degree murder conviction and resentencing. Because Daley is ineligible for relief as a matter of law, we affirm the court's order.

FACTUAL AND PROCEDURAL BACKGROUND²

1. The murder and Daley's conviction

In 2004, Daley and Rohan McDermott planned to steal marijuana from Troy Lewis and Dwane Godoy. After luring the men into Daley's apartment, Daley pointed a gun at Godoy and Lewis, and McDermott taped their hands behind their backs. Daley threatened to kill them and leave their bodies to rot in a closet. When Daley noticed that Godoy had managed to free his hands, he put the gun to Godoy's head and again threatened to kill him. McDermott retaped Godoy's hands and also taped his feet. When McDermott and Daley exited the apartment, Godoy managed to free himself and escaped after struggling with McDermott, who was outside the front door. Lewis did not escape. His body was discovered in the apartment; he had been shot in the forehead.

A jury found Daley guilty of first degree murder with true findings on special circumstance allegations that the murder was committed during an attempted kidnapping and an attemptedrobbery. (§§ 187, subd. (a), 190.2, subd. (a)(17)(A) & (B)).³ It also found Daley personally used a firearm during the offense. (§§ 12022, 12022.53, subd. (b)). The trial court sentenced Daley to life in prison without the possibility of parole, plus 10 years. In 2007, this division affirmed the judgment of conviction. (People v. Daley (Oct. 18, 2007, B190721) [nonpub. opn.].)

2. Section 1170.95 petition

In June 2019, after passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), Daley filed a petition for vacation of his murder conviction and resentencing. Using a preprinted form, he checked boxes stating that he had been convicted of murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; he was not the actual killer; he did not, with the intent to kill, aid and abet the actual killer; he was not a major participant in the felony or did not act with reckless indifference to human life; and he could not now be convicted of first degree felony murder in light of changes to section 189 effectuated by Senate Bill 1437. He also checked a box requesting that counsel be appointed for him.

On June 28, 2019, the trial court summarily denied the petition. Daley was not present, and was not represented by counsel. The court found Daley was ineligible for relief as a matter of law because the jury's true findings on the special circumstance allegations established he intended to kill, or was a major participant in the murder and acted with reckless indifference to human life. Further, the trial court found thatDaley was the actual killer based on the jury's finding that he personally used a firearm.

Daley appeals the trial court's denial of his petition.

DISCUSSION

Daley contends that the trial court erred by summarily dismissing his petition based on the jury's special circumstance findings, without appointing counsel for him. We disagree.

1. Applicable legal principles

a. Senate Bill 1437

Senate Bill 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person's sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile); People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39 Cal.App.5th 738, 749-750, 763, review granted Nov. 26, 2019, S258234.)

Prior to Senate Bill 1437's enactment, under the felony-murder rule "a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state." (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248 (Lamoureux); People v. Powell (2018) 5 Cal.5th 921, 942.) Similarly, under the natural and probable consequences doctrine, a defendant was "liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural andprobable consequence of the target offense." (Lamoureux, at p. 248.)

Senate Bill 1437 amended the felony-murder rule by adding section 189, subdivision (e), which provides that a participant in the perpetration of qualifying felonies is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime."

b. Section 1170.95's petitioning procedure

Senate Bill 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a now-invalid felony-murder or natural and probable consequences theory may petition for vacation of their convictions and resentencing. A defendant is eligible for relief under section 1170.95 if he meets three conditions: (1) he must have been charged with murder under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) must have been convicted of first or second degree murder, and (3) could no longer be convicted of first or second degree murder due to changes to sections 188 and 189 effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).)

Evaluation of a section 1170.95 petition requires a multi-step process: an initial review to determine the petition's facial sufficiency; a prebriefing, " 'first prima facie review' " topreliminarily determine whether the petitioner is statutorily eligible for relief as a matter of law; and a second, postbriefing prima facie review to determine whether the petitioner has made a prima facie case that he or she is entitled to relief. (People v. Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th at pp. 327-330, rev.gr.)

When conducting the first prima facie review, the court must determine, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e., whether he or she was convicted of a qualifying crime, based on a charging document that permitted the prosecution to proceed under the natural and probable consequences doctrine or a felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at pp. at pp. 897-898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at pp. 329-330, rev.gr.) If it is clear from the record of conviction that the petitioner cannot establish eligibility as a matter of law, the trial court may summarily deny the petition without appointing counsel. (Tarkington, at pp. 898, 900-902; People v. Torres (2020) 46 Cal.App.5th 1168, 1178 (Torres), review granted June 24, 2020, S262011; Verdugo, at p. 332; People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598.)

If, however, the petitioner's eligibility is not established as a matter of law, the court must appoint counsel and permit briefing to determine whether the petitioner has made a prima facie showing he or she is entitled to relief. (Verdugo, supra, 44 Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49 Cal.App.5th at p. 898, rev.gr.) If the petitioner makes such a showing, thecourt must issue an order to show cause and conduct a hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-1166.) At that hearing, the prosecution has the burden to prove, beyond a reasonable doubt, that the defendant is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)

2. Application here

a. Contentions⁴

Daley challenges the trial court's ruling on several grounds. First, he argues that the trial court erred by denying his petition without appointing counsel. In his view—and contrary to the analyses in Verdugo and Lewis—based on the statutory language and the Legislature's intent, counsel must be appointed and an order to show cause issued as soon as a defendant files a facially sufficient section 1170.95 petition, i.e., one that has the correct boxes checked and does not...