People v. Fisher

95 Cal.App.5th 1022

313 Cal.Rptr.3d 525

The PEOPLE, Plaintiff and Respondent,

v.James Harris FISHER, Defendant and Appellant.

B323408

Court of Appeal, Second District, Division 5, California.

Filed August 28, 2023

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

MOOR, J.

James Harris Fisher appeals the trial court's order summarily denying his petition for vacatur of two convictions of murder and one conviction of attempted murder, and resentencing under Penal Code section 1172.6.¹

On appeal, Fisher contends that the trial court's denial of his petition without issuing an order to show cause or holding an evidentiary hearing violated section 1172.6 and his state and federal constitutional rights to due process.

As modified, we affirm the trial court's order.

FACTS AND PROCEEDURAL HISTORY

On May 12, 1983, the Los Angeles County District Attorney's Office filed an information charging Fisher with the first degree murder of Richard Edward Harrison ( § 187, count 1), the second degree murder of Jerrie Ann Dabney ( § 187, count 2), the attempted murder of Debra Thomas ( §§ 664 & 187, count 3), the attempted murder of Romona Edwin Dilworth ( §§ 664 & 187, count 4), and burglary ( § 459, count 5). The information included special circumstance allegations that Fisher committed more than one murder ( § 190.2, subd. (a)(3) ), and that the murders were committed while Fisher was engaged in a burglary ( § 190.2, subd. (a)(17) ). The information also alleged as to each count that Fisher personally used a firearm ( § 12022.5 ).

On October 13, 1983, Fisher pleaded guilty to first degree murder in count 1, second degree murder in count 2, and attempted murder in count 3. He admitted the truth of the personal firearm use enhancements in each count. Counts 4 and 5 and the special circumstance allegations were dismissed pursuant to the plea.

At the plea colloquy, the prosecutor addressed Fisher:

"[Prosecutor]: Let me tell you basically what the charges are in this case.

"On March 31, 1983, it's alleged that you entered an apartment at 910-1/2 West 94th Street, and that during that evening, events took place where you eventually shot and killed Richard Harrison, a gentleman named in Count I, and that you shot and killed a lady by the name of Dabney in Count II, and that you shot and injured a lady by the name of Deborah Thomas, the lady in Count III.

"You understand the nature of the charges against you, sir?

"The Defendant: Yes, sir.

"[Prosecutor]: Is that a little summary of the facts that I just gave that basically happened that night?

"The Defendant: Yes, sir.

"[Defense Counsel]: We will stipulate, counsel, that the Court may read and consider the preliminary hearing transcript as a factual basis for the plea.

"[Prosecutor]: Will counsel also stipulate to a factual basis for the plea?

"[Defense Counsel]: Yes.

"[Prosecutor]: The People will also stipulate."

The trial court sentenced Fisher to 25 years to life in count 1, plus two years for the firearm enhancement. In count 2, the court imposed a sentence of 15 years to life, plus two years for the firearm enhancement, to run concurrently with count 1. In count 3, the court imposed a term of seven years for the attempted murder and two years for the firearm enhancement, also to run concurrently to the sentence in count 1.

On February 1, 2021, Fisher executed a petition for resentencing pursuant to section 1172.6.²

On June 17, 2021, the trial court held a hearing on the matter. Appointed counsel stated that he had reviewed the documents relating to the case and stated that he would "submit at this point on the informal response filed by the People."³ The court informed the parties that it intended to deny the petition because it appeared that Fisher was the actual shooter and not eligible for relief. The court stated that it would issue a written order.

On June 21, 2022, the trial court summarily denied Fisher's petition in a written memorandum of decision. The court stated that it had read and considered Fisher's plea transcript, dated October 13, 1983; the sentencing transcript dated December 2, 1983; the probation report dated November 29, 1983, and the arguments of counsel.⁴

The court found: "Petitioner was the sole defendant and actual shooter in this matter, acting with specific intent required for a conviction pursuant to Penal Code sections 187(a) and 664 - 187(a) and personally discharging a firearm causing death and great bodily injury. Therefore, petitioner/defendant is ineligible for resentencing pursuant to Penal Code [s]ection 1170.95."⁵

Fisher appealed.

DISCUSSION

Legal Principles

"[U]ntil recently, when a person aided and abetted a nonhomicide crime that then resulted in a murder, the natural and probable consequences doctrine allowed him or her to be convicted of murder without personally possessing malice aforethought." ( People v. Gentile (2020) 10 Cal.5th 830, 845, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Under the natural and probable consequences doctrine, "an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the ‘natural and probable consequence’ of the crime the accomplice aided and abetted (i.e., the nontarget offense)." ( Id . at p. 843, 272 Cal.Rptr.3d 814, 477 P.3d 539.) In the case of a homicide, then, "[s]o long as the direct perpetrator possessed malice, and the killing was a natural and probable consequence of the crime the defendant aided and abetted," the defendant was culpable for murder regardless of "whether the defendant intended to kill or acted with conscious disregard for human life." ( Id . at p. 845, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Additionally, liability for murder could be imposed under the felony murder rule even if the defendant did not act with express or implied malice if the killing occurred during the commission of certain offenses. The felony-murder rule provided that " ‘[a]ll murder ... which is committed in the perpetration of , or attempt to perpetrate, [an enumerated crime] ... is murder of the first degree.’ " ( People v. Wilkins (2013) 56 Cal.4th 333, 340, 153 Cal.Rptr.3d 519, 295 P.3d 903.)

"Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437) amended section 188 [, which sets forth the malice requirements for murder,] to provide that ‘[e]xcept as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.’ (Stats. 2018, ch. 1015, § 2.) The amendment effectively ‘eliminates natural and probable consequences liability for first and second degree murder.’ " ( People v. Garrison (2021) 73 Cal.App.5th 735, 742, 288 Cal.Rptr.3d 713.) With respect to felony murder, section 189, subdivision (e) now provides: "A participant in the perpetration or attempted perpetration of a[n] [enumerated] felony ... in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [s]ection 190.2."

Senate Bill No. 1437 also enacted former section 1170.95 (now § 1172.6 ), which provides a procedure by which a person convicted of murder under a theory invalidated under Senate Bill No. 1437 may petition to vacate the conviction. ( People v. Gentile , supra , 10 Cal.5th at p. 843, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; former § 1170.95, subd. (a).) Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill No. 775) amended former section 1170.95 effective January 1, 2022 to expand its reach to defendants convicted of attempted murder and manslaughter. (former § 1170.95, subd. (a) ; Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no changes in text. (Stats. 2022, ch. 58, § 10.)

Upon receipt of a complying petition under section 1172.6, the trial court must appoint counsel, allow briefing, and then determine if the petitioner has made a prima facie showing that, inter alia, "[t]he petitioner could not presently be convicted of murder or attempted murder" under the amendments to the Penal Code enacted under Senate Bill No. 1437. ( § 1172.6, subd. (a)(3).) In making the prima facie determination, the trial court must " ‘ "take[ ] [the] petitioner's factual allegations as true and make[ ] a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved." ’ " ( People v. Lewis (2021) 11 Cal.5th 952, 971, 281 Cal.Rptr.3d 521, 491 P.3d 309.) " ‘[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.’ " ( Ibid . ) The court may rely on the record of conviction in making the prima facie determination, however, and " ‘if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." ’ " ( Ibid . )

Analysis

In the opening brief, Fisher contends that he satisfied the statutory criteria to make a prima facie showing of eligibility for resentencing. He argues that because he entered into a plea agreement no jury or court has made...