People v. Guillory

82 Cal.App.5th 326

298 Cal.Rptr.3d 342

The PEOPLE, Plaintiff and Respondent,

v.Shannon GUILLORY, Defendant and Appellant.

A161952

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

Filed August 17, 2022

Mark David Greenberg, under appointment by the First District Appellate Project, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Juliet B. Haley and Bridget Billeter, Deputy Attorney Generals, for Plaintiff and Respondent.

BURNS, J.

The jury that convicted Shannon Guillory of murder returned a not true finding on one of several special circumstances allegations. Guillory contends the not true finding automatically entitles her to vacatur and resentencing under Penal Code section 1172.6, subdivision (d).¹ It does not. Guillory could have been convicted under theories of murder liability that remain valid under current law, so she is ineligible for section 1172.6 relief.

Under recent changes to the Penal Code, participants in a felony that results in a killing can be found guilty of felony murder only if they were an actual killer, acted with the intent to kill, or were major participants in the underlying felony and acted with reckless indifference to human life. (§ 189, subds. (e)(1)-(3).) Guillory, convicted in 2004 of kidnapping, carjacking, robbing, and murdering Calvin Curtis, contends she qualifies for relief under the new law because the jury rejected a special circumstances allegation regarding the kidnapping. She asserts this finding triggered section 1172.6, subdivision (d), which mandates vacatur and resentencing "[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony." ( § 1172.6, subd. (d)(2).)

We disagree. There were viable bases for murder liability independent of the rejected special circumstances allegation. In such circumstances, section 1172.6, subdivision (d)(2) cannot plausibly be read to mandate automatic vacatur of the murder conviction and resentencing. We also reject Guillory's claim that Proposition 57 applies retroactively to her case under People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ).

BACKGROUND

A.

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), effective January 1, 2019, changed the law relating to accomplice liability for murder to better align punishment with individual culpability. (Stats. 2018, ch. 1015, § 1(b), (f).) To that end, Senate Bill 1437 eliminated the natural and probable consequences doctrine as to murder and narrowed the felony murder exception to the malice requirement. ( People v. Mancilla (2021) 67 Cal.App.5th 854, 862, 282 Cal.Rptr.3d 551.)

As relevant here, Senate Bill 1437 amended section 189 to require that the perpetrator of a felony murder was either (1) the actual killer; (2) aided and abetted the killer with the intent to kill; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life, as those terms are used in the statute defining felony murder special circumstances. (Stats. 2018, ch. 1015, § 3; § 189, subd. (e); see § 190.2, subd. (d).) It also created, through former section 1170.95 (now section 1172.6 ), a path for offenders convicted under the former felony murder rule to petition the trial court to vacate their conviction and for resentencing if they could not have been convicted of murder under the amended statutes. (Stats. 2018, ch. 1015, § 4; Mancilla, supra, 67 Cal.App.5th at p. 862, 282 Cal.Rptr.3d 551.) A person convicted of murder, attempted murder, or manslaughter prior to Senate Bill 1437 may seek retroactive relief under this provision if (1) the information or indictment allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or any other theory under which malice is imputed based solely on the defendant's participation in a crime; and (2) the petitioner could not be convicted of murder under current law. ( § 1172.6, subd. (a).)

If the petition makes a prima facie showing that the petitioner satisfies these requirements, the court must issue an order to show cause and hold a hearing at which the prosecutor is required to prove beyond a reasonable doubt that the petitioner is guilty of murder under current law. ( § 1172.6, subds. (c), (d).) The parties may rely on admissible evidence in the record of conviction or offer additional evidence. ( § 1172.6, subd. (d)(3).) If the prosecutor fails to sustain its burden of proof, the court must vacate the murder conviction and resentence the petitioner on the remaining charges. ( § 1172.6, subd. (d)(3).)

B.

The factual and procedural background is drawn from our opinion affirming Guillory's direct appeal from her conviction ( People v. Guillory (April 24, 2007, A108688) 2007 WL 1200091 [nonpub. opn.]), the record on that appeal (which we judicially notice as necessary), and the record on her resentencing petition.

Guillory and her boyfriend Josh Burton decided to lure Curtis to Guillory's home to rob him and steal his car. Late one evening, Guillory invited Curtis over to the apartment where she was staying. Burton hid in the kitchen with a knife.

When Curtis walked into the apartment and greeted Guillory, Burton attacked him from behind, held him in a chokehold with the knife to his neck, and directed Guillory to tie his hands with a telephone cord. After the two took Curtis's money, car keys, and other belongings, they put on latex gloves and left the apartment with Guillory's baby and the still-bound Curtis. Burton got in the driver's seat of Curtis's car; Guillory got in back with Curtis and the baby.

As Burton drove, Curtis struggled and attempted to escape. Guillory stabbed him in the head with two screwdrivers at least 13 times, using enough force to gouge his skull; clubbed him on the knee with a car-lock device; and hit him on the head with a can of baby formula.

Curtis knocked the baby's car seat over as he struggled. Burton pulled over, moved the baby to the front, and beat Curtis with his fists. Curtis begged for his life and offered money, but to no avail. With Guillory grasping Curtis to prevent his escape, Burton drove on until Curtis recommenced struggling. Burton stopped the car again and told Guillory to strangle Curtis with a cord he handed her. She attempted to comply, but when Curtis fought her off Burton took over and strangled him as Guillory watched him slowly die. The pair then dumped Curtis's body, dropped the baby off with a friend, and took Curtis's remaining valuables from his car.

C.

The jury was instructed on theories of malice murder, felony murder, and aiding and abetting. It convicted Guillory of first degree murder, first degree robbery, kidnapping for purposes of robbery, kidnapping for purposes of carjacking, simple kidnapping, carjacking, and child endangerment. The jury also returned a not true finding on a special circumstance allegation that Guillory committed the murder during the course of a kidnapping. It failed to reach a verdict on two other special circumstance allegations: murder during a robbery, and murder during a carjacking. The court declared a mistrial as to the deadlocked allegations, sentenced Guillory to 25 years to life for first degree murder, and imposed and stayed concurrent terms on the other counts.

D.

In 2019, Guillory petitioned for resentencing pursuant to the then newly-enacted section 1170.95 (now section 1172.6 ). Following an order to show cause and a hearing on the petition at which Guillory testified, the court found Burton was the actual killer and that Guillory (1) aided and abetted the murder with the intent to kill; and (2) was a major participant in the robbery and carjacking who acted with reckless indifference to human life. Accordingly, she was ineligible for relief under section 1172.6.

The court further found that the not-true finding on the kidnapping allegation did not change this result. First, it concluded, Guillory could be convicted of felony murder under current law based on the robbery and carjacking special circumstances allegations, which were not foreclosed by the negative finding on the kidnapping allegation. Second, she could be convicted of murder on an aiding and abetting theory independently of the felony murder rule. It therefore denied her petition.

DISCUSSION

A.

Guillory contends the not-true finding on the kidnapping allegation entitles her to resentencing as a matter of law under subdivision (d)(2) of section 1172.6. Reviewing this issue of statutory interpretation independently ( People v. Lewis (2021) 11 Cal.5th 952, 961, 281 Cal.Rptr.3d 521, 491 P.3d 309 ), we disagree.

If a petition establishes a prima facie case for relief, in most cases the trial court must issue an order to show cause and hold a hearing to determine whether the petitioner is entitled to vacatur and resentencing, as the trial court did here. ( § 1172.6, subds. (c), (d)(3).) However, section 1172.6 also sets up an abbreviated procedure where either the parties stipulate to the petitioner's eligibility for relief and waive the hearing or "there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony." ( § 1172.6, subd. (d)(2).) In the latter case, the court must bypass a hearing under section 1172.6, subdivision (d)(3) and proceed directly to vacatur and resentencing. ( § 1172.6, subd. (d)(2).)

Although the point is the subject of some legal dispute, we will assume arguendo that the jury found Guillory did not act with reckless indifference or was not a major participant in the kidnapping because it rejected the kidnapping allegation, which...