People v. Harris

1

THE PEOPLE, Plaintiff and Respondent, v. CLAY ARTHUR HARRIS, Defendant and Appellant.

F083504

California Court of Appeals, Fifth District

May 2, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Stanislaus County No CR-19-002668. Shawn D. Bessey, Judge.

Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PENA J.

INTRODUCTION

In 1992, a jury convicted defendant Clay Arthur Harris of first degree murder (Pen. Code, § 187; count I), attempted second degree robbery (§§ 211, 664; count II), two counts of second degree robbery occurring on different days (§ 211; counts III, VI), assault with a deadly weapon (§ 245, subd. (a)(1); count IV), and kidnapping (§ 207; count V). (Undesignated statutory references are to the Penal Code.) After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant filed a section 1172.6 (former § 1170.95)^[1] petition for resentencing. The court denied the petition without issuing an order to show cause, concluding defendant was a major participant in the underlying felony who was ineligible for resentencing.

We previously reversed the court's order in an unpublished opinion, concluding the court erred in denying the petition without issuing an order to show cause because the record did not establish defendant was ineligible for resentencing as a matter of law. On remand, the trial court held an evidentiary hearing after which it found defendant was a major participant in the crime who acted with reckless indifference to human life. Accordingly, the trial court denied defendant's petition for resentencing.

Defendant now challenges the denial of his petition, arguing the record does not establish the court applied the correct standard at the evidentiary hearing; the evidence was insufficient to establish he acted with reckless indifference to human life; and the court erred in considering defendant's statements from his parole hearings at the evidentiary hearing.

We affirm the order denying the petition.

FACTUAL AND PROCEDURAL HISTORY

Procedural Background

In 1992, a jury convicted defendant Clay Arthur Harris of first degree murder during the commission and attempted commission of robbery of Ronald Jorgenson (§ 187; count I), attempted second degree robbery of Ronald Jorgenson (§§ 211, 664; count II), two counts of second degree robbery (§ 211; counts III &VI (of Pete T. &John A., respectively)), assault with a deadly weapon of Pete T. (§ 245, subd. (a); count IV), and kidnapping (§ 207; count V). The jury also found true allegations defendant personally used a deadly and dangerous weapon, to wit, a knife, in violation of section 12022, subdivision (b), during the commission of counts II, III, and VI, and that he used a deadly weapon pursuant to section 1203, subdivision (e)(2) during the assault alleged in count IV. The court sentenced defendant to prison for 25 years to life on the murder count, plus an additional five years for a prior serious felony conviction enhancement (§ 667), and additional determinate terms for the remaining counts.

In 2019, defendant submitted a petition for resentencing pursuant to section 1172.6 using a preprinted form. The court denied defendant's petition without issuing an order to show cause or holding an evidentiary hearing, finding defendant was a major participant in the murder; so, he was not eligible for resentencing.

In the previous appeal, we reversed the court's order denying defendant's petition and remanded with instructions for the trial court to issue an order to show cause and to hold an evidentiary hearing. On remand, the trial court issued an order to show cause.

Before the evidentiary hearing on the petition, the People filed a motion in limine regarding evidence for the evidentiary hearing in which they asked the trial court to take judicial notice of the entire record of conviction, the original appellate opinion (People v. Harris (June 3, 1993, F018992) [nonpub. opn.]), and the entire court file pursuant to Evidence Code section 453. They also argued for the admissibility of defendant's Board of Parole Hearing transcripts and documents made in preparation for the hearings, including defendant's written statements, specifically a Board of Parole Hearing Transcript dated May 4, 2016 (portions of which were attached to the People's motion), a Board of Parole Hearing Transcript dated November 7, 2018 (portions of which were attached to the People's motion), undated letters to the victims by defendant, and a February 9, 2020 Comprehensive Risk Assessment. They argued such documents should be admissible because section 1172.6 provides for the consideration of new evidence, defendant's "statements were voluntary," and the documents "are relevant to and probative of [defendant's] level of involvement in the murder." Additionally, they stated their intention to introduce defendant's Department of Corrections and Rehabilitation records and the exhibits from his trial, which took place on November 16-20, 1992.

They noted, at the evidentiary hearing, the court "will be the trier of fact regarding whether [defendant] was a major participant in the robbery and attempted robbery who acted with reckless indifference to human life and whether [defendant] was a direct aider and abettor to the murder."

The court held admissible the transcripts from the May 4, 2016, and November 7, 2018, parole hearings, but it denied admission of the risk assessment. The court also agreed to take judicial notice of the court's file and accepted as part of the record a transcript of an interview between defendant and Detective Richard Ridenour that was admitted in evidence at trial.

Trial Transcript and Evidence

The evidence at trial including the testimony and defendant 's statement to police that was admitted as an exhibit reflect the following facts.

John A. Robbery

Around 11:30 p.m. on June 13, 1992, two men, later identified as defendant and Daniel Utter, contacted John A. as he was walking back to his motor home. John A. gave defendant and Utter some change for them to make a phone call, and then he continued toward his motor home. Defendant and Utter followed him. John A. went inside his motor home and, before he could lock the bottom lock, "someone ripped the door off and came in, started fighting with [him]" and got him down.

Both individuals attacked John A. and were fighting him. Defendant^[2] held John A. in a chokehold with his arm around John A.'s neck and Utter had John A.'s legs. John A. "almost passed out" when defendant was choking him. Defendant said, "'Quit struggling and I won't hurt you,'" so John A. stopped struggling.

Defendant and Utter then dragged John A. to the back of the motor home. Defendant kept holding John A. in a chokehold and Utter took John A.'s keys. Utter then drove the motor home into a field where he stopped. Defendant held John A. in a chokehold while Utter went through John A.'s pockets and took his wallet and watch. Defendant told John A "'Don't look at me and don't struggle and you won't be hurt. If you struggle, I'll have to hurt you.'" Defendant and Utter found some rope and tied up John A. and then began "ripping" through the cupboards. Then they drove to an alley, threw a towel over John A.'s head, taped his mouth shut with duct tape, and told him to be quiet. John A. could hear defendant get out of the motor home and negotiate the sale of goods from the motor home, including the TV and some other items, to a man and a woman. Defendant and Utter then drove back to a field and taped John A.'s eyes closed with duct tape. They placed John A. on the floor and tied him to a chair that was bolted to the floor so he could not move. At some point while John A. was tied up, Utter kicked him.

John A. was having a hard time breathing and defendant asked him what was wrong. John A. said he was going to die because he could not breathe, so defendant took off the tape to let John A. breathe and then put the tape back on. As John A. struggled to breathe, Utter told him he was going to hit him on the head with a 1.7-liter bottle of alcohol and knock him out if he was not quiet. At trial, John A. explained he had three knives in the motor home, including a fillet knife and a "Centennial knife" commemorating the Statue of Liberty, and both knives were missing after the robbery. At one point during the robbery, defendant took the tape off John A.'s right eye and showed John A. where defendant had cut his hand with a sharp knife; John A. explained the fillet knife was very sharp. Defendant was bleeding and, after the robbery was over, John A. noticed blood on his own shirt. A criminalist testified at trial that the blood on John A.'s shirt could have come from defendant; it could not have come from Utter or John A. The prosecution introduced a picture of a new knife at trial that John A. testified was identical to his fillet knife, which was missing after the robbery.

After defendant put the tape back on John A.'s face, John A. began to struggle. Defendant asked him what was wrong. John A. told him he was going to throw up and "strangle on the vomit." Defendant took the tape off John A.'s mouth and gave him something to throw up into before putting the tape back on. At some point, the motor home stopped and defendant and Utter got out. John A. managed to get loose.

In his statement to police, defendant said Utter talked about burning the motor home and taking John...