People v. Harrison

73 Cal.App.5th 429

288 Cal.Rptr.3d 484

The PEOPLE, Plaintiff and Respondent,

v.Lemar HARRISON, Defendant and Appellant.

A159115

Court of Appeal, First District, Division 4, California.

Filed December 30, 2021

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, René Chacón, Bruce L. Ortega, Deputy Attorneys General for Plaintiff and Respondent.

BROWN, J.

Lemar Harrison appeals from the trial court's order denying his petition under Penal Code ¹ section 1170.95. That statute allows a defendant convicted of felony murder to have his conviction vacated and be resentenced if the conviction would not be valid under the recent amendments to sections 188 and 189. ( § 1170.95, subd. (a) ; Stats. 2018, ch. 1015, §§ 2–3.)² Those amendments changed the law so that a participant in certain felonies in which a death occurs is generally liable for murder only if the participant was the actual killer, aided and abetted the murder with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e).)

Harrison contends the trial court erred when it found his petition failed to state a prima facie case for relief and refused to issue an order to show cause.

He further argues the proper remedy is to remand the case with instructions to vacate his murder conviction and resentence him, asserting such relief is mandatory because the record shows that the court that convicted him in a 2000 bench trial made a finding that he did not act with reckless indifference to human life. ( § 1170.95, subd. (d)(2).) The Attorney General agrees that the court that decided Harrison's section 1170.95 petition erred by denying it at the prima facie stage and not issuing an order to show cause, but he disagrees that Harrison is entitled to relief on his petition.³ We agree with Harrison and the Attorney General that the resentencing court erred in denying Harrison's petition at the prima facie stage. We further agree with Harrison that he is entitled to relief on his petition as a matter of law, so we will remand with instructions to grant his petition, vacate his conviction, and resentence him.

BACKGROUND

I. Senate Bill No. 1437

"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill [No.] 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. (See [People v. ] Gentile [2020] 10 Cal.5th [830,] 843, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

"Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ ( § 1170.95, subds. (a)(1)–(3) ; see also § 1170.95 subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests the appointment of counsel.’ ( § 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of another petition.’ ( § 1170.95, subd. (b)(2).)

"Where the petition complies with subdivision (b)’s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ " for relief. ( § 1170.95, subd. (c).)

"If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing ‘to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not ... previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ ( § 1170.95, subd. (d)(1).) ‘The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.’ ( § 1170.95, subd. (d)(3).) At the hearing stage, ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’ ( § 1170.95, subd. (d)(3).)" ( People v. Lewis (2021) 11 Cal.5th 952, 959–960, 281 Cal.Rptr.3d 521, 491 P.3d 309 ( Lewis ).)

"The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing. If 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, the court shall vacate the petitioner's conviction and resentence the petitioner." ( § 1170.95, subd. (d)(2).)

II. Harrison's trial and conviction

Like both Harrison and the Attorney General, we rely on our opinion in Harrison's direct appeal from his conviction, People v. Harrison (Aug. 22, 2002, A092690) 2002 WL 1938968 [nonpub. opn.] ( Harrison I ), for the facts of Harrison's offense. "On May 28, 1996, defendant and Lamont Johnson met Stephen Harless (‘Snoo’) at Briones Park for the ostensible purpose of buying marijuana from Harless. The plan that day, however, was to rob Harless.

"Defendant and Johnson arrived in defendant's car; Harless arrived in his own car. After the three had spent some time smoking marijuana in a parking area, defendant and Harless walked down a trail while Johnson lingered behind. Defendant and Harless eventually turned back and met up with Johnson. They were still on the trail, a short distance from the parking lot.

Johnson took out a gun, pointed it at Harless, and told him to take off his clothes. Johnson then asked for his money. Harless told Johnson his money was in his pants.

"Defendant took Harless's clothes and keys and walked to the parking lot. He put the clothes in Harless's car. Defendant then walked back down the trail, where Johnson was holding Harless. With the robbery accomplished, Johnson shot Harless several times. Johnson then handed the gun to defendant and told him to shoot Harless. Defendant fired a shot at Harless, who was lying on the ground.

"Defendant and Johnson ran back to the parking lot, where they came upon a water district ranger sitting in his truck. Defendant fired at the truck, striking it three times. At least one shot went through the cab of the truck. The ranger managed to get out of the cab and hide behind a rear wheel of the truck.

"Defendant and Johnson fled—defendant in Harless's car and Johnson in defendant's car. The robbery netted a substantial amount of marijuana and several hundreds of dollars in cash.

"After he was apprehended by the police, defendant admitted he shot at Harless and the ranger's truck. At trial defendant testified that he did not know Johnson was going to rob Harless. Defendant was afraid of Johnson. When Johnson handed him the gun, defendant believed his only choice was to comply with Johnson's orders." ( Harrison I , supra , A092690.)

The information charged Harrison with robbery of Harless ( §§ 211 – 212.5 (count 1)); evading a police officer while driving in willful disregard of others ( Veh. Code, § 2800.2 (count 2)); attempted murder of the ranger ( §§ 187, 664 (count 3)); and murder of Harless ( § 187 (count 4)). As to the robbery, attempted murder, and murder charges (counts 1, 3, and 4), the information alleged Harrison personally used a firearm (former § 12022.5, subd. (a) ). As to the charge of murder of Harless (count 4), the information alleged the special circumstance under section 190.2, subdivision (a)(17) that Harrison murdered Harless while Harrison was committing robbery.⁴

The parties stipulated to a court trial. At the trial in January 2000, after the conclusion of the prosecution's case in chief, the court entered a judgment of acquittal pursuant to section 1118⁵ on the charge of evading a police officer (count 2) and a qualified acquittal on the charge of attempted murder (count 3). The court also entered judgment that the firearm allegations in counts 1 and 4 were not true and the personal use of a firearm (former § 12022.5, subd. (a) ) and special circumstance ( § 190.2, subd. (a)(17) ) allegations attached to count 4 were not true.

As to the special circumstance allegation based on section 190.2, subdivision (a)(17), the court found the prosecution's evidence failed to establish beyond a reasonable doubt that Harrison (1) was the actual killer of Harless, (2) aided and abetted Johnson in the murder with the intent to kill Harless, or (3) was a major participant in the robbery and acted with a reckless indifference to human life.⁶ On the third point, the trial court found the evidence was strong that Harrison was a major participant and that he acted with reckless indifference, but it found the prosecution's evidence insufficient because it viewed section 190.2,...