People v. Logan

THE PEOPLE, Plaintiff and Respondent, v. GREGORY LOGAN, Defendant and Appellant.

B304591

California Court of Appeals, Second District, Seventh Division

June 22, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No A638508, Patrick Connolly, Judge. Reversed and remanded with directions.

John P. Dwyer, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

PERLUSS, P. J.

Gregory Logan, convicted in 1990 of first degree murder and second degree robbery, appeals the superior court's order, made following an evidentiary hearing, denying his petition for resentencing under Penal Code section 1170.95^[1] after finding he could still be convicted of murder notwithstanding the changes to accomplice liability for murder effected by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). Logan argues it is unclear whether the court applied the correct standard of proof (that is, that the People must prove every element of liability for murder under the amended statutes beyond a reasonable doubt, as this court held in People v. Rodriguez (2020) 58 Cal.App.5th 227, 230, review granted March 10, 2021, S266652 (Rodriguez)) and, in any event, the court failed to find he had acted during the robbery with reckless indifference to human life within the meaning of People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), as now required to be convicted of felony murder. We reverse and remand for a new evidentiary hearing at which the superior court is to apply the beyond a reasonable doubt standard of proof and make express findings as to the required elements for a felony-murder conviction pursuant to section 189, subdivision (e)(3).

FACTUAL AND PROCEDURAL BACKGROUND

1. Logan's Trials, Conviction and Appeal

a. The charges

Logan was charged together with Randolph Hawkins in an amended information filed in March 1989 with first degree murder (§ 187, subd. (a)) with a felony-murder special-circumstance allegation (§ 190.2, subd. (a)(17)), kidnapping (§ 207, subd. (a)), kidnapping for robbery (§ 209, subd. (a)) and second degree robbery (§ 211). It was specially alleged Logan and Hawkins had personally used a firearm while committing the offenses (§12022.5) and Logan had a prior serious felony conviction (§ 667, subd. (a)). The court severed the trial of the two defendants.^[2]

At Logan's first trial the court granted Logan's motion for judgment of acquittal on the kidnapping and kidnapping for robbery charges. After closing argument a juror notified the court she had received an anonymous threatening telephone call in the middle of the night. The court declared a mistrial. The People and Logan thereafter agreed to a court trial based on the transcripts and evidence presented at Logan's first trial. The People agreed to dismiss the kidnapping-murder special-circumstance allegation and to amend the firearm enhancement to principal-armed (§ 12022, subd. (a)), rather than personal use.

b. The evidence at trial

According to the testimony of Willie Hearod, he, Hawkins and Logan walked to the Hoover Plaza Hotel at West 81st Street and South Hoover Street on the evening of September 24, 1986. Hearod stayed to play cards; Hawkins and Logan left. About 30 minutes later Hawkins and Logan returned with a 1984 Cadillac El Dorado that belonged to the murder victim, Raymond Curtis.

Hawkins asked Hearod to go with them to commit robberies in Santa Monica; Hearod declined. Hearod asked where Hawkins and Logan got the car. Logan explained that he and Hawkins were near 81st Street and Figueroa when they saw a man walking toward the car. Hawkins, who wanted to steal the car, pulled out a gun, told the man to freeze and then put him in the trunk of the Cadillac. Hawkins and Logan drove back to the Hoover Plaza Hotel to get Hearod.

When Hearod said the police would be looking for the car, Hawkins responded that would not happen because the owner was in the trunk. Hawkins and Logan again left, but returned a short while later. Hearod asked about the man in the trunk; Hawkins said, “A dead man can't testify in court for kidnapping.” Hawkins then told Hearod they had driven to 95th Street where Logan let Curtis out of the car to allow him to walk away. Hawkins thought Logan was being stupid, chased after Curtis and shot him multiple times. During the conversation Logan said he also shot at their victim, but Hawkins called him a liar and said he saw Logan “shoot in the air.”

In a police interview following his arrest on September 25, 1986, the transcript of which was admitted into evidence, Logan generally corroborated Hearod's testimony. According to Logan, around 8:00 or 9:00 p.m. on September 24, 1986, while he and Hawkins were walking on 81st Street, they saw a car with blinking lights. Hawkins wanted to steal the car. Hawkins and Logan ran toward Curtis, who was walking near the car; Hawkins drew his gun; and Curtis dropped the keys, which Logan picked up. Logan then began looking inside the car. Hawkins wanted to leave and put Curtis in the trunk so he could not notify the police. After the men returned to the hotel, they moved Curtis to the back seat of the car. Logan understood they were going to drop Curtis off some place. When they let Curtis out of the car near the freeway, Logan told him to walk away. Curtis started to run; and Hawkins ran after him, shooting Curtis several times as he did. Hawkins and Logan then returned to the Hoover Plaza Hotel before driving to Santa Monica to attempt additional robberies.

Around 1:00 a.m. on September 25, 1986 a security officer at a hospital undergoing reconstruction at West 95th Street and South Broadway heard four gunshots. A short while later he saw a man staggering in pain. The security officer called the police emergency number. Los Angeles Police Officer Herbert Maples and his partner responded to the call. Maples found Curtis dead, leaning against a lamp post. A medical examiner from the Los Angeles County Coroner's Office determined Curtis had been shot four times in the back; two of the gunshot wounds were fatal.

c. The court's ruling, sentence and appeal

The trial court found Logan guilty of “first degree felony-murder as alleged in Count I as an aider and abettor. The court finds that the robbery was still in progress while the victim was still being held by Defendant and Mr. Hawkins. The temporary stop at the Hoover Plaza Hotel was not sufficient to terminate the continuing robbery. The court further finds the enhancement for principal armed with a firearm to be true, also finds Defendant guilty of robbery, second degree, as charged in Count IV.”

The court sentenced Logan to an indeterminate state prison term of 26 years to life. We affirmed the judgment after Logan's appointed counsel filed an opening brief raising no issues pursuant to People v. Wende (1979) 25 Cal.3d 436. (People v. Logan (July 15, 1992, B051646) [nonpub. opn.].)

2. Logan's Petition for Resentencing

On January 7, 2019 Logan, representing himself, filed a petition for resentencing under section 1170.95 and requested the court appoint counsel to represent him in the resentencing proceedings. Logan checked several boxes on the printed form petition establishing his eligibility for resentencing relief, including the boxes stating he had been convicted under the felony-murder rule and could not now be convicted of first or second degree murder because of changes made to sections 188 and 189 by Senate Bill 1437.

The court appointed counsel to represent Logan. The People filed an opposition to the petition contending section 1170.95 was unconstitutional and a second opposition arguing Logan was ineligible for resentencing because he was a major participant in the underlying robbery and kidnapping and had acted with reckless indifference to human life. With the second opposition the prosecutor submitted transcripts of witness testimony from Logan's 1990 trial and a transcript of Logan's police interview. Logan filed a reply memorandum, responding to both the constitutional arguments and the contention he was ineligible for resentencing.^[3]

Although the court did not formally issue an order to show cause, it scheduled an evidentiary hearing that, after several continuances, was held on January 29, 2020. Logan was present at the hearing with his appointed counsel.

3. The Evidentiary Hearing and the Court's Ruling

At the outset of the hearing the court stated it had reviewed all the transcripts from Logan's initial jury trial and other material from the record of conviction that had been submitted by the parties, including Logan's police interview.^[4] The prosecutor summarized the evidence in general and then in the context of the five factors identified in Banks, supra, 61 Cal.4th 788 for determining whether a defendant, found guilty of the felony-murder special circumstance, had been a major participant in the underlying felony.^[5] Based on that review, she argued Logan not only was a major participant in the robbery of Curtis but also had acted with reckless indifference to human life during the course of the crime: “From the People's point of view, it's just not reasonable, Your Honor, that the victim of a robbery and a carjacking would be put in the trunk and left to tell the story later. As soon as he got in that car, his fate was sealed.”^[6]

For his part, Logan's counsel mentioned in passing the terms “major...