People v. Newsome

1

THE PEOPLE, Plaintiff and Respondent, v. MALVERN NEWSOME, Defendant and Appellant.

E077806

California Court of Appeals, Fourth District, First Division

April 3, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Super. Ct.No. RCR16650. Jon D. Ferguson, Judge. Reversed with directions.

Marcia R. Clark, by appointment of the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Alan Amann and Jennifer A Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FIELDS, J.

I. INTRODUCTION

In 1990, a jury convicted defendant and appellant Malvern Newsome of first-degree murder (count 1; Pen. Code, § 187, subd. (a))^[1] and attempted robbery (count 2; §§ 664, 211). He was sentenced to 26 years to life in state prison, and his conviction was affirmed on direct appeal.

In 2019, defendant filed a petition for resentencing pursuant to section 1172.6.^[2]The trial court held an evidentiary hearing on defendant's petition pursuant to section 1172.6, subdivision (d)(3), at which time the prosecution presented additional evidence from defendant's record of conviction, including a preliminary hearing transcript, a trial transcript that included a summation of evidence by the prosecutor during closing argument, and a probation report. Relying in part on this evidence, the trial court denied defendant's petition, finding that defendant was as a major participant in an underlying felony who acted with reckless indifference to human life.

Shortly after the denial of defendant's petition, Senate Bill No. 775 (SB 775) (2021-2022 Reg. Sess.) was enacted. As relevant to this appeal, SB 775 amended the procedural provisions applicable to a petition for resentencing by specifying that the Evidence Code shall apply to any evidentiary hearing on an order to show cause.

On appeal, the only argument advanced by defendant is that the evidentiary provisions enacted by SB 775 should apply retroactively to his case. As a result, defendant argues we should conclude that the trial court erred by relying on evidence now deemed inadmissible, find that the remaining evidence in the record is insufficient to sustain the trial court's factual findings, reverse the trial court's order denying his petition, and direct the trial court to grant the petition and to proceed to resentencing on the remaining charge upon remand.^[3]

We decline to resolve the retroactivity issue raised by defendant because we conclude that the appropriate disposition in this case is to reverse and remand the matter for the trial court to conduct a new evidentiary hearing, regardless of whether the evidentiary provisions enacted by SB 775 apply retroactively.

II. FACTS & PROCEDURAL HISTORY

In 1989, defendant and his cohort obtained a firearm and developed a plan to use the firearm in order to steal a car. During the execution of their plan, defendant's cohort discharged the firearm, killing the driver of the vehicle they were attempting to steal. Defendant was convicted by a jury of one count of first degree murder and one count of armed robbery arising from this incident.

In 2019, appellant filed a petition for resentencing pursuant to section 1172.6. In September 2021,^[4] the trial court held an evidentiary hearing on an order to show cause. At the time of the hearing, the prosecution presented additional evidence contained in appellant's record of conviction, including a preliminary hearing transcript, a summation of evidence contained in the prosecutor's closing arguments during trial, and a probation report. Defendant did not object to this evidence, and the trial court expressly relied on some of this evidence to find that appellant was a major participant who acted with reckless indifference to human life in the commission of an underlying felony. As a result, the trial court denied defendant's petition for resentencing. Appellant appeals from this order.

III. DISCUSSION

On appeal, defendant argues the trial court erred in denying his petition for resentencing because it relied on evidence that should now be considered inadmissible under the evidentiary provisions enacted by SB 775. According to defendant, the evidentiary provisions enacted by SB 775 apply retroactively and, as a result, we should find he was prejudiced by the consideration of inadmissible evidence; that insufficient evidence supports the trial court's findings once inadmissible evidence is excised from the record; and that we must reverse and remand the matter with directions for the trial court to proceed directly to resentencing on only one count of attempted robbery. We decline to do so. As we explain, we believe, instead, that the appropriate disposition in this case is to remand the matter for a new evidentiary hearing under the procedural and evidentiary rules now in effect.

A. Legal Background

Effective January 1, 2019, the Legislature passed Senate Bill 1437 (2017-2018 Reg. Sess.)" '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.' [Citation.] . . . Senate Bill 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." (People v. Lewis (2021) 11 Cal.5th 952, 959; Stats. 2018, ch. 1015, § 4.)

"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.'" (People v. Lewis, supra, 11 Cal.5th at pp. 959-960.)

"Where the petition complies with section 1170.95, 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. [Citation.] [¶] 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 . . . . 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.'" (People v. Lewis, supra, 11 Cal.5th at p. 960.) If, based upon this evidence, the trial court finds that the defendant was the actual killer, acted with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life, then resentencing under section 1172.6, formerly section 1170.95, is unavailable. (People v. Strong (2022) 13 Cal.5th 698, 710.)

In 2021, "the Legislature modified section 1170.95 both substantively and procedurally by the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) . . . ." (People v. Owens (2022) 78 Cal.App.5th 1015, 1026.) Among other things, SB 775 modified section 1170.95 to specify that the Evidence Code shall apply to evidentiary hearings on an order to show cause, and "[t]his may mean that, absent some exception, hearsay contained in probation, presentence reports, appellate opinions/orders, and other documents, are not now admissible at a section 1170.95 hearing." (Owens, at p. 1026.) SB 775 became effective January 1, 2022 (Stats. 2021, ch. 551, § 2), and section 1170.95 was subsequently renumbered as 1172.6 without substantive change (Stats. 2022, ch. 58, § 10).

B. Reversal and Remand for a New Evidentiary Hearing Is the Appropriate Remedy Regardless of Whether the Evidentiary Provisions of SB 775 Apply Retroactively

The primary issue raised by defendant in this appeal is that the evidentiary provisions enacted by SB 775 apply retroactively. The People disagree with this proposition but urge us to look past the issue of retroactivity to resolve the appeal on other grounds in the interests of justice.

More than one published decision has addressed the retroactive application of the substantive provisions enacted by SB 775. (People v. Porter (2022) 73 Cal.App.5th 644, 651-652 [provision expanding the list of offenses eligible for resentencing applies retroactively]; People v. Langi (2022) 73 Cal.App.5th 972, 978 [same].) However, with respect to the procedural changes enacted by SB 775, published decisions have made conflicting statements regarding retroactive application. (Compare People v. Basler (2022) 80 Cal.App.5th 46, 55-56 ["procedures within [section 1172.6] apply retroactively"] with People v. Owens, supra, 78 Cal.App.5th at pp 1026-1027 [observing changes in criminal procedural rules are not generally applied retroactively but declining to "definitively rule" on the issue]; see id. at p. 1028 (conc. opn. of Tangeman, J.) [The evidentiary portions of SB 775 "may come within the rule that legislative clarification of existing law applies to conduct that precedes its enactment."].) In each of these cases, the statements regarding retroactive application of the...