People v. Richardson

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RICHARDSON, Defendant and Appellant.

B308673

California Court of Appeals, Second District, Second Division

January 28, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County. No. PA024559 Cynthia L. Ulfig, Judge. Affirmed.

Elizabeth Richardson-Royer, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

LUI P. J.

Michael Richardson appeals the denial of a petition for resentencing under Penal Code^[1] section 1170.95.

Appellant was convicted in 1997 of the first degree murder of Steven McLean (§ 187, subd. (a); count 1) and first degree attempted robbery (§§ 664/211; count 2).^[2] The jury found true the special circumstance allegation that the murder was committed while appellant was engaged in the attempted commission of a robbery (§ 190.2, subd (a)(17)), as well as the principal and personal firearm use allegations (§§ 12022, subd. (a)(1) & 12022.5 subd. (a)(1)). Appellant admitted two prior strike convictions, and the trial court sentenced him to life without the possibility of parole plus a consecutive term of 25 years to life plus 15 years. (People v. Bates et al. (June 14, 1999, B115348) [nonpub. opn.] (Richardson I).) This court affirmed the judgment on appeal. (Ibid.)

On August 26, 2019, appellant filed a petition for resentencing under section 1170.95. The superior court appointed counsel for appellant and the parties submitted briefing. Following a hearing on the petition on October 9, 2020, the superior court determined that appellant was a major participant who acted with reckless indifference to human life, and was therefore ineligible for resentencing relief as a matter of law. The court denied the petition without issuing an order to show cause.

Appellant contends: (1) The superior court improperly engaged in factfinding at the prima facie stage of the proceeding by weighing the evidence and resolving issues that were not conclusively settled by the record of conviction; and (2) The evidence at trial was insufficient to support the jury's special circumstance finding. We reject appellant's contentions and affirm the superior court's denial of appellant's 1170.95 petition for resentencing.^[3]

FACTUAL BACKGROUND^[4]

James Orum owned a home in Northridge, which he shared with Frank Lauifi and Steven McLean. When Orum received $38, 000 in settlement of a personal injury claim, he deposited the money in his home safe and told some of his friends about it. One of those friends told someone else about the money, and word eventually reached Johnny Pedraza that Orum's home would make a good robbery target. Pedraza passed the information along to appellant and his codefendant, Marino Bates. Thereafter, appellant, Pedraza, and two others went to the house with plans to rob the occupants. But when no one answered the door, the venture was abandoned.

On February 20, 1996, appellant and Bates recruited a 14-year-old boy, Roy Molina, to help them rob Orum. That evening around 8:00 p.m., Molina knocked on Orum's door while appellant and Bates, who were wearing masks and carrying guns, hid nearby. Lauifi opened the door and Molina, holding his leg, asked to use the telephone. As Lauifi turned to get his cordless phone, appellant and Bates approached the door. Lauifi slammed the door shut and locked it as appellants tried to force it open. Lauifi grabbed a gun from Orum and locked the windows and doors while Orum called the police.

The police arrived, searched the house, and left after about 20 minutes. Shortly thereafter, McLean returned home and upon hearing what had happened, checked his nine-millimeter semiautomatic gun and returned it to the pack he wore around his waist. Lauifi left the house.

Orum was in the kitchen using the telephone when he heard a loud slam. Suddenly Bates appeared in the kitchen armed with a black nine-millimeter or .45-caliber automatic gun. Holding the gun to Orum's forehead, Bates pushed Orum down to the floor and threatened to kill him if he moved. Sounds of two men struggling came from another room. Bates ordered Orum not to move and ran out of the kitchen. Orum went to his bedroom to call the police and hid in the closet.

Police arrived to find the front door to the house ajar and McLean lying on the living room floor. He had been fatally shot several times from a distance of about five feet. The murder weapon was determined to be a .45-caliber semiautomatic or automatic gun. McLean's nine-millimeter gun was missing. Police found a set of keys and eight one-dollar bills outside of the house. One of the keys was later found to fit the deadbolt to Bates's mother's house.

DISCUSSION

I. Appellant Is Ineligible for Relief Under Section 1170.95 as a Matter of Law

A. Applicable legal principals

The Legislature enacted 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); People v. Gentile (2010) 10 Cal.5th 830, 842; People v. Martinez (2019) 31 Cal.App.5th 719, 723.) In addition to substantively amending sections 188 and 189 to ensure that a person's sentence is commensurate with his or her criminal culpability, Senate Bill No. 1437 added section 1170.95 to allow a person previously convicted of murder under a felony murder or natural and probable consequences theory to seek resentencing if he or she could no longer be convicted of murder because of the amendments to sections 188 and 189.^[5] (People v. Lewis (2021) 11 Cal.5th 952, 957, 959, 971 (Lewis)); Gentile, supra, 10 Cal.5th at pp. 842-843).

When a petition for resentencing under section 1170.95 meets the basic requirements set forth in subdivision (b)(1) and (2), the superior court must appoint counsel for petitioner if requested (§ 1170.95, subd. (b)(3)), the prosecutor must then file a response to the petition, and the petitioner may file a reply (id., subd. (c)). After the parties have had an opportunity to submit briefing, the superior court is required to "hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (Ibid.; Lewis, supra, 11 Cal.5th at p. 960.)

In determining whether the petitioner has made a prima facie case for relief, the superior court may consider the petitioner's record of conviction. (Lewis, supra, 11 Cal.5th at pp. 970-971.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) At the prima facie review stage, the superior court properly denies a petition where the record of conviction demonstrates the petitioner is ineligible for relief as a matter of law. (Ibid.; see also People v. Mancilla (2021) 67 Cal.App.5th 854, 859, 863-864.) However, in reviewing any part of the record to make its preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved, the superior court must take petitioner's factual allegations as true and may not engage in factfinding. (Lewis, at pp. 971-972; People v. DeHuff (2021) 63 Cal.App.5th 428, 439-440.)

B. The jury's true finding on the attempted murder special circumstance allegation makes appellant ineligible for relief under section 1170.95 as a matter of law

With Senate Bill No. 1437's addition of subdivision (e) to section 189, the crime of felony murder is now subject to the same requirements as a special circumstance finding under section 190.2, subdivision (d).^[6] (People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 907 [" 'the standard under section 189, subdivision (e)(3) for holding a defendant liable for felony murder is [now] the same as the standard for finding a special circumstance under section 190.2[, subdivision ](d), as the former provision expressly incorporates the latter' "]; In re Taylor (2019) 34 Cal.App.5th 543, 561.) That is, to be convicted of first degree murder under section 189 as amended, the defendant must have been the actual killer, a direct aider and abettor who acted with the intent to kill, or "a major participant in the underlying felony [who] acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e); People v. Farfan (2021) 71 Cal.App.5th 942, 954 (Farfan).)

Here, appellant's jury was instructed pursuant to CALJIC No. 8.80.1 that if it found appellant was not the actual killer, it could not find the attempted robbery-murder special circumstance true unless it was satisfied beyond a reasonable doubt that appellant intended to kill or he was a major participant in the attempted robbery, and, when he participated in the crime, he acted with reckless indifference to human life. The jury was further instructed that "[a] defendant acts with reckless indifference to human life when that defendant knows or is aware that his acts involve a grave risk of death to an innocent human being."

Relief under section 1170.95 is available only if the...