People v. Strong

13 Cal.5th 698

514 P.3d 265

296 Cal.Rptr.3d 686

The PEOPLE, Plaintiff and Respondent,

v.Christopher STRONG, Defendant and Appellant.

S266606

Supreme Court of California.

August 8, 2022

Deborah L. Hawkins, under appointment by the Supreme Court, for Defendant and Appellant.

Jonathan E. Demson, Santa Monica, as Amicus Curiae on behalf of Defendant and Appellant.

Michelle May Peterson for Santa Clara County Independent Defense Counsel Office as Amicus Curiae on behalf of Defendant and Appellant.

Mary K. McComb, State Public Defender, and AJ Kutchins, Deputy State Public Defender, as Amicus Curiae on behalf of Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Rachelle A. Newcomb and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Kruger, J.

In Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), the Legislature significantly narrowed the scope of the felony-murder rule. It also created a path to relief for defendants who had previously been convicted of murder on a felony-murder theory but who could not have been convicted under the new law. Resentencing is available under the new law if the defendant neither killed nor intended to kill and was not "a major participant in the underlying felony [who] acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2." ( Pen. Code, § 189, subd. (e)(3) ; see id. , § 1172.6; Stats. 2018, ch. 1015, §§ 3–4; Stats. 2022, ch. 58, § 10.) This provision repurposes preexisting law governing felony-murder special-circumstance findings — the findings a jury makes in felony-murder cases to determine whether the defendant may be sentenced to death or life without possibility of parole ( Pen. Code, § 190.2, subd. (d) ) — to define eligibility for sentencing relief.

In this case, defendant Christopher Strong seeks resentencing even though the jury that convicted him of felony murder in 2014 also found true felony-murder special-circumstance allegations that he was a "major participant" who acted "with reckless indifference to human life" within the meaning of Penal Code section 190.2, subdivision (d). He contends that the jury's findings should not preclude him from making a prima facie showing of eligibility for relief because the findings were made before this court's decisions in People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 ( Clark ), which for the first time provided substantial guidance on the meaning of the two relevant statutory phrases. We agree. We reverse the contrary judgment of the Court of Appeal and remand for further proceedings.

I.

In 2007, Strong and an accomplice attempted to rob a local drug dealer in his home. During the robbery, the accomplice fatally shot a friend of the drug dealer, Sean Aquitania, and Aquitania's infant son. In 2014, a jury convicted Strong of various crimes, including two counts of first degree murder with multiple-murder and felony-murder special circumstances. ( Pen. Code, §§ 187, 190.2, subd. (a)(3) [multiple murder], (17)(A) [robbery felony murder], (17)(G) [burglary felony murder].) He was sentenced to two terms of life without the possibility of parole and an additional 36 years. After Senate Bill 1437 took effect in 2019, Strong filed a petition for resentencing based on relevant changes to felony-murder law.

We begin by describing the law that governed at the time of Strong's trial and the subsequent legal developments that have given rise to the question before us.

A.

Under the felony-murder doctrine as it existed at the time of Strong's trial, "when the defendant or an accomplice kill[ed] someone during the commission, or attempted commission, of an inherently dangerous felony," the defendant could be found guilty of the crime of murder, without any showing of "an intent to kill, or even implied malice, but merely an intent to commit the underlying felony." ( People v. Gonzalez (2012) 54 Cal.4th 643, 654, 142 Cal.Rptr.3d 893, 278 P.3d 1242.) Murders occurring during certain violent or serious felonies were of the first degree, while all others were of the second degree. ( Pen. Code, § 189, subds. (a), (b) ; Gonzalez , at p. 654, 142 Cal.Rptr.3d 893, 278 P.3d 1242.)

Then, as now, a defendant convicted of first degree murder could be punished by a sentence of death or life without possibility of parole if the trier of fact found the murder's commission involved one of several statutorily defined special circumstances. ( Pen. Code, § 190.2.) These special circumstances serve a constitutionally required role by narrowing the class of individuals eligible for the death penalty to those whose actions and mental state are sufficiently egregious to potentially warrant that penalty. ( People v. Bacigalupo (1993) 6 Cal.4th 457, 467–468, 24 Cal.Rptr.2d 808, 862 P.2d 808 ; see, e.g., Loving v. United States (1996) 517 U.S. 748, 755, 116 S.Ct. 1737, 135 L.Ed.2d 36.) The special circumstance at issue here, the felony-murder special circumstance, applies to certain murders committed in the course of one of a dozen of the most serious felonies, including robbery, rape, arson, carjacking, and first or second degree burglary. ( Pen. Code, § 190.2, subd. (a)(17).) Like the other special circumstances, the felony-murder special circumstance applies to defendants who actually killed (id. , subd. (b)) or who abetted a murder with the intent to kill (id. , subd. (c)). But unlike the other special circumstances, the felony-murder special circumstance also applies to some convicted murderers who neither killed nor intended to kill, namely, "major participant[s]" in the underlying felony who acted "with reckless indifference to human life." (Id. , subd. (d).)

This latter provision, extending felony-murder special-circumstance liability to major participants, was added by voter initiative in 1990. (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990) § 10; Banks , supra , 61 Cal.4th at p. 798, 189 Cal.Rptr.3d 208, 351 P.3d 330.) The major participant and reckless indifference phrases were "derive[d] verbatim" from United States Supreme Court precedent concerning the permissible scope of capital punishment for felony murder. ( People v. Estrada (1995) 11 Cal.4th 568, 575, 46 Cal.Rptr.2d 586, 904 P.2d 1197, citing Tison v. Arizona (1987) 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 ( Tison ).) But for the next quarter century, neither the United States Supreme Court nor California courts offered much guidance about the major participant or reckless indifference standards, except to indicate that neither phrase is used in a specialized or technical sense in Penal Code section 190.2, subdivision (d). ( Banks , at p. 800, 189 Cal.Rptr.3d 208, 351 P.3d 330 ; see Estrada , at pp. 574–578, 46 Cal.Rptr.2d 586, 904 P.2d 1197 [addressing court's instructional duties concerning the reckless indifference element]; People v. Proby (1998) 60 Cal.App.4th 922, 933, 70 Cal.Rptr.2d 706 [addressing the major participant element].)

We first undertook to provide that guidance in Banks . The specific issue concerned the meaning of the major participant element: "[U]nder what circumstances an accomplice who lacks the intent to kill may qualify as a major participant" for purposes of the felony-murder special circumstance. ( Banks , supra , 61 Cal.4th at p. 794, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Because the language derived from United States Supreme Court felony-murder precedent, we looked to that case law for guideposts. The cases, which delineated the limits on capital punishment for felony murder under the Eighth Amendment of the federal Constitution, "collectively place[d] conduct on a spectrum" of defendant culpability, "with felony-murder participants eligible for death only when their involvement [was] substantial and they demonstrate[d] a reckless indifference to the grave risk of death created by their actions." ( Banks , at p. 794, 189 Cal.Rptr.3d 208, 351 P.3d 330 ; see id. at p. 800, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Toward one end of the spectrum was the getaway driver the high court found constitutionally ineligible for death in Enmund v. Florida (1982) 458 U.S. 782, 797–801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 : a " ‘minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.’ " ( Banks , at p. 800, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Toward the other end of the spectrum were the confederates found eligible for death in Tison , supra , 481 U.S. 137, 107 S.Ct. 1676, who had broken convicted murderers out of jail, armed them, captured an innocent family, "held [the family] at gunpoint while the two murderers deliberated whether the family should live or die, [and] then stood by while all four members were shot." ( Banks , at p. 802, 189 Cal.Rptr.3d 208, 351 P.3d 330.)

Examining the two high court decisions, Banks identified a series of considerations to help guide the inquiry into "whether a defendant's culpability is sufficient to make him or her death eligible" under the Eighth Amendment and, by extension, under California statutory law incorporating the Eighth Amendment standard. ( Banks , supra , 61 Cal.4th at p. 803, 189 Cal.Rptr.3d 208, 351 P.3d 330.) The considerations, we said, "are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did...