People v. Clayton

• Citation: 66 Cal.App.5th 145,280 Cal.Rptr.3d 735
• Decision Date: 02 July 2021
• Docket Number: B308524
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Darryl CLAYTON, Jr., Defendant and Appellant.

66 Cal.App.5th 145

280 Cal.Rptr.3d 735

The PEOPLE, Plaintiff and Respondent,

v.Darryl CLAYTON, Jr., Defendant and Appellant.

B308524

Court of Appeal, Second District, Division 2, California.

Filed July 2, 2021

Richard B. Lennon, Los Angeles, Cheryl Lutz and Olivia Meme 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, Amanda V. Lopez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

LUI, P. J.

Darryl Clayton, Jr., appeals the summary denial of his petition to vacate his 2000 murder conviction and resentence him pursuant to Penal Code section 1170.95.¹ The parties agree that the court's denial of the petition was in error. The appeal presents the following issue: Does a jury's not true finding on a felony-murder special-circumstance allegation constitute "a prior finding by a ... jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the [underlying] felony," thus triggering the superior court's duty to vacate the murder conviction and resentence the petitioner under section 1170.95, subdivision (d)(2) ? We hold that the jury's unanimous rejection of the special-circumstance allegation establishes the petitioner's entitlement to relief under section 1170.95 as a matter of law. Therefore, in accordance with the mandate of section 1170.95, subdivision (d)(2), we reverse the order denying the petition and remand to the superior court with directions to grant the petition, vacate appellant's murder conviction, and resentence him on the remaining counts.

FACTS² AND PROCEDURAL BACKGROUND

On May 3, 1999, Jenny Kim and Gary Kim were working at a jewelry and music store in Long Beach. Around noon, appellant and three other men entered the store. As two of the men held Gary Kim at gunpoint, appellant grabbed Jenny Kim by her clothing and pulled her over the counter. Appellant dragged her to the back of the store and ordered her to get down on the floor. Appellant was not armed. As he rifled through her pockets he repeatedly asked her what she had, and he threatened to hurt her if she moved.

Unable to open the cash register himself, appellant directed Jenny Kim to open it. After she did so, he ordered her to return to the back of the store and lie face down on the floor. Jenny Kim could not see what was happening elsewhere in the store, but she heard Gary Kim being beaten and kicked, and then she heard a single gunshot. Gary Kim died instantly from a gunshot wound to the back of the head.

Three of the perpetrators were arrested soon after the murder, and some of the jewelry taken during the robbery was recovered. Several months later, appellant was arrested. In an interview with police, appellant initially denied any knowledge of the crimes. But eventually he admitted he had spent the night before the offenses with one of the perpetrators and confessed he was in the store during the robberies and murder. However, appellant denied involvement in any plan to commit a robbery and insisted he did not know a robbery was about to take place when he entered the store. Appellant also asserted he pushed Jenny Kim over the counter for her protection when it appeared that one of the perpetrators was going to shoot her. After Jenny Kim had opened the cash register and appellant had walked her back to the rear of the store, appellant saw one of the men taking money from the cash register. Appellant decided to leave, and as he reached the door he heard the gunshot. Appellant maintained he had no part in the killing.

On July 10, 2000, a jury convicted appellant of one count of first degree murder (count 1) and two counts of robbery, as charged. As to all three counts, the jury found the allegation that a principal was armed with a firearm to be true. However, the jury found the special-circumstance allegation that the murder was committed while appellant was engaged in the crime of robbery to be not true.

The trial court sentenced appellant to 25 years to life plus one year for the firearm enhancement on count 1, plus seven years four months for the remaining counts and the enhancement. This court affirmed the judgment on appeal. (Clayton , supra , B143748.)

On April 23, 2019, appellant filed a petition for resentencing pursuant to section 1170.95. The superior court appointed counsel and ordered briefing from the parties. Following briefing and argument, the superior court conducted its own evaluation of the evidence and summarily denied the petition, without issuing an order to show cause. Declaring that the jury's not true finding on the special-circumstance allegation was irrelevant to its determination of whether there was sufficient evidence to support a conviction of first degree murder under a felony-murder theory, the court found appellant had been a major participant who acted with reckless indifference to human life.

DISCUSSION

I. Appellant Stated a Prima Facie Case for Relief Under Section 1170.95 ; the Superior Court's Summary Denial of the Petition Based on Its Own Findings of Fact Violated the Statutory Procedures Mandated Under Section 1170.95, Subdivisions (c) and (d)

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 (2020) 10 Cal.5th 830, 842, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ); People v. Martinez (2019) 31 Cal.App.5th 719, 723, 242 Cal.Rptr.3d 860 ( Martinez ).) To accomplish this objective, Senate Bill No. 1437 amended the natural and probable consequences doctrine by adding section 188, subdivision (a)(3), defining malice, to require that all principals to murder must act with express or implied malice to be convicted of that crime, with the exception of felony murder under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2 ; Gentile , at pp. 842–843, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

The Legislature also "amended section 189 to limit the scope of liability for murder on a felony-murder theory." ( People v. Drayton (2020) 47 Cal.App.5th 965, 972, 261 Cal.Rptr.3d 335 ( Drayton ).) As amended, section 189 now includes the requirement that a participant in a specified felony during which a death occurs may be convicted of murder for that death only if it is proved that the defendant was the actual killer, an aider and abettor to the murder who acted with the intent to kill, or a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3 ; § 189, subd. (e)(1)–(3) ; Gentile , supra , 10 Cal.5th at p. 842, 272 Cal.Rptr.3d 814, 477 P.3d 539.) In addition to these amendments, Senate Bill No. 1437 added section 1170.95 to provide a procedure by which those convicted of felony murder or murder under a natural and probable consequences theory may seek retroactive relief if they could no longer be convicted of murder because of the changes to sections 188 or 189. ( Gentile , supra , 10 Cal.5th at p. 843, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; Martinez , supra , 31 Cal.App.5th at pp. 722–723, 242 Cal.Rptr.3d 860.)

Subdivision (a) of section 1170.95 sets forth the three conditions for eligibility for relief.³ Subdivision (b) in turn "describes where and how the petition must be filed and specifies its required content," including a declaration by the petitioner that he or she "is eligible for relief according to the criteria set out in subdivision (a)." ( Drayton , supra , 47 Cal.App.5th at p. 973, 261 Cal.Rptr.3d 335.) If a petition for resentencing under section 1170.95 meets the requirements of subdivisions (a) and (b), the superior court conducts the analysis prescribed in subdivision (c) before issuing an order to show cause.⁴ ( People v. Nunez (2020) 57 Cal.App.5th 78, 271 Cal.Rptr.3d 191, review granted Jan. 13, 2021, S265918; Drayton , supra , 47 Cal.App.5th at pp. 974–975, 261 Cal.Rptr.3d 335 ; People v. Verdugo (2020) 44 Cal.App.5th 320, 327–328, 257 Cal.Rptr.3d 510, review granted Mar. 18, 2020, S260493 ( Verdugo ); People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, 1140, 257 Cal.Rptr.3d 265, review granted Mar. 18, 2020, S260598.) At this initial stage, the superior court may examine readily ascertainable information in the record of conviction as it conducts a preliminary screening of the petition to verify the petitioner's eligibility for relief under the statute. ( Lewis , at p. 1140, 257 Cal.Rptr.3d 265, rev.gr.; Verdugo , at p. 329, 257 Cal.Rptr.3d 510, rev.gr.; People v. Offley (2020) 48 Cal.App.5th 588, 597, 261 Cal.Rptr.3d 858 ; People v. Edwards (2020) 48 Cal.App.5th 666, 674–675, 262 Cal.Rptr.3d 201, review granted July 8, 2020, S262481; People v. Tarkington (2020) 49 Cal.App.5th 892, 900, 263 Cal.Rptr.3d 469, review granted Aug. 12, 2020, S263219.)

If the record of conviction does not indicate ineligibility as a matter of law, the superior court must appoint counsel (if requested) and accept briefing from the parties on the issue of whether the petitioner is " ‘entitled to relief.’ " ( Drayton , supra , 47 Cal.App.5th at p. 976, 261 Cal.Rptr.3d 335 ; Verdugo , supra , 44 Cal.App.5th at pp. 332–333, 257 Cal.Rptr.3d 510, rev.gr.) At this stage, with the benefit of the parties’ briefing, the superior court may conduct a more thorough review of the record, including the jury instructions, verdict form(s), and any special findings or enhancement allegations the jury found true to determine if the petition makes a prima facie showing of entitlement to relief. ( People v. Duchine (2021) 60 Cal.App.5th 798, 815...