People v. Daniel

• Decision Date: 20 November 2020
• Docket Number: A157422
• Citation: 271 Cal.Rptr.3d 591,57 Cal.App.5th 666
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dominic DANIEL, Defendant and Appellant.

57 Cal.App.5th 666

271 Cal.Rptr.3d 591

The PEOPLE, Plaintiff and Respondent,

v.Dominic DANIEL, Defendant and Appellant.

A157422

Court of Appeal, First District, Division 1, California.

Filed November 20, 2020

Jeffrey A. Glick, under appointment by the Court of Appeal, for Defendant and Appellant

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Lisa Ashley Ott, Deputy Attorney General, for Plaintiff and Respondent

Humes, P.J.

In 2015, a jury convicted defendant Dominic Daniel of second degree murder in the death of his girlfriend, Tsega Tsegay, and he was sentenced to 15 years to life in prison. This court affirmed his conviction in a nonpublished opinion. ( People v. Daniel (Aug. 4, 2017, A145854) 2017 WL 3327748.) In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted Penal Code ¹ section 1170.95, for eligible defendants to petition for resentencing.

Daniel filed a petition for relief under section 1170.95 alleging that he was convicted of murder under the natural and probable consequences doctrine or the felony murder doctrine and could no longer be convicted of murder because of Senate Bill No. 1437's changes to the law. The trial court summarily denied the petition on the basis that Daniel failed to make a prima facie showing of entitlement to relief, reasoning that the jury was not instructed on either theory of liability and the record showed he was the actual killer.

On appeal, Daniel contends that the order denying the petition must be reversed because the judge who ruled on the petition failed to appoint him counsel and was not the sentencing judge. Although we agree that section 1170.95 was violated in both of these ways, we conclude that the errors were harmless. We hold that a trial court's failure to appoint counsel after a petitioner files a facially sufficient petition for relief is not prejudicial error when records in the court's own file—in this case the jury instructions—demonstrate that the petitioner is ineligible for relief as a matter of law. We also hold that prejudicial error is not established simply because a judge other than the sentencing judge considers the defendant's petition. Thus, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Tsegay was killed in 2012, and three years later Daniel was tried and convicted of second degree murder. The jury was not instructed on either felony murder or murder under the natural and probable consequences doctrine. Nevertheless, in April 2019, Daniel filed a petition for resentencing under section 1170.95. Using a preprinted form, he checked boxes stating that a charging document was filed against him allowing the prosecution to proceed under a theory of felony murder or the natural and probable consequences doctrine; he was convicted at trial of first or second degree murder under a theory of felony murder or murder under the natural and probable consequences doctrine; and he could not now be convicted of murder in light of Senate Bill No. 1437's changes to the law. In addition, he checked a box indicating that he was convicted of second degree felony murder or second degree murder on a natural and probable consequences theory. Finally, he checked a box stating, "I request that this court appoint counsel for me during this re-sentencing process." He did not submit any materials from the record of conviction.

Later that month, Judge Morris Jacobson, who had not sentenced Daniel, summarily denied the petition. Daniel did not appear, and counsel was not appointed to represent him. Relying on this court's opinion in Daniel's direct appeal, the trial court determined that relief under section 1170.95 was "unavailable as [Daniel] was the actual killer." Also, since a "review of the instructions provided to the jury reveal[ed] an absence of any instructions regarding felony-murder or natural and probable consequences theories of murder," the court concluded that Daniel "was convicted on a valid theory of murder which survives the changes to ... sections 188 and 189 made by [Senate Bill No.] 1437."

In June 2019, Daniel appealed from the order denying the petition. His appellate counsel asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. In February 2020, after Daniel submitted a brief on his own behalf raising various issues, we asked his counsel to brief "whether the trial court erred by denying appellant's resentencing petition, on the basis of materials outside the petition itself, without first appointing an attorney to represent appellant as he requested." Over six months later, after the opening brief and respondent's brief were filed, we granted Daniel's request to file a supplemental opening brief on the issue whether reversal is required because a different judge than the sentencing judge decided the petition, and briefing was completed in September 2020.

II. DISCUSSION

A. General Legal Standards

"Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)" ( People v. Turner (2020) 45 Cal.App.5th 428, 433, 258 Cal.Rptr.3d 706.) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2," or the victim was a peace officer performing his or her duties. (§ 189, subds. (e) & (f).)

Senate Bill No. 1437 also enacted section 1170.95, which authorizes "[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts." ( § 1170.95, subd. (a).) As we recently explained, "[t]he defendant initiates the process by filing a petition in the sentencing court that must include three pieces of information. ( § 1170.95, subd. (b).) First, the petition must include ‘[a] declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a).’ ( § 1170.95, subd. (b)(1)(A).) Those requirements are (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) ‘[t]he 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) ‘[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ ( § 1170.95, subd. (a).) Second, the petition must include ‘[t]he superior court case number and year of the petitioner's conviction.’ ( § 1170.95, subd. (b)(1)(B).) And finally, the petition must state ‘[w]hether the petitioner requests the appointment of counsel.’ ( § 1170.95, subd. (b)(1)(C).)" ( People v. Cooper (2020) 54 Cal.App.5th 106, 114, 268 Cal.Rptr.3d 417, review granted Nov. 10, 2020, S264684 ( Cooper ).) "If a petition is missing any of these three pieces of information and the missing information ‘cannot be readily ascertained by the [trial] court, the court may deny the petition without prejudice’ to filing another petition that includes the required information. ( § 1170.95, subd. (b)(2).)" ( Ibid. )

" Section 1170.95 [, subdivision (c),] addresses the procedure by which a trial court determines whether the petitioner is entitled to an evidentiary hearing. The subdivision provides in full: ‘The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor[’s] response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.’ " ( Cooper , supra , 54 Cal.App.5th at pp. 114–115, 268 Cal.Rptr.3d 417.)

B. The Failure to Appoint Counsel for Daniel Was Harmless.

Daniel claims that the trial court erred by summarily denying his petition under section 1170.95 without first appointing counsel to assist him. Although we agree, we conclude the error was harmless because the record shows that Daniel is ineligible for relief as a matter of law.

Earlier this year, our state Supreme Court granted review to decide when the right to counsel arises under section 1170, subdivision (c) ( section 1170.95(c) ). ( People v. Lewis (2020) 43 Cal.App.5th 1128, 257 Cal.Rptr.3d 265, review granted Mar. 18, 2020, S260598 ( Lewis ).) In Cooper , we broke with other Courts of Appeal and held that "the right to counsel attaches upon the filing of a facially sufficient petition that alleges entitlement to relief"—that is, a petition that...