People v. Dehuff

• Citation: 63 Cal.App.5th 428,277 Cal.Rptr.3d 710
• Decision Date: 23 April 2021
• Docket Number: B305374
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christopher DEHUFF, Defendant and Appellant.

63 Cal.App.5th 428

277 Cal.Rptr.3d 710

The PEOPLE, Plaintiff and Respondent,

v.Christopher DEHUFF, Defendant and Appellant.

B305374

Court of Appeal, Second District, Division 5, California.

Filed April 23, 2021

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson, Supervising Deputy Attorney General, Michael D. Butera, Deputy Attorney General, for Plaintiff and Respondent.

MOOR, J.

Defendant and appellant Christopher DeHuff appeals from the trial court's postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95¹ and Senate Bill No. 1437 (Senate Bill 1437). Section 1170.95 provides for vacatur of a murder conviction obtained under either the natural and probable consequences doctrine or, under certain circumstances, the felony murder theory of liability. ( People v. Martinez (2019) 31 Cal.App.5th 719, 723, 242 Cal.Rptr.3d 860.)

DeHuff contends the trial court erred by denying his petition at the second stage of section 1170.95 subdivision (c) analysis when the court ruled that, although the jury was presented with two theories of liability—one valid (implied malice) and the other invalid (second degree felony murder)—substantial evidence supported a jury finding that DeHuff committed the killing with malice aforethought, and he was therefore ineligible for relief as a matter of law.

We reverse and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY²

The Offenses

"On October 13, 1997, Daniel Sylvers's white 1991 Dodge Caravan was stolen from Foothill Boulevard in Los Angeles. Sylvers reported the theft to police.

"On October 14, 1997, at about 9:30 p.m., Los Angeles Police Officers Douglas Gerst and Ron Stringer were on patrol on their motorcycles when they saw a white van driven by appellant straddling lane lines as it traveled west on Van Nuys Boulevard. The van swerved to the left, into oncoming traffic, then back to the right. The van then drove through a red light at about 60 miles per hour. The driver of a vehicle at that intersection braked sharply to avoid a collision, coming within one or two car lengths of the van.

"When Officers Gerst and Stringer caught up with the van, they activated their red lights. Appellant slowed down to about 25 miles per hour, but did not stop. The officers activated their sirens, but appellant still did not stop. Appellant then turned the van into a residential area, accelerated and swerved toward two oncoming cars, causing the cars to drive off the road. Appellant drove through a stop sign and a red light and missed colliding with a car by inches.

"After a sharp turn on Lassen, appellant accelerated to about 70 miles per hour. The van's headlights were not on. At the intersection of Lassen and Sepulveda, appellant ran a red light and collided with a van driven by Linda Wageman. The van hit the center divider, flew four to five feet in the air, landed on its left side, slid[ ] to the curb and began burning. Officers Gerst and Stringer were able to remove a passenger, Rebecca Wageman, from the van. Fire prevented the officers from removing Linda Wageman from the van. She died. Rebecca suffered a concussion, a fractured rib, and second and third degree burns.

"Subsequent investigation of the accident scene determined that appellant was travelling at about 77 miles per hour at the time of the collision.

"Appellant was not a licensed driver." (DeHuff , supra , B126967.)

The Trial

At trial, the jury was instructed on two theories of murder: (1) second degree implied malice murder; and (2) second degree felony murder based upon the offense of evading an officer while driving with willful and wanton disregard for the safety of persons or property (§ 2800.2, subd. (a)).

The jury found DeHuff guilty of second degree murder ( § 187, subd. (a) [count 1]), evading an officer while operating a motor vehicle with willful disregard (§ 2800.2, subd. (a) [count 3]), unlawful driving or taking of a vehicle ( Veh. Code, § 10851, subd. (a) [count 4]), receiving stolen property ( § 496, subd. (a) [count 5]), and misdemeanor unlicensed driver ( Veh. Code, § 12500, subd. (a) [count 7]).³ As to counts 3 and 4, the jury found true the allegations that DeHuff personally inflicted great bodily injury upon Rebecca Wageman in the commission of the crimes ( § 12022.7, subd. (a) ).

The trial court sentenced DeHuff to 15 years to life in count 1, plus a consecutive determinate term of 3 years in count 4 (the high term), plus 3 years for the infliction of great bodily injury enhancement in count 4. Counts 3 and 5 were stayed pursuant to section 654. DeHuff was sentenced to six months for the misdemeanor in count 7.

The Appeal

On appeal, DeHuff argued that (1) the trial court erroneously limited the order in which the jury could consider the charges against him, and (2) his conviction for second degree felony murder violated his constitutional rights to due process of law because that crime was not defined by statute. (DeHuff , supra , B126967.) The People argued that the trial court failed to impose certain mandatory fines and assessments. (Ibid .) Another panel of this court imposed a parole revocation fine of $10,000 pursuant to section 1202.45, but otherwise affirmed the judgment. (Ibid .)

Motion to Recall the Remittitur

On March 10, 2005, DeHuff filed a motion to recall remittitur with the Court of Appeal, based on the Supreme Court's decision in People v. Howard (2005) 34 Cal.4th 1129, 23 Cal.Rptr.3d 306, 104 P.3d 107 ( Howard ). Howard held that "a violation of section 2800.2 is not, in the abstract, inherently dangerous to human life. Therefore, the second degree felony-murder rule does not apply when a killing occurs during a violation of section 2800.2." ( Id . at pp. 1138–1139, 23 Cal.Rptr.3d 306, 104 P.3d 107.) DeHuff argued that Howard should apply retroactively in his case. The Court of Appeal denied the motion.

Petition for Resentencing, Opposition & Reply

On January 10, 2019, DeHuff filed a petition for vacatur of the murder conviction and resentencing under section 1170.95. He utilized a standardized form, and indicated that he was convicted of second degree murder under the natural and probable consequences doctrine or the second degree felony murder doctrine and could not now be convicted of murder due to the changes to section 188, effective January 1, 2019. He requested that counsel be appointed to him.

The People filed a response on October 15, 2019, contending that DeHuff was ineligible for relief because the record of conviction supported the conclusion that he had been convicted for second degree murder with malice aforethought and could still be convicted of second degree murder despite the changes to section 188. The People additionally filed a response arguing that section 1170.95 was unconstitutional.

Defense counsel filed a reply on November 18, 2019. The reply argued that the prosecution's interpretation of implied malice was so broad as to render section 1170.95 meaningless, and asserted that the People sought to avoid an evidentiary hearing where the burden of proof would fall to them. The reply argued that, at the stage of the proceedings then pending before the trial court, the question was whether DeHuff had made a prima facie showing of eligibility. If an inquiry into the facts was necessary to resolve DeHuff's eligibility, the trial court was obligated to issue an order to show cause and hold an evidentiary hearing. The reply also argued that section 1170.95 was constitutional.

Hearing and Supplemental Briefing

At a hearing on December 16, 2019, the trial court ruled that section 1170.95 was constitutional, and permitted further argument on the issue of eligibility.

The prosecution argued that there was "ample evidence in the record of conviction to support a conclusion that a reasonable jury could find beyond a reasonable doubt that the defendant acted with implied malice." (Italics added.)

Defense counsel responded that this proposed analysis would "gut" Senate Bill 1437 because the People could claim implied malice was an available theory of relief in almost any murder case. At trial in DeHuff's case, the jury was instructed on implied malice, but the prosecutor told the jury it could ignore implied malice and convict on the second degree felony murder theory. Any comparison of what the jury would have done with respect to each theory required an evidentiary hearing. Defense counsel suggested that in this case he might call an accident reconstructionist. Counsel asserted that "the burden that the People have that they need to prove to the court is beyond a reasonable doubt, so the court will be sitting as the finder of fact for a fact which was not presented to the jury originally."

The trial court stated that, in the absence of guidance from the courts of appeal, in its view the procedure required the court to first look at the record to determine whether it could reach a conclusion on the facts already presented. If the evidence was not sufficient, the parties could present new evidence. The court believed it would be appropriate to issue an order to show cause so that the parties could point to specific portions of the record in support of their respective positions, and then "take it potentially a step further after that."

The prosecution disagreed, arguing that, at this stage, the trial court had to determine whether DeHuff had made a prima facie showing of eligibility on the basis of the record of conviction, and that an order to show cause should only be issued if additional evidence was needed.

Defense counsel reiterated that an order to show cause should issue whenever there were factual issues to be determined, whether or not new evidence was needed.

The court decided to conduct further research on the issue to determine...