People v. Drayton

• Decision Date: 17 April 2020
• Docket Number: H046928
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Lewis DRAYTON, Defendant and Appellant.

47 Cal.App.5th 965

261 Cal.Rptr.3d 335

The PEOPLE, Plaintiff and Respondent,

v.John Lewis DRAYTON, Defendant and Appellant.

H046928

Court of Appeal, Sixth District, California.

Filed April 17, 2020

Attorney for Defendant/Appellant John Lewis Drayton: Alex N. Coolman, San Francisco, under appointment by the Court of Appeal

Attorneys for Plaintiff/Respondent The People: Xavier Becerra, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence Senior, Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Juliet B. Haley, Deputy Attorney General

Danner, J. Senate Bill No. 1437, which took effect on January 1, 2019, restricted the circumstances under which a person can be liable for felony murder. It also enacted Penal Code section 1170.95,¹ which allows an individual who was previously convicted of felony murder to petition to have his or her murder conviction vacated and to be resentenced. In this appeal, we consider how the trial court should assess whether a petitioner has made a prima facie showing of entitlement to relief under section 1170.95, subdivision (c), such that it must issue an order to show cause. We conclude the trial court should accept the assertions in the petition as true unless facts in the record conclusively refute them as a matter of law. If, accepting the petitioner's asserted facts as true, he or she meets the requirements for relief listed in section 1170.95, subdivision (a), then the trial court must issue an order to show cause. In assessing the petitioner's prima facie showing, the trial court should not weigh evidence or make credibility determinations.

Appellant John Lewis Drayton appeals from the trial court's summary denial of his petition filed pursuant to section 1170.95 to vacate his 1992 murder conviction and resentence him. He contends, and the Attorney General concurs, that the trial court failed to follow the procedural requirements of the statute. We agree, reverse the trial court's order, and remand the matter with directions to issue an order to show cause under section 1179.95, subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d).

I. FACTS AND PROCEDURAL BACKGROUND

On June 14, 1991, Mr. and Mrs. Ward and their teenage daughter, who were asleep at their residence in Salinas, were woken in the middle of the night.² They discovered four men, one of whom was Drayton, inside their house. Two of the men were armed. The men asked where the safe was. One of the men told the teenage daughter he was going to rape her, and he placed a firearm inside her vagina. Drayton told the man who threatened to rape the girl not to do it.

Drayton had a gun and held Mrs. Ward down on the floor during the robbery with his foot placed in the middle of her back. Drayton hit Mrs. Ward in the head with his gun. The gun "grazed [her]" and did not hurt her. Two of the other men shot and killed Mr. Ward. The robbery lasted approximately 48 minutes. Drayton left the Ward residence with the other perpetrators without seeking any help for the Wards. As the men were leaving, Drayton told Mrs. Ward that she should wait 15 minutes before doing anything. Drayton did not shoot Mr. Ward, threaten to rape the Wards' daughter, or place the gun inside her vagina. Drayton turned himself into the police the next day.

In 1991, Drayton and three codefendants were charged by information with murder (§ 187; count 1), three counts of robbery (§ 212.5; counts 2-4), burglary (§ 459; count 5), two counts of assault with a firearm (§ 245, subd. (a)(2); counts 6-7), penetration with a foreign object (§ 289, subd. (a); count 8), and conspiracy to commit robbery (§§ 182 & 212.5; count 9). The information also alleged that Drayton personally used a firearm in the commission of the offenses (§§ 1203.06, subd. (a)(1), 12022.5). In connection with the murder charge, the information alleged three special circumstances. (§ 190.2, subd. (17) (i), (vii), (xi).)

On March 3, 1992, Drayton was convicted by guilty plea of murder (§ 187) and admitted an enhancement for personal use of a firearm (§§ 1203.06, subd. (a)(1), 12022.5). In connection with his guilty plea, Drayton admitted that, on June 14, 1991, he "entered [the] Ward[s'] [r]esidence with intent to commit theft and a human being was killed," and he "had a 32 cal[iber] pistol in his possession."

The probation report filed in connection with Drayton's sentencing indicates that Drayton's sole prior conviction was a misdemeanor violation of section 484, and he "ha[d] no reported history of violence." The probation report states, "Mr. Drayton claims that he tried to stop his counterparts, but eventually ‘fell in with them.’ If there is any truth in his claims, he is now learning the hard way the cost of being a follower." A report prepared by a clinical psychologist prior to sentencing states that Drayton told the psychologist that he did not participate in the planning of the robbery and tried to stop the others from doing it, leading one of the other men to point a gun at Drayton and tell him to " ‘shut up.’ " He also told one of the men not to rape the Wards' daughter. On March 26, 1992, Drayton was sentenced to 29 years to life imprisonment.

In January 2019, Drayton filed on his own behalf a petition for resentencing pursuant to section 1170.95. In the petition, Drayton filed a declaration in which he checked a number of pre-printed boxes that collectively indicated he was eligible for resentencing pursuant to section 1170.95, subdivision (d)(2).

Among other assertions, Drayton declared that he "was not a major participant in the felony or [he] did not act with reckless indifference to human life during the course of the crime or felony." The trial court appointed counsel for Drayton.³

On March 18, 2019, the Monterey County District Attorney's Office (district attorney) filed an opposition to Drayton's petition to recall his sentence. The district attorney acknowledged that Drayton was neither the actual killer of Mr. Ward, nor had he been found to have intentionally aided and abetted the murder. The district attorney implicitly acknowledged that Drayton had been convicted of murder on a theory of felony murder.

Although individuals convicted of murder on a felony-murder theory are potentially eligible for relief under section 1170.95, the district attorney argued that Drayton's murder conviction should not be vacated. The district attorney contended Drayton could still be convicted of murder as a "major participant in the underlying felonies of robbery and burglary" who showed reckless indifference to human life under the principles set out by the California Supreme Court in People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( Banks ).

The district attorney acknowledged that the record was "unclear" about Drayton's role in planning the robbery but stated it was undisputed that Drayton went to the Ward home, participated in the robbery, and pointed a gun at Mrs. Ward. The district attorney argued these factors were enough to make Drayton a "major participant." In addition, the district attorney contended that Drayton acted with reckless indifference to human life because, among other factors, he was present at the crime scene, brought his gun to the crime, and did not assist Mr. Ward after he had been shot. The district attorney asserted that, because Drayton "is culpable under the new law for committing felony murder his petition must be denied."⁴ The district attorney attached to the opposition the transcript from Drayton's preliminary hearing, the information, the minute orders for the change of plea and sentencing hearings, and Drayton's probation report.

On March 27, 2019, Drayton, represented by counsel, filed a response to the district attorney's opposition to his petition for resentencing. Drayton argued that the trial court should issue an order to show cause and conduct a hearing "where the evidence will show whether [Drayton] acted with reckless indifference to human life" (some capitalization omitted).

Drayton argued there was a prima facie case that he did not act with reckless indifference to human life during the robbery because he never fired his gun, and he tried to stop the robbery but was afraid because one of the other coperpetrators pointed a gun at him.⁵ Drayton had a firearm that evening for personal protection based on a prior incident and not to perpetrate the robbery. Although Drayton hit Mrs. Ward with the gun, he did not injure her.

Drayton argued that, by his actions, he prevented the killing of Mrs. Ward and the rape of her daughter. Drayton also asserted that before the evening of the crime he had not met the coperpetrator who planned the robbery and killed Mr. Ward, and Drayton was not aware of the man's propensity to violence. In addition, Drayton voluntarily surrendered to the police the next day. Drayton asserted that, "while this was a horrible nightmare the family went through, [Drayton] took the little steps he could to protect and minimize the danger to Ms. Ward and [her daughter]. He did not act with a reckless indifference to human life. In fact, without the efforts [Drayton] took this may have turned out to be a multiple homicide case."

On May 17, 2019, the trial court held a hearing on Drayton's petition and denied it without hearing argument or taking evidence. In its oral ruling the trial court stated, "The court agrees with the People's position that petitioner is not eligible for resentencing.... [¶] The facts of this case are particularly egregious. Petitioner and other armed co-conspirators or individuals entered an inhabited residence in the middle of the night with the intention of stealing money from a safe. [¶] The occupants, Mr. and Mrs. Ward and their 17-year-old daughter, were inside. Mr. and Mrs. Ward were in bed in the master bedroom when confronted by two of the individuals and ordered onto the floor. One of...