People v. Fortman

• Decision Date: 13 May 2021
• Docket Number: B304567
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Phillip Charles FORTMAN, Defendant and Appellant.

64 Cal.App.5th 217

278 Cal.Rptr.3d 601

The PEOPLE, Plaintiff and Respondent,

v.Phillip Charles FORTMAN, Defendant and Appellant.

B304567

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

Filed May 13, 2021

Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

HOFFSTADT, J.

When determining whether to vacate a defendant's murder conviction that may rest on a theory of vicarious liability later invalidated by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), the conviction must stand if the prosecution proves, beyond a reasonable doubt, that the conviction is valid under a still-viable theory of liability. ( Pen. Code, § 1170.95, subds. (d)(3) & (a).)¹ Does this require the prosecution to convince the trial court hearing the petition to conclude that it would convict defendant on a still-viable theory, or merely to convince that court that a reasonable jury could convict defendant on a still-viable theory? The Court of Appeal is split, with a majority following the former rule and a lone voice following the latter. (Compare People v. Lopez (2020) 56 Cal.App.5th 936, 271 Cal.Rptr.3d 170, review granted Feb. 10, 2021, S265974 ( Lopez ); People v. Rodriguez (2020) 58 Cal.App.5th 227, 272 Cal.Rptr.3d 342, review granted Mar. 10, 2021, S266652 ( Rodriguez ); People v. Clements (2021) 60 Cal.App.5th 597, 274 Cal.Rptr.3d 821 ( Clements ), review granted Apr. 28, 2021, S267624; People v. Harris (2021) 60 Cal.App.5th 939, 275 Cal.Rptr.3d 206 ( Harris ), review granted Apr. 28, 2021, S267802 with People v. Duke (2020) 55 Cal.App.5th 113, 269 Cal.Rptr.3d 264, review granted Jan. 13, 2021, S265309 ( Duke ).) Our Supreme Court will resolve this split in Duke , but we join the growing chorus that requires an independent finding by the trial court, and we publish because our analysis adds a new harmony. Because the trial court in this case did not make an independent finding, we reverse and remand for a new hearing.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The underlying crime

On the last Saturday in January 1966, Phillip Fortman (defendant) and Tim Hartman (Hartman) used the $4 they had earned that day soliciting contributions at the Purple Heart Veteran's Service to buy themselves cigarettes and cheap wine. While drunk, they saw an elderly man on the street and decided to "roll him" (that is, to take what money he had). They viciously attacked him by repeatedly punching and kicking him, and then turned out his pockets and discovered he had no money. The man died from his injuries a few days later.

B. Charging, conviction and appeal

The People charged defendant and Hartman with (1) murder ( § 187 ), and (2) attempted second degree robbery ( § 211 ).

The jury was instructed that each defendant could be liable for murder (1) as a person who acted with malice (that is, as the actual killer or a person who, with intent to kill, aided and abetted the actual killer), or (2) on a felony-murder theory (that is, on the theory that they jointly committed the felony of robbery and thus were jointly liable for the murder resulting from that robbery), or (3) on a natural and probable consequences theory (that is, on the theory that they aided and abetted one another to commit robbery and are jointly liable for a murder that is the "ordinary and probable effect of the pursuit of" the robbery). The jury convicted defendant (and Hartman) of first degree murder and attempted second degree robbery. The court sentenced defendant to life in prison for the murder and imposed a suspended sentence on the attempted robbery. We affirmed defendant's convictions and sentence in a published decision. ( People v. Fortman (1967) 257 Cal.App.2d 45, 64 Cal.Rptr. 669.)

II. Procedural Background

On January 14, 2019, defendant filed a petition seeking resentencing under section 1170.95. In the form petition, defendant checked the boxes for the allegations that he had been charged with murder, that he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine," and that his murder conviction would be invalid under the "changes made to Penal Code §§ 188 and 189, effective January 1, 2019." The People opposed the petition on the ground that (1) section 1170.95 is unconstitutional, and (2) defendant is ineligible for relief as a matter of law because he (a) was the actual killer, (b) directly, and with the intent to kill, aided and abetted the actual killer, or (c) was a major participant who acted with reckless indifference to human life. After receipt of defendant's reply, the court convened a "hearing" at which it ruled that defendant was "ineligible" for relief under section 1170.95 because, "based on the record of conviction," defendant "could have been very well ... convicted under [the] theories of murder that [have] continued to exist after the passage of SB 1437."²

Defendant filed this timely appeal.

DISCUSSION

Defendant argues that the court erred in denying his petition for relief under section 1170.95 because the standard it applied—looking to whether a jury could still convict him on a viable theory—was incorrect. This argument presents an issue of statutory construction, which we review independently. ( Christensen v. Lightbourne (2019) 7 Cal.5th 761, 771, 249 Cal.Rptr.3d 281, 444 P.3d 85.)

With one narrow exception,³ SB 1437 effectively eliminates murder convictions premised on any theory of vicarious liability—that is, any theory by which a person can be convicted of murder for a killing committed by someone else (such as the felony-murder theory or the natural and probable consequences theory⁴ )—unless the People also prove that the non-killer defendant personally acted with the intent to kill or was a major participant who acted with reckless disregard to human life. ( §§ 188, 189, subds. (e), (f), 1170.95.) SB 1437 effectuates this change prospectively, and does so by modifying the statutes defining murder. ( §§ 188, 189, subds. (e), (f) ; Clements , supra , 60 Cal.App.5th at p. 610, 274 Cal.Rptr.3d 821.) SB 1437 also effectuates this change retroactively, and does so by creating an "exclusive" statutory procedure—set forth in section 1170.95 —by which persons may seek to invalidate prior murder convictions premised on a theory of vicarious liability. ( § 1170.95 ; Gentile , supra , 10 Cal.5th at pp. 852-853, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; Clements , at p. 611, 274 Cal.Rptr.3d 821.)

Section 1170.95 sets forth a two-step procedure. In the first step, the petitioner seeking to vacate a murder conviction must make a "prima facie showing" of entitlement to relief by establishing that (1) the conviction was based on a charging document that "allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences theory," (2) the petitioner was convicted of first or second degree murder, and (3) the petitioner "could not be convicted of first or second degree murder because of the changes" made by SB 1437 to the statutes defining murder. ( § 1170.95, subds. (a), (c).) If this first step is met, the second step is for the trial court to issue an OSC and convene a hearing "to determine whether the petitioner is entitled to relief" under section 1170.95 ; at that hearing, the prosecution bears "the burden" of "prov[ing], beyond a reasonable doubt, that the petitioner is ineligible" for section 1170.95 relief. (Id. , subds. (d)(1) & (d)(3).) At that hearing, the prosecutor and petitioner may rely on "the record of conviction or offer new or additional evidence ...." (Id. , subd. (d)(3).)

This appeal presents the question: What showing must the prosecution make in order to "prove, beyond a reasonable doubt, that the petitioner is ineligible" for relief under section 1170.95, subdivision (d)(3) ?

The plain text of section 1170.95 does not expressly define when a petitioner is "ineligible" for section 1170.95 relief under subdivision (d)(3) and implicitly offers two possible answers.

On the one hand, "ineligibility" for relief under subdivision (d)(3) could borrow from subdivision (a)’s requirements for when a petitioner has made a prima facie showing of eligibility for relief. Because a prima facie showing under subdivision (a) turns in part on whether the petitioner "could not be convicted" of murder after SB 1437, ineligibility for relief under subdivision (d)(3) would mean the opposite—namely, that the petitioner could be convicted of murder after SB 1437. And because this standard looks a lot like the standard appellate courts use in assessing whether a conviction is supported by substantial evidence (e.g., People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103 [looking to whether "a rational trier of fact could find the defendant guilty beyond a reasonable doubt"], italics added), subdivision (d)(3) could be read to adopt a "substantial evidence"-like burden that requires the prosecution merely to prove that a rational jury could still find the defendant guilty of murder on a still-valid theory of liability. This reading does not entirely align with "substantial evidence" review, however, because unlike an appellate court conducting substantial evidence review of a conviction, the trial court examining the evidence under subdivision (d)(3) (1) is not required to view the evidence in light most favorable to the murder conviction (cf. Ochoa, at p. 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103 ), and (2) may consider "new or additional evidence" (cf. People v. Hubbard (2016) 63 Cal.4th 378, 392, 203 Cal.Rptr.3d 114, 371 P.3d 578 ). This is the reading adopted by Duke , supra , 55 Cal.App.5th at p. 123, 269 Cal.Rptr.3d 264.

On the other hand, subdivision (d)(3) tasks the prosecution with...