People v. Harris

• Decision Date: 16 February 2021
• Docket Number: B300410
• Parties: The PEOPLE, Plaintiff and Respondent, v. Caleb James HARRIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

60 Cal.App.5th 939

275 Cal.Rptr.3d 206

The PEOPLE, Plaintiff and Respondent,

v.Caleb James HARRIS, Defendant and Appellant.

B300410

Court of Appeal, Second District, Division 7, California.

Filed February 16, 2021

Center for Juvenile Law and Policy, Loyola Law School and Sean K. Kennedy for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P. J.

After two mistrials a jury in January 1997 found Caleb James Harris guilty on two counts of first degree murder ( Pen. Code, § 187, subd. (a) )¹ and one count of arson (§ 451, subd. (a)); found true special circumstance allegations the murders had been committed while Harris was engaged in the crime of arson (§ 190.2, subd. (a)(17)) and by means of a destructive device (§ 190.2, subd. (a)(6)); and also found true the multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)). Harris, who was 17 years old at the time of his arrest, was sentenced to concurrent indeterminate terms of 25 years to life for the murders plus a consecutive term of seven years for arson. We affirmed the judgment on appeal. (People v. Harris (Dec. 17, 1998, B118894) [nonpub. opn.].)

On February 13, 2019 Harris, represented by counsel, petitioned for resentencing pursuant to newly enacted section 1170.95. After receiving a response from the prosecutor and a reply from Harris's counsel and hearing argument, the superior court denied the petition. On appeal Harris advances three primary arguments: The court improperly engaged in factfinding without issuing an order to show cause and holding an evidentiary hearing; the jury's arson-murder special-circumstance finding does not necessarily preclude relief in light of the Supreme Court's subsequent clarification in People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 ( Clark ) of the requirements for finding a felony-murder special-circumstance allegation true; and the record of conviction in this case does not establish his ineligibility for resentencing as a matter of law. We agree, reverse the superior court's ruling and remand the matter with directions to issue an order to show cause and to proceed consistently with section 1170.95, subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND

1. Harris's Murder Convictions

a. The firebombing

Valerie Rivers confronted Dwayne Moore on January 28, 1995 about an incident in her apartment two days earlier when Rivers, in labor, was waiting for her mother to take her to the hospital. As they argued on the street outside Rivers's apartment building, Damone Dellano, Rivers's boyfriend, joined them and pointed a gun at Moore. Moore began to cry and asked Rivers, "You gonna let him do this to me?" Dellano put down the gun and went back into the apartment with Rivers.

Later that afternoon Moore went to the apartment where Eric Bowden was staying; Harris was also present. Bowden told detectives he saw Moore and Harris fill beer bottles with gasoline and put cut-up bedsheets into the bottles. Bowden had heard Moore say he was "going to get the dude back," referring to Dellano. During his police interview Bowden said Harris was "pumping up" Moore to get revenge against Dellano. Moore and Harris left the apartment complex around 8:00 p.m. According to a second witness, Ernest Bowman, when Moore and Harris left the apartment complex, they were carrying Molotov cocktails.

Around 8:30 that evening Rivers heard people talking outside her apartment. She recognized Moore's voice. A speaker she could not identify said, "If the home girl is cool and she got kids, then I wouldn't fuck with her. But if she—if she's not, then fuck it. Whatever." Rivers heard Moore respond, "I ain't going out like that. Meet me back here in 30 minutes." Less than 30 minutes later, Rivers heard Moore call out, "Valerie," followed by a "ball of fire" coming through her bedroom window. The firebomb hit Rivers in the face. The bedroom was quickly engulfed in flames.

Robert Alcaraz, Jr. testified he was waiting outside for a friend when he saw two young Black men in dark, loose clothing outside Rivers's apartment lighting a rag and throw an object through the window. Alcaraz saw a flame and heard the sound of breaking glass. The two men ran off. Neither Alcaraz nor the two individuals who were with him identified Harris as one of the two men outside Rivers's apartment building at the time of the firebombing. One of the witnesses identified Moore.

The Hawthorne Fire Department arrived at the scene at approximately 9:15 p.m. The firefighters pulled Rivers, her newborn daughter and her young son from the burning apartment. Rivers suffered severe burns and was hospitalized for two months. Both her young children died from their burns.

Moore and Harris returned together to Bowden's apartment that evening around 10:00 p.m. Harris told Bowden he went over to Rivers's apartment but had not thrown the Molotov cocktails.

b. Harris's three trials

Harris and Moore were charged by information in June 1995 with the first degree murder of Rivers's two children, the attempted murder of Rivers and arson causing great bodily injury. The information further alleged as special circumstances that the murders were committed by means of a destructive device, were committed during the commission of arson and constituted multiple murders. At trial Bowden recanted his prior statements implicating Harris. Bowden explained he had simply repeated what the police told him and had lied out of fear because the investigating officer said he was a suspect. The prosecutor impeached Bowden with his statements to the police. The first trial ended in a mistrial when the jury was unable to reach a verdict as to either defendant and declared itself hopelessly deadlocked after 10 days of deliberations.

At the retrial Moore was convicted on all four charges. The second jury was unable to reach a verdict as to any of the charges against Harris, however, and another mistrial was declared as to him.

Bowden was unavailable as a witness for Harris's third trial (as he had been for the second trial); so the People read his testimony from the first trial, including his statements to the police identifying Harris as one of the individuals making the Molotov cocktails. The jury also heard Bowden's subsequent repudiation of those statements as fabrications. Bowman testified two individuals had made Molotov cocktails in the laundry room behind the apartment complex and said he saw Moore and Harris carry the Molotov cocktails to a parked van and drive away together. However, Bowman answered inconsistently to repeated questions whether Harris had been one of the men actually making the Molotov cocktails—stating he was one of the bombmakers on direct examination; but conceding on cross-examination Harris had just been standing in the doorway to the laundry room while two other men made the Molotov cocktails. After three days of deliberation the jury found Harris not guilty of attempted murder, which the prosecutor acknowledged required proof of intent to kill, but guilty on both counts of first degree murder and of arson causing great bodily injury. The jury also found true all the charged special circumstances.

c. Denial of Harris's new trial motion

Harris, represented by new counsel, moved for a new trial, challenging the credibility of Bowman's testimony and arguing the evidence was insufficient to prove Harris had aided and abetted either arson or murder. The motion also asserted Harris's trial counsel, who presented no defense witnesses, provided constitutionally ineffective representation. The court denied the motion, observing, "I agree with the jury. I thought [Bowman] was credible. I have no problem with it. I had no problem with the decision. I think it was a proper decision. I would have had a problem with the case if the jury had based their decision on any kind of finding by innuendo that this defendant intended these babies be killed or injured, or the woman. But there was nothing in that. But my conclusion, from what the jury came up with, is that he basically was an aider and abettor, as far as the arson is concerned. And that testimony came out. And there was nothing wrong with the verdict."

d. The trial court's comments at sentencing

The prosecutor asked the court to sentence Harris to consecutive state prison terms of life without parole for the murder of the two young children. The trial court instead sentenced Harris to concurrent indeterminate terms of 25 years to life, plus seven years for the aggravated arson. Explaining its decision, the court stated, "I've considered the fact that both the jury and I personally feel that the defendant did not intend the happening that did occur. I know the People tried to show that the defendant may have thrown one of them. But there's just no evidence of that at all. I think that, because of the nature of his participation in this matter, that life without possibility of parole would not be the proper sentence."²

2. The Section 1170.95 Petition

Harris, represented by Loyola Law School's Center for Juvenile Law and Policy, petitioned for resentencing pursuant to section 1170.95 on February 13, 2019. In a declaration Harris averred he had been prosecuted and convicted on two counts of first degree murder under a theory of felony murder and the natural and probable consequences doctrine during his third jury trial. He further declared he could not now be convicted on either count because he was not the actual killer of the victims, had not aided or assisted the actual killer with the intent to kill, and was neither a major participant in the underlying felony nor had acted with reckless indifference to human life during the course of that...