People v. Price

• Decision Date: 29 November 2021
• Docket Number: A159439
• Citation: 71 Cal.App.5th 1128,286 Cal.Rptr.3d 850
• Parties: The PEOPLE, Plaintiff and Respondent v. Kiarra PRICE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

71 Cal.App.5th 1128

286 Cal.Rptr.3d 850

The PEOPLE, Plaintiff and Respondent

v.Kiarra PRICE, Defendant and Appellant.

A159439

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

Filed November 29, 2021

Spolin Law, Aaron Spolin, Los Angeles, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano, David H. Rose, Deputy Attorneys General, for Plaintiff and Respondent.

STEWART, J.

Appellant Kiarra Price appeals from the trial court's denial of her petition to vacate her 2013 murder conviction and for resentencing under Penal Code section 1170.95.¹

In 2013, a jury found Price guilty of first degree murder and found true the felony-murder special-circumstance allegation that the murder was committed while Price was participating in a robbery and either (1) was the killer, (2) aided and abetted the murder with the intent to kill, or (3) acted with reckless indifference to human life and was a major participant in the robbery. (See § 190.2.) The trial and verdict pre-dated our Supreme Court's decisions 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 ), which clarified the meaning of "major participant" and "reckless indifference to human life" as used in the third alternative.

On appeal, we affirmed the conviction, holding the jury's special circumstance finding was supported by substantial evidence regarding the first alternative, that Price was the actual killer, and the second, that she intended for Merrill to be killed. ( People v. Price (2017) 8 Cal.App.5th 409, 451-454, 214 Cal.Rptr.3d 1 ( Price I ).) We did not determine whether substantial evidence supported a finding under the third alternative, i.e., that Price was a "major participant" in the felony murder acting with "reckless indifference" for human life.

In 2018, the Legislature adopted and the Governor signed into law Senate Bill No. 1437 (2017-2018 Reg. Sess.), which amended the statutory definition of murder in sections 188 and 189 to eliminate murder liability under the natural and probable consequences doctrine and to limit felony-murder liability to cases in which the felony-murder special circumstance was proven. The legislation provided a retroactive resentencing remedy under section 1170.95 for individuals who were convicted of murder prior to the amendment and could not be convicted under the amended murder statutes. The legislation took effect on January 1, 2019.

In 2019, Price filed her section 1170.95 petition seeking to have her murder conviction vacated and to be resentenced on any remaining counts. The district attorney filed opposition. After appointing Price counsel, receiving full briefing and taking judicial notice of Price's record of conviction, the superior court denied the petition, concluding, "the record here establishes the clear viability of a prosecution for felony-murder with a special circumstance." It did not issue an order to show cause or hold an evidentiary hearing. Price now appeals from that ruling.

We affirm. It is not clear which of the three special circumstance alternatives were relied on by the jury. In this circumstance, we conclude—without deciding whether substantial evidence review of any one possible alternative basis for the special circumstance finding is enough to preclude relief under section 1170.95—that substantial evidence supports each of the three alternatives presented to the jury, including whether Price acted as a "major participant" in the robbery acting with "reckless indifference" to human life. Substantial evidence thus supports each of the three possible bases for the jury's special circumstance finding, and we conclude that under these circumstances Price is not entitled to have her murder conviction vacated and to be resentenced on the remaining charges. We therefore affirm.

BACKGROUND

I.The Trial and Verdict

Our opinion in Price I describes in detail the evidence presented against Price at her trial. ( Price I , supra, 8 Cal.App.5th at pp. 416-425, 214 Cal.Rptr.3d 1.) We will summarize it only briefly here. In substance, it showed that in 2009, Price, then 20 years old, along with two friends, Kendra Fells and Teareney Brown, participated in a robbery of 22-year-old Benjamin Merrill during which one of them shot and killed him. Fells, the owner of the gun used in the killing, entered a plea agreement for a 15-year determinate sentence in exchange for testifying against Price. According to her testimony and other evidence at trial, Price and Brown stopped at the house where Fells stayed with her girlfriend in Pittsburg, California, and awakened Fells, who then showed Price a revolver Fells had recently purchased. Price and Brown then left in a car belonging to a friend and drove to San Francisco.

Sometime later² , they returned to Pittsburg with a very intoxicated Benjamin Merrill in tow and again stopped at Fells's girlfriend Felicia Edosa's house. Price went inside, sporting an iPhone Fells and her girlfriend had not seen her with before, awakened Fells, asked Fells to take a ride with her, and took Fells's gun from a drawer in the bedroom and put it in her jacket. Price and Fells got into the car with Brown, who drove them to a dimly lit park at about 3:00 a.m. A man Fells didn't recognize (but later learned was Merrill) was asleep in the backseat but awakened before they arrived at the park, and he got out of the car to urinate in the bushes. The three women also got out of the car. After Merrill finished urinating, Brown robbed him of his wallet. Price believed he had more to take and said so. Substantial evidence indicated that she pointed the gun at Merrill and, in circumstances that are not altogether clear,³ shot twice, hitting Merrill in the chest. The three women got back into the car and left in a hurry, leaving Merrill at the park. Neighbors who heard the shots and the sound of car tires screeching found Merrill, who died at the scene. The autopsy showed Merrill died from a shot that went through his chest and out his back. ( Price I , supra, 8 Cal.App.5th at p. 424, 214 Cal.Rptr.3d 1.)

In the days following the robbery and shooting, Brown changed the service on Merrill's iPhone from one provider to another. The iPhone was used both by Price and by Brown, but Price began using it shortly after the robbery and it contained contact information for Brown and Fells but not for Price.

The morning after the incident, Fells received a call from Price asking if she was okay. ( Price I , supra, 8 Cal.App.5th at p. 418, 214 Cal.Rptr.3d 1.) Fells recognized the number as the one from which she and Edosa had received calls on the night of the murder and told Price not to call her on that phone anymore. ( Ibid. ) A week after that, Fells saw Price with the iPhone and told her to get rid of it. In the meantime, Price and Fells had texted each other, with Price still using Merrill's iPhone. ( Ibid . ) In a text exchange after Fells had read in the paper that Merrill died, Fells chastised Price for "do[ing] to [sic ] [m]uch when it don't need to b did," meaning Price had not needed to shoot Merrill. ( Ibid . & fn. 4.) Price texted back that "it need it 2 b did regaurdless" and "Jus on how it was done n—a^{[4 ]} I been doin dis shit I kno wut I was doin." ( Id . at pp. 418, 419, fn. 4, 214 Cal.Rptr.3d 1.) Price further texted, "bitch if I wasn't thinking yo dumb ass wild [sic ] b in jail rite now or dead so beloved [sic ] me n—a I was thinking." ( Id . at p. 419, fn. 4, 214 Cal.Rptr.3d 1.)

In the first few days after the robbery and murder, Brown arranged for the iPhone to be assigned a new phone number and service provider. ( Price I , supra, 8 Cal.App.5th at pp. 424-425, 214 Cal.Rptr.3d 1.) Police nonetheless succeeded in tracking the iPhone, which ultimately led to the arrests of Price and Brown.

After police arrested Price and Brown and while they were housed in the same jail, a note or "kite" was intercepted and Price's cellmate reported seeing her writing a note like that one. The content, which included a reference to Brown's daughter, suggested it had been intended for Brown. It outlined a story they needed to stick to and stated that "even if Barney snitch its gone b her word against ours," and "[a]s long as we sayn the same thang we gud!!!" Because they had been "thru fast track so we was on camara," Price was going to say she was "grindn" (selling drugs) in "the TLs" (San Francisco's Tenderloin neighborhood) when someone came to her with a phone and she bought it. "[T]he next morning," they "went 2 go get the shit [phone] unlocked!!" Besides urging Brown to stick to this story, Price advised, "O yea I hope u b rpin up thease letters 2 n they watchn us so we gone have a be coo cuz I dnt wnt them 2 get us on some premadatated shit!!!" ( Price I , supra, 8 Cal.App.5th at p. 425, fn. 7, 214 Cal.Rptr.3d 1.)

At the conclusion of the trial, the judge instructed the jury on premeditated murder, felony murder, and aiding and abetting and conspiring to commit these offenses. ( Price I , supra, 8 Cal.App.5th at p. 426, 214 Cal.Rptr.3d 1.) It also instructed the jury on robbery, aiding and abetting robbery, conspiracy to commit robbery, attempted robbery, firearm enhancement allegations and the special circumstance of murder committed in the course of a robbery.

The jury convicted Price of robbery and first degree murder and found a robbery-murder special-circumstance allegation to be true, but it rejected three special allegations as to both robbery and murder: (a) that Price "personally used a firearm," (b) that she "intentionally and personally discharged a firearm" and (c) that she "caused great bodily injury and death to [Merrill]." The court sentenced Price to life without parole as required by the special circumstance statute, Penal Code section 190.2...