People v. Simmons

• Decision Date: 16 June 2021
• Docket Number: F079610
• Citation: 280 Cal.Rptr.3d 205,65 Cal.App.5th 739
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lawrence SIMMONS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

65 Cal.App.5th 739

280 Cal.Rptr.3d 205

The PEOPLE, Plaintiff and Respondent,

v.Lawrence SIMMONS, Defendant and Appellant.

F079610

Court of Appeal, Fifth District, California.

Filed June 16, 2021

Kendall Dawson Wasley, Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Christina Simpson, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

INTRODUCTION

In 1995, a jury convicted petitioner Lawrence Simmons of first degree felony murder ( Pen. Code,¹ § 187 ), with the special circumstance that petitioner was engaged in the commission and attempted commission of a robbery at the time the murder was committed ( §§ 190.2, subd. (a)(17)(A), 211 ).² For this offense, he was sentenced to a term of life without the possibility of parole.

In 2019, petitioner filed petitions for resentencing pursuant to section 1170.95. The court summarily denied the petitions on the ground that petitioner was a major participant in the underlying felony who acted with reckless indifference to human life, a disqualifying factor pursuant to section 1170.95, subdivision (a)(3).

Petitioner appeals from the court's denial of his petition. He asserts that his petition was facially sufficient to establish that he fell within the provisions of section 1170.95, and the court therefore erred in denying the petition without appointing counsel or following the statutory procedures set forth in section 1170.95, subdivision (c).

We conclude that any error in failing to appoint counsel or afford petitioner the other procedures outlined in section 1170.95, subdivision (c) was harmless, because the record establishes petitioner is ineligible for resentencing as a matter of law. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On March 22, 1995, a jury convicted petitioner of first degree murder ( § 187 ; count one), with a special circumstance that petitioner was engaged in the commission and attempted commission of a robbery ( §§ 190.2, subd. (a)(17), 211 ); premeditated attempted murder ( §§ 187, 664 ; count two); and attempted second degree robbery ( §§ 211, 212.5, former subd. (b), 664; count three). As to each count, the jury found petitioner was armed with a firearm. ( § 12022, subd. (a)(1).) In bifurcated proceedings, the court found petitioner had two prior serious felonies ( § 667, subd. (a) ) and two prior strike convictions ( § 667, subds. (b)-(i) ). On count one, the court sentenced petitioner to life without the possibility of parole, plus one year for the arming enhancement and 10 years for the two prior serious felony enhancements. On count two, the court sentenced petitioner to life with the possibility of parole. Sentence on count three was imposed and stayed pursuant to section 654.³

On January 9, 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. On March 8, 2019, the People filed an opposition, noting petitioner's defective service of the petition and arguing the jury's finding on the robbery-murder special circumstance precluded him from making a prima facie showing that his conviction falls within the provisions of section 1170.95. In a separate motion to dismiss, the People argued section 1170.95 was unconstitutional. On March 28, 2019, the court denied the petition without prejudice due to defective service.

On March 29, 2019, petitioner filed a second petition for resentencing pursuant to section 1170.95. He then filed a substantially similar petition on May 8, 2019. In the form petitions, petitioner stated that a complaint, information, or indictment was filed against him that allowed him to be prosecuted under a theory of felony murder; he was convicted of first or second degree murder at trial; and he was not the actual killer, did not act with an intent to kill, and was not a major participant in the underlying felony or did not act with reckless indifference to human life in the course of the crime.

On June 20, 2019, the court summarily denied the petitions as follows:

"The Court is in receipt of Petitions for Resentencing filed March 29, 2019 and May 8, 2019. The petitions are denied with prejudice. Petitioner ... has failed to make a prima facie showing that he falls within the provisions of ... section 1170.95. The condition set out at [ section] 1170.95 [, subdivision ](a)(3) does not apply. As a major participant in the crime of attempted robbery who acted with deliberate indifference to human life, Petitioner is not eligible for resentencing. [¶] Petition is denied."

This timely appeal followed.

DISCUSSION

I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95

" ‘Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories.’ " ( People v. Daniel (2020) 57 Cal.App.5th 666, 672, 271 Cal.Rptr.3d 591, review granted Feb. 24, 2021, S266336 ( Daniel ).) The bill accomplished this task by adding three separate provisions to the Penal Code. ( People v. Gentile (2020) 10 Cal.5th 830, 842, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ).) First, to amend the natural and probable consequences doctrine, " ‘[t]he bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." ( § 188, subd. (a)(3).)’ " ( Daniel , at p. 672, 271 Cal.Rptr.3d 591, 271 Cal.Rptr.3d 591 ; accord, Gentile , at pp. 842-843, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e) :

"A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."⁴ ( § 189, subd. (e) ; accord, Gentile , at p. 842, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

Finally, the bill "added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above." ( Gentile , at p. 843, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

"Section 1170.95 lays out a process for a person convicted of felony murder or murder under a natural and probable consequences theory to seek vacatur of his or her conviction and resentencing. First, the person must file a petition with the trial court that sentenced the petitioner declaring, among other things, that the petitioner ‘could not be convicted of first or second degree murder because of changes to Section 188 or 189.’ ( § 1170.95, subd. (a)(3) ; see § 1170.95, subd. (b)(1)(A).) Then, the trial court must ‘review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of th[e] section.’ ( § 1170.95, subd. (c).) If so, the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts. ( § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’ ( § 1170.95, subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.’ (Ibid. )" ( Gentile, supra , 10 Cal.5th at p. 853, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

"Since Senate Bill [No.] 1437 was adopted and its mechanism for retroactive application has come into play through the filing of section 1170.95 petitions, many questions have arisen about that process and percolated up through appeals from resentencing decisions." ( People v. Duchine (2021) 60 Cal.App.5th 798, 811, 274 Cal.Rptr.3d 893, fn. omitted.) Those questions pertain primarily to section 1170.95, subdivision (c) (hereinafter sometimes referred to as "subdivision (c)"), which "addresses the procedure by which a trial court determines whether the petitioner is entitled to an evidentiary hearing." ( People v. Cooper (2020) 54 Cal.App.5th 106, 114, 268 Cal.Rptr.3d 417, review granted Nov. 10, 2020, S264684 ( Cooper ).) Section 1170.95, subdivision (c) provides in full:

"The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor['s] response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."

Courts of Appeal are divided on several questions arising under subdivision (c). Relevant here, the Courts of Appeal are split regarding when the right to counsel arises under subdivision (c). Our Supreme Court has granted review to decide this question. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 257 Cal.Rptr.3d 265, review granted Mar. 18, 2020, S260598 ( Lewis ).) In the meantime, a court has held that the right to counsel attaches immediately upon the filing of a facially sufficient petition that...