People v. Smith

• Decision Date: 15 May 2020
• Docket Number: B298642
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Shawn SMITH, Defendant and Appellant.

49 Cal.App.5th 85

262 Cal.Rptr.3d 687

The PEOPLE, Plaintiff and Respondent,

v.David Shawn SMITH, Defendant and Appellant.

B298642

Court of Appeal, Second District, Division 5, California.

Filed May 15, 2020

Emry J. Allen, Sacramento, 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, Acting Senior Assistant Attorney General, David E. Madeo, Deputy Attorney General, Idan Ivri, Acting Supervising Deputy Attorney General, for Plaintiff and Respondent.

MOOR, J.

Defendant and appellant David Shawn Smith appeals from a postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95¹ and Senate Bill No. 1437 (Senate Bill 1437). As relevant here, the statute and Senate bill provide for vacatur of a defendant's murder conviction and resentencing if the defendant was convicted of felony murder and the defendant (1) was not the actual killer, (2) did not act with the intent to kill, and (3) was not a major participant who acted with reckless indifference to human life. (§ 189, subd. (e)(3).)

Smith contends the trial court erred by summarily denying his petition on the merits and on the basis that Senate Bill 1437 unconstitutionally amends section 190, and by failing to appoint counsel prior to determining his eligibility for resentencing.²

The People agree that section 1170.95 and Senate Bill 1437 do not unconstitutionally amend section 190, but argue that the trial court's ruling should be affirmed because in 1994 the jury found true the special circumstance that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)), a finding which we affirmed on direct appeal in 1996.

We reverse and remand to the trial court. We agree with the parties that section 1170.95 and Senate Bill 1437 do not unconstitutionally amend section 190. We further conclude that Smith should have been appointed counsel before the trial court ruled on his petition.

FACTS AND PROCEDURAL HISTORY

Murder Conviction

In 1994, Smith was convicted of first degree murder (§ 187, subd. (a) [count 1] ) under a felony murder theory of liability. The jury found true the special circumstance that the murder was committed during the commission of a robbery pursuant to section 190.2, subdivision (a)(17). Smith was additionally convicted of two counts of kidnapping (§ 209; [counts 2 & 3] ), two counts of burglary (§ 459; [counts 4 & 5] ), one count of residential robbery (§ 211; [count 7] ), and three counts of rape (§§ 261, subd. (a)(2), 264.1, 289; [counts 8–10] ). He was sentenced to life in state prison without the possibility of parole, plus sixteen years.³

Appeal

Smith appealed, contending, as pertinent here, that there was insufficient evidence that he acted with "reckless indifference to human life," as required to support the jury's robbery murder special circumstance finding, and that the trial court gave an erroneous instruction regarding "reckless indifference."

(York , supra , B088372, at pp. 12–13.) This court concluded that the jury's robbery-murder special circumstance finding was supported because substantial evidence was presented to demonstrate that Smith acted with "reckless indifference to human life," i.e. that he had "a subjective appreciation or knowledge ... [that his] acts involved a grave risk that such acts could result in the death of an innocent human being." (Id . at p. 12.) We also held that there was no error in the instruction given to the jury regarding reckless indifference ( CALJIC No. 8.80.1 ). (Id . at p. 13.)

Section 1170.95 Petition for Resentencing

Petition for Resentencing

On January 25, 2019, Smith petitioned for resentencing under section 1170.95. He declared that he met all of the requirements for section 1170.95 and was eligible for relief. Smith further declared that he was not a "major participant" in the murder and did not act with "reckless indifference." Smith requested that counsel be appointed to him.

Trial Court's Ruling

The trial court denied the petition on February 19, 2019. The trial court's written ruling discussed the reasons for denial as follows:

"On April 25, 1991, Otis Ervin robbed an armored car of $500,000. Six weeks later, Defendant David Shawn Smith joined with two other men to rob Ervin of his ill-gotten gains. The intended robbery spiraled into a major crime spree which included rape in concert, rape by a foreign object in concert, burglaries, residential robberies, kidnappings and murder.

"Defendant Smith was convicted by jury and was sentenced to life without parole plus 16 years. His conviction was affirmed by the Court of Appeal in 1996 in an unpublished opinion. (People v. Reginald Ray York, et al ., (January 16, 1996), ––– Cal.App.3d –––– (York ) [nonpub. opn.] )

"The Court of Appeal opinion described the crimes committed by Petitioner and his co-conspirators.

"In this case, substantial evidence of reckless indifference to human life exists. York and Jefferson kidnapped the Howard sisters at gunpoint from the parking lot where they worked. They handcuffed the two sisters and threatened repeatedly to kill them. They informed the sisters that they knew where they and their family lived and had been observing the family. They were joined by Smith and drove the sisters around for hours. They burglarized Reginald Ervin's apartment.

"At the Perry residence, they held the entire Perry household, including four small children, at gunpoint, while they ransacked the house. They kicked, slapped, and beat Reginald Ervin. They threatened to torture and kill the family. They raped Yolanda, while continuing to hold her family at gunpoint.

"It is apparent defendants knew that their acts involved a grave risk of the death of an innocent human being. They held two young women at gunpoint and in handcuffs for hours, they held a family, including young children, at gunpoint while they ransacked the residence and raped a sister. They threatened to torture and kill the young women and the family. When Reginald Ervin attempted to break free to get a gun to protect his family, defendants shot and killed him.’ (People v. Reginald Ray York, el al., Id ., pp. 12, 13.)

"In his petition, Smith claims he was not the actual killer and he did not act with the intent to kill. He also claims he was not a major participant in the felony and did not act with reckless indifference to human life in this matter. The Court of Appeal found otherwise.

"The jury was instructed that in order to find the felony-murder special circumstance to be true, it must find that defendants were major participants in the underlying felonies and acted with reckless indifference to human life. ( CALJIC No. 8.80.1.) ‘Reckless indifference to human life’ refers to a mental state which includes subjective appreciation or knowledge by a defendant that the defendant's acts involved a grave risk that such acts could result in the death of an innocent human being.

(People v. Reginald Ray York, et al., Id .)

"The Court also observed that ‘substantial evidence of reckless indifference to human life’ existed for each of the defendants and it was ‘apparent defendants knew that their acts involved a grave risk of the death of a human being.’ (Id .)

"Smith was a major participant in the events and acted with obvious reckless indifference to human life during the course of the many major crimes, including murder, committed in this case. He is not eligible for sentencing relief pursuant to Penal Code § 1170.95. See Penal Code §§ 189(e)(1) and 1170.95(a)(3).

"As a second and independent ground for denying Smith's petition for resentencing, the court finds SB 1437 and Penal Code § 1170.95 violate the California Constitution because the Legislature unconstitutionally amended Penal Code § 190 which was passed by referendum in 1978 by Proposition 7 and may not be amended or repealed unless by vote of the People.

"The petition for resentencing is denied."

DISCUSSION

On appeal, Smith argues that section 1170.95 and Senate Bill 1437 do not unconstitutionally amend section 190, and that he was entitled to appointment of counsel prior to the trial court making any determination as to whether a prima facie case for relief exists. He further contends that the jury's 1994 robbery murder special circumstance finding does not bar him from relief, as the People argue.

The People concede, and we agree, that section 1170.95 does not unconstitutionally amend section 190. Although we disagree with Smith's characterization of the petitioning process, and specifically, the point at which entitlement to counsel attaches, we conclude that Smith, in the words of section 1170.95, subdivision (c), "made a prima facie showing that [he] falls within the provisions of th[at] section," and was therefore entitled to appointment of counsel and an opportunity for briefing.⁴

Constitutionality

The trial court denied Smith's petition because Senate Bill 1437 unconstitutionally amended section 190, which was passed by referendum in 1978 through Proposition 7, and cannot be amended or repealed except by the people's vote. The People concede, and we agree, that this was error. Three of our sister courts have held that Senate Bill 1437 does not directly modify or amend the statutory changes effected by Proposition 7 or amend the voter's intent in passing Proposition 7. ( People v. Bucio (Apr. 27, 2020, B299688) 48 Cal.App.5th 300, 307-04, 261 Cal.Rptr.3d 692 ; People v. Solis (2020) 46 Cal.App.5th 762, 774–780, 259 Cal.Rptr.3d 854 ; People v. Cruz (2020) 46 Cal.App.5th 740,753–759, 260 Cal.Rptr.3d 166 ; People v. Superior Court (Gooden ) (2019) 42 Cal.App.5th 270, 280–284, 255 Cal.Rptr.3d 239 ; People v. Lamoureux (2019) 42 Cal.App.5th 241, 250–251, 255 Cal.Rptr.3d 253.) We agree with the results reached in these cases, and as the parties are also in agreement that Senate Bill 1437 does not unconstitutionally amend section 190, we...