People v. Hallman CA4/2

Filed 9/14/20 P. v. Hallman CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073456

v. (Super.Ct.No. FWV01095)

EDWARD EDDIE HALLMAN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Bridgid M.

McCann, Judge. Reversed and remanded with directions.

James M. Kehoe, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G.

McGinnis, and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

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 I

INTRODUCTION

In 1993, defendant and appellant Edward Eddie Hallman, who was then a minor,

along with his two adult coparticipants, attempted to rob a jewelry store. During the

robbery, one of defendant’s coparticipants shot and killed the store’s owner. A jury

convicted defendant of first degree murder (Pen. Code,1 § 187, subd. (a)) and five other

felonies. He was sentenced to a determinate term of four years eight months and an

indeterminate term of 26 years to life in prison.

In 2018, the Legislature passed and the Governor signed into law Senate Bill

No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea

requirements for the offense of murder and restricted the circumstances under which a

person can be liable for murder under the felony-murder rule or the natural and probable

consequences doctrine. (Stats. 2018, ch. 1015, § 4.) Senate Bill 1437 also established a

procedure permitting certain qualifying persons who were previously convicted of felony

murder or murder under the natural and probable consequences doctrine to petition the

courts that sentenced them to vacate their murder convictions and obtain resentencing on

any remaining counts. (Ibid.; see § 1170.95)

In 2019, defendant filed a petition for resentencing under section 1170.95.

Without reaching the merits of the petition, the trial court granted the People’s motion to

strike defendant’s petition for resentencing, finding Senate Bill 1437 unconstitutional.

1 All future statutory references are to the Penal Code unless otherwise stated.

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Defendant appeals from the order granting the People’s motion to strike his petition to

vacate his murder conviction and obtain resentencing under the procedures established by

Senate Bill 1437. Defendant argues the trial court erred in finding Senate Bill 1437

unconstitutional. The People agree and also assert that because the record establishes

defendant is entitled to relief, the matter should be remanded with directions to grant the

petition, vacate defendant’s murder conviction, and resentence him on the remaining

counts. We agree. We therefore reverse the trial court’s order and remand the matter for

further proceedings.

II

FACTUAL AND PROCEDURAL BACKGROUND2

On May 11, 1993, the defendant met with 24-year-old George Wiley and 21-year-

old Marvin Foster at Foster’s home in Los Angeles for the purpose of making plans for

the robbery of Diamond Expressions Jewelry Store in Upland. Foster and defendant

smoked some PCP before leaving for Upland.

On May 11, 1993, Donna Smith, an employee, and Victor Angona, the owner of

Diamond Expressions Jewelry Store, were in the office area of the store around

10:00 a.m. A two-way mirror separates the display area from the office area. There is

also a back room containing a safe.

2 The factual background is taken from this court’s nonpublished opinion in
defendant’s prior appeal, case No. E014974, which is part of the record on appeal.
(People v. Hallman (Jan. 19, 1996, E014974) [nonpub. opn.].)

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 Wiley entered the store dressed as a postal worker. (Neither he, Foster, nor

defendant were postal employees.) Angona, who was on the phone, handed it to Smith

and said he would help the customer. Within about 30 seconds of Wiley’s entry into the

store, Foster entered. Foster was holding a handgun. Smith told the person she was

talking to on the phone, “It’s going down, call 911.” She dove under a desk and hit the

alarm button. She then heard voices and gunshots. Angona staggered into the office and

said, “I am dead, you’ve killed me.” Angona died from a gunshot wound to the chest.

The defendant entered after the shots were fired carrying pillowcases. He saw the

mortally wounded Angona on the floor.

Then Smith was jerked from beneath the desk, a gun was placed to her head, and

someone asked where the safe was. At that time, she observed two sets of feet and legs.

She was dragged to where the safe was. It was open and empty as the merchandise had

already been placed in the display cases. At that time, she saw three sets of feet and legs.

Her head was held down as someone tried to place handcuffs on her. Suddenly, they

stopped and ran out. She ran to the front of the store and observed a Bronco or Blazer-

type vehicle driving away.

Shortly after the attempted robbery, Joe Candias was driving on San Antonio, in

the vicinity of the jewelry store, when he noticed a gold Blazer two or three cars ahead of

him. It abruptly pulled over cutting off a vehicle. He observed the three occupants of the

Blazer run to a silver-gray Cadillac and drive off. His “conscience was bothering” him as

to what was happening, so he turned his car around and drove back toward the area of the

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car switch. As he did so he observed a police car “flying over the railroad tracks. . . .”

He told the officers what he saw. Shortly thereafter, Candias was taken to where a

Cadillac was stopped. There he identified the vehicle and the three occupants.

When the Cadillac was stopped by the police, Foster was driving. Defendant was

in the right front seat, and Wiley was in the right rear seat. A postal worker’s jacket and

hat were found in the car along with two .38-caliber handguns. One of the guns had a

spent cartridge. The other had three spent rounds. Defendant had a folded pillowcase in

his pocket. A pair of handcuffs was in the trunk of the car.

Three pair of handcuffs and two more pillowcases were found at the scene of the

crime. A .22-caliber handgun, belonging to Angona, was found on the floor of the office.

Expert testimony established that this gun was malfunctioning. It would not fire and only

clicked when the trigger was pulled.

Maria Rocha, an employee at a bakery next door to the jewelry store, identified

Foster and defendant as two people she saw running from the store after she heard

gunshots. Smith identified Wiley as the first person who entered the store and Foster as

the second person to enter the store. She could not identify defendant.

After his arrest defendant was interviewed and told the detective that he had come

from Los Angeles to commit a robbery, but he was not armed with a gun. He admitted

that he knew the Blazer was stolen and was being used in the crime.

Foster also agreed to an interview. He told the detective that Wiley recruited him

the day before the robbery attempt and told him that there would “be a ‘lick’ tomorrow

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morning in Ontario.” He expected the job to get him $3,000 to $5,000. Wiley provided

him with the gun Foster carried into the attempted robbery. He told the detective that all

three had contemplated doing the robbery stating, “We all in this.” He drove the Blazer,

which he picked up at Wiley’s house, to Upland. Defendant rode with him while Wiley

drove the Cadillac. The Cadillac was parked around the corner from the store, and then

they all rode to the jewelry store in the Blazer.

Foster told the detective that Wiley entered the store first dressed as a postal

worker. Thirty seconds after Wiley entered, Foster and defendant entered the store, and

Foster had “his gun down.” Defendant was not personally armed.

As soon as they entered the store, the murder victim, Angona, “drew heat.” Foster

stated that he did not fire at him but did point his gun at Angona who pointed his gun

back at Foster and told him not to shoot because if he did, he would shoot Wiley. Foster

stated that Wiley, who took a gun into the store, “[b]eat [Angona] to the draw or

whatever. So I put my gun down, but then I heard POW.” The only one who fired any

shots was Wiley according to Foster.

Later, while Wiley and Foster were in their holding cells, they engaged in

a conversation that was tape recorded. Foster told Wiley, “You shouldn’t have shot

him . . . .” Wiley responded, “It was self-defense, man.” Foster responded, “No, not

when you’re doing no robbery. . . .” Wiley replied, “Well, it might be manslaughter,

man.”

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 While being transported from the police department to the jail, Wiley told Foster,

“We really messed up, we’re going to get the gas chamber or the electric chair. Which

do you want?” Foster responded that he did not like the electric chair and expressed a

preference for the gas chamber. Foster, displaying an unsettling, sophisticated

knowledge of the Penal Code, then asked Wiley, “Are they going to charge us with 211

or just the 187?” He received no reply.

Foster was the only defendant to testify at trial. In a radical departure from what

he told the detective following his arrest, he told the jury that, in effect, Wiley was an

innocent agent in the attempted robbery, and Wiley had not been told there was going to

be a robbery at the store. Wiley, then, was not a knowing participant in a burglary or the

attempted robbery.3 Foster testified that he committed the crime at the behest of a person

named “Keevin” to whom he owed money and whom he feared. He owed Keevin $2,500

for cocaine, and if he did not pay it, Foster or a member of his family would die. Keevin

suggested a robbery in order to repay the debt. Keevin suggested that Foster contact

Wiley to act as a “decoy to buy [Foster] some time.”

Foster testified that he contacted Wiley and told Wiley that Wiley was to

participate in a drug deal, picking up a package from a jewelry store. The night before

the attempted robbery Foster again met with Keevin who provided the Blazer,

pillowcases, a gun, handcuffs, and directions. Foster knew that the Blazer was stolen

because the steering column was ripped open. Foster claimed to have recruited defendant

3 The prosecution relied only on the first degree felony-murder rule.

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to participate in the planned robbery on the day of the crime. Foster specifically told

defendant not to tell Wiley about the robbery.

After Angona was shot only defendant and Foster went to the back room area

where the safe was located after they pulled Smith out from the desk. They left Wiley in

the office area.

On February 18, 1994, a jury convicted defendant of first degree murder (Pen.

Code, § 187; count 1); burglary (Pen. Code, § 459; count 2); two counts of attempted

robbery (Pen. Code, §§ 664/211; counts 3 & 4); false imprisonment by violence (Pen.

Code, § 236; count 5); and unlawfully taking or driving a vehicle without the owner’s

consent (Veh. Code, § 10851, subd. (a); count 6). The jury also found true defendant was

armed with a firearm in the commission of counts 2 through 5. The jury found not true

the special circumstance allegation that the murder occurred during the commission of

burglary and attempted robbery.

On July 11, 1994, the trial court sentenced defendant to a determinate term of

four years eight months, to be followed by an indeterminate term of 26 years to life in

prison.(CT 50-51}

On January 19, 1996, this court affirmed the lower court’s judgment in its entirety.

On January 1, 2019, Senate Bill 1437 became effective (2017-2018 Reg. Sess.),

which amended the felony-murder rule and the natural and probable consequences

doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate

Bill 1437 also added section 1170.95, which allows those “convicted of felony murder or

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murder under a natural and probable consequences theory . . . [to] file a petition with the

court that sentenced the petitioner to have the petitioner’s murder conviction vacated and

to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)

On January 28, 2019, defendant in propria persona filed a petition for resentencing

pursuant to section 1170.95, requesting that his murder conviction be vacated based on

changes to sections 188 and 189, as amended by Senate Bill 1437, and asking to be

resentenced.

On March 26, 2019, the People filed a motion to strike defendant’s petition based

on the unconstitutionality of Senate Bill 1437 and resulting statutes.

On June 28, 2019, the trial court heard oral argument on defendant’s petition for

resentencing. The trial court granted the People’s motion to strike defendant’s petition,

finding Senate Bill 1437 unconstitutional.

On August 15, 2019, defendant filed a notice of appeal from the trial court’s order

granting the People’s motion to strike his section 1170.95 petition for resentencing.

III

DISCUSSION

Defendant contends that the trial court incorrectly concluded Senate Bill 1437 is

unconstitutional. He also asserts that because the record establishes he was not the actual

killer, did not act with an intent to kill, and was not a major participant in the offense who

acted with a reckless indifference to human life, we must vacate his conviction and

remand the matter to the lower court with directions to grant his section 1170.95 petition.

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 The People aptly agree that Senate Bill 1437 is constitutional. The People also

concede we should remand the matter to the trial court with instructions to grant

defendant relief under Senate Bill 1437.

A. Senate Bill 1437

Senate Bill 1437, which took effect on January 1, 2019, “limit[ed] accomplice

liability under the natural and probable consequences doctrine and the felony-murder

rule.” (People v. Cruz (2020) 46 Cal.App.5th 740, 755 (Cruz); People v. Lamoureux

(2019) 42 Cal.App.5th 241, 246 (Lamoureux); People v. Munoz (2019) 39 Cal.App.5th

738, 749, review granted Nov. 26, 2019, S258234.) Prior to Senate Bill 1437’s

enactment, under the felony-murder rule “a defendant who intended to commit a

specified felony could be convicted of murder for a killing during the felony, or

attempted felony, without further examination of his or her mental state.” (Lamoureux, at

pp. 247-248; People v. Chun (2009) 45 Cal.4th 1172, 1182 (Chun).) “‘The felony-

murder rule impute[d] the requisite malice for a murder conviction to those who

commit[ted] a homicide during the perpetration of a felony inherently dangerous to

human life.’” (Chun, at p. 1184; Lamoureux, at p. 248.)

Similarly, under the natural and probable consequences doctrine, a defendant was

“liable for murder if he or she aided and abetted the commission of a criminal act (a

target offense), and a principal in the target offense committed murder (a nontarget

offense) that, even if unintended, was a natural and probable consequence of the target

offense.” (Lamoureux, supra, 42 Cal.App.5th at p. 248; People v. Chiu (2014) 59 Cal.4th

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155, 161-162.) “‘[B]ecause the nontarget offense [was] unintended, the mens rea of the

aider and abettor with respect to that offense [was] irrelevant and culpability [was]

imposed simply because a reasonable person could have foreseen the commission of the

nontarget crime.’” (People v. Flores (2016) 2 Cal.App.5th 855, 867.)

Senate Bill 1437 was enacted to “amend the felony murder rule and the natural

and probable consequences doctrine, as it relates to murder, to ensure that murder

liability is not imposed on a person who is not the actual killer, did not act with the intent

to kill, or was not a major participant in the underlying felony who acted with reckless

indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) “Senate Bill No. 1437

achieves these goals by amending section 188 to require that a principal act with express

or implied malice and by amending section 189 to state that a person can only be liable

for felony murder if (1) the ‘person was the actual killer’; (2) the person was an aider or

abettor in the commission of murder in the first degree; or (3) the ‘person was a major

participant in the underl[y]ing felony and acted with reckless indifference to human

life.’” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57 (Cornelius), review granted

Mar. 18, 2020, S260410;4 People v. Tarkington (2020) 49 Cal.App.5th 892, 896

(Tarkington), review granted Aug. 12, 2020, S263219; People v. Verdugo (2020) 44

Cal.App.5th 320, 325-326, review granted Mar. 18, 2020, S260493 (Verdugo).)

4 Under California Rules of Court, rule 8.1115, we may rely on cases pending
before the Supreme Court as persuasive authority while review is pending. (Cal. Rules of
Court, rule 8.1115(e)(1), eff. July 1, 2016.)

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 Senate Bill 1437 also added section 1170.95, which permits persons convicted of

murder under a felony murder or natural and probable consequences theory to petition in

the sentencing court for vacation of their convictions and resentencing. Section 1170.95

provides in pertinent part: “A person convicted of felony murder or murder under a

natural and probable consequences theory” may file a petition “when all of the following

conditions apply: [¶] (1) A complaint, information, or indictment was filed against the

petitioner that allowed the prosecution to proceed under a theory of felony murder or

murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was

convicted of first degree or second degree murder following a trial or accepted a plea

offer in lieu of a trial at which the petitioner could be convicted for first degree or second

degree murder. [¶] (3) The petitioner could not be convicted of first or second degree

murder because of changes to Section 188 or 189 made effective January 1, 2019.”

(§ 1170.95, subd. (a).)

B. Constitutionality of Senate Bill 1437

Subsequent to the trial court’s ruling in this matter, numerous appellate courts

have rejected challenges to Senate Bill 1437’s constitutionality, and the parties agree it is

constitutional. (See People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275,

286 [Senate Bill 1437 did not unconstitutionally amend Propositions 7 or 115, because it

neither added to, nor took away from, those initiatives]; Lamoureux, supra, 42

Cal.App.5th at pp. 246, 251-252, 256-257, 264-266 [Senate Bill 1437 did not improperly

amend Propositions 7 or 115 or the Victims’ Bill of Rights Act of 2008 (Marsy’s Law),

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and does not violate separation of powers principles by usurping the executive’s

clemency power or impairing the judiciary’s core functions]; People v. Solis (2020) 46

Cal.App.5th 762, 769, 779-780; Cruz, supra, 46 Cal.App.5th at p. 747; People v. Bucio

(2020) 48 Cal.App.5th 300, 306-307, 310-314; People v. Smith (2020) 49 Cal.App.5th

85, 91-92; People v. Prado (2020) 49 Cal.App.5th 480, 483, 491-492; People v. Johns

(2020) 50 Cal.App.5th 46, 54-55.) We agree with the reasoning of these authorities. As

the parties are also in agreement, it is unnecessary for us to further address the issue here.

The trial court erred by granting the People’s motion to strike defendant’s petition on the

ground that Senate Bill 1437 is unconstitutional.

C. Relief Under Section 1170.95 as a Matter of Law

Defendant contends that because the jury found he did not act with reckless

indifference to human life and was not a major participant in the murder or the actual

killer, we must vacate his murder conviction and remand the matter with directions to

grant him relief under section 1170.95.

Evaluation of a section 1170.95 petition requires a multistep process: an initial

review to determine the petition’s facial sufficiency; “a prebriefing, ‘first prima facie

review’ to preliminarily determine whether the petitioner is statutorily eligible for relief

as a matter of law; and a second, postbriefing prima facie review to determine whether

the petitioner has made a prima facie case that he or she is entitled to relief.”

(Tarkington, supra, 49 Cal.App.5th at p. 897; Verdugo, supra, 44 Cal.App.5th at pp. 327-

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330; People v. Torres (2020) 46 Cal.App.5th 1168, 1177-1178 (Torres), review granted

June 24, 2020, S262011; People v. Drayton (2020) 47 Cal.App.5th 965, 975-976.)

When conducting the first prima facie review, “the court must determine, based

upon its review of readily ascertainable information in the record of conviction and the

court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e.,

whether he [or she] was convicted of [a qualifying crime,] based on a charging document

that permitted the prosecution to proceed under the natural and probable consequences

doctrine or a felony-murder theory.” (Tarkington, supra, 49 Cal.App.5th at pp. 898-899;

Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) If it is clear from the record of

conviction that the petitioner cannot establish eligibility as a matter of law, the trial court

may deny the petition without appointing counsel. (Tarkington, at p. 898; Torres, supra,

46 Cal.App.5th at p. 1178; Verdugo, at pp. 330, 332-333; People v. Lewis (2020) 43

Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598; Cornelius, supra,

44 Cal.App.5th at p. 58.) If, however, the petitioner’s eligibility is not established as a

matter of law, the court must appoint counsel and permit briefing to determine whether

the petitioner has made a prima facie showing he or she is entitled to relief. (Verdugo, at

p. 330; Tarkington, at p. 898.) If the petitioner is found eligible for relief, the murder

conviction must be vacated and the petitioner resentenced “on any remaining counts in

the same manner as if the petitioner had not been [sic] previously been sentenced,

provided that the new sentence, if any, is not greater than the initial sentence.”

(§ 1170.95, subd. (d)(1).)

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 The People concede, and we agree, that under Senate Bill 1437 defendant is

entitled to relief on his murder conviction. The limited record before us shows that

defendant was convicted of a qualifying crime, first degree murder. There is no dispute

that he was an aider and abettor of the attempted robbery and not the actual killer. It also

appears that the prosecution could have proceeded under a felony-murder theory or the

natural and probable consequences doctrine. The murder was committed in the course of

an attempted robbery. Therefore, as far as the record shows, the prosecution could have

advanced the theory that the killing was a natural and probable consequence of that target

offense or could have relied upon the felony-murder rule because the murder occurred

during commission of the attempted robbery. (See § 189, subd. (a).)

In addition, under section 1170.95, subdivision (d)(2), defendant is eligible for

relief as a matter of law. That provision provides that, “[i]f there was a prior finding by a

court or jury that the petitioner did not act with reckless indifference to human life or was

not a major participant in the felony, the court shall vacate the petitioner’s conviction and

resentence the petitioner.” (§ 1170.95, subd. (d)(2).)

The penalty for first degree special circumstances murder under section 190.2,

subdivision (a), is either death or life without the possibility of parole. One of the

enumerated special circumstances is that the murder was carried out while the defendant

was engaged in, or was an accomplice in, the commission of a felony, including robbery.

(§ 190.2, subd. (a)(17)(A).) Where the defendant was not the actual killer, but an aider

and abettor, section 190.2 requires a further showing that the defendant was “a major

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participant” in the crime and acted “with reckless indifference to human life.” (§ 190.2,

subd. (d).) If the defendant was not the actual killer, but an aider and abettor,

section 190.2 also permits a special circumstances finding if the evidence shows the

defendant’s “intent to kill.” (§ 190.2, subd. (c).)

Here, the jury found not true the special circumstance allegation that the murder

occurred during the commission of burglary and attempted robbery. Because the jury

found, in rejecting the special circumstance allegation, that defendant was not a major

participant who acted with reckless indifference to human life, defendant is entitled to

relief under Senate Bill 1437. (People v. Ramirez (2019) 41 Cal.App.5th 923, 932

(Ramirez) [section 1170.95, subdivision (d)(2), “impos[es] a mandatory duty on the court

to vacate defendant’s sentence and resentence him whenever there is a prior finding of

this court that the defendant was not a major participant in the underlying felony and did

not act with reckless indifference to human life”]; see People v. Banks (2015) 61 Cal.4th

788, 794-803 [Supreme Court clarified what “major participant” and “reckless

indifference” to human life mean for purposes of special circumstances allegations under

section 190.2, subdivision (d)]; People v. Clark (2016) 63 Cal.4th 522, 618-622 [same].)

In sum, Senate Bill 1437 is constitutional. Additionally, defendant made the

requisite prima facie showing he was entitled to relief on the murder conviction in his

declaration in support of his petition. (See § 1170.95, subds. (b)(1), (c); Ramirez, supra,

41 Cal.App.5th at p. 929.) Moreover, the People acknowledge that because defendant’s

jury “necessarily” determined he did not act with reckless indifference to human life, his

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murder conviction must be vacated under section 1170.95, subdivision (d)(2). (See

§ 1170.95, subd. (d)(2); Ramirez, at p. 932.) Because Senate Bill 1437 is constitutional

and section 1170.95, subdivision (d)(2), required the trial court to vacate defendant’s

murder conviction and resentence him on the remaining counts, we direct the court to do

so on remand. (See Ramirez, at p. 933 [appellate court remanded matter to trial court

with directions to vacate the defendant’s section 1170.95 petition, vacate his murder

conviction, and resentence him on the remaining counts, where it was “beyond dispute”

the defendant was not shown to have been a major participant in the underlying felony, or

to have acted with reckless indifference to human life].)

IV

DISPOSITION

The trial court’s order granting the People’s motion to strike defendant’s

section 1170.95 petition to vacate his murder conviction is reversed. The matter is

remanded with directions for the court to grant the petition as to the murder conviction,

vacate that conviction, and resentence defendant on the remaining counts.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
Acting P. J.
We concur:

RAPHAEL
J.

MENETREZ
J.

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