Filed 10/9/20 P. v. Calhoun CA2/3
See dissenting opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B296956
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA073433)
v.
DAREST MARCUS CALHOUN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed.
Joanna McKim, 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, Assistant
Attorney General, Idan Ivri and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Darest Marcus Calhoun petitioned for resentencing under
Penal Code1 section 1170.95. The trial court summarily denied
the petition without appointing counsel. He appeals and
contends that he was entitled to have counsel appointed. We
reject this contention.
BACKGROUND
A jury found Calhoun guilty of several crimes, including
murder. (People v. Calhoun (Nov. 21, 2006, B183242) [nonpub.
opn.].) As stated in the opinion affirming his judgment of
conviction, the evidence at trial was that Calhoun robbed a
restaurant with David Wilson. The victim testified that during
the course of the robbery, Calhoun forced him into the kitchen at
gunpoint where a struggle over a butcher knife ensued. Calhoun
twice shot at the victim, and then at the victim’s wife who came
into the kitchen during the struggle. Neither the victim nor his
wife was hit by the shots fired. Wilson was later found blocks
from the restaurant, bleeding from a stab wound to the chest.2
He died.
The People charged Calhoun with Wilson’s murder under
the provocative act doctrine, as well as other crimes stemming
from the incident. A jury accordingly found Calhoun guilty of the
first degree murder of Wilson, attempted murder, robbery,
assault with a firearm, and possession of a gun by a felon, with
prior serious felony convictions and personal firearm use
1 All further statutory references are to the Penal Code.
2 Calhoun testified that Wilson forced him at gunpoint to
take money from the victim. When the victim picked up a knife
and started stabbing Calhoun, Calhoun ran away, leaving Wilson
to fight the victim. He did not see how Wilson was stabbed.
2
findings. (People v. Calhoun, supra, B183242 at pp. 2, 5.) The
trial court sentenced Calhoun to “70 years to life” in prison. (Id.
at p. 2.)
Thereafter, our Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.), which took effect January 1, 2019. That
law amended the felony-murder rule and eliminated the natural
and probable consequences doctrine as it relates to murder, all to
the end of ensuring that a person’s sentence is commensurate
with their criminal culpability. Based on that new law, a person
convicted of murder under a felony murder or natural and
probable consequences theory may petition the sentencing court
for vacation of the conviction and resentencing, if certain
conditions are met. (§ 1170.95.)
Calhoun petitioned for resentencing under Senate Bill
No. 1437. In his form petition, Calhoun checked boxes indicating:
(1) a complaint, information or indictment had been filed against
him that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine, (2) he was convicted of first or second
degree murder under one of those doctrines, and (3) he could not
now be convicted of first or second degree murder because of
changes to sections 188 and 189. Calhoun also checked boxes to
indicate he was not the actual killer; did not with the intent to
kill, aid, abet, counsel, command, induce, solicit, request, or
assist the actual killer in committing the first degree murder;
and was not a major participant in the felony or did not act with
reckless indifference to human life during the course of the crime
or felony. He also asked the court to appoint counsel for him
during the resentencing process.
3
The trial court summarily denied the petition without
appointing counsel for Calhoun.3
DISCUSSION
Calhoun contends the trial court violated his federal
constitutional rights by summarily denying his petition without
appointing counsel for him.4 As we now explain, our principal
task in interpreting a statute is to determine legislative intent
and to give effect to the law’s purpose. (People v. Verdugo (2020)
44 Cal.App.5th 320, 328, fn. 8 (Verdugo), review granted Mar. 18,
2020, S260493.) Our task leads us to conclude that the trial
court properly summarily denied the petition because Senate Bill
No. 1437 does not apply to the provocative act theory of murder.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
doctrine of accomplice liability no longer applies to murder. And
a participant in enumerated crimes is liable under the felony-
3 The trial court found that Calhoun was a major
participant in the crime who acted with reckless indifference to
life.
4 This issue is currently on review in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
Specifically, the Supreme Court is considering whether superior
courts may consider the record of conviction in determining
whether a defendant has made a prima facie showing of
eligibility for relief under section 1170.95 and when the right to
appointed counsel arises under subdivision (c) of that section.
4
murder doctrine only if the participant was the actual killer; or
with the intent to kill, aided and abetted an accomplice in
commission of first degree murder; or was a major participant in
the underlying felony and acted with reckless indifference to
human life. (§ 189, subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also added section 1170.95. “Pursuant
to subdivision (a) only individuals who meet three conditions are
eligible for relief: (1) the person must have been charged with
murder ‘under a theory of felony murder or murder under the
natural and probable consequences doctrine,’ (2) convicted of first
or second degree murder, and (3) can no longer be convicted of
first or second degree murder ‘because of changes to Section 188
or 189 made effective January 1, 2019.’ ” (People v. Drayton
(2020) 47 Cal.App.5th 965, 973.)
Section 1170.95 provides for multiple reviews of a petition
by the trial court. (People v. Tarkington (2020) 49 Cal.App.5th
892, 897–898; People v. Drayton, supra, 47 Cal.App.5th at p. 974;
People v. Cornelius (2020) 44 Cal.App.5th 54, 57–58, review
granted Mar. 18, 2020, S260410; Verdugo, supra, 44 Cal.App.5th
at p. 328; but see People v. Cooper (2020) 54 Cal.App.5th 106.)
Subdivision (b) of section 1170.95 describes an initial review to
determine the facial sufficiency of the petition. (Verdugo, at
p. 328.) To be facially sufficient, the petition must contain the
petitioner’s declaration that the petitioner is eligible for relief
according to the criteria in subdivision (a), the case number and
year of conviction, and whether the petitioner is requesting
appointment of counsel. (§ 1170.95, subd. (b)(1).) If the petition
is missing any of this information “and cannot be readily
ascertained by the court, the court may deny the petition without
prejudice.” (§ 1170.95, subd. (b)(2).) This initial review amounts
5
essentially to a ministerial review to ensure that the right boxes
are checked.
Subdivision (c) of section 1170.95 then describes the next
two levels of review. It provides, “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 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.”
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, 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.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) A
Court of Appeal opinion is part of the appellant’s record of
conviction (id. at p. 333), as are jury instructions (People v. Soto
(2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020,
S263939). If these documents reveal ineligibility for relief, the
trial court can dismiss the petition. (Verdugo, at p. 330.)
6
If the record of conviction does not establish as a matter of
law the petitioner’s ineligibility for resentencing, evaluation of
the petition proceeds to the second prima facie review, in which
“the court must direct the prosecutor to file a response to the
petition, permit the petitioner (through appointed counsel if
requested) to file a reply and then determine, with the benefit of
the parties’ briefing and analysis, whether the petitioner has
made a prima facie showing he or she is entitled to relief.”
(Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial court must
accept as true the petitioner’s factual allegations and make a
preliminary assessment regarding whether the petitioner would
be entitled to relief if the factual allegations were proved. (Id. at
p. 328.)
We agree with those Courts of Appeal that interpret
section 1170.95 to permit a trial court to make an initial
determination whether the petitioner may be entitled to relief
without first appointing counsel. The structure and grammar of
subdivision (c) of that section “indicate the Legislature intended
to create a chronological sequence: first, a prima facie showing;
thereafter, appointment of counsel for petitioner; then, briefing by
the parties.” (Verdugo, supra, 44 Cal.App.5th at p. 332, italics
added; accord, People v. Lewis, supra, 43 Cal.App.5th at p. 1140.)
As Verdugo at pages 328 to 329 noted, to hold otherwise that
counsel must be appointed once a petitioner files a facially
sufficient petition renders subdivision (c) redundant to
subdivision (b)(2).
And, where a cursory review of the record of conviction
shows that the petitioner is not entitled to relief under Senate
Bill No. 1437, it “ ‘would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even
7
appointment of counsel based solely on the allegations of the
petition, which frequently are erroneous.’ ” (People v. Lewis,
supra, 43 Cal.App.5th at p. 1138.)
That is the case here, because Calhoun was not convicted
under either the felony murder or natural and probable
consequences doctrines. As he concedes, he was convicted of
murder under the provocative act doctrine. The record of
conviction confirms that was the theory under which he was
convicted, as the jury was instructed on provocative act murder
under CALJIC No. 8.12 but not on felony murder or the natural
and probable consequences doctrine.
Senate Bill No. 1437, however, does not apply to murderers
convicted under the provocative act doctrine. Senate Bill
No. 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(f), italics added.) Section 1170.95, subdivision (a),
states that only persons “convicted of felony murder or murder
under a natural and probable consequences theory” may petition
for resentencing. (Italics added.)
Further, Senate Bill No. 1437 provides that a defendant
cannot now be convicted of “murder absent a showing of malice,
with the exception of felony murder as limited by section 189,
subdivision (e).” (People v. Lee (2020) 49 Cal.App.5th 254, 262,
review granted July 15, 2020, S262459.) However, unlike the
natural and probable consequences doctrine or felony murder, a
conviction under the provocative act theory of murder necessarily
8
requires a finding of malice. That is, the doctrine makes the
perpetrator of an underlying crime liable for the killing of an
accomplice by a third party. (People v. Cervantes (2001)
26 Cal.4th 860, 867.) The usual scenario is when a police officer
or, as here, the victim, kills the defendant’s accomplice. (People
v. Gonzalez (2012) 54 Cal.4th 643, 654.) To be convicted under
this doctrine, there must be proof the defendant “personally
harbored the mental state of malice, and either the defendant or
the accomplice intentionally committed a provocative act that
proximately caused an unlawful killing.” (Id. at p. 655.) As our
colleagues in Division One have therefore observed, because
provocative act murder requires a finding of malice, a defendant
convicted of murder under that doctrine is ineligible for
resentencing under section 1170.95 since such a conviction does
not rely on the imputation of malice based on the mere
participation in an underlying crime. (Lee, at p. 262.) The malice
is harbored by the defendant himself.
As Calhoun was convicted of provocative act murder, he is
ineligible for resentencing.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EDMON, P. J.
9
LAVIN, J., Dissenting:
For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, 917, review granted
August 12, 2020, S263219, I would reverse the order. (See also
People v. Cooper (2020) 54 Cal.App.5th 106, 112 [trial court must
give the parties an opportunity to submit briefing before denying
a facially sufficient petition].) To be sure, the Attorney General
urges affirmance because he believes any error in failing to
appoint counsel was harmless. By harmless, the Attorney
General means that defendant is ineligible for relief as a matter
of law because defendant was convicted under the provocative act
doctrine. But the erroneous deprivation of counsel has
consequences that are necessarily unquantifiable and
indeterminate, and “[h]armless-error analysis in such a context
would be a speculative inquiry into what might have occurred in
an alternate universe.” (United States v. Gonzalez-Lopez (2006)
548 U.S. 140, 150.) Accordingly, I need not reach any other
issues, including whether defendants convicted of murder under
the provocative act doctrine are eligible for relief under Penal
Code section 1170.95.
LAVIN, J.