Filed 10/29/20 P. v. Davis CA2/3
See concurring 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B300881
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA071233)
v.
DESMOND DEON DAVIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Kelvin D. Filer, Judge. Reversed with
directions.
Jonathan E. Demson, 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 Blake Armstrong, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Desmond Deon Davis petitioned for resentencing under
Penal Code1 section 1170.95. The trial court summarily denied
the petition. He appeals and contends that he established a
prima facie case for relief. We agree and therefore reverse the
order.
BACKGROUND
An information filed in 2003 charged Davis and Deshawn
Williams with murder and two counts of attempted murder. As
to the charge of murder, the information alleged that a principal
used a gun (§ 12022.53, subds. (b), (c), (d), (e)(1)). Davis and
Williams were jointly tried before a jury. The evidence was that
Yolanda Reliford was driving a car with two passengers.2 Davis
drove his car in front of Reliford’s car, blocking it. Davis and an
accomplice, both gang members, shot at Reliford and her
companions with assault rifles. Reliford was killed. The jury
deadlocked as to all counts as to Davis, so the trial court declared
a mistrial as to him.3
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2 This background is from our Division’s opinion affirming
the judgment of conviction as modified. (People v. Davis (Jan. 11,
2010, B205660) [nonpub. opn.].) On the court’s own motion, we
take judicial notice of that opinion and the file underlying the
appeal. (Evid. Code, §§ 451, subd. (a), 452, subd. (d).)
3 The jury found Williams guilty of first degree murder and
of attempted murder and found true principal gun use allegations
as to all counts.
2
Davis then pleaded no contest to second degree murder and
to personal use of a gun under section 12022.5, subdivision (a).
He also pleaded no contest to one count of attempted murder.
(People v. Davis, supra, B205660.) Davis’s counsel said that the
plea was being made under People v. West (1970) 3 Cal.3d 595.4
On April 22, 2005, the trial court sentenced Davis to 15 years to
life for the murder plus three years for the gun enhancement.5
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 the person’s 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.)
Davis petitioned for resentencing under Senate Bill
No. 1437. In his declaration, Davis asserted an information had
been filed against him that allowed the prosecution to proceed
under a theory of aiding and abetting conspiracy, felony murder
or murder under the natural and probable consequences doctrine;
that based on a plea he was convicted of first or second degree
4A West plea is one in which the defendant does not admit
a factual basis for the plea. (In re Alvernaz (1992) 2 Cal.4th 924,
932.)
5 The trial court sentenced him to a concurrent life sentence
for one count of attempted murder and dismissed the other
attempted murder count.
3
murder under aiding and abetting theories of liability; and he
could not now be convicted of first or second degree murder
because of changes to sections 188 and 189. Davis declared 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 the commission of murder in the first degree; was not a
major participant who acted with reckless indifference to human
life during the course of the crime as established by a judicial
determination setting aside a special circumstance allegation
under section 190.2; and the victim was not a peace officer in the
performance of his duties.
The trial court appointed counsel for Davis. The People
filed an opposition to Davis’s petition.6 However, out of counsel
and Davis’s presence, the trial court summarily denied the
petition. The trial court noted that although it had initially
intended to appoint counsel for Davis, it had now reviewed the
court file, jury instructions, and Court of Appeal opinion. These
documents showed, first, that the jury was not instructed on
felony murder or on natural and probable consequences; hence,
the People’s theory of liability was Davis was the actual killer or
an aider and abettor who acted with intent to kill. Second, our
Division’s opinion showed that Davis acted with reckless
indifference to life. The trial court therefore found that Davis
was not eligible for section 1170.95 relief.
6 The opposition is not in the record.
4
DISCUSSION
Davis contends the trial court violated his state and federal
constitutional rights by summarily denying his petition.7 We
agree.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on a person’s participation in a
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 no
longer applies to murder. And a participant in enumerated
crimes is liable under the felony-murder doctrine only if the
participant was the actual killer; or with the intent to kill, aided
and abetted the actual killer 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
7 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.
(People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
Mar. 18, 2020, S260598.)
5
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, review granted Aug. 12, 2020, S263219; 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; People v. Verdugo (2020) 44 Cal.App.5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; 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 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
6
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). If these documents
reveal ineligibility for relief, the trial court can dismiss the
petition. (Verdugo, at p. 330.)
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
7
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).
Here, the trial court appointed counsel for Davis but then
summarily denied the petition in the absence of his counsel. The
trial court relied on the proceedings at Davis’s jury trial, even
though it resulted in a mistrial, and on its finding that Davis
acted with reckless indifference to life. However, the record of
conviction shows that Davis was charged with murder and two
counts of attempted murder, all with principal gun use
allegations. The charging document did not preclude the People
from pursing a felony murder theory or the natural and probable
consequences doctrine. The failure to allege, for example, felony
murder does not prevent the prosecution from pursuing that
theory at trial. (People v. Morgan (2007) 42 Cal.4th 593, 616;
accord, People v. Hughes (2002) 27 Cal.4th 287, 369 [accusatory
pleading need not specify theory of murder prosecution intends to
8
rely on].) It may be telling that the People chose not to pursue
those theories at Davis’s trial,8 but the crucial point for purposes
of relief under section 1170.95 is whether the People could have
pursued that theory. Moreover, as Davis argues, the People
could have pursued those theories had a retrial occurred.
Further, on this record, Davis’s plea did not convict him
under a felony murder or natural and probable consequences
theory. Rather, a guilty plea is an admission of the elements of
the charged offense—but no more. (People v. Saez (2015)
237 Cal.App.4th 1177, 1206.) Davis pleaded no contest to second
degree murder, thereby admitting the elements of that crime,
including that he willfully, unlawfully, and with malice
aforethought murdered the victim. In doing so, Davis did not
admit he committed the crime via any particular theory.
Further, Davis’s admission that he personally used a gun
under section 12022.5, subdivision (a), does not show as a matter
of law that he is ineligible for section 1170.95 relief. Although
the admission is certainly relevant to whether Davis was the
actual killer or a direct aider and abettor, it does not establish his
status as such as a matter of law (see, e.g., In re Londale H.
(1992) 5 Cal.App.4th 1464, 1467–1468).
Finally, Davis did not stipulate to a factual basis for the
plea, and the trial court that took the plea did not state what it
relied on as the factual basis for the plea. This contrasts with
People v. Nguyen (2020) 53 Cal.App.5th 1154, 1161, where the
8 The jury was not instructed on felony murder or on the
natural and probable consequences doctrine. The jury was
instead instructed on aider and abettor liability under CALJIC
Nos. 3.00 and 3.01.
9
defendant stipulated to a factual basis for the plea based on the
preliminary hearing and police reports. Although that case also
involved a plea, the trial court denied the petition for
resentencing only after appointing counsel and giving the parties
an opportunity for briefing, unlike here. (Id. at pp. 1161–1162.)
The issue therefore concerned the last sentence of
section 1170.95, subdivision (c). (Nguyen, at p. 1165.) Similarly,
the defendant in People v. Perez (2020) 54 Cal.App.5th 896, 901
stipulated to a factual basis for his plea, although his counsel did
not reference the preliminary hearing which established he was
the actual killer. After the defendant filed a petition under
section 1170.95, the trial court appointed counsel for him, and
counsel submitted briefing. (Perez, at pp. 901–902.) Nguyen and
Perez are therefore distinguishable.
Because the record of conviction before us does not preclude
relief as a matter of law, Davis’s petition must proceed to the
second level of prima facie review in section 1170.95,
subdivision (c). The trial court therefore must reappoint counsel
to represent Davis, order the prosecutor to file and serve a
response, permit Davis to file a reply, and to permit the parties to
offer additional evidence and argument in accordance with that
section.
10
DISPOSITION
The order is reversed. The trial court is directed to
reappoint counsel for Desmond Deon Davis and to conduct
further proceedings in accordance with Penal Code
section 1170.95.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EDMON, P. J.
11
LAVIN, J., Concurring :
I join the majority in reversing the trial court’s order. I
write separately, however, to voice my disagreement with certain
portions of the majority’s analysis. Specifically, I disagree that a
trial court may summarily deny a statutorily-compliant
resentencing petition under Penal Code section 1170.95 without
first appointing counsel. (See People v. Tarkington (2020) 49
Cal.App.5th 892, 917, review granted Aug. 12, 2020, S263219
(dis. opn. of Lavin, J.).) I also disagree that subdivision (c) of
Section 1170.95 “requires two prima facie reviews—much less
two reviews that are substantively different—and entitles a
petitioner to counsel during only the second one.” (People v.
Cooper (2020) 54 Cal.App.5th 106, 118.)
LAVIN, J.