Filed 1/28/21 P. v. Christon CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B301998 (Consolidated with
B306635)
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. BA310312)
MAKEITHA KEITH
CHRISTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge, and petition for writ of
habeas corpus. The order is affirmed; petition denied.
Nancy L. Tetreault, 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 Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Makeitha Keith Christon (defendant) appeals the trial
court’s denial of his petition for relief under Penal Code section
1170.95.1 In light of recent decisions issued by this division, we
conclude there was no error and affirm the order. Defendant also
filed a petition for writ of habeas corpus concurrently with this
appeal, which we deny without prejudice.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
In September 2005, defendant noticed that a group of 20
men were playing a game of dice in a residential driveway and
saw anywhere from $400 to $2,000 in the “pot.” He walked up,
asked if any of the players was “strapped” (that is, armed with a
firearm), and the homeowner responded that no one had guns.
Defendant walked away, and went to find someone else to help
him “hit up the dice game.” Davione McDowell (McDowell)
agreed. Defendant gave McDowell a gun and a plastic bag to
carry away the money. While defendant was parked around the
corner, McDowell approached the game, pulled out his gun, and
demanded that the players “[g]ive up the cheese.” When several
of them ran, McDowell sprayed bullets at the fleeing men, three
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Christon
(Oct. 4, 2013, B238761) [nonpub. opn.].)
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of whom were hit by bullets. One of the three—the homeowner—
died from his wounds. McDowell ran back to defendant’s car, and
defendant drove him away. Defendant was a member of the
Block Crips street gang.
B. Prosecution, conviction and appeal
The People charged defendant with (1) the murder of the
homeowner (§ 187, subd. (a)), (2) three counts of attempted
premeditated murder, one for each of the men in the line of fire
(§§ 187, subd. (a), 664), and (3) four counts of attempted second
degree robbery (§§ 211, 664). The People alleged that the murder
was a special circumstance murder—namely, that it was
committed in the course of a robbery (§ 190.2, subd. (a)(17)),
which could be found true only if defendant was a major
participant in the robbery and acted with reckless indifference to
human life. The People further alleged that all of the crimes
were committed for the benefit of, and in association with, a
criminal street gang (§ 186.22, subds. (b)(1)(A) & (b)(4)), and that
a principal had discharged a firearm causing great bodily injury
or death (§ 12022.53, subds. (b)-(e)).
A jury convicted defendant of the above charged counts and
found true all of the allegations.
The trial court sentenced defendant to prison for life
without the possibility of parole (for the murder) plus 25 years
(for the firearm enhancement), and three consecutive life terms
(for each of the attempted murders) plus 25 years (for the firearm
enhancements); each sentence was consecutive to the others. The
court imposed three-year prison sentences for each of the second
degree robbery charges but stayed the sentences under section
654.
2
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On January 23, 2019, defendant filed a petition seeking
resentencing under section 1170.95, ultimately for his murder
conviction and for the three attempted murder convictions. The
court appointed counsel for defendant, and ordered the parties to
submit further briefing. Following a hearing, the trial court
denied defendant’s petition because (1) he did not “establish a
prima facie case for relief” under section 1170.95 because one of
the elements of that prima facie case—namely, that he could not
be convicted of first degree murder under the amended murder
statute—was foreclosed by “the jury’s finding that he was a major
participant who acted with reckless disregard for human life,”
and (2) section 1170.95 does not provide relief for attempted
murder convictions.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
section 1170.95 petition because (1) the jury’s prior special
circumstance finding does not preclude him from making his
prima facie case, and (2) section 1170.95 applies to attempted
murder convictions. Because these arguments turn on questions
of statutory construction and the application of law to undisputed
facts, our review is de novo. (People v. Blackburn (2015) 61
Cal.4th 1113, 1123; Martinez v. Brownco Construction Co. (2013)
56 Cal.4th 1014, 1018.)
I. Effect of Jury’s Special Circumstance Finding
Section 1170.95 authorizes a defendant “convicted of felony
murder or murder under a natural and probable consequences
2
theory” to vacate his murder conviction if, as a threshold matter,
he makes a “prima facie showing” of entitlement to relief.
(§ 1170.95, subds. (a) & (c).) This, in turn, requires a showing
that, among other things, he “could not be convicted of first or
second degree murder” under the amendments to the murder
statutes that became effective on January 1, 2019. (Id., subd.
(a)(3).) These statutes, even as amended, still authorize a
murder conviction based on a theory of vicarious liability if the
defendant “was a major participant in the underlying felony and
acted with reckless indifference to human life . . . .” (§ 189, subd.
(e)(3).)
Applying these statutes, the trial court properly concluded
that defendant had not made a prima facie showing of his
entitlement to relief under section 1170.95. That is because the
jury in his case, by virtue of finding the special circumstance
allegation to be true, necessarily found that defendant was a
major participant in the underlying felony and acted with
reckless indifference to human life. This prior finding renders
defendant “not eligible for relief under section 1170.95 as a
matter of law.” (People v. Jones (2020) 56 Cal.App.5th 474, 482
(Jones); People v. Allison (2020) 55 Cal.App.5th 449, 457 (Allison)
[same].)
Defendant resists this conclusion with what boil down to
three arguments. First, he argues that it is improper to defer to
a jury’s prior finding in assessing whether a section 1170.95
petitioner has made out his prima facie case. But this argument
is unsupported by any authority, and is contrary to the common
sense reading of the statute set forth in Jones and Allison.
Second, he argues that the jury’s prior finding is entitled to no
weight because this court did not, during the direct appeal of his
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conviction, specifically affirm the jury’s finding. But the jury’s
finding is no less final simply because defendant opted not to
attack it during his direct appeal. Lastly, defendant argues that
the jury’s prior finding is no longer valid because (i) our Supreme
Court altered the manner in which appellate courts are to review
this particular special circumstance finding for substantial
evidence in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), and (ii) the jury’s
finding in this case could not withstand Banks’s and Clark’s more
probing substantial evidence review. Although the Courts of
Appeal are divided as to whether Banks and Clark undermine
the effect of a jury’s prior special circumstance finding, our
division in People v. Nunez (2020) 57 Cal.App.5th 78, review
granted January 13, 2021, S265918, has sided with those cases
holding that the prior jury finding remains valid—and thus
remains a basis for denying relief under section 1170.95—unless
and until the defendant successfully overturns the finding in a
habeas petition. (Id. at pp. 93-97.) Because defendant has not
yet done so, the jury’s prior special circumstance finding
precludes relief under section 1170.95.3
II. Attempted Murder Convictions
In People v. Love (2020) 55 Cal.App.5th 273, 279, review
granted December 16, 2020, S265445, we held that section
1170.95 does not provide relief for attempted murder convictions.
3 Defendant filed a petition for a writ of habeas corpus
concurrently with his appeal, in which he raises a Banks- and
Clark-based challenge to the jury’s special circumstance finding.
(See In re MAKEITHA CHRISTON on Habeas Corpus, B306635
[petition].) Because he did not first file such a petition with the
trial court, we deny his habeas petition without prejudice to re-
filing before the trial court.
2
Applying this authority, the trial court was right to deny
defendant section 1170.95 relief for his three attempted murder
convictions.
DISPOSITION
The order is affirmed and the petition for writ of habeas
corpus is denied without prejudice.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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