Filed 2/16/21 P. v. Swain CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B299137
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA115847)
v.
TYRONE SWAIN et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles
County, Drew E. Edwards, Judge. Affirmed.
Maxine Weksler, under appointment by the Court of Appeal, for
Defendant and Appellant Tyrone Swain.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant Todd Stroud.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Michael. R. Johnsen, Supervising Deputy Attorney General,
and Charles S. Lee, Deputy Attorney General, for Plaintiff and
Respondent.
Defendants and appellants Tyrone Swain and Todd Stroud appeal
from orders summarily denying their petitions to vacate their second
degree murder convictions and be resentenced pursuant to Senate Bill
No. 1437 (S.B. 1437), which added section 1170.95 to the Penal Code.1
Section 1170.95 provides that if defendants previously have been
convicted of murder under the felony-murder rule or the natural and
probable consequences doctrine and qualify for relief, the statute
permits them to petition to vacate the convictions and obtain
resentencing on any remaining counts.
Swain and Stroud were jointly tried for murder and other crimes
arising from a violent armed robbery in which a victim died of a single
gunshot wound. After the first jury acquitted them on some counts and
deadlocked on others, including the murder charge, they were tried a
second time. As to Swain, the second jury was instructed on first
degree premeditated murder, second degree murder based on express or
implied malice, direct aiding and abetting murder, and murder under
the provocative act doctrine. As for Stroud, the court instructed the
jury on the same theories of liability, and further instructed on first
degree felony murder. By general verdict, both defendants were
convicted of second degree murder.
In their direct appeal in People v. Swain (June 14, 2005, B155456)
[nonpub. opn.] (Swain I), defendants challenged the sufficiency of the
evidence to support their murder convictions. We agreed with
1 Undesignated statutory references are to the Penal Code.
2
defendants that the evidence did not support an instruction on the
provocative act doctrine. (Id. at pp. 6–7.) We found the instructional
error harmless, however, because the “the evidence here eliminated all
but appellants as the source of the fatal shot,” which supported the
remaining theories of second degree murder. (Id. at p. 7.)
Swain and Stroud separately filed section 1170.95 petitions for
resentencing. Following the appointment of counsel and briefing, the
trial court reviewed our opinion in Swain I and summarily denied both
petitions because neither defendant had been convicted under the
felony-murder rule or the natural and probable consequences doctrine.
We agree with the trial court’s ruling. We reject Stroud’s
contention that the jury could have convicted him of second degree
felony murder, a theory never presented to the jury or supported by law.
We also reject defendants’ argument that the provocative act jury
instructions, which we previously held were inapplicable to this case,
were tantamount to an instruction on the natural and probable
consequences doctrine, or that the omission of the provocative act
doctrine from S.B. 1437 violates equal protection principles. Finally, we
reject Swain’s contention that the court was required to hold a hearing
prior to summarily denying his petition. We affirm the orders.
3
FACTUAL BACKGROUND2
This case arose from an armed robbery at a recording studio on
May 24, 1995. Jennifer Lucas, who had been dating Swain at the time
of the incident, was the prosecution’s primary witness. Earlier in the
month, Gregory Everett invited Lucas to come to the recording studio,
which consisted of two rooms on the second floor of a commercial
building.
When she arrived on May 24, 1995, Lucas saw Delven Rutledge,
Dion Smith, and Michael Alexander inside the studio. Sometime
thereafter, Lucas received a phone call from Stroud, who said that he
and Swain were outside. Lucas walked downstairs and met with
Stroud, Swain, and their friend, Keith Vaden, who was carrying a large
duffle bag. The group walked up the stairs to join Rutledge, Smith, and
Alexander in the studio.
As the group talked, Rutledge stood up and announced that he
was leaving. In response, Stroud walked to the door, followed by Lucas,
Swain, and Vaden. When Stroud got to the door, he turned around with
a silver gun in his hand and told the others they were not going
anywhere. Swain pulled out what appeared to be a black automatic
gun, and Vaden took out from the duffle bag what Lucas described as a
2 We previously granted Swain’s request to take judicial notice of the
record on appeal in B155456, including our prior opinions in Swain I, People
v. Swain et al. (Apr. 14, 2006, B155456) [nonpub. opn.] (Swain II), and People
v. Swain et al. (Nov. 7, 2007, B155456) [nonpub. opn.] (Swain III). Swain II
and III analyzed sentencing issues not relevant to this appeal. We recite the
facts from all three opinions, which share an identical factual background.
4
sawed-off shotgun. Rutledge described Vaden’s firearm as an AK-47,
Swain’s as a nine-millimeter handgun, and Stroud’s as a Tech 9.
The incident quickly escalated, and the witnesses’ accounts varied
significantly. Alexander started struggling with Stroud over the gun,
and they moved through the door, into the hallway, and then down the
stairs. When Stroud got away, he directed Alexander to go upstairs.
Alexander walked up the stairs as Vaden trained his weapon on him
from above. When Alexander reentered the studio, he was forced to lie
on the ground next to Smith and Rutledge. Alexander felt the barrel of
a gun against the back of his head and heard one of the perpetrators
say that they should kill him first. The perpetrators told all three
victims to take out their wallets.
As Alexander struggled with Stroud, Lucas went down the stairs
and told Stroud that she wanted to leave, at which point Stroud told her
to go back upstairs. Lucas obliged, and sat in the hallway next to the
studio and office doors. After the men went back into the studio, Lucas
heard yelling and bumping around.
Everett and Eugene Riley were inside the office across the hall
from the studio when the robbery began. Everett and Riley heard the
commotion and saw a man with a gun. Everett called downstairs to a
pager office and told Wallace Conners, Jr., to call 911. As the
perpetrators broke down the office door, Everett and Riley jumped out
of the second-floor window and fled.
Conners called 911 and warned the other building tenants about
the robbery. Maurice Hobbs, who did maintenance work at the
building, was in the pager office when Conners received Everett’s call.
5
Hobbs armed himself with at least one gun from a desk drawer before
moving to the doorway leading to a hallway by the stairs.
After deciding she would get away from the incident, Lucas began
to run down the hallway and stairs. She saw a man leaning against the
wall in the first floor hallway to the rear door. The man had his arms
up over his right shoulder, hands together. Lucas told the man she did
not know what was going on. At that point, Stroud was halfway down
the staircase with a gun in his hand. Swain was behind Stroud at the
top of the stairs, also moving downward with a gun in his hands. After
Lucas turned around and ran out of the door, she heard gunshots
almost simultaneously.
Hobbs was shot in the neck and staggered into the pager office.
When he collapsed, Conners took a gun from his hand. Hobbs died from
the single gunshot wound.
After exiting the building to the outside, Lucas saw Everett in the
parking lot in his car holding a gun. She also saw Riley run up to
Everett’s car. Lucas did not see Riley holding a weapon. After locating
her car, Lucas drove away.
The gun that fired the fatal wound was never identified. Based on
evidence that the wound was “through and through,” the medical
examiner testified it had been caused by a medium or large caliber
weapon, as small caliber ammunition is often stopped by the skin at the
back of a gunshot wound. In the examiner’s opinion, the wound could
have been caused by a .32- or .45-caliber, or nine-millimeter weapon.
The examiner opined that the wound was not consistent with a high
velocity weapon such as an AK-47.
6
Five months after the shooting, Vaden shot and killed himself
during a traffic stop in San Francisco. The weapon he used, an M-11
semi-automatic pistol, was sent for ballistics testing. A criminalist
examined the weapon, a .40-caliber semi-automatic handgun, and two
.38-caliber revolvers recovered from the pager shop. With the exception
of three bullet fragments that could not be examined, the criminalist
concluded that none of the bullets or cartridge casings recovered from
the scene had been fired from the weapons found inside the pager shop.
Twenty-two of the bullet fragments or cartridge casings recovered at the
scene came from the M-11 semi-automatic pistol. Eight cartridge
casings, two bullet fragments, a part of a bullet jacket, and a bullet
found at the scene were determined to have come from a .45-caliber
semi-automatic firearm which was not recovered.
PROCEDURAL BACKGROUND
Swain and Stroud were charged with one count of murder (§ 187,
subd. (a)) and numerous counts of robbery (§ 211), attempted robbery
(§§ 664/211), and aggravated assault (§ 245, subd. (a)(1)). The
information also alleged that the murder was committed while
defendants were engaged in the commission of a robbery (§ 190.2, subd.
(a)(17)), and that defendants personally used a firearm during all of the
offenses (§ 12022.5, subd. (a)).
The jury in the first trial acquitted Swain of all the attempted
robbery and robbery counts, and hung on the remaining charges. The
jury acquitted Stroud of one count of attempted robbery, but hung as to
the remaining charges. In light of Swain’s acquittal on all robbery
7
charges, the court precluded the use of felony murder as a theory of
liability against him in the second trial.
During the second trial, the court instructed the jury on various
theories of murder against each defendant.3 As to both defendants, the
jury was instructed on first degree premeditated murder (CALJIC No.
8.20), unpremeditated second degree murder (CALJIC No. 8.30), and
second degree murder resulting from an unlawful act dangerous to life
(CALJIC No. 8.31). The jury was also instructed on direct aiding and
abetting principles (CALJIC Nos. 3.00, 3.01, 3.10, 3.14).
As to Swain, the court instructed the jury on the definitions of
murder and malice aforethought. (CALJIC Nos. 8.10, 8.11.)4 The court
provided an identical instruction defining malice aforethought with
respect to Stroud, but added to the instruction defining murder an
additional mental state to account for a theory of first degree felony
3 The parties previously disputed which jury instructions had been used
at trial in Swain I. Following a hearing to settle the dispute, we granted the
People’s motion to augment the record, and treated the instructions attached
to the motion as the accurate version of the final jury instructions. We recite
the jury instructions from those instructions, which are part of the record in
this appeal.
4 CALJIC No. 8.10 provided the following three elements of murder as to
Swain: “1. A human being was killed; [¶] 2. The killing was unlawful; and
[¶] 3. The killing [was done with malice aforethought].” CALJIC No. 8.11
defined express malice (“an intention unlawfully to kill a human being”) and
implied malice (“[t]he killing resulted from an intentional act,” the “natural
consequences of the act are dangerous to human life,” and the “act was
deliberately performed with knowledge of the danger to, and with conscious
disregard for, human life”).
8
murder.5 The court also instructed the jury on two versions of the
provocative act doctrine under CALJIC No. 8.12.
As to Stroud, the court instructed the jury on first degree felony
murder (CALJIC Nos. 8.21, 8.21.1, 8.27), the robbery-murder special
circumstance (CALJIC Nos. 8.80.1-8.83.3),6 and robbery and attempted
robbery (CALJIC Nos. 9.40-9.40.2, 9.41, 6.00-6.02.)
The court also instructed the jury on causation for murder and
concurrent causes (CALCRIM Nos. 3.40, 3.41). Finally, the jury was
instructed that though it need not unanimously agree on the theory of
liability for murder, it was required to unanimously agree on the degree
of murder. (CALJIC No. 8.70; Special Instruction No. 1.)
1. Verdicts and Sentencing
By general verdict, the jury convicted Swain of second degree
murder and three counts of simple assault (lesser included offenses of
aggravated assault), and found true the allegation that he was
personally armed with a firearm. The jury convicted Stroud of second
degree murder, second degree robbery, aggravated assault, and simple
assault, and found true the allegation that he personally used a firearm
5 The separate CALJIC No. 8.10 instruction repeated the definition in
footnote 4, but amended the third element as follows: the “killing [was done
with malice aforethought] [or] [occurred during the commission or attempted
commission of Robbery.]”
6 All of the instructions specified that the unlawful killing which occurs
during the commission of robbery or attempted robbery was murder of the
first degree.
9
during the crimes. The jury found the robbery-murder special
circumstance not true.
The trial court sentenced Swain to an overall term of 46 years to
life imprisonment, and Stroud to 30 years to life imprisonment plus 40
years 10 months.
2. Our Opinion in Swain I
In their direct appeal, defendants challenged inter alia the
sufficiency of the evidence to support the second degree murder
convictions. (Swain I, supra, at pp. 1, 4–7.) They asserted that the
theories of liability (provocative act murder and malice aforethought
murder) were unsupported because “the prosecutor failed to present
evidence (or argument) that a particular person was the actual shooter,
and therefore, causation cannot be established.”7 (Id. at p. 5.)
In rejecting the argument, we found that the trial court had erred
by instructing the jury on the provocative act doctrine, because no
evidence supported a theory that the fatal bullet had been fired by a
third party in response to the chain of events set in motion by the
robbery. (Swain I, supra, at pp. 6–7.) We found the error harmless,
however, because the evidence “eliminated all but appellants as the
source of the fatal shot,” which constituted substantial evidence
supporting the remaining theories of liability for second degree murder.
7 Stroud asserted that someone coming from the pager store or hallway
at the ground level could have fired the fatal shot. (Swain I, supra, at p. 6.)
10
(Id. at p. 7; accord, id. at p. 6 [“[t]here was substantial evidence that the
shot that killed Hobbs was fired either by Stroud or Swain”].)
We reasoned that the only persons in the area of the shooting that
could have fired a bullet in a downward trajectory consistent with
Hobbs’ wound were Swain and Stroud. Both defendants were seen by
Lucas standing in the stairwell, holding firearms, and facing Hobbs
immediately before Lucas heard gunfire. (Id. at p. 6.) Vaden, the only
other person capable of firing a shot, could not have done so because the
gunshot wound was inconsistent with one caused by the type of high-
powered weapon Vaden had been wielding. (Ibid.) Thus, because
defendants’ conduct was a proximate cause of Hobbs’ death (People v.
Sanchez (2001) 26 Cal.4th 834 (Sanchez)), and because neither
defendant challenged the sufficiency of the evidence to support the
mental state required for second degree murder (i.e., malice), we upheld
both second degree murder convictions. (Swain I, supra, at p. 6.)
3. Petitions for Resentencing
Following the enactment of S.B. 1437, Swain and Stroud filed
petitions for resentencing under section 1170.95, which provides that
persons who were convicted under theories of felony murder or murder
under the natural and probable consequences doctrine, and who could
no longer be convicted of murder following the enactment of S.B. 1437,
may petition the sentencing court to vacate the conviction and
resentence on any remaining counts. (Stats. 2018, ch. 1015, § 1, subd.
(f).)
11
In their petitions for resentencing, Swain and Stroud stated that
an information had been filed against them that allowed the
prosecution to proceed under a theory of felony murder or murder under
the natural and probable consequences doctrine; at trial, they were
convicted of second degree murder pursuant to the felony-murder rule
or the natural and probable consequences doctrine; and they could not
now be convicted of second degree murder because of the changes made
to sections 188 and 189. Swain requested that counsel be appointed on
his behalf.
The trial court appointed counsel for both defendants, the People
filed oppositions to the petitions, and Swain’s appointed counsel filed a
reply. Without conducting a hearing, the court summarily denied both
petitions based on our opinion in Swain I, which “reflects that the
petitioner[s were] the actual killer[s] and [were] convicted of murder on
a theory of being the direct perpetrator and not on a theory of felony
murder of any degree, or a theory of natural and probable
consequences.” Both defendants filed motions for reconsideration. The
court denied Stroud’s reconsideration motion as untimely, and denied
Swain’s motion because our opinion in Swain I “held that the petitioner
was the direct cause of the death of the victim in this case.”
Defendants timely filed notices of appeal.
DISCUSSION
1. Governing Law
The legislature enacted S.B. 1437 “to amend the felony murder
rule and the natural and probable consequences doctrine, as it relates to
12
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).)
S.B. 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted,
S260493, Mar. 18, 2020.) Under the revised section 188, subdivision
(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43
Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony murder or murder under the natural and
probable consequences doctrine, but who could not be convicted of
murder following S.B. 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1170.95, subd. (a).)
A petition for relief under section 1170.95 must include a
declaration by the petitioner that he is eligible for relief under section
1170.95 based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a request
for appointment of counsel, should the petitioner seek appointment.
(§ 1170.95, subd. (b)(2).)
If the petition includes the required information, subdivision (c) of
section 1170.95, prescribes “a two-step process” for the court to
determine if it should issue an order to show cause. (Verdugo, supra, 44
13
Cal.App.5th at p. 327.) The court first “review[s] the petition and
determine[s] if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section.” (§ 1170.95, subd.
(c).) The court then appoints counsel, if requested, and reviews the
petition a second time after briefing by the parties to determine if
petitioner has established a prima facie case for relief. (Ibid.; see Lewis,
supra, 43 Cal.App.5th at p. 1140.) At this stage, the court may review
the petitioner’s record of conviction, which may include jury
instructions, verdicts, and prior appellate opinions, to determine
whether the allegations set forth in the petition are untrue as a matter
of law. (Verdugo, supra, at p. 333; Lewis, supra, 43 Cal.App.5th at
p. 1138, quoting Couzens et al., Sentencing Cal. Crimes (The Rutter
Group 2019) ¶ 23:51(H)(1), pp. 23–150 to 23–151.)
If the court concludes the petitioner has made a prima facie
showing, it must issue an order to show cause. (§ 1170.95, subd. (c);
Verdugo, supra, at p. 328.) “Once the order to show cause issues, the
court must hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the petitioner on
any remaining counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327,
citing § 1170.95, subd. (d)(1).)
We review the court’s ruling to determine if the summary denials
of defendants’ petitions were correct on any ground, and will not reverse
if defendants do not fall within the provisions of section 1170.95 as a
matter of law. (People v. Edwards (2020) 48 Cal.App.5th 666, 675;
People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.)
14
2. Defendants Were Not Eligible for Relief under the Felony Murder
Provision of Section 1170.95
For several reasons, Stroud contends that the jury could have
convicted him of second degree felony murder, even though the jury was
instructed only on first degree felony murder.8 He is mistaken.
Stroud first asserts that the jury could have interpreted the
causation instruction on murder (CALJIC No. 3.40)9 to mean that he
could be guilty of murder by “engaging in a robbery that set in motion a
chain of events that produced death as a ‘direct, natural and probable
consequence’ of that robbery.”
But this argument ignores the numerous felony-murder
instructions given to the jury requiring a first degree murder conviction
based on felony murder, and not mentioning second degree felony
murder. (See CALJIC Nos. 8.21; 8.27.)10 We cannot presume that the
8 Swain does not contend that the jury was instructed on a theory of
felony murder as a basis for his second degree murder conviction.
9 As instructed, CALJIC No. 3.40 provided: “To constitute the crime of
murder there must be in addition to the death an unlawful [act] which was a
cause of that death. [¶] The criminal law has its own particular way of
defining cause. A cause of the death is an [act] that sets in motion a chain of
events that produces as a direct, natural and probable consequence of the
[act] the death and without which the death would not occur.”
10 CALJIC No. 8.21 provided, inter alia, that an “unlawful killing of a
human being . . . which occurs [as a direct causal result] of the crime of
Robbery or attempted Robbery is murder of the first degree.”
CALJIC No. 8.27 stated, inter alia, that “all persons, who either
directly or actively commit the act constituting that crime [of Robbery, or who
15
jury ignored these instructions and convicted defendant on a supposed
theory of second degree felony murder which is both inconsistent with
the law and on which they were never instructed. (People v. Silveria
and Travis (2020) 10 Cal.5th 195, 244–245 (Silveria); People v.
Anzalone (2013) 56 Cal.4th 545, 557; see also § 189, subd. (a) [murder
committed during the perpetration of robbery is murder of the first
degree].)
Stroud also asserts that the jury could have ignored the
instructions requiring a conviction for first degree felony murder as a
matter of compromise or leniency. However, as discussed, we may not
presume that the jury ignored the jury instructions on first degree
felony murder. (See Silveria, supra, 10 Cal.5th at pp. 244–245.) Nor
may we presume that the jury engaged in arbitrariness or nullification.
(See People v. Jackson (1996) 13 Cal.4th 1164, 1232 [when deciding
whether a jury’s error affected the verdict, reviewing courts “‘“exclude
the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the
like. A defendant has no entitlement to the luck of a lawless
decisionmaker”’”], abrogated in part on another ground as stated in
McGee v. Kirkland (C.D. Cal. 2010) 726 F.Supp.2d 1073, 1080.)
The case on which Stroud relies, People v. Underwood (1986) 181
Cal.App.3d 1223 (Underwood), does not persuade us otherwise. In that
case, the jury convicted the defendant of second degree murder despite
being instructed on only first degree felony murder based on the
aid and abet the robbery], are guilty of murder in the first degree, whether
the killing is intentional, unintentional, or accidental.”
16
commission of robbery. (Id. at p. 1237.) The court of appeal affirmed
the conviction: “Where a defendant is guilty of first degree felony
murder as a matter of law, there is no reason to reverse a second degree
verdict which is more favorable to defendant than warranted by the
evidence. [¶] Given the state of the record in this case, the second
degree verdict had to be the product, not of erroneous instructions or
prejudicial confusion on the part of the jury, but rather of an attempt by
the jury to show unwarranted leniency. Having already received the
benefit of jury leniency not supported by the evidence, defendant is in
no position to seek outright reversal.” (Ibid.)
Underwood has no application here. It simply held that the
defendant’s second-degree murder conviction, reached by jury leniency,
could not be vacated where the defendant was guilty as a matter of law
of first degree murder on a felony murder theory. The court did not
suggest that its reasoning has any bearing on a reviewing court’s
presumption that the jury followed the court’s instructions. (See People
v. Powell (1949) 34 Cal.2d 196, 205, fn. 2 [despite the jury’s “‘naked
power to decide all questions arising on the general issue of not guilty,’”
it “‘only has the right to find the facts, and apply to them the law, as
given by the court’”].) Thus, in the instant case, by convicting Stroud of
second degree murder, the jury did not convict him of felony murder.
Stroud was not eligible for relief under the felony-murder provisions of
section 1170.95 as a matter of law.
17
3. Defendants Were Not Eligible for Relief under the Natural and
Probable Consequences Doctrine Provision of Section 1170.95
Because neither defendant was convicted of felony murder, they
would be eligible for section 1170.95 relief only if they were convicted of
murder under the natural and probable consequences doctrine.
(§ 1170.95, subd. (a).) Defendants assert that because the jury
instruction on the provocative act doctrine (CALJIC No. 8.12) is
“indistinguishable” from the natural and probable consequences
doctrine, they are entitled to relief under this provision of section
1170.95. Swain alternatively contends that if section 1170.95 applies to
the natural and probable consequences doctrine and not to the
provocative act doctrine, the resentencing provision violates equal
protection principles. We disagree with these contentions.
A. Relevant Jury Instructions
The jury was instructed on two different versions of the
provocative act doctrine (CALJIC No. 8.12). As to Swain only, the
instruction provided:
“A homicide committed during the commission of a crime by a
person who is not a perpetrator of such crime, in response to an
intentional provocative act by a perpetrator of the crime other than the
deceased, is considered in law to be an unlawful killing by the
perpetrator[s] of the crime.
“An intentional provocative act is defined as follows: [¶] 1. The
act was intentional, [¶] 2. The natural consequences of the act were
dangerous to human life, and [¶] 3. The act was deliberately
18
performed with knowledge of the danger to, and with conscious
disregard for human life.
“In order to prove this crime, each of the following elements must
be proved: [¶] 1. The crime of Assault By Means of Force . . . Likely to
Inflict Great Bodily Injury; [¶] 2. During the commission of the crime,
a the defendant [sic] also committed an intentional provocative act; [¶]
3. Another person not a perpetrator of the crime of Assault By Means of
Force Likely to Inflict Great Bodily Injury in response to the
provocative act, killed another person; [¶] 4. The defendant’s
commission of the intentional provocative act was a cause of the death
of Keith Maurice Hobbs. [¶] If you find that the crime of murder was
committed as defined in this instruction, you must find it to be murder
of the second degree.”
As to Stroud only, the court provided the same instruction, and
added robbery and attempted robbery as alternative predicate crimes
during which Stroud engaged in a provocative act.
B. The Provocative Act Theory is Inapplicable in This Case
Both defendants agree that the trial court could utilize our prior
opinions as part of their records of conviction when determining
whether they established a prima facie showing of entitlement to relief.
(§ 1170.95, subd. (a)(3); see Verdugo, supra, 44 Cal.App.4th at pp. 327–
330; People v. Woodell (1998) 17 Cal.4th 448, 459–460; People v. Trujillo
(2006) 40 Cal.4th 165, 180.)
Our opinion in Swain I establishes that the provocative act theory
was unsupported by any evidence as a matter of law. (Swain I, supra,
19
at pp. 6–7; see People v. Mai (1994) 22 Cal.App.4th 117, 127 (Mai) [the
doctrine cannot apply unless two or more co-felons engage in
provocative acts that “provoke a lethal response by a victim, police
officer, [or] bystander”], disapproved on another ground in People v.
Nguyen (2000) 24 Cal.4th 756.)
We found the error instructing on the provocative act theory
harmless, however, because the evidence “eliminated all but appellants
as the source of the fatal shot,” which constituted substantial evidence
to support the second degree murder convictions based the remaining
theories of liability (i.e., murder with malice aforethought and direct
aiding and abetting second degree murder). (Swain I, supra, at p. 7; see
People v. Aledamat (2019) 8 Cal.5th 1, 7 [reversal of conviction based on
a “‘“factually inadequate theory”’” is not required whenever a valid
ground for the verdict remains, and there is no affirmative indication
that the verdict rested on the inadequate ground].)
Defendants do not dispute that S.B. 1437 did not alter the law
regarding criminal liability for second degree murder in cases like this
where the jury may have been uncertain as to which defendant actually
shot the victim or acted as a direct aider and abettor. (Stats. 2018, ch.
1015, § 1, subds. (f), (g); see People v. Gentile (2020) 10 Cal.5th 830,
849-850; Sanchez, supra, 26 Cal.4th at pp. 845–849.) Thus, in light of
our prior decision upholding the valid theories of liability on which
defendants’ convictions are based, defendants cannot demonstrate, as a
matter of law, that they could not now be convicted of second degree
murder. (See Lewis, supra, 43 Cal.App.5th at pp. 1138–1139; People v.
20
Garcia (2020) 57 Cal.App.5th 100, 108; People v. Gray (2005) 37 Cal.4th
168, 196–197 [law of the case doctrine applies when the point of law
was necessary to prior decision and was actually presented and
determined].)
C. Even if Convicted of Provocative Act Murder, Defendants Are
Not Entitled to Relief as a Matter of Law
Even assuming the jury could have convicted defendants of second
degree murder based on the provocative act doctrine (as a matter of law
they did not), that theory of liability still remains valid following the
enactment of S.B. 1437. That is because the provocative act doctrine
requires that “the defendant personally harbored the mental state of
malice’” during the commission of a provocative act. (People v. Swanson
(2020) 57 Cal.App.5th 604, 613 (Swanson); People v. Bell (2020) 48
Cal.App.5th 1, 14.) The doctrine specifically contemplates implied
malice, which is defined as the commission of an act likely to cause
death with a conscious disregard for life. (Swanson, supra, 57
Cal.App.5th at p. 613.)
The requirement of implied malice stands in marked contrast to
what is required under the natural and probable consequences doctrine,
which arises when “‘“a reasonable person in the defendant’s position
would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted.”’”
(People v. Chiu (2014) 59 Cal.4th 155, 162 (Chiu); see People v. Lee
(2020) 49 Cal.App.5th 254, 261 [the natural and probable consequences
doctrine is not an implied malice theory].)
21
The requirement that each defendant engage in a provocative act
with implied malice can be found in the versions of CALJIC No. 8.12
given to the jury in this case.11 In other words, assuming the jury relied
on this theory to convict both defendants of second degree murder, the
jury was required to find that Swain and Stroud each deliberately
engaged in a provocative act “with knowledge of the danger to, and with
conscious disregard for human life.”
In light of these instructions, the jury could not impose murder
liability as Swain suggests on appeal, namely, by using provocative acts
of another co-felon to impose liability on Swain even if he did not
engage in his own provocative conduct. (Compare Mai, supra, 22
Cal.App.4th at pp. 127–128, fn. 9; Taylor v. Superior Court (1970) 3
Cal.3d 578, 583, overruled in People v. Antick (1975) 15 Cal.3d 79; In re
Joe R. (1980) 27 Cal.3d 496, 504; People v. Johnson (2013) 221
Cal.App.4th 623, 631; People v. Garcia (1999) 69 Cal.App.4th 1324.)
We also reject Swain’s alternative contention that a portion of
CALJIC No. 8.12 created a “subspecies” of the natural and probable
consequences doctrine. Swain focuses on an isolated portion of the
instructions defining “provocative act,” which requires, inter alia, an
11 One clause in the jury instructions as to Swain had a typographical
error in that it stated that “a the defendant [sic] also committed an
intentional provocative act.” This potential ambiguity with respect to who
was required to perform a provocative act was cured by the subsequent
clause in the same instruction requiring that “[t]he defendant’s commission of
the intentional provocative act was a cause of” Hobbs’ death. (Italics added.)
This error in the instruction as to Swain does not appear in the instruction
given as to Stroud.
22
intentional act, the “natural consequences” of which “were dangerous to
human life.” But this portion of the instruction required the
commission of an “act”; it did not identify a target crime on which the
natural and probable consequences theory could be predicated. (Chiu,
supra, 59 Cal.4th at p. 162.) Because the instruction never identified a
target crime, the “natural consequences” language “[did] not transform
[Swain’s] conviction into one for murder under the natural and probable
consequences doctrine.” (People v. Soto (2020) 51 Cal.App.5th 1043,
1059.)
D. Omitting the Provocative Act Doctrine from Section 1170.95
Does Not Violate Equal Protection Principles
Anticipating our conclusion above, Swain contends that if section
1170.95 applies to the natural and probable consequences doctrine and
not to the provocative act doctrine, the resentencing provision violates
equal protection principles. We disagree.
“‘“The concept of the equal protection of the laws compels
recognition . . . that persons similarly situated with respect to the
legitimate purpose of the law receive like treatment.”’ [Citation.] ‘The
first prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner.’”
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) “Where two or
more groups are properly distinguishable for purposes of the challenged
23
law, it is immaterial if they are indistinguishable in other respects.”
(People v. Barrett (2012) 54 Cal.4th 1081, 1107.)
Even assuming both defendants in this case were convicted under
the provocative act doctrine (they were not), they are not similarly
situated to persons convicted of felony murder or murder under the
natural and probable consequences doctrine. As we have discussed,
provocative act murder requires proof that both defendants personally
harbored malice. (People v. Johnson (2020) 57 Cal.App.5th 257, 271.)
Even under the provocative act doctrine, both defendants were
convicted of second degree murder based on theories of liability that
remained valid following the enactment of S.B. 1437. In light of these
valid theories, Swain and Stroud have not shown that they could not be
convicted of first or second degree murder because of changes to section
188 or 189. (§ 1170.95, subds. (a)(3), (c).) Therefore, the trial court did
not err in summarily denying both petitions.
4. Asserted Constitutional Error
Swain asserts that the court’s summary denial of his petition
without holding a hearing violated his constitutional rights to due
process and the assistance of counsel.
Notwithstanding the fact that Swain’s right to the assistance of
counsel was not implicated by section 1170.95 (People v. Perez (2018) 4
Cal.5th 1055, 1064; People v. Anthony (2019) 32 Cal.App.5th 1102,
1156; see Dillon v. United States (2010) 560 U.S. 817, 828), he has not
demonstrated how that right was infringed. The trial court appointed
him counsel and considered additional briefing by counsel.
24
Similarly, Swain has not demonstrated how a hearing was
mandated under principles of due process at this stage of the
proceedings.12 (See People v. Smith (2015) 61 Cal.4th 18, 39.) Section
1170.95 clearly sets forth the procedures by which a trial court
considers a petition for resentencing and schedules a hearing. Because
Swain did not make a prima facie showing that he came within the
provisions of section 1170.95, the trial court was not required to issue
an order to show cause or schedule a hearing. (See § 1170.95, subds. (c),
(d)(1).)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
12 The cases on which Swain has relied are inapposite. (See People v.
Rouse (2016) 245 Cal.App.4th 292, 300 [“due process concerns” warrant
appointment of counsel after stating a prima facie case for relief]; Zinermon
v. Burch (1990) 494 U.S. 113, 127 [due process generally requires a hearing
before the deprivation of one’s liberty or property].)
25