Filed 5/25/21 P. v. Fletcher CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, A160656
Plaintiff and Respondent,
v.
RONALD FLETCHER, (Alameda County Super. Ct.
No. 87768)
Defendant and Appellant.
Ronald Fletcher appeals from the trial court’s denial of his
petition for resentencing under Penal Code section 1170.95.1 Section
1170.95 provides for resentencing of individuals convicted of murder
under a felony murder or natural and probable consequences theory if
they could no longer be convicted of murder under January
1, 2019 amendments to the Penal Code. We reverse. Because the
record is incomplete and does not negate the possibility that Fletcher is
eligible for resentencing, the trial court erred in summarily denying
Fletcher’s petition.
1 All undesignated statutory references are to the Penal Code.
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BACKGROUND
A.
To be convicted of murder, a jury must ordinarily find that the
defendant acted with the requisite mental state, known as “ ‘malice
aforethought.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun),
quoting section 187, subdivision (a).) Until recently, the felony murder
rule provided an exception that made “a killing while committing
certain felonies murder without the necessity of further examining the
defendant’s mental state.” (Id at p. 1182.) Under a separate rule
known as the natural and probable consequences doctrine, a “ ‘ “person
who knowingly aids and abets [the] criminal conduct [of another
person] is guilty of not only the intended crime . . . but also of any other
crime the [other person] actually commits . . . that is a natural and
probable consequence of the intended crime.’ ” ’ (People v. Chiu (2014)
59 Cal.4th 155, 161.)
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became
effective January 1, 2019, raised the level of culpability required for
murder liability to be imposed under these theories. (See Stats. 2018,
ch. 1015, § 1, subd. (f).) The bill amended section 189, which defines
the degrees of murder, to limit murder liability based on felony murder
or a natural and probable consequences theory for a person who: (1)
was the actual killer; (2) though not the actual killer, acted “with the
intent to kill” and “aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer” in the commission of
first degree murder; or (3) was “a major participant in the underlying
felony and acted with reckless indifference to human life, as described
in subdivision (d) of Section 190.2.” (§ 189, subd. (e); People v. Verdugo
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(2020) 44 Cal.App.5th 320, 326 (Verdugo), review granted Mar. 18,
2020, S260493.) Senate Bill No. 1437 also amended the definition of
malice in Penal Code section 188 to provide that “[m]alice shall not be
imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3); Verdugo, supra, 44 Cal.App.5th at p. 326.)
Finally, the bill added section 1170.95, which provides that “[a]
person convicted of felony murder or murder under a natural and
probable consequences theory may 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).) The individual may file a petition if three conditions are
met: “(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 [Penal Code] Section
188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
Under subdivision (b), the petition must include a declaration that the
petitioner is eligible for relief based on the requirements set forth in
subdivision (a); the superior court case number and year of the
conviction; and whether the petitioner requests the appointment of
counsel. (§ 1170.95, subd. (b)(1).)
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B.
In the instant appeal, we granted Fletcher’s request that we take
judicial notice of this division’s 1991 opinion in his direct appeal. (See
People v. Fletcher (Aug. 21, 1991, A050373 [nonpub. opn.] .) As
background, we briefly summarize the facts described in that opinion.
According to the opinion, a jury convicted Fletcher of second degree
murder (§ 187) and found that he personally used a firearm in the
commission of the crime (§ 12022.5).
At the time the victim was killed, Fletcher was a passenger in a
car driven by an individual named Larry Parker. Parker, a former
associate of the victim’s, had fallen out with the victim. The victim was
standing outside his mother’s house when Parker drove up in his car.
The victim died after shots were fired from Parker’s car.
According to some witnesses, the passenger in Parker’s car
extended his hand out the open window of the car and opened fire
several times. The victim’s sister testified that she noticed a burn or a
rash on the gunman’s right hand. Fletcher had a scar on his right
hand, but Parker did not.
The prosecution also introduced evidence that Fletcher had
admitted to one witness that “he fired into a crowd but said he did not
know if he hit anyone.” Fletcher stated on another occasion that he
fired into a crowd that included the victim.
However, a defense witness, Willie Lige, testified that it was the
driver (Parker) who leaned across the passenger and fired the shots.
C.
Fletcher’s resentencing petition declared that, in his prosecution
for murder, the charging document allowed the prosecution to proceed
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under a felony murder theory or the natural and probable consequences
doctrine; in 1989, he was convicted of second degree murder based on
the natural and probable consequences doctrine; and he could not now
be convicted of murder because of the 2019 amendments to sections 188
and 189. Fletcher also declared that he was not the person who
actually killed the victim and he did not aid and abet the actual killer
in the commission of first degree murder. In addition, he sought a
hearing and requested that the trial court appoint counsel to assist him
in his resentencing petition.
Fletcher’s petition attached over 300 pages of additional material,
including reporter’s transcript pages reflecting some but not all of the
jury instructions, the jury’s verdict, and excerpts of testimony by Lige
and the victim’s sister .
The trial court denied the petition based on facts described in the
court of appeal opinion affirming Fletcher’s conviction. (People v.
Fletcher (Aug. 21, 1991, A050373 [nonpub. opn.].) The court concluded
that Fletcher was ineligible for resentencing because “he was found to
be the actual killer.”
DISCUSSION
Applying a de novo standard of review, we conclude that the trial
court erred in summarily denying Fletcher’s resentencing petition.
(See, e.g., People v. Drayton (2020) 47 Cal.App.5th 965, 981 [reviewing
de novo the trial court’s summary dismissal of a section 1170.95
petition].)
A.
Fletcher contends the trial court was required to accept at face
value his statement that he could not be convicted of first or second
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degree murder because of the amendments made by Senate Bill No.
1437, and he asserts that the court erred in considering the previous
decision of this court affirming his conviction. Our Supreme Court has
granted review on this issue. (People v. Lewis, review granted Mar. 18,
2020, S260598.) We conclude that the trial court was not required to
accept Fletcher’s statements at face value.
After a trial court determines a petition is facially sufficient (see
§ 1170.95, subd. (b)(2)), 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.” (§ 1170.95, subd.
(c); Verdugo, supra, 44 Cal.App.5th at pp. 328-329.) The court’s role at
this stage is “to decide whether the petitioner is ineligible for relief as a
matter of law, making all factual inferences in favor of the petitioner.”
(Verdugo, supra, 44 Cal.App.5th at p. 329.) Information from the
record of conviction (including the charging documents, jury
instructions, and verdict forms) could conclusively establish
ineligibility, such as in cases in which the individual was not
prosecuted under a felony murder or natural and probable
consequences theory or was not convicted for first or second degree
murder. (See § 1170.95, subd. (a)(1)-(2); Verdugo, supra, 44
Cal.App.5th at pp. 329-330.) Accordingly, the trial court may consider
information from the record of conviction indicating the basis of the
conviction. (See, e.g., Verdugo, supra, 44 Cal.App.5th at pp. 329-330;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-1138 (Lewis), review
granted Mar. 18, 2020, S260598; People v. Edwards (2020) 48
Cal.App.5th 666, 673-674 (Edwards), review granted July 8, 2020,
S262481.)
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As part of that review, the trial court may consider a prior
appellate opinion in the underlying criminal case as it bears on aspects
of the petitioner’s conviction – for example, by showing the crime for
which the petitioner was convicted and that the conviction was
affirmed. (See People v. Woodell (1998) 17 Cal.4th 448, 456-457
(Woodell) [record of conviction includes not only the trial court record
but also an appellate opinion, at least for nonhearsay purposes];
Verdugo, supra, 44 Cal.App.5th at p. 333 [“A court of appeal opinion,
whether or not published, is part of the appellant’s record of
conviction.”].)
B.
The People assert that the trial court correctly denied Fletcher’s
petition under section 1170.95 because the record of conviction
establishes that he personally shot and killed the victim. We disagree.
The record falls short of establishing his ineligibility as a matter of law.
1.
The reporter’s transcript pages attached to Fletcher’s petition
reflect that the jury found Fletcher guilty of second degree murder “in
that on or about the 17th day of May 1986, in the County of Alameda . .
. [the] defendant did then and there murder” the victim “as charged in
count one of the amended information.” The jury further found “that in
and during the commission, attempted commission of the above offense
. . . Fletcher did personally use a firearm, to wit, a handgun.” In
addition, the jury found “that in and during the commission and
attempt[ed] commission of the above offense . . . Fletcher did intend to
inflict great bodily injury” on the victim.
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Consistent with the appellate opinion relied upon by the trial
court, the reporter’s transcript pages attached to Fletcher’s petition
also reflected Lige’s testimony that just before the victim was shot, he
saw the driver of the car (Parker) extend his right hand and fire a gun
from the car, and he saw the flash of the driver’s gun.
Neither the record before us nor apparently the record before the
trial court contains the charging document, the verdict forms, or the
complete jury instructions.
2.
The record does not conclusively establish that Fletcher was
ineligible for resentencing.
First, the incomplete record does not establish that Fletcher,
rather than Parker, was the actual killer. The jury was presented with
evidence that, at the time of the crime, Fletcher was riding in a car
with Parker, who fired shots at the murder victim after having fallen
out with him. As a result, Fletcher’s case is not as cut and dry as one
that involves a lone perpetrator, where the facts exclude the possibility
that the defendant was convicted based on aiding and abetting a non-
murder crime such as assault with a deadly weapon. For example, in
People v. Tarkington (2020) 49 Cal.App.5th 892, 899 (Tarkington),
review granted Aug. 12, 2020, S263219, the court concluded that the
petitioner, who was convicted of second degree murder and found to
have personally used a deadly weapon in the commission of the crime,
could not have been prosecuted on a natural and probable consequences
theory in part because “the murder involved a single perpetrator” and
“was not a situation in which multiple persons carried out the attack.”
(See id. at p. 899 [concluding that petitioner was “the actual killer”
8
based on the circumstances of the crime, jury instructions, and verdict
form].)
Neither does the jury’s finding that Fletcher “intended to inflict
great bodily injury” on the victim amount to a finding that he was the
actual killer. Because the record does not contain the charging
documents, we cannot be certain as to the charge to which this finding
pertained. Ordinarily, if a jury’s verdict is unclear, we would construe
the verdict in light of the parties’ arguments at trial and the
instructions, as well as the charging documents (People v. Camacho
(2009) 171 Cal.App.4th 1269, 1272-1274), but we are unable to do so
given the incomplete record. Moreover, assuming the jury found not
only that Fletcher intended to inflict great bodily injury but that he did
inflict such injury on the victim, that would not necessarily have
indicated the jury determined he was the actual killer. (See In re
Sergio R. (1991) 228 Cal.App.3d 588, 601-602 [“where, as here, more
than one assailant discharges a firearm into a group of people and ‘it is
not possible to determine which assailant inflicted which injuries,’ ” the
defendant may be found to have inflicted great bodily injury “ ‘if his
conduct was of a nature that it could have caused the great bodily
injury suffered’ ”], quoting People v. Corona (1989) 213 Cal.App.3d 589,
594.)
Second, we do not know whether Fletcher was charged on a
natural and probable consequences theory. The jury found that
Fletcher murdered the victim “as charged in count one of the amended
information,” but, as noted, the amended information was not included
in the record transmitted to us by the trial court. Fletcher’s petition
alleged that the charging document permitted the prosecution to
9
proceed on a felony murder theory or under the natural and probable
consequences doctrine.
Third, we do not know whether the jury was instructed on felony
murder or the natural and probable consequences doctrine. The record
before us does not contain a complete set of the jury instructions. We
cannot confirm the People’s assertion that the jury must have convicted
Fletcher of malice murder because the jury was not instructed on these
other theories.
Fourth, because there was evidence of a second gunman, the
jury’s findings that Fletcher personally discharged a firearm in the
commission of the murder under section 12022.5 and “intend[ed] to
inflict great bodily injury” on the victim do not necessarily establish
that the jury found that Fletcher acted with actual malice.
For example, in People v. Offley (2020) 48 Cal.App.5th 588
(Offley), the court considered a section 1170.95 petition by a defendant
(Offley) who, based on his participation in a shooting by multiple gang
members, was convicted of second degree murder with an enhancement
(under section 12022.53, subdivision (d)) for personally and
intentionally discharging a firearm and proximately causing great
bodily injury or death. (Id. at pp. 593, 598.) Offley reasoned that
“[b]ecause an enhancement under section 12022.53, subdivision (d)
does not require that the defendant acted either with the intent to kill
or with conscious disregard to life, it does not establish that the
defendant acted with malice aforethought.” (Id. at p. 598.) The court
explained that the jury may have relied on a natural and probable
consequences theory and concluded that Offley “intended to take part
10
in a conspiracy to commit assault with a firearm . . . with the aim of
[merely] injuring” the victim. (Id. at p. 599.)
Similarly here, the jury’s finding under section 12022.5 did not
require a finding that Fletcher acted with intent to kill or with
conscious disregard to life. On the limited record before us, we are
unable to rule out the possibility that the jury could have relied on
Lige’s testimony to conclude that Fletcher aided and abetted Parker in
an assault with a deadly weapon, the natural and probable
consequence of which was the victim’s death. (See Verdugo, supra, 44
Cal.App.5th at p. 329 [court must make all factual inferences in the
petitioner’s favor].) Fletcher’s admission that he shot into a crowd falls
short of admitting that he intended to kill the victim, and, indeed, the
jury expressly found only that Fletcher intended great bodily injury.
As Offley emphasized, “[i]n many instances, additional
information from the record will establish that a defendant’s conviction
was not based on the natural and probable consequences doctrine, and
that the jury must have convicted the defendant on the basis of his own
malice aforethought” – such as where the jury instructions indicate
that no instruction was given on the natural and probable
consequences doctrine. (Offley, supra, 48 Cal.App.5th at p. 599.)
Without the benefit of such “additional information” from the record of
conviction, however, the trial court erred in summarily dismissing
Fletcher’s petition. (See id. at p. 597 [in the initial review, “[t]he trial
court . . . may not reject a defendant’s petition unless it determines that
‘the petitioner is ineligible for relief as a matter of law’ ”]; see also
Verdugo, supra, 44 Cal.App.5th at p. 330.)
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C.
Fletcher contends that the trial court erred in failing to appoint
counsel to represent him prior to dismissing his section 1170.95
petition. We reject his statutory argument, and we need not decide his
constitutional argument.
Several courts have concluded that section 1170.95 does not
mandate the appointment of counsel during the trial court’s initial
assessment to determine whether the petition has established a prima
facie case that the petitioner falls within the statute. (See, e.g., Lewis,
supra, 43 Cal.App.5th at p. 1140; Verdugo, supra, 44 Cal.App.5th at pp.
332-333; see also People v. Harris (2021) 60 Cal.App.5th 939, 947,
review granted April 28, 2021, S267802; People v. Cornelius (2020) 44
Cal.App.5th 54, 58 (Cornelius), review granted Mar. 18, 2020, S260410;
Tarkington, supra, 49 Cal.App.5th at pp. 899-900; but see People v.
Cooper (2020) 54 Cal.App.5th 106, 123, review granted Nov. 10, 2020,
S264684 [holding that section 1170.95, subdivision (c), mandates
appointment of counsel upon filing of a facially sufficient petition].)
Pending guidance from our Supreme Court, and having
considered Fletcher’s arguments, we are unpersuaded that the trial
court is required to appoint counsel before initially determining
whether the petitioner has established a prima facie case that he falls
within the statute. The text and structure of section 1170.95 indicate
that the requirement arises only after the trial court’s initial
determination that the petition sets forth such a prima facie case. The
first sentence of section 1170.95, subdivision (c), requires the trial court
to determine whether the petitioner has made a prima facie showing;
the second sentence mandates the appointment of counsel if requested;
12
and the third sentence requires the prosecutor to file and serve a
response and allows the petitioner to file a reply. “The structure and
grammar of this subdivision 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; see also Lewis, supra, 43
Cal.App.5th at p. 1140.)
This sequence makes sense given the greater role for counsel to
play in responding to the prosecution’s brief, which would only be
necessary if the petition succeeds at the first prima facie stage.
(Verdugo, supra, 44 Cal.App.5th at p. 332.) It also conserves public
resources by avoiding appointment of counsel in cases where the
petitioner is ineligible for relief as a legal matter. (See Lewis, supra, 43
Cal.App.5th at p. 1138.) We agree with the analyses
in Lewis and Verdugo and hold that the trial court did not
violate section 1170.95 in declining to appoint counsel before
concluding that Fletcher did not establish a prima facie case that he fell
within the statute.
Fletcher also contends that the failure to appoint counsel violates
his constitutional rights. (But see People v. Daniel (2020) 57
Cal.App.5th 666, 676 [holding that unless a petitioner has established a
prima facie case of entitlement to relief for resentencing, “a petitioner’s
right to counsel under section 1170.95(c) is not protected by the federal
Constitution”], review granted Feb. 24, 2021, S266336.) However, it
may be unnecessary to address this constitutional question if, on
remand, the trial court concludes Fletcher has established a prima facie
case. We therefore remand this case to the trial court to determine
13
whether, considering readily available portions of the record of
conviction, Fletcher is ineligible for relief as a matter of law. (See
People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review granted Jun.
24, 2020, S262011.) If portions of the record necessary to determine
whether the jury may have convicted Fletcher on a natural and
probable consequences doctrine – such as the charging documents and
jury instructions – are not readily available to the trial court, or the
court otherwise determines that Fletcher is not ineligible for
resentencing as a matter of law, then he will be entitled to appointment
of counsel and an opportunity for further briefing. (§ 1170.95, subd.
(c).)
DISPOSITION
The trial court’s order is reversed. On remand, the court shall
determine, based on readily available portions of the record of
conviction, whether Fletcher has made a prima facie showing that he
falls within the provisions of section 1170.95. If the court finds that
Fletcher is potentially eligible for resentencing pursuant to section
1170.95, the court must appoint counsel and order briefing.
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_______________________
BURNS, J.
We concur:
____________________________
NEEDHAM, ACTING P.J.
____________________________
RODRIGUEZ, J.*
A160656
* Judge of the Superior Court of Alameda County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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