Filed 5/25/21 P. v. Stratis CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B300213
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA083187)
v.
CHRISTOPHER STRATIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Reversed and remanded
with directions.
Leslie Conrad, 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, Senior
Assistant Attorney General, Michael Johnsen, Supervising
Deputy Attorney General, and David E. Madeo, Deputy Attorney
General, for Plaintiff and Respondent.
2
Defendant and appellant Christopher Stratis (defendant)
appeals from a trial court order denying his Penal Code section
1170.951 petition for resentencing, which came without holding a
hearing following issuance of an order to show cause. Defendant
also seeks a remand for a retroactive juvenile court transfer
hearing because he was 17 years old at the time of the felony
murder for which he is now in prison. Consistent with the
parties’ agreement and the pertinent provisions of the Public
Safety and Rehabilitation Act of 2016 (Proposition 57) as
interpreted by our Supreme Court, we shall remand the matter
for purposes of holding the requested transfer hearing. We shall
also decide whether the trial court—relying on an opinion this
court issued after People v. Banks (2015) 61 Cal.4th 788 (Banks)
but before People v. Clark (2016) 63 Cal.4th 522 (Clark)—
correctly concluded defendant is not entitled to section 1170.95
relief as a matter of law.
I. BACKGROUND
In 2010, defendant and four co-defendants were charged
with murdering Michelle Hong. The killing occurred during the
course of a planned home invasion robbery. One of the other co-
defendants was the person who shot and killed Hong, but
defendant was present on the scene at the time of the shooting.
In connection with the murder charge, the information against
defendant and the others alleged a special circumstance: that the
killing occurred while defendant and the others were engaged in
committing a burglary. (§ 190.2, subd. (a)(17)(G).)
1
Undesignated statutory references that follow are to the
Penal Code.
3
Trial proceeded in late 2010, and defendant’s jury was
instructed on felony murder principles of liability. A malice
murder instruction was not given, and the felony murder theory
of liability was the only one argued to the jury. The jury was also
instructed on what it must determine to find the special
circumstance allegation true as to defendant, including the
requirement to find defendant either intended to kill the victim
or was a major participant in the crime who acted with reckless
indifference to human life.
The jury found defendant guilty of murder and found the
alleged burglary-murder special circumstance true.2 The trial
court sentenced defendant to life in prison without the possibility
of parole.
In an opinion issued in 2013, this court affirmed
defendant’s conviction but reversed his life without parole
sentence in light of then-recent United States Supreme Court
authority restricting life without parole sentences for juveniles.
Our Supreme Court subsequently granted a petition for review of
that opinion and, in August 2015, transferred the matter back to
this court for reconsideration in light of Banks, supra, 61 Cal.4th
788, which had been decided in the interim.
On remand from the Supreme Court, this court issued a
new opinion holding the burglary-murder special circumstance
was supported by sufficient evidence (but remanding for
resentencing in light of authority holding that sentencing of a 17-
year-old juvenile found guilty of special circumstance murder
2
The verdict did not reveal the theory on which the jury
found the special circumstance proven, but the People have
conceded there was no evidence at trial that defendant intended
to kill the victim.
4
must proceed with no presumption in favor of a life without
parole sentence). (People v. Stratis, et al. (May 5, 2016, B229255)
[nonpub. opn.] (Stratis II).) Recognizing a life without parole
sentence for someone who did not intend to kill “is
constitutionally permissible only if that person was a ‘major
participant’ in the crime who acted with ‘reckless indifference to
human life’” as those elements were discussed in Banks, this
court concluded both criteria were satisfied. (Ibid.) As to
defendant’s participation in the crime, this court reasoned it was
“far greater than that of a mere getaway driver” and included
planning the home invasion robbery, knowingly teaming up with
a co-defendant (the shooter) who went by the moniker “Vicious,”
taking “a leadership role by directing the group away from the
first target” home to rob, and being present at the scene of the
shooting. (Ibid.) As to defendant’s attitude toward human life,
this court’s analysis was not as detailed, but we held the requisite
reckless indifference was shown by some of the same facts
(including the association with “Vicious” and the visible firearm
in his hand before entry into the home) and by the lack of any
attempt to ensure no one was home before the men entered.3
(Ibid.)
Nearly three years after our opinion in Stratis II, and
following enactment of Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (SB 1437), which revised the statutory requirements to be
found guilty of felony murder, defendant filed a section 1170.95
petition for resentencing. Highlighting the decision in Clark that
3
Our Supreme Court’s opinion in Clark, supra, 63 Cal.4th
522, was not issued until June 2016—roughly a month after this
court’s opinion on remand.
5
came only after Stratis II, the petition filed by counsel for
defendant argued there was insufficient evidence defendant
demonstrated reckless indifference to human life when
participating in the “burglary-murder” and thus, in his view, he
was “squarely within the category of inmates the legislature
envisioned when they passed SB 1437.”
The People opposed defendant’s section 1170.95 petition.
As relevant for our purposes, the People noted “the jury found
that [defendant] was a major participant in the crime[ ] and he
demonstrated a reckless indifference to human life.” The People
argued these findings “conclusively established” he was ineligible
for resentencing.
Without issuing an order to show cause as contemplated by
section 1170.95, the trial court held a hearing and entertained
extensive argument from counsel for both sides on whether
defendant was eligible for section 1170.95 relief. More than once
during the hearing, the court emphasized it was limiting itself to
the evidence before it “without even the opportunity to hear
additional evidence,” remarking at one point that “we can’t
change the facts.”
In an oral ruling at the conclusion of argument, the court
concluded defendant was not entitled to relief and denied the
petition. Explaining its reasons, the court emphasized it was
“placing a lot of weight” on this court’s discussion of the Banks
considerations in Stratis II and summarized that discussion at
length on the record. Then, proceeding to the resentencing this
court ordered in Stratis II, the trial court exercised its discretion
to reduce defendant’s sentence from life without the possibility of
parole to 25 years to life in prison.
6
II. DISCUSSION
Defendant appeals from the criminal judgment, including
the trial court’s denial of his section 1170.95 petition. We shall
reverse and remand for two reasons. First, as we have already
mentioned, the parties agree defendant is entitled to a
conditional reversal of his murder conviction so the juvenile court
can hold a retroactive transfer hearing to decide whether
defendant was appropriately prosecuted in a court of criminal
jurisdiction. Second, our opinion in Stratis II did not
predetermine the question of whether defendant could be entitled
to relief and the trial court erred by foreclosing the defense from
seeking to introduce new evidence at an eligibility hearing
following issuance of an order to show cause.
A. Proposition 57’s Amendments to the Welfare and
Institutions Code Apply Retroactively to Defendant
and Require Conditional Reversal of the Criminal
Judgment
Proposition 57 amended Welfare and Institutions Code
section 707, the statute that governs when a juvenile can be tried
in a court of criminal jurisdiction rather than in juvenile court.
The proposition’s amendments eliminated the presumption that
minors accused of certain serious crimes were unfit for juvenile
court proceedings and must be tried in a court of criminal
jurisdiction. Proposition 57 also eliminated the requirement that
minors charged with serious offenses must satisfy “each and
every” one of five “fitness” criteria4 before being found fit to be
4
The five criteria are: (1) the degree of criminal
sophistication exhibited by the minor, (2) whether the minor can
be rehabilitated prior to the expiration of the juvenile court’s
7
dealt with in juvenile court. These changes make it easier for a
juvenile to be found fit for juvenile court proceedings and such a
determination often carries with it quite significant sentencing
benefits. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
306 [“While a person convicted of serious crimes in adult court
can be punished by a long prison sentence, juveniles are
generally treated quite differently, with rehabilitation as the
goal”] (Lara).)
Our Supreme Court’s decision in Lara holds the changes
worked by Proposition 57 apply to all juveniles whose judgment
was not final at the time the proposition was enacted. (Lara,
supra, 4 Cal.5th at 304.) It is undisputed defendant’s conviction
was not final at that time, and we shall therefore conditionally
reverse the judgment and remand—as the parties agree—so the
juvenile court can hold the required transfer hearing under now-
prevailing law.
B. The Trial Court’s Denial of Defendant’s Section
1170.95 Petition Was Procedurally Defective
Because we are conditionally reversing the judgment, it is
not strictly necessary for us to decide whether the trial court
erred in denying defendant’s section 1170.95 petition; we could
defer deciding that issue until after the juvenile court’s
retroactive transfer hearing determination, if not moot. Both
jurisdiction, (3) the minor’s previous delinquent history, (4) the
success of previous attempts by the juvenile court to rehabilitate
the minor, and (5) the circumstances and gravity of the offense(s)
the minor was alleged to have committed. (Welf. & Inst. Code,
§ 707, subd. (a)(3).)
8
parties brief the merits of the issue, however, and we exercise our
discretion to address it in potential service of judicial economy.5
Defendant’s trial jury was instructed on principles of felony
murder, and on the elements of a burglary-murder special
circumstance alleged against defendant, before our Supreme
Court decided Banks, supra, 61 Cal.4th 788 and Clark, supra, 63
Cal.4th 522. That is enough to establish defendant “has made a
prima facie showing that [he] falls within the provisions of
[section 1170.95].” (§ 1170.95, subd. (c).) Defendant was
represented by counsel in the trial court, and the court
considered the People’s response to defendant’s section 1170.95
petition and defendant’s reply thereto. The trial court also held a
hearing to entertain argument by the parties on the petition, but
that hearing did not come after the court first issued an order to
show cause—which must issue when a court finds a defendant
“makes a prima facie showing that he or she is entitled to
relief . . . .” (Ibid.) That is problematic for two reasons.
First, section 1170.95 permits a defendant, at a hearing
that follows issuance of an order to show cause, to offer new or
additional evidence beyond the record of conviction. (§ 1170.95,
subd. (d)(3) [“At the hearing to determine whether the petitioner
is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing . . . . The prosecutor and
the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens”].) The
5
Our decision to address the issue should not be read to
express any view on how the juvenile court should resolve the
Proposition 57 transfer hearing issue on remand.
9
Attorney General asserts defendant had that opportunity to offer
new evidence during the proceedings below, but that is belied by
the record. The trial court repeatedly stated it would not
entertain new evidence beyond the record of conviction. That
limitation alone undermines the trial court’s denial of defendant’s
section 1170.95 petition because his entitlement to relief turns on
an evidentiary assessment of whether he was a major participant
who acted with reckless indifference to life and such an
assessment can be made only if counsel has an opportunity to
proffer evidence, beyond the existing record of conviction, that
might alter an assessment of his participation in the victim’s
killing. (See People v. Smith (2020) 49 Cal.App.5th 85, 96, review
granted Jul. 22, 2020, S262835 [“[W]e cannot say at this stage of
the proceedings that failure to appoint counsel was harmless
‘given the trial evidence’; by the express terms of section 1170.95,
subdivision (d)(3), counsel is not limited to the trial evidence”].)
Had the trial court issued an order to show cause or otherwise
invited the parties to submit new or additional evidence, that
may have cured the problem. (See, e.g., People v. Murillo (2020)
54 Cal.App.5th 160, 173, review granted Nov. 18, 2020, S264978
[“If as a matter of law the record of conviction shows . . . that the
defendant was a major participant who acted with reckless
indifference to human life, and the defendant does not claim he
has new evidence to present, he has not made a prima facie case”],
italics added.) But, again, the opposite is what happened: the
trial court told the parties that its ruling was “limited to the
record that [it] ha[d] before [it] without even the opportunity to
hear additional evidence.”
Second, the trial court’s conclusion that defendant could not
establish an entitlement to section 1170.95 relief relied heavily
10
(we might even say exclusively) on our conclusion in Stratis II
that there was substantial evidence satisfying the Banks
threshold for a special circumstance true finding. Banks,
however, is only one of two necessary ingredients. Stratis II did
not consider the evidence of reckless indifference to human life
through the prism of the later decided Clark opinion, and while
there is substantial overlap between Banks and Clark, the
overlap is not perfect.
Clark significantly elaborates on the considerations
relevant to assessing whether a defendant acted with reckless
indifference to human life. (Clark, supra, 63 Cal.4th at 618-623
[enumerating relevant factors, including the defendant’s
knowledge of weapons and their use and number, the defendant’s
proximity to the crime and opportunity to stop the killing or aid
the victim, and the duration of the offense conduct].) Indeed, our
Supreme Court in Clark decided what that case itself describes
as an issue of first impression: whether a defendant’s efforts to
minimize risks of violence in the commission of a felony are
relevant to a reckless indifference analysis. (Id. at 622.) The
Supreme Court held such efforts are relevant though not alone
determinative (ibid.), and that holding has some bearing on this
case where there is evidence defendant may have advocated
abandoning an earlier home targeted for robbery because it was
clear there were people inside the home at the time. As an issue
of first impression in Clark, we could not have considered that
factor in Stratis II, and it is but one example why the trial court’s
heavy reliance on our discussion of Banks without any discussion
of Clark is insufficient to establish defendant cannot be entitled
to section 1170.95 relief.
11
The trial court’s denial of defendant’s section 1170.95
petition is accordingly infirm. Defendant (and the People) must
have an opportunity to introduce new or additional evidence and
the trial court’s resolution of the question of whether defendant
acted with reckless indifference to human life must account for
the relevant considerations identified in Clark.
DISPOSITION
The judgment is conditionally reversed. The cause is
remanded to the juvenile court with directions to hold a transfer
hearing under Welfare and Institutions Code section 707, if the
prosecution moves for such a hearing, no later than 90 days from
the date the remittitur issues. If, after a transfer hearing, the
juvenile court determines it would transfer defendant to a court
of criminal jurisdiction under current law, the judgment of
conviction shall be reinstated as of the date of that determination
and the cause transferred to the trial court to issue an order to
show cause pursuant to section 1170.95, subdivision (c) and to
hold a hearing pursuant to section 1170.95, subdivision (d)—
unless defendant and the People disclaim any intent to present
new or additional evidence, in which case the trial court may
redetermine the matter on the record of conviction as informed by
Clark’s discussion of the considerations relevant to reckless
indifference to human life.
If no motion for a transfer hearing is filed, or if a transfer
hearing is held and the juvenile court determines it would not
transfer defendant to a court of criminal jurisdiction, defendant’s
criminal murder conviction will be deemed to be a juvenile
adjudication as of the date of the juvenile court’s determination.
In the event the conviction is deemed a juvenile adjudication, the
12
juvenile court shall then hold a disposition hearing and impose
an appropriate disposition within the court’s discretion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
13