Filed 5/27/21 P. v. Purcell CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307038
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA073043)
v.
RANDY PURCELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Robert J. Perry, Judge. Affirmed.
Eric R. Larson, 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, Amanda V. Lopez and Christopher
G. Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
In 2009, a jury found Randy Purcell guilty of robbery and
burglary, but deadlocked on a murder charge. After a retrial, a
second jury found him guilty of first degree felony murder.
The jury found true an armed-principal allegation and robbery-
murder and burglary-murder special circumstances alleged
pursuant to Penal Code section 190.2, subdivision (a)(17).
We affirmed the judgment in a prior appeal. (People v. Purcell
(July 14, 2011, B220077) [nonpub. opn.].) Purcell now appeals
the trial court’s summary denial of his petition for resentencing
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pursuant to Penal Code section 1170.95, a provision added by
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (SB 1437). We affirm.
BACKGROUND
Consistent with the parties’ briefs, we recite the relevant
facts from our prior opinion in this case:
“Appellant Randy Purcell rented a room in the house of
Hawaiian Gardens gang member Ruben Baltazar. On July 24,
2002, appellant and Baltazar went to the home of Tommy Willis
intending to rob Willis; appellant and Willis were acquainted
through work and appellant knew Willis kept several hundred
dollars in cash at home. During the robbery, Willis was shot
dead; in appellant’s later trial for murder, two of Baltazar’s gang
associates testified appellant told them a few hours after the
shooting that appellant accidentally shot Willis while Willis and
Baltazar struggled. Before fleeing from the crime scene,
appellant and Baltazar took money and a video camera. Later
that evening, Baltazar ordered appellant to return to Willis’s
house with Baltazar’s gang associates to clean up the crime scene
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Undesignated statutory citations refer to the Penal Code.
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and steal some more of the valuables, including a telephone
answering machine and safe, that he and appellant had left
behind. The next day, Los Angeles County sheriff’s deputies
found Willis’s body. He had suffered one gunshot wound to his
face below his left eye, and a second wound to the back of his
neck.” (People v. Purcell, supra, B220077 at pp. 1–2.)
“Appellant’s recounting of Willis’s murder changed over
several interviews with sheriff’s investigators and at trial. In a
nutshell, appellant initially told investigators he went to Willis’s
home with Baltazar not to rob Willis, but instead to bid on a
carpentry job. As appellant and Willis discussed appellant’s cost
estimate for the job, Baltazar became angry with Willis and shot
him. After several interviews by investigators, appellant
changed his story, however, and confessed that he shot Willis.
But, by the time of trial, he recanted his confession on the ground
he had falsely admitted shooting Willis because he feared
Baltazar’s gang associates would hurt him or his family if he
continued to accuse Baltazar of killing Willis. At trial appellant
revived his original accusation that Baltazar shot Wallis when he
became angry with Willis over the carpentry project.” (People v.
Purcell, supra, B220077 at p. 3.)
On June 17, 2020, Purcell filed a petition for resentencing
pursuant to section 1170.95. Without appointing counsel or
accepting any briefing, the trial court summarily denied the
petition. It reasoned in relevant part:
“The Court is familiar with the facts of this case, having
presided over both of Purcell’s jury trials.
“Evidence implicating Purcell in Willis’ murder was
extensive. Five of defendant Purcell’s fingerprints were
discovered in the master bedroom of the victim’s home. The two
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bullets recovered from the victim’s body were unusual brass-
washed 22 long rifle caliber and similar to rounds found in a sock
in defendant’s bedroom. The victim was known to keep a five-
gallon bottle filled with spare change which was missing. A few
weeks after the murder, defendant Purcell, a methamphetamine
addict, exchanged a large bottle of change for $300 to $400 at a
check cashing business, and told the proprietor that the change
had been collected by the recently deceased grandfather.
“In addition, Purcell made several statements to law
enforcement admitting his involvement in these crimes. He
initially told investigators that he and Baltazar went to the
Willis’ home to bid on a carpentry job, but that Baltazar suddenly
lost his temper and shot Willis. After several interviews, Purcell
admitted the story was false and said he had shot Willis in a
robbery ‘gone bad.’ At trial, Purcell changed his story again, and
claimed to have falsely admitted shooting the victim because he
feared Baltazar and his friends would hurt him for implicating
Baltazar. The second jury rejected this explanation.
“As the actual killer who committed murder, Purcell is not
eligible for §1170.95 relief. See Penal Code §§189(e)(1) and
1170.95(a)(3).
“This petition for resentencing is denied.”
DISCUSSION
Effective January 1, 2019, SB 1437 addressed “certain
aspects of California law regarding felony murder and the
natural and probable consequences doctrine by amending Penal
Code sections 188 and 189” and by adding “section 1170.95,
which provides a procedure by which those convicted of murder
can seek retroactive relief if the changes in law would affect their
previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)”
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(People v. Martinez (2019) 31 Cal.App.5th 719, 722–723
(Martinez).) In short, SB 1437 “was enacted to ‘amend the felony
murder rule and the natural and probable consequences doctrine,
as it relates to 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).)” (Martinez, at p. 723.)
Section 1170.95 creates a multi-step procedure for a
defendant to petition for resentencing pursuant to SB 1437.
A defendant may petition for resentencing if he or she was
“convicted of felony murder or murder under a natural and
probable consequences theory” and the following conditions are
met: “(1) A charging document 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 or second degree
murder following trial or an accepted plea; and (3) The petitioner
could ‘not be convicted of first or second degree murder because of
changes to Section[s] 188 or 189’ made by Senate Bill No. 1436.
(§ 1170.95, subd. (a).) [¶] Under section 1170.95, subdivision (b),
the petition must include: a declaration from the petitioner that
he or she is eligible for relief under the statute, the superior
court’s case number and year of conviction, and a statement as to
whether the petitioner requests appointment of counsel.
(§ 1170.95, subd. (b)(1).) If any of the required information is
missing and cannot ‘readily [be] ascertained by the court, the
court may deny the petition without prejudice to the filing of
another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis
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(2020) 43 Cal.App.5th 1128, 1135–1136 (Lewis), rev. granted,
Mar. 18, 2020, S260598.)
Section 1170.95, subdivision (c) sets forth the procedure
once the defendant files a complete petition: “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 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.”
Should the court issue an order to show cause, it must hold
a hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d).) If the court vacates the murder conviction,
the court must resentence the defendant on the remaining
counts, or if no target offense was charged, “the petitioner’s
[murder] conviction shall be redesignated as the target offense or
underlying felony for resentencing purposes.” (§ 1170.95, subd.
(d)(3), (e); see Lewis, supra, 43 Cal.App.5th at pp. 1136–1137.)
The trial court summarily denied Purcell’s section 1170.95
petition without appointing counsel. Purcell claims this was
error, but we follow the cases interpreting section 1170.95,
subdivision (c) to permit a trial court to summarily deny a
petition without appointing counsel when the defendant fails to
make a prima facie showing of eligibility for resentencing.
(People v. Falcon (2020) 57 Cal.App.5th 272, 279–279, rev.
granted, Jan. 27, 2021, S266041 [citing cases].) In doing so, the
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court may consider the record of conviction. (Ibid.; People v. Soto
(2020) 51 Cal.App.5th 1043, 1055, rev. granted, Sept. 23, 2020,
S263969; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, rev.
granted, July 22, 2020, S262835.)
Purcell requests that we take judicial notice of our opinion
in the prior appeal and the record of conviction. We grant the
request.
Purcell argues the trial court erred in not finding a prima
facie case because it made an improper factual finding he was the
“actual killer.” Respondent does not defend this ground on
appeal. We will not address it, since we can affirm on any legally
correct theory applicable to the case. (People v. Smithey (1999) 20
Cal.4th 936, 972.)
The second jury in Purcell’s case found him guilty of first
degree felony murder and found the robbery-murder and
burglary-murder special circumstances in section 190.2,
subdivision (a)(17) to be true. In doing so, the jury had to find
Purcell was the actual killer, acted with intent to kill, or acted as
a major participant in the underlying felony with reckless
indifference to human life. SB 1437 amended section 189,
subdivision (e) to now require these same three theories in order
to be found guilty of felony murder.
At first blush, the true finding for the felony murder special
circumstance would seem to preclude relief after the passage of
SB 1437. (People v. Galvan (2020) 52 Cal.App.5th 1134, 1141,
rev. granted, Oct. 14, 2020, S264284 [“By finding a special
circumstance allegation true, the jury makes precisely the same
finding it must make in order to convict a defendant of felony
murder under the new law. Because a defendant with a felony-
murder special circumstance could still be convicted of murder,
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he is ineligible as a matter of law to have his murder conviction
vacated.”].) However, cases are currently split on whether this
special circumstance finding precludes section 1170.95
resentencing as a matter of law.
The dispute lies in the date of a defendant’s conviction.
If the jury’s special circumstance finding predated People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), which clarified the meaning of “major
participant” and “reckless indifference to human life” in the
section 190.2 special circumstance, some cases have held the
jury’s pre-Banks/Clark section 190.2 true finding does not
preclude SB 1437 resentencing. (See, e.g., People v. Secrease
(2021) 63 Cal.App.5th 231; People v. Torres (2020) 46 Cal.App.5th
1168, rev. granted, July 7, 2020, S262011; People v. Law (2020)
48 Cal.App.5th 811, rev. granted, July 8, 2020, S262490; People v.
Smith, supra, 49 Cal.App.5th 85; People v. York (2020) 54
Cal.App.5th 250, rev. granted, Nov. 18, 2020, S264954; People v.
Harris (2021) 60 Cal.App.5th 939, rev. granted, April 28, 2021,
S267802.)
Other cases take the view that the defendant cannot bring
a Clark/Banks challenge to a section 190.2 special circumstance
finding by way of a SB 1437 resentencing petition; he or she must
seek relief by way of a habeas corpus petition. (See, e.g., People v.
Gomez (2020) 52 Cal.App.5th 1, rev. granted, Oct. 14, 2020,
S264033; People v. Galvan, supra, 52 Cal.App.5th 1134; People v.
Murillo (2020) 54 Cal.App.5th 160, rev. granted, Nov. 18, 2020,
S264978; People v. Jones (2020) 56 Cal.App.5th 474, rev. granted,
Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th
449; People v. Nunez (2020) 57 Cal.App.5th 78, rev. granted, Jan.
13, 2021, S265918.)
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The California Supreme Court has granted review on this
issue, so it will be resolved one way or the other. (People v.
Strong, rev. granted, Mar. 10, 2021, S266606.)
We need not elaborate on the reasoning in the existing case
law. Pending further guidance, we find persuasive those cases
holding a jury’s section 190.2 true finding precludes section
1170.95 resentencing as a matter of law. If Purcell wants to
challenge the sufficiency of the evidence supporting the robbery-
murder and burglary-murder special circumstances findings, his
remedy is to pursue extraordinary relief by way of habeas corpus.
As the Supreme Court recently explained, Banks and Clark
merely clarified the law. (In re Scoggins (2020) 9 Cal.5th 667,
674.) Where a decision does not announce a new rule of law but
merely “clarifies the kind of conduct proscribed by a statute, a
defendant whose conviction became final before that decision
‘is entitled to post-conviction relief upon a showing that his [or
her] conduct was not prohibited by the statute’ as construed in
the decision. [Citation.] ‘In such circumstances, it is settled that
finality for purposes of appeal is no bar to relief, and that habeas
corpus or other appropriate extraordinary remedy will lie to
rectify the error.’ ” (Id. at pp. 673–674.)
Purcell’s petition fails at the prima facie stage. The trial
court’s summary denial was proper.
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DISPOSITION
The order is affirmed.
BIGELOW, P. J.
We Concur:
GRIMES, J.
STRATTON, J.
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