People v. Ellis CA2/3

Filed 6/3/21 P. v. Ellis CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B303032

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A561490-03
v.

RANDALL EUGENE ELLIS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Dorothy L. Shubin, Judge. Reversed
and remanded.

Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
 In 1983 a jury convicted defendant and appellant Randall
Eugene Ellis of first degree murder as well as robbery. In 2019,
after the Legislature passed Senate Bill No. 1437 (SB 1437),
Ellis filed a petition for resentencing under Penal Code section
1170.95.1 The trial court denied the petition, stating Ellis was
ineligible for relief because he was a major participant in the
underlying robbery who acted with reckless indifference for
human life. On appeal, the Attorney General agrees with Ellis
that we must return the case to the trial court for an order to
show cause and an evidentiary hearing, because the court may
not actually weigh the facts without issuing an order to show
cause and holding a section 1170.95, subdivision (d) hearing.
Accordingly, we reverse and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND2
1. The crime, trial, and appeal
One evening in May 1981, Ellis was in a car with Michael
Wayne Hayes and Daniel Lee George. The threesome was trying
“ ‘to pick up some dope’ ” and visit a friend, but the friend wasn’t
home. They decided to rob a liquor store. After considering and
rejecting a couple of possible targets, the three decided to rob
a “mini-mart” in Monrovia. (Ellis I, supra, 169 Cal.App.3d at
pp. 902-903.)

1 References to statutes are to the Penal Code.
2 We summarize the facts from our published opinion in
Ellis’s direct appeal, People v. Hayes et al. (1985) 169 Cal.App.3d
898 (Ellis I). Counsel for Ellis also cites to our 1985 opinion
in her brief, as well as to preliminary hearing transcripts counsel
had in the trial court. Those transcripts are not included in
the record on appeal.

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 George dropped Ellis and Hayes off, then parked. Just
before they went into the store, Ellis handed Hayes a .25 caliber
automatic. The store clerk, David Smith, cooperated fully.
Nevertheless, Hayes shot Smith three times in the back as he
lay face down on the floor. Ellis, Hayes, and George fled. (Ellis I,
supra, 169 Cal.App.3d at p. 903.)
Ellis, who was 16 at the time, told police he had taken cash
from the register. (Ellis I, supra, 169 Cal.App.3d at pp. 901-903.)
The People charged Ellis, Hayes, and George with Smith’s
murder. The People alleged a principal was armed with a
handgun in the commission of the crime and the three defendants
were engaged in the commission of robbery during the murder
within the meaning of section 190.2, subdivision (a)(17). The
People further alleged Hayes personally used a handgun in
the murder, and he committed the murder for financial gain.
Count 2 charged the three defendants with robbery, with a
“principal armed” allegation, and—as to Hayes—personal
firearm use and infliction of great bodily injury allegations.
Before or at the outset of trial (the timing is unclear), the
trial court struck the special circumstance allegation as to Ellis.
Ellis was tried separately. (Ellis I, supra, 169 Cal.App.3d at
p. 901.) In February 1983 a jury convicted him of murder and
robbery, and found true the “principal armed” allegations on
both counts. The trial court sentenced Ellis to an indeterminate
term of 25 years to life, plus one year for the firearm allegation.
On the robbery count, the court sentenced him to six years (the
upper term plus one year for the firearm allegation), to be served
concurrently.
On appeal, Ellis argued the trial court erred by (1)
admitting his statement to police because it was coerced and

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involuntary, and (2) failing to instruct the jury that, as an
aider and abettor, he must have had the intent or purpose
of committing, encouraging, or facilitating the commission
of the offense. (Ellis I, supra, 169 Cal.App.3d at pp. 904-909.)
The Ellis I court rejected both arguments and affirmed Ellis’s
conviction. On the instructional error issue, the court stated
“aiding and abetting instructions were not even necessary,”
because Ellis “was a direct and active participant in a robbery
which led to a murder.” Thus he was “responsible for the death
under the felony-murder rule.” (Id. at p. 911.)
2. Ellis’s petition for resentencing under section 1170.95
In January 2019, Ellis filed a petition for resentencing
under section 1170.95. On a downloadable form, Ellis checked
boxes 1, 2a, 3, 4, and 5, as well as its subboxes. The trial court
appointed counsel for Ellis.
On April 11, 2019, the Office of the District Attorney
filed an opposition to Ellis’s petition. The prosecution devoted
most of its brief to the contention that section 1170.95 is
unconstitutional. The prosecution also attached copies of Ellis I
and the probation officer’s 1983 report. In a three-page section
of its opposition, the prosecution argued the court should
deny Ellis’s petition because he “was a major participant in
the underlying attempted robbery [sic] [of] David Smith and
also acted with reckless indifference to human life.”
On June 13, 2019, Ellis’s counsel filed a reply. (Although
entitled “Petition for re-sentencing pursuant to PC 1170.95,”
the pleading is a brief in support of Ellis’s January 2019 petition.)
Citing Ellis I, counsel noted Ellis was not convicted as an aider
and abettor to the murder. Counsel argued, “Ellis, a participant
in the robbery but not in the shooting, is the type of individual

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SB 1437 sought to remove from the definition of murder.”
Counsel also argued section 1170.95 is constitutional.
The matter was continued several times while the
prosecution tried to get the trial transcripts from the Attorney
General. Although those efforts ultimately were unsuccessful
due to the passage of some 36 years, the prosecution was able
to obtain the 430-page preliminary hearing transcript, which it
provided to Ellis’s counsel and the court. Both the prosecution
and Ellis’s counsel filed supplemental briefs. Citing People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63
Cal.4th 522, the prosecution continued to argue Ellis was a major
participant in the robbery who acted with reckless indifference
to human life. Ellis’s counsel argued the preliminary hearing
testimony was consistent with the Ellis I court’s statement
that the People prosecuted Ellis not as an aider and abettor
but under the felony-murder rule.
On November 7, 2019, the court conducted a hearing on
whether Ellis had made a prima facie case of eligibility. Ellis’s
counsel had requested his client not be ordered out from state
prison for the hearing.3 The court said it had read all the briefs,
“the attachments to the various filings,” and the preliminary
hearing transcript. The court offered a tentative and defense

3 The minute order erroneously states Ellis was “present
in court.” The minute order for the previous court date—
October 15, 2019—states, “Defense is not requesting to have
defendant present on the next court date.” The reporter’s
transcript for November 7, 2019, states, “Defendant Randall
Ellis, not present, being represented by counsel, Herb Barish,
bar panel.” At the outset of the hearing, the court stated,
“Mr. Ellis is not present. Counsel are present.”

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counsel responded, “I would ask for that.” The court stated, “The
court’s indicated that Mr. Ellis is not eligible for resentencing
under 1170.95 because he is a major participant and acted with
reckless indifference to human life. I can go through in more
detail what that’s based on.”
Defense counsel argued Ellis’s case was “the type of
situation” SB 1437 was intended to address. Counsel noted that,
under Banks and other published cases, “[r]obbery itself does not
qualify automatically as a[n] offense that’s dangerous to human
life.” Counsel said “the decision to pull the trigger on the poor
clerk . . . was strictly made independently by the individual who
did the shooting.” Counsel added, “There’s no indication there
was any plan to do anything more than commit a robbery.”
The prosecutor argued Ellis wasn’t just “a driver who’s
sitting idly by as the main people go in and do the robbery.”
Ellis, he said, got a loaded gun, cased possible targets with
Hayes, went to the cash register, and then did nothing to
prevent the crime, stop the shooting, or aid the victim after
Hayes shot him.
After hearing further argument, the court denied the
petition. The court stated this was not a situation “where two
people go into a liquor store and one ends up shooting. The
other person doesn’t know that the shooter even has a gun.”
The court concluded “Mr. Ellis is clearly a major participant,
and he’s clearly showing a reckless indifference to human life.”
“[H]ighlight[ing] some of the factors,” the court noted Ellis
and Hayes “formulate[d] a plan together” “to rob a liquor store.”
“[T]he two of them” “case[d] various establishments.” Ellis had a
loaded gun, and he didn’t leave it in the car but “[said] to Hayes
you take it.” The court observed Ellis did nothing to intervene

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when Hayes pointed the gun at Smith, nor to aid Smith after
Hayes shot him; Ellis fled with Hayes and “ma[de] efforts to get
rid of the gun.”
The court stated it did not need to reach the issue of the
constitutionality of SB 1437, having “determined that Mr. Ellis
is not eligible.”
DISCUSSION
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015). SB 1437
“amend[ed] 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(f).
See People v. Roldan (2020) 56 Cal.App.5th 997, 1001, review
granted Jan. 20, 2021, S266031.) SB 1437 added section 1170.95
to the Penal Code. It establishes a procedure by which a person
convicted of murder under the felony-murder rule can seek to
vacate that conviction and be resentenced on any remaining
counts if he could not have been convicted of murder because
of SB 1437’s changes to the definition of the crime. (Stats. 2018,
ch. 1015, § 4; see also People v. Verdugo (2020) 44 Cal.App.5th
320, 323 (Verdugo), review granted Mar. 18, 2020, S260493.)
Evaluation of a section 1170.95 petition requires a
multi-step process: an initial review to determine the petition’s
facial sufficiency; a prebriefing, “first prima facie case review”
to determine preliminarily whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has

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made a prima facie case that he is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897, review granted
Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th at
pp. 327-330; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-
1166.) If the petitioner makes such a showing, the court must
issue an order to show cause and conduct a hearing to determine
whether to vacate the murder conviction and resentence the
petitioner on any remaining counts. (§ 1170.95, subds. (c), (d);
Nguyen, at pp. 1165-1166.)
Ellis presents four theories as to why the trial court erred
in denying his petition. The Attorney General agrees with one
of them: “that the trial court’s consideration of the underlying
facts was premature at this stage of the proceedings.” As the
Attorney General explains,
“[I]t was undisputed that appellant’s murder
conviction[ ] could have been based on a theory
of felony murder. The trial court’s denial of
the petition was predicated on consideration of
the facts of the crime and finding that he could
nevertheless be convicted of murder under a
currently valid theory. Although that is the
correct question, and the facts support the
court’s finding, the court may not actually
weigh the facts without issuing an order to
show cause and holding a section 1170.95,
subdivision (d) hearing. Thus, a remand
for further proceedings is appropriate.”
The Attorney General is correct. (See People v. Drayton
(2020) 47 Cal.App.5th 965, 973, 982 [where petitioner was
neither the actual killer nor convicted on the theory he had

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the intent to kill the victim, trial court “should not have engaged
in . . . factfinding without first issuing an order to show cause
and allowing the parties to present evidence at a hearing”];
People v. Duchine (2021) 60 Cal.App.5th 798, 815 [court may
consider record of conviction at prima facie stage but “may
not evaluate the evidence, make credibility findings adverse
to the petitioner, engage in factfinding or exercise discretion”];
People v. Harris (2021) 60 Cal.App.5th 939, 949-950, review
granted Apr. 28, 2021, S267802 [court erred in engaging in
factfinding without issuing order to show cause and holding
evidentiary hearing rather than evaluating record of conviction
solely to determine whether it established petitioner’s
ineligibility as a matter of law].)
As the Attorney General notes, a remand is required for
the trial court to issue an order to show cause and to conduct
an evidentiary hearing under section 1170.95, subdivision (d),
to weigh the evidence and decide whether relief should be
granted. At that hearing, “both parties may rely upon evidence
in the record of conviction,” and the parties also “will have
the opportunity to present new and additional evidence.”4

4 We do not agree with Ellis that “the remand order should
be to vacate Ellis’s murder conviction and resentence him on
the underlying robbery charge.” In his opening brief, Ellis argued
the trial court’s pretrial dismissal of the special circumstance
allegation as to him constituted “a prior finding that Ellis was
not a major participant who acted with reckless indifference to
human life,” and thus “Judge Shubin . . . was required to proceed
directly to resentencing without the necessity of a hearing.”
The Attorney General pointed out in his respondent’s brief that,
at the time, “a robbery-murder special circumstance applied
only to actual killers or aiders and abettors who acted with

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the intent to kill”; “[t]he ‘major participant’ and ‘reckless
indifference to human life’ provisions were not added until 1990.”
Thus, the dismissal of the special circumstance in 1983 (or
earlier) did not involve any finding of whether Ellis was a major
participant in the robbery who acted with reckless indifference
to human life.
Ellis then withdrew his argument in his reply brief.
Instead, for the first time in his reply, Ellis asserts felony murder
is no longer murder and the court cannot reimpose the special
circumstance that was stricken. (Neither the district attorney
nor the Attorney General has suggested reinstating the special
circumstance.) Ellis has forfeited this argument by failing to
raise it in his opening brief. (Sweetwater Union High School Dist.
v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th
970, 993.) In general, we will not consider arguments raised for
the first time in a reply brief, because it deprives the respondent
of the opportunity to respond. (Mansur v. Ford Motor Co. (2011)
197 Cal.App.4th 1365, 1387-1388.) Apart from being tardy,
Ellis’s argument borders on the unintelligible. Ellis seems to
be confusing a first degree murder conviction based on a felony-
murder theory with a special circumstance of felony murder.
After SB 1437, the question is whether Ellis “could not be
convicted of first . . . degree murder because of changes to Section
188 or 189.” (§ 1170.95, subd. (a)(3).) Section 189, as amended,
still permits a conviction under the felony-murder doctrine where
the defendant “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, subds. (a), (e)(3).)

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 DISPOSITION
We reverse the trial court’s order denying Randall Eugene
Ellis’s petition for resentencing and remand the case with
instructions to issue an order to show cause and to conduct
an evidentiary hearing in accordance with section 1170.95,
subdivision (d)(3).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

I concur:

EDMON, P. J.

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LAVIN, J., Concurring:

I join the majority in reversing the trial court’s order and
remanding the matter with directions to issue an order to show
cause, and to proceed in accordance with Penal Code section
1170.95, subdivision (d). I write separately because I disagree
that Penal Code section 1170.95, subdivision (c) requires two
prima facie reviews. (See People v. Cooper (2020) 54 Cal.App.5th
106, 118, review granted Nov. 10, 2020, S264684.)

LAVIN, J.