Filed 6/22/21 P. v. Gardner CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B304947
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A798933
v.
RAYMOND GARDNER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eric P. Harmon, Judge. Affirmed.
David Y. Stanley, 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.
INTRODUCTION
In 1987, Raymond Gardner and an accomplice killed Edith
DeLane Porchia in her home. Gardner was convicted of first
degree murder with robbery-murder and burglary-murder special
circumstance findings and was sentenced to life in prison without
the possibility of parole. After the enactment of Senate Bill
No. 1437 (S.B. 1437) (Stats. 2018, ch. 1015), Gardner petitioned
for resentencing under Penal Code1 section 1170.95, and the trial
court appointed counsel to represent him. After considering
briefing and argument from both sides, the court denied the
petition without issuing an order to show cause. The court
concluded that Gardner, as an aider and abettor, harbored intent
to kill, rendering him ineligible for relief under the statute.
On appeal, Gardner claims the court erred because the
special circumstance findings were made before the California
Supreme Court clarified the meanings of “major participant” and
“reckless indifference to human life” in People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark). Gardner also claims that the court improperly applied a
substantial evidence standard in denying the petition. We affirm.
BACKGROUND
By information filed August 1987, Gardner was charged
with first degree murder (§ 187, subd. (a); count 1), robbery
(§ 211; count 2), burglary (§ 459; count 3), and various
enhancements, arising from Porchia’s death. In July 1990, a jury
found Gardner guilty of first degree murder and found true the
special circumstance allegations that the murder was committed
1 All undesignated statutory references are to the Penal Code.
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while he was engaged in the crimes of robbery and burglary as
charged in count 1. The jury also found Gardner guilty of robbery
and burglary as charged in counts 2 and 3. The jury found not
true the allegations that he used a deadly and dangerous weapon,
a knife, and that the murder involved torture. The court
sentenced Gardner to life without the possibility of parole for the
murder (count 1), plus four years for the robbery (count 2) and
four years for the burglary (count 3) to run consecutively. On
appeal, this court affirmed the judgment as modified to stay the
execution of the sentences imposed on the robbery and burglary
counts. (People v. Gardner (Mar. 5, 1993, B056466) [nonpub.
opn.].)
In January 2019, Gardner filed a petition for resentencing
under section 1170.95 and requested the appointment of counsel.
The trial court appointed counsel to represent him in February
2019.
In October 2019, the People filed an opposition to the
petition for resentencing, maintaining that Gardner was
ineligible for relief. The People argued that at the time of
Porchia’s murder, special circumstance liability for an aider and
abettor required proof of intent to kill; thus, the jury’s true
findings on the special circumstances necessarily encompassed a
finding that Gardner acted with intent to kill, rendering him
ineligible for relief under section 1170.95. The People also filed
an opposition asserting that Senate Bill 1437 and section 1170.95
are unconstitutional, although this argument was later
withdrawn.
In December 2019, Gardner, now represented by counsel,
filed two responses to the People’s oppositions, both addressing
his eligibility for relief under section 1170.95. Notably, Gardner
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acknowledged that in determining whether he made a prima
facie showing for relief, the court may consider the charging
documents, the trial proceedings, trial transcripts, the appellate
court record, and the appellate opinion. Gardner also
acknowledged that “[e]ach of these items are considered part of
the ‘record of conviction’ and admissible under the rules of
evidence.”
The court heard argument from the parties and took the
matter under submission on January 14, 2020. On February 5,
2020, the court issued a written order denying the petition. The
court explained that Gardner was ineligible for relief as a matter
of law because the jury’s true findings on the special
circumstances necessarily meant the jury found that he acted
with intent to kill, and therefore he could still be convicted of
murder under the amended law.
Gardner filed a timely notice of appeal.
DISCUSSION
Gardner argues the court erred in denying his petition
without issuing an order to show cause. Specifically, he contends
the court failed to consider that Banks and Clark “tightened the
requirements for a showing of major participation and reckless
indifference to human life” in the context of aider and abettor
liability for a felony-murder special circumstance. Gardner also
contends the court improperly found that the jury’s verdict was
supported by substantial evidence.
We conclude that when Gardner committed his crimes in
1987, the felony-murder special circumstance findings applied
only to actual killers or aiders and abettors who acted with the
intent to kill. The “major participant” and “reckless indifference
to human life” provisions were not added until 1990. Thus,
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Gardner’s contention about the evolving definitions of “major
participant” and “reckless indifference to human life” is not
relevant in this appeal. Further, the court did not apply a
“substantial evidence” standard in denying relief; it denied relief
based on the jury’s actual finding that Gardner acted with intent
to kill.
1. S.B. 1437 and Section 1170.95
S.B. 1437, which took effect on January 1, 2019, eliminated
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder (People v. Gentile (2020) 10
Cal.5th 830, 838–839 (Gentile)) and significantly limited the
felony-murder exception to the malice requirement for murder,
permitting a murder conviction for a death that occurred during
the commission of certain serious felonies only when the
defendant was the actual killer, aided or abetted the underlying
felony with the intent to kill, or was a major participant in the
felony and acted with reckless indifference to human life. (See,
e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236, review
granted Mar. 10, 2021, S266652 (Rodriguez); People v. Bascomb
(2020) 55 Cal.App.5th 1077, 1080.)
S.B. 1437 also authorized, through new section 1170.95, an
individual convicted of felony murder or murder under a natural
and probable consequences theory to petition the sentencing
court to vacate the conviction and be resentenced on any
remaining counts if he or she could not have been convicted of
murder because of S.B. 1437’s changes to the definition of the
crime. (See Gentile, supra, 10 Cal.5th at pp. 852–853.) The
petition must include a declaration the petitioner is eligible for
relief under section 1170.95 and a statement whether the
petitioner requests the appointment of counsel. (§ 1170.95, subd.
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(b)(1); see People v. Verdugo (2020) 44 Cal.App.5th 320, 326–327,
review granted Mar. 18, 2020, S260493 (Verdugo).)
If the petition contains all required information, section
1170.95, subdivision (c), prescribes a process for the court to
determine whether an order to show cause should issue: “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.”2
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. (§ 1170.95, subd. (d)(1); see Verdugo, supra, 44
Cal.App.5th at p. 327, review granted.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
2 “The exact nature of this procedure is the focus of disagreement
between People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review
granted March 18, 2020, S260598, Verdugo, supra, 44 Cal.App.5th 320,
review granted, and the many subsequent cases that have agreed with
their interpretation of section 1170.95, subdivision (c), on the one
hand, and People v. Cooper (2020) 54 Cal.App.5th 106, review granted
November 10, 2020, S264684, on the other.” (People v. Harris (2021) 60
Cal.App.5th 939, 951, review granted Apr. 28, 2021, S267802,
fn. omitted.)
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that the petitioner is ineligible for resentencing. (§ 1170.95, subd.
(d)(3); Rodriguez, supra, 58 Cal.App.5th at p. 230, review
granted; People v. Lopez (2020) 56 Cal.App.5th 936, 949, review
granted Feb. 10, 2021, S265974; but see People v. Duke (2020) 55
Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309
[prosecutor must only prove a reasonable jury could find the
defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial
evidence”].) The prosecutor and petitioner may rely on the record
of conviction or offer new or additional evidence to meet their
respective burdens. (See People v. Drayton (2020) 47 Cal.App.5th
965, 981.)
2. Banks and Clark
Section 189, subdivision (e), which permits a felony-murder
conviction when specified facts relating to the defendant’s
individual culpability have been proved, incorporates in
subdivision (e)(3) the same requirements for proving the
defendant acted with reckless indifference to human life as a
major participant in one of the identified serious felonies as
necessary for a felony-murder special-circumstance finding under
section 190.2, subdivision (d). The factors properly considered in
assessing such a felony-murder special-circumstance finding were
clarified in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63
Cal.4th 522.
In Banks the Supreme Court identified factors courts
should consider in determining whether a defendant was a
“major participant” under section 190.2, subdivision (d): “What
role did the defendant have in planning the criminal enterprise
that led to one or more deaths? What role did the defendant have
in supplying or using lethal weapons? What awareness did the
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defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the
killing, in a position to facilitate or prevent the actual murder,
and did his or her own actions or inaction play a particular role in
the death? What did the defendant do after lethal force was
used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
In both Banks and Clark the Court explained that, to
determine whether the defendant acted with “reckless
indifference,” courts must look to whether a defendant has
knowingly engaged in criminal activities known to carry a grave
risk of death. (Banks, supra, 61 Cal.4th at p. 801.) As further
refined in Clark, “reckless indifference” “encompasses both
subjective and objective elements. The subjective element is the
defendant’s conscious disregard of risks known to him or her. …
[R]ecklessness is also determined by an objective standard,
namely what ‘a law-abiding person would observe in the actor’s
situation.’ ” (Clark, supra, 63 Cal.4th at p. 617.)
The Supreme Court in Clark identified a series of
considerations relevant to determining whether a defendant had
acted with reckless indifference to human life (with some overlap
with the major-participant factors specified in Banks). Among
others, was the defendant aware that guns would be used; did the
defendant himself or herself use a gun; did the defendant have an
opportunity to reduce the overall risk of violence during the
felony or to aid the victim; did the defendant know his or her
cohorts were likely to use lethal force? (Clark, supra, 63 Cal.4th
at pp. 618–622.) Specifically, with respect to the facts before it,
the Clark court emphasized, “[W]hile the fact that a robbery
involves a gun is a factor beyond the bare statutory requirements
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for first degree robbery felony murder, this mere fact, on its own
and with nothing more presented, is not sufficient to support a
finding of reckless indifference to human life for the felony-
murder aider and abettor special circumstance.” (Id. at p. 618.)
3. The court did not err in denying the petition.
In this case, the jury was instructed with CALJIC 8.80,
which stated in relevant part: “If you find beyond a reasonable
doubt that the defendant was either the actual killer or an aider
and abettor, but you are unable to decide which, then you must
also find beyond a reasonable doubt that the defendant intended
either to kill a human being or to aid another in the killing of a
human being in order to find the [burglary-murder or robbery-
murder] special circumstance to be true. On the other hand, if
you find beyond a reasonable doubt that the defendant was the
actual killer, you need not find that the defendant intended to kill
a human being in order to find the special circumstance to be
true.” Thus, the court concluded, in light of this instruction, in
finding Gardner liable for the burglary-murder and robbery-
murder special circumstances as an aider and abettor, the jury
necessarily found that he “intended either to kill a human being
or to aid another in the killing of a human being.” Accordingly,
the court found that Gardner could still be convicted of murder
notwithstanding the changes to the law.
The court was correct. By finding the special circumstance
allegations true, the jury necessarily found that Gardner
harbored intent to kill and aided and abetted the actual killer in
the commission of first degree murder. And because Gardner was
convicted under a valid theory of murder that survived the
changes to sections 188 and 189, he is ineligible for relief under
section 1170.95.
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On appeal, Gardner argues the true findings on the special
circumstances did not render him ineligible for relief because his
trial predated Banks and Clark. To be sure, he acknowledges that
appellate courts are divided as to whether defendants who were
convicted of murder with special circumstance findings pre-Banks
and Clark are eligible for relief under section 1170.95. (See, e.g.,
People v. Galvan (2020) 52 Cal.App.5th 1134, 1143 [defendants
are not eligible for relief]; People v. York (2020) 54 Cal.App.5th
250, 266, review granted Nov. 18, 2020, S264954 [“a pre-Banks
and Clark special circumstance finding—necessarily made on the
basis of our former, and significantly different, understanding of
what the terms ‘major participant’ in the underlying felony and
‘reckless indifference’ to human life meant—does not preclude
relief under section 1170.95 as a matter of law”]).) Gardner, of
course, asks us to follow the line of authority holding that a jury’s
pre-Banks and Clark special circumstance findings do not
preclude relief under section 1170.95 as a matter of law.
Here, we need not decide which line of authority is correct.
In this case, the jury was never asked to determine whether
Gardner was a major participant who acted with reckless
indifference to life. Accordingly, his reliance on Banks and Clark
is misplaced. And in 1987, when Gardner was charged with
Porchia’s murder, a felony-murder special circumstance could
only be imposed if the defendant was the actual killer or
harbored intent to kill. (See In re Taylor (2019) 34 Cal.App.5th
543, 550 [until the voters passed Proposition 115 in 1990, felony-
murder aiders and abettors were only eligible for the death
penalty under section 190.2 if they intended to kill]; see also
Tapia v. Superior Court (1991) 53 Cal.3d 282, 298 [it was not
until the passage of Proposition 115 in 1990 that section 190.2,
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subdivision (d) added major participant who acted with reckless
disregard for human life as a theory of liability for felony-murder
special circumstance]; Raven v. Deukmeijian (1990) 52 Cal.3d
336, 344 [same].) Indeed, in the opinion on direct appeal—a
document Gardner’s counsel expressly asked the lower court to
consider when reviewing his petition—this court recognized that
in light of the jury’s true findings on the robbery-murder and
burglary-murder special circumstance allegations, Gardner’s
liability as an aider and abettor required proof of intent to kill.
Gardner also contends the court “compounded” the Banks
and Clark “problem” by concluding that the jury’s verdict was
supported by substantial evidence. The import of this contention
is unclear and not sufficiently developed. Accordingly, we need
not address it. In any event, as noted, the Banks and Clark issue
is not relevant in this appeal. And in evaluating whether
Gardner made a prima facie showing he is entitled to relief, the
court did not engage in improper fact-finding.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
THOMAS, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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