Filed 7/19/21 P. v. Anderson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306032
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA008469)
v.
YOLANDA RAE ANDERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Debra Cole-Hall, Judge. Reversed and
remanded.
Gibson, Dunn & Crutcher, Courtney M. Johnson, Eric D.
Vandevelde for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, and Peggy Z. Huang,
Deputy Attorney General for Plaintiff and Respondent.
________________________
Yolanda Rae Anderson, convicted of two counts of first
degree murder in 1993, appeals the superior court’s order
denying her petition for resentencing under Penal Code
section 1170.951 based on the court’s finding Anderson had not
made a prima facie showing she was entitled to relief. Anderson
contends, and the Attorney General concedes, the superior court
erred by prematurely engaging in factfinding not permitted
before issuing an order to show cause and conducting an
evidentiary hearing. We agree, reverse the order denying
Anderson’s petition and remand with directions to issue an order
to show cause and to conduct further proceedings in accordance
with section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. Anderson’s Felony-murder Conviction
Anderson was charged in an information filed October 10,
1991 with two counts of first degree murder (§ 187, subd. (a)) and
two counts of first degree robbery (§§ 211, 212.5) with special
allegations that a principal had been armed with a firearm
during the commission of all four offenses (§ 12022, subd. (a)(1)).
The information did not include accomplice-liability, felony-
murder special-circumstance allegations (see §§ 190.2,
subds. (a)(17), (d)).
Our opinion affirming Anderson’s judgment of conviction
described the evidence presented at trial, which included
1 Statutory references are to this code.
2
Anderson’s testimony. (People v. Anderson (Sept. 20, 1994,
B076960) [nonpub. opn.].)
Late at night on June 27, 1991 Anderson went to the
Hammock family’s apartment in Downey with Samuel Simpson,
a former boyfriend, and Samuel’s brother, La France Simpson.
Anderson knew the Hammock family. As instructed by Samuel
Simpson, Anderson knocked on the door and asked the family’s
11-year-old son to let her inside and to wake his mother,
explaining she was experiencing an emergency. When the boy
went to get his mother, the Simpsons entered the home.
Anderson returned to her car. The Simpsons tied up the boy;
demanded money and jewelry from his parents, Thomas and
Lawana Hammock; ransacked the home taking valuables; and
shot and killed Thomas and Lawana Hammock.
According to the preliminary hearing testimony of one of
the Hammocks’ neighbors, admitted at trial after the court found
the neighbor was unavailable, Anderson, followed by two men,
got out of a car that parked in the lot next to the Hammocks’
apartment complex. Anderson walked into the apartment
building; the two men jumped over the surrounding wall. A few
minutes later Anderson returned to the car, sat in the driver’s
seat and started the engine. She then opened the front passenger
door, revved the engine “as if to give a signal,” and turned the
lights on and off. Fifteen minutes later the two men jumped back
over the wall and returned to the car. Anderson drove away with
the two men inside.
Anderson testified the Simpsons drove her to an apartment
Samuel Simpson said belonged to a former girlfriend to pick up
his son. Anderson did not recognize it as the Hammocks’
residence and insisted she had no idea the Simpsons planned a
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robbery. At the apartment she knocked on the door, as directed,
and said it was “Yolanda.” She could not see inside and did not
recognize the boy’s voice when he responded. She asked to speak
to the boy’s parents, as the Simpsons instructed, and then
returned to the car where she waited until the two men came
back. Samuel Simpson told her to drive when they left the area.
She found out later the Simpsons had committed robbery and
murder at the apartment.
On cross-examination Anderson explained she visited the
Hammocks frequently at another location and had been to the
Downey apartment only once and did not recognize it. She
testified the Simpsons accompanied her to the front door of the
apartment (rather than jumping over a wall) and she did not see,
and was not aware, that they had weapons. At the door Samuel
Simpson grabbed her, ordered her to return to the car and
threatened her daughter’s safety if she did not do as he said. She
denied she had acted intentionally as the getaway driver for the
robbery.2
The jury convicted Anderson of two counts of first degree
murder and two counts of first degree robbery and found true the
special allegation a principal had been armed with a firearm.
Anderson was sentenced to an aggregate indeterminate state
prison term of 51 years to life. We affirmed Anderson’s
2 With her reply brief in support of the petition for
resentencing, Anderson attached transcripts of two parole
consideration hearings dated August 10, 2017 and February 5,
2019. During those hearings Anderson admitted she knew the
Simpsons planned to rob the Hammocks after she allowed them
to gain access to the home. She continued to deny knowing either
man was armed.
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convictions on appeal, rejecting her contentions it was error to
admit the neighbor’s preliminary hearing testimony and the
definition of reasonable doubt in the version of CALJIC No. 2.90
used by the trial court violated her right to due process. (People
v. Anderson, supra, B076960.)
2. Anderson’s Petition for Resentencing
On April 15, 2019 Anderson, represented by counsel, filed a
petition for resentencing under section 1170.95. With the
petition Anderson submitted her declaration under penalty of
perjury stating she had been convicted of two counts of first
degree murder under the felony-murder rule. Anderson further
declared she could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189 by
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) and specifically averred she was not
the actual killer in her commitment offenses, did not aid or abet
the actual killer with an intent to kill, and was not a major
participant in the felony and had not acted with reckless
indifference to human life during the course of the robbery.
The District Attorney filed an opposition to the petition on
January 29, 2020, contending Anderson was ineligible for
resentencing because she had been a major participant in the
robberies and had acted with reckless indifference to human life
and, therefore, could still be convicted of first degree murder
under the amended felony-murder rule. The District Attorney
also argued Anderson could be convicted of second degree murder
under a theory of implied malice. Anderson filed a reply brief on
February 19, 2020.
The superior court held a hearing on March 5, 2020 to
determine whether Anderson had established a prima facie case
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for relief. Following argument of counsel, the court denied
Anderson’s petition. After summarizing its view of the facts, the
court stated: “In reviewing this case to see whether or not the
defendant was a major participant in the underlying felony, the
court read the Banks case and the factors.[3] And you don’t have
to have all of those factors in order to be deemed a major
participant. . . . [Anderson], in her statement, had indicated she
didn’t know where they were going; she was just dropping these
guys off somewhere. And her credibility—let me put it this way.
Do I believe she was a major participant? You bet I do. When
you create a situation, and you trick that young boy into letting
you into—letting you in, and then you allow two other men to
enter that home and kill that boy’s parents in front of [him], yes,
she was a major participant. No, she wasn’t there at the time of
the shooting, but she was involved in the planning and the
execution of that robbery that led to the death of the two victims
in this case. And the court finds the defendant was a major
participant in the underlying felony murder and acted with
reckless indifference to life. And the court finds there is no prima
facie case.”
Anderson filed a timely notice of appeal.4
3 In People v. Banks (2015) 61 Cal.4th 788 the Supreme
Court identified factors that courts should consider in
determining whether a defendant was a “major participant”
within the meaning of the special circumstance statute for aiders
and abettors of felony murder (§ 190.2, subds. (a)(17), (d)).
4 Anderson was granted parole and released from custody in
October 2020. The change in her status does not moot her
appeal. (Cf. People v. Nuckles (2013) 56 Cal.4th 601, 609 [“a
convicted felon released on parole is subject to substantial
restraints on his liberty and is deemed to remain in the
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DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 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, 842-843
(Gentile)) and significantly narrowed the felony-murder exception
to the malice requirement for murder. (See, e.g., People v.
Rodriguez (2020) 58 Cal.App.5th 227, 236, review granted
Mar. 10, 2021, S266652; People v. Bascomb (2020) 55 Cal.App.5th
1077, 1080.) It also authorized, through new section 1170.95, an
individual convicted of felony murder or murder based on the
natural and probable consequences doctrine 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 Senate Bill 1437’s changes to the definition
of the crime. (See Gentile, at p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts: “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
constructive custody of the Department of Corrections and
Rehabilitation”].)
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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 . . . and the petitioner may file and
serve a reply . . . . 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.”
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction and “can dismiss any petition filed by an individual
who was not actually convicted of first or second degree murder.”
(People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo),
review granted Mar. 18, 2020, S260493.) “The record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189 (see § 1170.95, subd. (a)(3))—for example, a petitioner
who admitted being the actual killer as part of a guilty plea or
who was found to have personally and intentionally discharged a
firearm causing great bodily injury or death in a single victim
homicide within the meaning of section 12022.53,
subdivision (d).” (Ibid.) As this portion of our decision in
Verdugo emphasized, for relief to be denied without the court
first issuing an order to show cause and conducting an
evidentiary hearing, the record of conviction must establish the
petitioner’s ineligibility as a matter of law. (Ibid.; see People v.
Smith (2020) 49 Cal.App.5th 85, 92, review granted July 22,
2020, S262835 [“[i]f it is clear from the record of conviction that
8
the petitioner cannot establish eligibility as a matter of law, the
trial court may deny the petition”]; People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410
[record must show defendant is “indisputably ineligible for
relief”].)
Once the section 1170.95, subdivision (c), prima facie
showings have been made, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing
the prosecution has the burden of proving beyond a reasonable
doubt 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.) 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. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. The Superior Court Erred in Denying Anderson’s
Petition Without an Evidentiary Hearing
Anderson’s petition complied with the statutory
requirements of section 1170.95; and her declaration, if accepted
as true, made a prima facie showing of her eligibility for relief.
The superior court’s contrary ruling was based on its finding that
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Anderson could still be convicted of murder under the felony-
murder rule.
At the time of Anderson’s trial, section 189 permitted a
conviction for felony murder by imputing malice to a participant
in an inherently dangerous felony, including robbery, that
resulted in homicide, even if the death was accidental.
(See People v. Chun (2009) 45 Cal.4th 1172, 1184.) As amended
by Senate Bill 1437, section 188, subdivision (a)(3), now prohibits
imputing malice based solely on an individual’s participation in a
crime and requires proof of malice to convict a principal of
murder except under the revised felony-murder rule as set forth
in new section 189, subdivision (e). Section 189, subdivision (e),
in turn, limits the felony-murder exception to the malice
requirement to situations in which the defendant was the actual
killer, aided or abetted the underlying serious felony with the
intent to kill, or was a major participant in the felony and acted
with reckless indifference to human life.
It is undisputed that Anderson was not the actual killer of
Thomas and Lawana Hammock. As discussed, although the
District Attorney argued the evidence would support a finding
that Anderson had acted with implied malice and could be found
guilty of second degree murder, there was never a suggestion
Anderson had acted during the robbery with express malice—
that is, an intent to kill. Rather, the superior court’s ruling was
predicated on the third felony-murder category, finding that
Anderson had been a major participant in the robbery of the
Hammock family and had acted with reckless indifference to
human life. Those findings are necessarily fact-intensive.
(See In re Scoggins (2020) 9 Cal.5th 667, 683 [determining
whether a defendant was a major participant in an underlying
10
felony who acted with reckless indifference to life within the
meaning of the special circumstance statute “requires a fact-
intensive, individualized inquiry”]; In re Parrish (2020)
58 Cal.App.5th 539, 542 [Supreme Court has prescribed “a fact-
intensive and individualized inquiry” to determine whether the
evidence demonstrates reckless indifference and major
participation].)
The Attorney General acknowledges, although the evidence
that Anderson could still be convicted of murder under the felony-
murder rule may be strong, the record of conviction does not
establish as a matter of law that she is ineligible for resentencing
as a major participant in the robberies who acted with reckless
indifference to human life. The superior court’s ruling that
Anderson could still be convicted of first degree murder required
the court to weigh the evidence, including Anderson’s credibility,
and engage in factfinding, activities not permitted under
section 1170.95 prior to the issuance of an order to show cause.
As the court explained in People v. Drayton, supra,
47 Cal.App.5th at page 980, “when assessing the prima facie
showing, the trial court should assume all facts stated in the
section 1170.95 petition are true. [Citation.] The trial court
should not evaluate the credibility of the petition’s assertions, but
it need not credit factual assertions that are untrue as a matter
of law . . . . However, this authority to make determinations
without conducting an evidentiary hearing pursuant to
section 1170.95, subd[ivision] (d) is limited to readily
ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining
whether the petitioner showed reckless indifference to human life
11
in the commission of the crime). [¶] If, accepting the facts
asserted in the petition as true, the petitioner would be entitled
to relief because he or she has met the requirements of
section 1170.95[, subdivision] (a), then the trial court should
issue an order to show cause.” (Accord, People v. Duchine (2021)
60 Cal.App.5th 798, 815 [“the time for weighing and balancing
and making findings on the ultimate issues arises at the
evidentiary hearing stage rather than the prima facie stage, at
least where the record is not dispositive on the factual issues”].)
Accordingly, as both parties agree, the matter must be
remanded for the superior court to conduct an evidentiary
hearing in accordance with section 1170.95, subdivision (d).
DISPOSITION
The order denying Anderson’s section 1170.95 petition is
reversed. On remand the superior court is to issue an order to
show cause and to conduct further proceedings in accordance
with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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