Filed 8/13/21 P. v. Harris CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081006
Plaintiff and Respondent,
(Super. Ct. No. CR-19-002668)
v.
CLAY ARTHUR HARRIS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R.
Distaso, Judge.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christine Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Detjen, Acting P.J., Peña, J. and Smith, J.
INTRODUCTION
In 1992, a jury convicted defendant Clay Arthur Harris of first degree murder
(§ 187; count I), attempted second degree robbery (§§ 211, 664; count II), two counts of
second degree robbery occurring on different days (§ 211; counts III and VI), assault with
a deadly weapon (§ 245, subd. (a); count IV), and kidnapping (§ 207; count V). After the
passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), defendant
filed a Penal Code section 1170.95 petition for resentencing. (Undesignated statutory
references are to the Penal Code.) The court denied the petition without issuing an order
to show cause, concluding defendant was a major participant in the underlying felony
who was ineligible for resentencing. Defendant now challenges the denial of his petition,
and the People concede remand is necessary for the court to issue a show cause order and
to hold an evidentiary hearing because the record of conviction did not establish
defendant was categorically ineligible for relief as a matter of law.
We agree with the parties, reverse the court’s order denying the petition, and
remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, a jury convicted defendant Clay Arthur Harris of first degree murder
during the commission and attempted commission of robbery (§ 187; count I), attempted
second degree robbery (§§ 211, 664; count II), two counts of second degree robbery
(§ 211; counts III and VI), assault with a deadly weapon (§ 245, subd. (a); count IV), and
kidnapping (§ 207, count V). The court sentenced defendant to 25 years to life on the
murder count plus an additional five years for a prior serious felony conviction
enhancement (§ 667) and additional determinate terms for the remaining counts.
In 2019, defendant submitted a petition for resentencing pursuant to section
1170.95 using a preprinted form. He checked boxes stating a charging document had
been filed against him allowing the prosecution to proceed under a felony-murder theory
or the natural and probable consequences doctrine; at trial, he was convicted of first or
2.
second degree murder under a felony-murder theory or the natural and probable
consequences doctrine; and he could not now be convicted of murder in light of changes
made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437).
He also checked a box indicating he was convicted of first degree murder but could not
now be convicted because he was not the actual killer, he did not, with the intent to kill,
aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the
commission of murder in the first degree, and he was not a major participant in the felony
or did not act with reckless indifference to human life during the course of the crime or
felony. He checked another box stating, “There has been a prior determination by a court
or jury that I was not a major participant and/or did not act with reckless indifference to
human life under … § 190.2(d). Therefore, I am entitled to be re-sentenced pursuant to
§ 1170.95(d)(2).” He also checked a box stating, “I request that this court appoint
counsel for me during this re-sentencing process.” The court appointed the public
defender to represent defendant.
The People responded to the petition, arguing defendant was not entitled to relief
because the facts of the case established he was a major participant in the underlying
felony who acted with reckless indifference to human life. The People attached to their
response the probation report, a transcript from the probation and judgment hearing held
on December 28, 1992, and a “Comprehensive Risk Assessment” done by the Board of
Parole Hearings and argued these documents reflected facts supporting a finding
defendant acted as a major participant who acted with implied malice. They further
sought dismissal of defendant’s petition on the grounds that Senate Bill 1437 is
unconstitutional.
The court held a hearing at which it denied defendant’s petition. At the hearing,
defendant was represented by counsel, but defendant was not present. The court noted “I
believe the parties are in agreement that [defendant] was a major participant and not
eligible for resentencing—major participant in the crime; therefore, not eligible for
3.
resentencing, pursuant to 1170.95. [¶] Is that true?” Both defense counsel and the
prosecutor stated, “Yes, Your Honor.” The court then held, “That will be the Court’s
finding. Okay. [¶] So the Court finds that the defendant was a major participant in the
murder; and therefore, is not eligible to be resentenced pursuant to … Section 1170.95.”
DISCUSSION
Defendant challenges the denial of his petition for resentencing, and the parties
agree the matter must be remanded for the court to issue an order to show cause and to
hold an evidentiary hearing.
1. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] 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).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability, and it adds section 1170.95, which provides a procedure
by which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the
Legislature’s intent that “[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
4.
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e), which provides:
“A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree.
[¶] (3) The person 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.”
Newly enacted section 1170.95 permits those “convicted of felony murder or
murder under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts ….” (Id., subd. (a).) An offender may file a
petition under section 1170.95 where all three of the following conditions are met:
“(1) A complaint, information, or indictment 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 degree or second degree murder following
a trial or accepted a plea offer in lieu of a trial at which the petitioner could
be convicted for first degree or second degree murder[;] [¶] [and] (3) The
petitioner could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(1)–(3).)
A trial court receiving a petition under section 1170.95 “shall review the petition and
determine if the petitioner has made a prima facie showing that the petitioner falls within
5.
the provisions of this section.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.” (Ibid.) The trial court must
then hold a hearing “to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as
if the petitioner had not been previously been [sic] sentenced, provided that the new
sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
If a hearing is held, “[t]he prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).) “[T]he burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Ibid.) “If
the prosecution fails to sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges.” (Ibid.)
2. Analysis
Defendant argues he should have been transported to court for personal
appearances after establishing a prima facie showing of entitlement to relief. He argues
the issues before the trial court were not purely legal; rather, the issues were to be
determined based upon the record of the prior trial, which was factual in nature. He
further contends his counsel’s stipulation that he was a major participant in the
underlying robbery was insufficient to render him categorically ineligible for relief
because the record had to also establish he acted with reckless indifference to human life.
He argues his counsel was ineffective for conceding defendant was a major participant in
the underlying crime. The People agree defendant made a prima facie showing of
eligibility for relief. They further concede “[a]n examination of the record and briefing
by counsel did not indisputably show as a matter of law that [defendant] was ineligible
for relief”; “[r]ather such a decision would depend on weighing the evidence adduced.”
6.
Accordingly, “the instant matter should be remanded for proceedings consistent with
section 1170.95, subdivisions (c) and (d).” We agree with the parties that defendant is
entitled to a remand for the court to issue an order to show cause and hold an evidentiary
hearing at which the prosecution will bear the burden of proving, beyond a reasonable
doubt, that defendant is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
Here, it is undisputed by the parties that defendant’s petition established a prima
facie showing he is entitled to relief. (§ 1170.95, subd. (c).) As required, his petition
alleged a complaint, information, or indictment was filed against him allowing the
prosecution to proceed under a theory of felony-murder or murder under the natural and
probable consequences doctrine; he was convicted of first or second degree murder
following a trial; and he could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019. (§ 1170.95, subd. (a).)
And the parties do not argue, nor does the record before us conclusively establish,
defendant was categorically ineligible for relief as a matter of law. (See People v. Lewis
(July 26, 2021, S260598) __ Cal.5th __, __ [2021 Cal. Lexis 5258 at p. *30] [holding
trial court “may look at the record of conviction after the appointment of counsel to
determine whether a petitioner has made a prima facie case for section 1170.95 relief”
but should not engage in factfinding or make credibility determinations before an order to
show cause issues]; accord, People v. Drayton (2020) 47 Cal.App.5th 965, 980–981
[“[W]hen 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 … if the record ‘contain[s] facts refuting the allegations made in
the petition … the court is justified in making a credibility determination adverse to the
petitioner’”]; People v. Duchine (2021) 60 Cal.App.5th 798, 815 [“prima facie showing
the [petitioner] must make is that he [or she] did not, in fact, act [as required] or harbor
the mental state required, for a murder conviction under current law” and “the time for
7.
weighing and balancing and making findings on the ultimate issues arises at the
evidentiary hearing stage rather than at the prima facie stage, at least where the record is
not dispositive on the factual issues. Thus, absent a record of conviction that
conclusively establishes that the petitioner engaged in the requisite acts and had the
requisite intent, the trial court should not question [the petitioner’s] evidence”]; but see
People v. Garcia (2020) 57 Cal.App.5th 100, 114 [trial court should determine whether
substantial evidence supports the conclusion the petitioner could still be convicted of
murder following the amendments to §§ 188 and 189 in determining if petitioner made
prima facie showing of eligibility for relief], review granted Feb. 10, 2021, S265692.)
Rather, the record reflects defendant was charged under a felony-murder theory. And it
does not establish as a matter of law that defendant was the actual killer, a direct aider
and abettor who acted with the intent to kill, or a major participant who acted with
reckless indifference to human life.
Indeed, even if we were to accept as true defense counsel’s concession defendant
was a major participant in the crime, the court also had to conclude defendant acted with
reckless indifference to human life to render him categorically ineligible for relief.
(§ 189, subd. (e)(3).) The record does not reflect the court made this requisite
determination or that such a conclusion is supported by the record as a matter of law.
Rather, in his petition, defendant denied he acted with reckless indifference to human life,
and the record of conviction does not conclusively establish otherwise. To conclude
otherwise, the court necessarily would have had to weigh facts and draw inferences from
the record, which was inappropriate at that stage of the proceedings. (See People v.
Duchine, supra, 60 Cal.App.5th at p. 816 [“major participant and reckless indifference
findings the trial court made based solely on the record evidence entail the weighing of
evidence, drawing of inferences, and assessment of credibility that should be left to the
factfinding hearing process contemplated by section 1170.95, subdivision (d)”]; People v.
Drayton, supra, 47 Cal.App.5th at p. 982 [test governing inquiry whether defendant was
8.
a major participant in a felony who acted with reckless indifference “necessarily requires
the weighing of facts and drawing inferences,” which trial court should not engage in
without first issuing order to show cause and holding evidentiary hearing].)
Thus, our review of the record comports with the parties’ representations; that is,
defendant established a prima facie showing he is entitled to relief and the record did not
rebut defendant’s allegations as a matter of law. Accordingly, the court was required to
issue an order to show cause and hold a hearing during which the prosecution bears the
burden of proving, beyond a reasonable doubt, that defendant is ineligible for
resentencing.1
We reverse the court’s order denying the petition and remand for further
proceedings.2
DISPOSITION
The court’s order denying the petition for resentencing is reversed. The trial court
is directed to issue an order to show cause and to hold a hearing during which the
prosecution bears the burden of proving beyond a reasonable doubt that defendant is
ineligible for resentencing.
1Pursuant to Evidence Code section 452, defendant filed a motion requesting we take
judicial notice of the contents of the “Migrated Images” file for defendant’s case number, which
appears on the Stanislaus Superior Court Web site. The People did not file a response to
defendant’s motion. However, because the cited documents are not necessary to our disposition,
we deny defendant’s request for judicial notice as moot.
2Because we remand on other grounds, our disposition of the case renders defendant’s
remaining contentions, including his ineffective assistance of counsel claim, moot.
9.