Filed 8/24/21 P. v. Lauer CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
THE PEOPLE, B307421
Plaintiff and Respondent, (Los Angeles County
Super. Ct No. A148449)
v.
JAMIE SAM LAUER,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of the County of Los Angeles, Renee Korn, Judge. Affirmed, in
part, reversed, in part, and remanded with directions.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Idan Ivri and Wyatt E. Bloomfield, Deputy Attorneys
General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Jamie Lauer guilty of, among other
crimes, murder and attempted murder, and the trial court
sentenced him to life without the possibility of parole. Those
convictions were upheld on direct appeal and in a subsequent
habeas proceeding.
Defendant appeals from the trial court’s denial of his
postjudgment petition for resentencing under Penal Code section
1170.95.1 According to defendant, the court erred by concluding,
without first issuing an order to show cause and conducting a
hearing, that he was ineligible for sentencing relief on his murder
conviction. Defendant also contends that the court erred by
refusing to apply section 1170.95 to his attempted murder
conviction. We affirm the denial of defendant’s petition as to his
attempted murder conviction, but reverse on his murder
conviction and remand with instructions.
II. FACTUAL BACKGROUND2
Defendant and codefendants John Butterfield, Jr., Timothy
Walder, and Larry Boone were convicted of crimes that “arose out
of an evening-long crime spree on the night of May 22–23, 1981.
[Defendants] were guests at the apartment of Kathleen
1 All further statutory references are to the Penal Code.
2 The facts are taken from the unpublished opinion in the
postjudgment writ proceeding in In re Lauer, et al. (Jan. 24, 1989,
B011500, B014634, B018379) [nonpub. opn.] at pages 2–5
(Lauer II).
2
Williamson and Cassandra Craft. About 10 p.m., Boone
announced that he knew how to make some money and would
show everyone how. Boone and [defendants] left the apartment
and proceeded to the hotel room of [attempted murder victim]
Robert Kimberly, an acquaintance of Butterfield. Kimberly
invited everyone in for a beer. When the beer ran out, the group
proceeded to a liquor store to buy more. After Kimberly
purchased the beer, Boone drove to an unlighted area and
announced to Kimberly that he was being robbed.
“After knocking out one of Kimberly’s teeth, Boone
instructed Butterfield to ‘drive to the cemetery.’ Kimberly
pleaded with all four to let him go, promising to get them more
money and not to tell anyone what had happened. Walder was
heard to say, ‘He knows us. We’re going to have to kill him.’
“Near the cemetery, everyone got out of the car and
Kimberly was relieved of his wallet. He attempted to escape by
running down the road but the four managed to overtake him,
beat him, and stab him. (Altogether, Kimberly received about
eight blows to the head and eighteen stab wounds in his back.)
He feigned unconsciousness and heard Walder say, ‘That’s it, he’s
had it. He’s dead. Let’s go.’
“After the four departed, Kimberly managed to walk for
about two hours until he was found by a passing motorist and
taken to the hospital. He recovered from his wounds and
testified at [defendants’] trial.
“After leaving Kimberly for dead, [defendants] and Boone
returned to Williamson’s apartment with the beer and a wad of
bills. They remained only a short time before leaving again.
“They eventually went to the home of [murder victim] Ray
Martin, another acquaintance of Butterfield (who had previously
3
traded his motorcycle to Martin’s roommate in exchange for a
car). Martin’s roommate, Paul Fuller, returned home at about
2:30 a.m. to find the motorcycle lying on its side with the
headlight still on, but dimming. Inside his apartment, he found
the battered body of Martin, with blood and matted hair
splattered on the wall. The coroner’s investigator testified at
[defendants’] trial that Martin had one stab wound in the chest,
seven stab wounds in the upper right quadrant of the back, a
deep laceration above and ‘into the right eye,’ and another deep
laceration on the back of the skull, with a skull fracture. This
was apparently caused by a hammer, which investigators later
found in a vacant lot, covered with blood.
“After leaving Martin’s apartment, [defendants] returned to
Williamson’s apartment, where Williamson noticed that Boone
had blood on his pants and Walder had blood on his knife and
hands. Later, when Williamson and Butterfield were in bed
together, Butterfield made two references to having been at the
scene of the crime: ‘I saw my Sporty there [the motorcycle] and I
wanted to burn it to the ground,’ and ‘I think that guy is dead.’
“The evidence at trial established that [defendants] had
sold tools and guns owned by Martin to a ‘fence’ for $100.
Although Martin had been paid in cash on the day of his murder,
his pockets had been turned inside out and all of the cash was
missing.” (Lauer II, supra, at pp. 2–5.)
4
III. PROCEDURAL BACKGROUND
Based on the two incidents on May 22 and 23, 1981,
defendant and codefendants Butterfield, Walder, and Boone were
convicted of the robbery and murder of Martin and the
kidnapping, robbery, and attempted murder of Kimberly. (In re
Lauer (1986) 228 Cal.Rptr. 794, 795, review granted Oct. 30, 1986
(Crim. 25360) (Lauer I).) The jury also found true a special
circumstance allegation that the murder was committed during
the course of a robbery. (Id. at p. 795.) All four defendants were
sentenced to life imprisonment without the possibility of parole.
(Ibid.) The convictions were affirmed on appeal in People v.
Boone, et al. (Crim. No. 42811).3 (Lauer I, supra, 228 Cal.Rptr. at
p. 795.)
Defendant, Butterfield, and Walder filed separate petitions
for writs of habeas corpus, contending that the special
circumstance finding should be set aside under Carlos v. Superior
Court (1983) 35 Cal.3d 131 (Carlos) (overruled, in part, in People
v. Anderson (1987) 43 Cal.3d 1104, 1115 (Anderson)) because the
jury was not instructed that proof of intent to kill or aid in the
killing was essential to a finding of murder with special
circumstances. (Lauer I, supra, 228 Cal.Rptr. at p. 794, fn.
omitted.) On July 31, 1986, the court issued a published opinion
granting the habeas petitions under Carlos and setting aside the
special circumstance findings and the life without the possibility
of parole sentences. (Lauer I, supra, 228 Cal.Rptr. at p. 797.)
The Supreme Court, however, granted review as to each matter
3 The unpublished opinion in the consolidated direct appeals
from the judgments of conviction is not in our record, and the
parties agree that it is unavailable.
5
and remanded to the appellate court for reconsideration under
Anderson, supra, 43 Cal.3d 1104 (superseded by statute as stated
in People v. Odom (2016) 244 Cal.App.4th 237, 251) and People v.
Olde (1988) 45 Cal.3d 386 (Olde) (overruled on other grounds as
stated in People v. Prieto (2003) 30 Cal.4th 226, 256).4 (Lauer II,
supra, at p. 2.)
On remand, the court issued an unpublished opinion, Lauer
II, which reconsidered the habeas petitions under Chapman,
supra, 386 U.S. 18. (Lauer II, supra, at pp. 2, 8–9.) The court
observed that the evidence at trial “placed all four defendants at
the scene of Martin’s murder. The murder was committed in a
manner which strongly suggested that it was a group effort.
Unfortunately, the evidence did not reveal which members of the
group participated in the actual killing.” (Id. at p. 7.) The court
then concluded that the trial court’s error in instructing the jury
was harmless because “[f]irst, [defendants] attempted
unsuccessfully to present a diminished capacity defense,
indicating their recognition that the issue of their state of mind
at the time of the crimes was of some importance. Second, the
nature of the crimes charged was such that ‘no rational jury could
find’ that [defendants] committed the crimes charged but did so
without intending to kill.” (Id. at p. 8.) Because “[t]he parties
recognized that intent was an issue, and the record not only
establishes the necessary intent as a matter of law, but shows the
4 Anderson, supra, 43 Cal.3d at pages 1128 through 1129 and
Olde, supra, 45 Cal.3d at pages 413 through 414 held that error
which implicates federal constitutional rights, including
instructional error, must be reviewed under the beyond-a-
reasonable-doubt harmless error standard in Chapman v.
California (1967) 386 U.S. 18 (Chapman).
6
contrary evidence not worthy of consideration[,]” the court denied
the habeas petitions. (Id. at pp. 8–9.)
On January 9, 2019, defendant filed a petition for
resentencing under section 1170.95. The prosecution filed an
initial opposition in June 2019 which attached a copy of Lauer II,
and defendant, with the assistance of appointed counsel, filed a
reply. Following further briefing by both parties, the trial court
held a hearing on August 6, 2020, and denied the petition on the
grounds that (1) defendant failed to make a prima facie showing
of eligibility for relief because the evidence established that he
was a direct aider and abettor in the murder and (2) under People
v. Galvan (2020) 52 Cal.App.5th 1134, review granted
October 14, 2020, S264284 (Galvan), the special circumstance
finding barred him from resentencing relief unless and until he
first obtained habeas relief from that finding.
The next day, the trial court issued a minute order
confirming its denial of the petition, finding that “[g]iven the
events surrounding the attempted murder of Kimberly, it defies
credulity that [defendant] went with the same three accomplices
to Martin’s apartment a short time later without full knowledge
that they were going to murder Martin, who was also an
acquaintance and could identify participants if not murdered. As
the court of appeal[ ] stated [in Lauer II], ‘no rational jury could
find’ a lack of intent to kill by [defendant] and his accomplices
when they went to Martin’s apartment to rob him.” The court
also cited Galvan, supra, 52 Cal.App.5th 1134 and concluded that
because the jury had found the special circumstance allegation to
be true, defendant was ineligible as a matter of law to have his
murder sentence vacated under section 1170.95.
7
Defendant timely filed a notice of appeal from the order
denying his section 1170.95 petition.
IV. DISCUSSION
A. Section 1170.95
“Senate Bill [No.] 1437 [(Senate Bill 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).)
Substantively, Senate Bill 1437 accomplishes this by amending
section 188, which defines malice, and section 189, which defines
the degrees of murder, and as now amended, addresses felony
murder liability. Senate Bill 1437 also adds . . . section 1170.95,
which allows 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 . . . .’ (§ 1170.95, 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
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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 [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (§ 1170.95, subd. (a)(1)–(3).)” (People
v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
Where a petitioner files a section 1170.95 petition that
contains all the statutorily required information and requests
counsel, the trial court must appoint counsel and order briefing.
(People v. Lewis (2021) 11 Cal.5th 952, 960–971 (Lewis).) The
court then evaluates whether the petitioner made a prima facie
showing that he is eligible for relief. (Id. at p. 960.) In making
this evaluation, a court may rely on the record of conviction,
which generally includes appellate opinions. (Id. at pp. 971–972.)
“However, as [our Supreme Court] cautioned in [People v.
Woodell (1998) 17 Cal.4th 448, 454–455], the probative value of
an appellate opinion is case specific, and ‘it is certainly correct
that an appellate opinion might not supply all answers.’ (Id. at
p. 457.) In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,]
980.) . . . [T]he ‘prima facie bar was intentionally and correctly
set very low.’” (Lewis, supra, 11 Cal.5th at p. 972.)
If the petitioner has made a prima facie showing, the trial
court “shall issue an order to show cause.” (§ 1170.95, subd. (c).)
“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 . . . previously been
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sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ (§ 1170.95, subd. (d)(1).) . . .
Significantly, 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].)” (Martinez, supra, 31 Cal.App.5th at pp. 723–724.)
B. Murder Conviction
Defendant contends, among other things, that (1) the trial
court erred by weighing the evidence at the prima facie inquiry
stage of the resentencing proceeding and (2) the harmless error
finding in Lauer II based on the prior record of conviction should
not preclude sentencing relief because section 1170.95,
subdivision (d)(3) permits both defendants and the prosecution to
introduce new or additional evidence on the issues of whether
defendant acted with the requisite intent to kill or was a major
participant who acted with reckless indifference to human life.
The Attorney General does not contest these assertions of error,
but argues instead that the court’s denial of the petition can be
upheld under two different legal theories not articulated by the
court, namely, the doctrines of issue preclusion and law of the
case.
10
We reject the Attorney General’s contention that the trial
court’s denial should be affirmed under the doctrines of collateral
estoppel and law of the case because the issue of defendant’s
intent to kill was previously adjudicated against him in Lauer II.
In our view, giving preclusive effect to the appellate opinion in
Lauer II at this preliminary stage would be inconsistent with our
Supreme Court’s recent opinion in Lewis that the bar at the
prima facie stage is intentionally low and appellate opinions,
although probative on a particular issue, do not necessarily
“‘supply all [the] answers.’” (Lewis, supra, 11 Cal.5th at p. 972.)5
In the Lauer II habeas proceeding, the Supreme Court
directed the Court of Appeal to determine whether the trial
court’s failure to instruct the jury that proof of an intent to kill
was essential to a special circumstance finding constituted
prejudicial error under Chapman, supra, 386 U.S. 18. On
remand, the Court of Appeal in Lauer II determined that the
instructional error was harmless because no rational jury could
have found that defendant committed the charged crimes, “but
did so without intending to kill.” This conclusion does not
demonstrate, as a matter of law, that defendant cannot meet his
prima facie burden to show that he could not be convicted of
murder under the amendments to sections 188 and 189, i.e., that
he did not act with the intent to kill and was not a major
participant in the robbery who acted with reckless indifference to
human life. Indeed, at the section 1170.95, subdivision (d)(3)
hearing, the parties will be permitted to introduce new evidence
and arguments for the trial court’s consideration. (§ 1170.95,
subd. (d)(3); People v. Smith (2020) 49 Cal.App.5th 85, 95, review
5 We note that the trial court did not have the benefit of the
guidance provided by Lewis, supra, 11 Cal.5th 952.
11
granted July 22, 2020, S262835 (Smith).) Thus, unlike Lauer II,
in which the appellate court’s review was limited to the record of
conviction and any rational inferences to be drawn therefrom, the
trial court in the section 1170.95, subdivision (d)(3) hearing is not
necessarily so limited.
We therefore agree with defendant that the trial court
erred by weighing the evidence and engaging in fact finding prior
to issuing an order to show cause and holding a hearing at which
the parties would be permitted to submit additional evidence and
arguments on whether defendant was entitled to resentencing on
his murder conviction. (See Lewis, supra, 11 Cal.5th at pp. 971–
972; Smith, supra, 49 Cal.App.5th at p. 95.) We also conclude
that the court erred in finding that the jury’s special
circumstances finding, made before People v. Banks (2015) 61
Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 were
decided, prevented defendant from making a prima facie showing
that he was entitled to relief. (People v. York (2020) 54
Cal.App.5th 250, 257–263, review granted Nov. 18, 2020,
S264954; People v. Torres (2020) 46 Cal.App.5th 1168, 1180,
review granted June 24, 2020, S262011; Smith, supra, 49
Cal.App.5th at pp. 93–94.)
D. Sentence on Attempted Murder
Defendant also contends that the trial court erred by
denying his section 1170.95 petition on his attempted murder
conviction. He acknowledges that courts are divided on the issue
of whether section 1170.95 applies to attempted murder,6 but
6 In People v. Lopez (2019) 38 Cal.App.5th 1087, review
granted November 13, 2019, S258175 (Lopez) and People v.
12
argues the cases holding that section 1170.95 does not apply to
attempted murder were wrongly decided.
In light of the express language of section 1170.95, we
follow the decisions in Lopez, supra, 38 Cal.App.5th 1087 and
Munoz, supra, 39 Cal.App.5th 738 and conclude that the trial
court did not err by concluding that defendant had not met his
prima facie burden to show that his attempted murder conviction
was based on an offense that was eligible for relief under section
1170.95.
Munoz (2019) 39 Cal.App.5th 738, review granted November 26,
2019, S258234 (Munoz), the courts held that defendants
convicted of attempted murder under the natural and probable
consequences doctrine are not eligible for section 1170.95 relief.
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V. DISPOSITION
That portion of the order denying the petition for
resentencing on defendant’s murder conviction under section
1170.95 is reversed and remanded with instructions to conduct
further proceedings under section 1170.95. In all other respects,
the order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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