Filed 10/12/21 P. v. Courtney CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091706
Plaintiff and Respondent, (Super. Ct. No. 02F00882)
v.
DERRICK COURTNEY,
Defendant and Appellant.
Defendant Derrick Courtney appeals from the trial court’s order denying his
petition for resentencing under Penal Code section 1170.95.1 Defendant argues the trial
court erred when it determined he was ineligible for resentencing as a matter of law based
on the jury’s robbery-murder special circumstance finding. We will affirm the trial
court’s order.
1 Undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2004, a jury found defendant guilty of first degree murder (§ 187, subd. (a)),
robbery while acting in concert (§§ 211, 213, subd. (a)(1)(A)), and possession of a
firearm by a felon (former § 12021, subd. (a)(1)). The jury also found true allegations
that defendant personally used a firearm as to the murder and robbery counts
(§§ 12022.5, subd. (a), 12022.53, subd. (b)) and a robbery-murder special circumstance
as to the murder count (§ 190.2, subd. (a)(17)).
On appeal, we affirmed the convictions and corrected an error in the fines
imposed. (People v. Courtney (Sept. 28, 2006, C047770) [nonpub. opn.].)2 Our opinion
laid out the evidence introduced at trial. In short, defendant and codefendant Melvin
Peete robbed the victim at his home. As they left the home in the victim’s car, Peete shot
the victim, who died shortly thereafter.
On January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.), which was
enacted to “amend the felony murder rule and the natural and probable consequences
doctrine, . . . 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,” became effective.
(Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 achieved these goals by
amending section 188 to require that a principal act with express or implied malice
(§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state
that a person can be liable for felony murder only if (1) “[t]he person was the actual
killer”; (2) the person, with an intent to kill, was an aider or abettor “in the commission of
murder in the first degree”; or (3) “[t]he person was a major participant in the underlying
2 At defendant’s request, we incorporated by reference the record in the direct appeal
from his convictions.
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felony and acted with reckless indifference to human life . . . .” (§ 189, subd. (e), as
amended by Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also added section 1170.95 to provide the resentencing
petition process for a “person convicted of felony murder or murder under a natural and
probable consequences theory.” (§ 1170.95, subd. (a).) After a defendant submits a
petition and the court performs an initial review for missing information, subdivision (c)
of section 1170.95 provides, in part: “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.” (§ 1170.95, subd. (c).)
In 2019, defendant filed a form petition for resentencing under section 1170.95. In
the petition, defendant declared that a complaint, information, or indictment had been
filed against him that allowed the prosecution to proceed under a theory of felony murder
or murder under the natural and probable consequences doctrine, that he was convicted of
first degree or second degree murder under the felony-murder rule or the natural and
probable consequences doctrine, and that he could not now be convicted of first or
second degree murder based on the recent changes to sections 188 and 189. He requested
that the court appoint him counsel. The petition also attached portions of the reporter’s
transcript from trial, including the return of the verdicts and portions of the jury
instructions.
The trial court appointed counsel and received briefing from the parties. The court
then issued a written decision denying the petition. The court explained, “Defendant
Courtney essentially seeks to utilize the instant [section] 1170.95 proceeding to vacate
the [section] 190.2(a)(17) robbery-murder special circumstance that was unanimously
found true by a jury beyond a reasonable doubt in this case. The judgment was affirmed
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on appeal, and defendant Courtney presents no evidence to show that any court has
vacated that special circumstance finding, a finding that was made after the jury was
instructed with CALJIC No. 8.80.1, on the requirement that the defendant either was the
actual killer, acted with intent to kill, or was a major participant in the robbery who acted
with reckless indifference to human life.
“[Section] 1170.95 does not provide for such a vacating to occur, and this court
has no jurisdiction under [section] 1170.95 to vacate the special circumstance finding.
Rather, that would need to be sought through some other procedure in which a court has
jurisdiction, such as in a habeas corpus proceeding. Unless and until that is obtained,
defendant Courtney is not eligible for relief under [section] 1170.95 in Case
No. 02F00882, because defendant Courtney is not a person who ‘could not be convicted
of first or second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019,’ as a jury can - and did - find true beyond a reasonable doubt, that
defendant Courtney was either the actual killer, intended to kill, or was a major
participant in a robbery in which he acted with reckless indifference to human life, the
requirements now applicable to [section] 189(a) first degree felony-murder under SB
1437.”
DISCUSSION
Citing People v. York (2020) 54 Cal.App.5th 250, review granted November 18,
2020, S264954, People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24,
2020, S262011, and their supporting cases, defendant argues the special circumstance
finding should not preclude his eligibility under section 1170.95. Because the jury made
the finding before our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the
definitions of “major participant” and “reckless indifference to human life,” he argues,
the trial court could not “ ‘simply defer to the jury’s pre-Banks and Clark factual findings
that [defendant] was a major participant who acted with reckless indifference to human
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life as those terms were interpreted at the time.’ ” Thus, the matter should be remanded
so the trial court may conduct further proceedings as required under section 1170.95.
The People argue the special circumstance finding precludes defendant’s
eligibility for relief, despite the fact that it predates Banks and Clark. They argue Banks
and Clark did not alter section 190.2, and note there is currently a split of authority “on
the question of whether a true finding on a pre-Banks/Clark felony-murder special
circumstance makes a petitioner ineligible for section 1170.95 relief as a matter of law.”
Citing, among others, People v. Nunez (2020) 57 Cal.App.5th 78, review granted
January 13, 2021, S265918, and People v. Allison (2020) 55 Cal.App.5th 449, the People
urge us to “adopt the most logical interpretation of section 1170.95 and recognize that the
proper way for a defendant to attack the sufficiency of a special circumstance finding
post-Banks/Clark is through habeas corpus proceedings,” rather than a section 1170.95
petition. Thus, they conclude, the trial court correctly determined defendant was
ineligible for relief because of the special circumstance finding, for which he had not first
sought habeas relief.
As both parties note, there is currently a split in appellate decisions on whether a
pre-Banks/Clark special circumstance finding precludes eligibility for relief under section
1170.95, and the issue is currently pending before our Supreme Court. (Compare People
v. Nunez, supra, 57 Cal.App.5th 78, rev. granted; People v. Allison, supra,
55 Cal.App.5th 449; People v. Jones (2020) 56 Cal.App.5th 474, review granted Jan. 27,
2021, S265854; People v. Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14, 2020,
S264033; People v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020,
S264978 with People v. Torres, supra, 46 Cal.App.5th 1168, rev. granted; People v.
York, supra, 54 Cal.App.5th 250, rev. granted; People v. Law (2020) 48 Cal.App.5th 811,
review granted July 8, 2020, S262490; People v. Smith (2020) 49 Cal.App.5th 85, review
granted July 22, 2020, S262835; People v. Harris (2021) 60 Cal.App.5th 939, review
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granted Apr. 28, 2021, S267802.) In the meantime, we agree with the People and find
the Nunez/Allison line of cases more persuasive.
We disagree with Torres and York “because, in our view, they rest on a
misunderstanding of the effect of Banks and Clark, and they overlook the plain language
of section 1170.95.” (People v. Jones, supra, 56 Cal.App.5th at p. 483, rev. granted.)
“Banks and Clark did not state a new rule of law. Rather, the high court in those cases
‘merely clarified the “major participant” and “reckless indifference to human life”
principles that existed when defendant’s conviction became final.’ (In re Miller (2017)
14 Cal.App.5th 960, 978; Allison, supra, 55 Cal.App.5th at p. 458.)” (People v. Nunez,
supra, 57 Cal.App.5th at p. 92, rev. granted.) “Jury instructions regarding the mental
state required for a felony-murder special circumstance are not defective if they do not
include the Banks and Clark factors. [Citation.] Indeed, the pattern jury instruction
regarding major participation and reckless indifference remains the same as it was before
Banks and Clark.” (People v. Allison, supra, 55 Cal.App.5th at p. 458.) Thus, “the pre-
Banks and Clark jury necessarily resolved the same factual issues beyond a reasonable
doubt that a post-Banks and Clark jury would necessarily resolve beyond a reasonable
doubt.” (People v. Nunez, supra, 57 Cal.App.5th at p. 94.)
Moreover, section 1170.95 expressly limits evidentiary hearings to circumstances
where a petitioner can demonstrate they “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)(3).) Here, as in Nunez and Allison, defendant is not seeking relief
“because of” the changes to section 189 by Senate Bill No. 1437 as applied to his murder
conviction, but because of purported changes in the law by Banks and Clark as to his
special circumstance finding. (People v. Nunez, supra, 57 Cal.App.5th at p. 95, rev.
granted; People v. Allison, supra, 55 Cal.App.5th at p. 460.)
The appropriate vehicle for asserting such a challenge is not a petition under
section 1170.95. (People v. Allison, supra, 55 Cal.App.5th at p. 461 [“The purpose of
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section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with
respect to issues not previously determined, not to provide a do-over on factual disputes
that have already been resolved”].) If defendant believes the jury’s special circumstance
finding lacks evidentiary support, the appropriate procedure for challenging it is by a
petition for habeas corpus. (People v. Nunez, supra, 57 Cal.App.5th at p. 96, rev.
granted.) As noted above, Banks and Clark clarified the “major participant” and
“reckless indifference to human life” standards. “Where a decision clarifies the kind of
conduct proscribed by a statute, a defendant whose conviction became final before that
decision ‘is entitled to post-conviction relief upon a showing that his [or her] conduct was
not prohibited by the statute’ as construed in the decision. [Citation.] ‘In such
circumstances, it is settled that finality for purposes of appeal is no bar to relief, and that
habeas corpus or other appropriate extraordinary remedy will lie to rectify the error.’ ”
(In re Scoggins (2020) 9 Cal.5th 667, 673-674.) Any challenge to the special
circumstance finding should thus come through a petition for habeas relief, rather than a
section 1170.95 petition. Accordingly, the trial court correctly denied defendant’s
petition.3
3 Assuming his prima facie eligibility for relief, defendant further argues the correct
remedy is remand to the trial court for an evidentiary hearing, rather than the approach
taken by People v. Law, supra, 48 Cal.App.5th 811, review granted, which agreed with
defendant that a pre-Banks/Clark special circumstance finding did not preclude relief per
se, but proceeded to analyze the underlying facts of the case to conclude the defendant
would still qualify as a major participant who acted with reckless indifference to human
life under the post-Banks/Clark standards. (Id. at p. 825.) Because we conclude
defendant was not eligible for relief in the first instance, we do not reach this argument.
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DISPOSITION
The trial court’s order is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
MURRAY, J.
/s/
HOCH, J.
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