Filed 10/19/21 P. v. Weisner CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305747
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.BA382741)
v.
JONQUIL THOMAS WEISNER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Reversed and
remanded with directions.
Benjamin Owens, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Amanda Lopez and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
Appellant Jonquil Thomas-Weisner1 challenges the
summary denial of his petition for resentencing under Penal
Code section 1170.95.2 Respondent Attorney General agrees with
appellant that his petition stated a prima facie case and
warranted the appointment of counsel. Respondent contends,
however, that appellant’s petition was procedurally barred by the
doctrine of collateral estoppel, because it was his second petition
and he failed to appeal the denial of the first.
We conclude that appellant’s petition was not barred by
collateral estoppel. We further agree with the parties that the
petition stated a prima facie case. We reverse the order and
remand for the appointment of counsel and further proceedings
in accordance with section 1170.95.
BACKGROUND
In 2013, a jury found appellant and two codefendants guilty
of first degree murder (§ 187, subd. (a)), conspiracy to commit
robbery (§§ 182, subd. (a), 211), and robbery (§ 211). (People v.
Weisner (Oct. 20, 2016, B251312) [nonpub. opn.].)3 The jury also
returned true findings on gang allegations as to all three counts
(§ 186.22, subd. (b)(1)(C)), and found that a principal discharged
a firearm, causing great bodily injury or death during the robbery
1 Appellant hyphenated his name in his petition.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
3 We granted appellant’s request for judicial notice of the
opinion and appellate record in the underlying case, No.
B251312. The October 7, 2015 opinion to which appellant and
respondent cite was vacated at the direction of the Supreme
Court, which granted appellant’s codefendants’ petitions for
review on unrelated issues. We cite to the October 20, 2016
opinion issued after the prior opinion was vacated.
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and murder (§ 12022.53, subds. (d) & (e)(1).) (People v. Weisner
(Oct. 20, 2016, B251312) [nonpub. opn.].) The trial court
sentenced appellant to a total term of 50 years to life. (Ibid.) We
affirmed appellant’s judgment of conviction. (Ibid.)
On February 26, 2019, appellant filed a petition for
resentencing under section 1170.95. The trial court denied the
petition on March 7, 2019 without appointing counsel for
appellant. Without a record, we are unable to ascertain if
appellant requested counsel. The trial court provided two
reasons for denying the petition. First, the trial court found that
section 1170.95 and its enabling legislation, Senate Bill No. 1437
(2017-2018 Reg. Sess.), were unconstitutional. Second, after
reviewing the facts of the case as set forth in our prior appellate
opinion, the trial court found that appellant was ineligible for
relief because he “was a major participant in this criminal
undertaking and he clearly acted with reckless indifference to
human life.” Appellant did not appeal the trial court’s March 7,
2019 order.
On February 24, 2020, appellant filed another section
1170.95 petition. On this form petition, appellant checked boxes
asserting that he was convicted of murder under the felony
murder rule or natural and probable consequences doctrine, that
he could no longer be convicted of the crime under changes made
to sections 188 and 189, that he was not the actual killer, that he
did not act with the intent to kill, and that he was not a major
participant in the underlying felony and did not act with reckless
indifference to human life. Appellant also checked the box
requesting the appointment of counsel. He attached to the
petition the oral jury instructions from his trial, as well as
excerpts of testimony from the reporter’s transcript. The jury
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instructions show that the jury was instructed on both the felony
murder rule and the natural and probable consequences doctrine.
In our previous opinion, we concluded that the natural and
probable consequences instruction was improper, but “the record
established that the jury based the first degree murder
convictions of Weisner and [codefendant] Blackshire on a valid
felony-murder theory.” (People v. Weisner (Oct. 20, 2016,
B251312) [nonpub. opn.].)
The trial court issued an order denying the petition on
March 11, 2020. The order stated, in relevant part: “The court
previously denied Weisner’s resentencing petition on March 7,
2019. This second petition makes no new claims, and the court
stands by its prior ruling. Weisner was a major participant who
acted with reckless indifference to human life in the criminal
enterprise which led directly to the murder of a bank security
guard for his gun. Weisner helped plan the robbery, scouted for
an appropriate victim, selected the victim, and influenced two
younger gang members who then senselessly and needlessly
killed the guard. Weisner is ineligible for sentencing relief
pursuant to Penal Code §§ 1170.95 and 189(e)(3).” The trial court
attached a copy of its March 7, 2019 ruling to the order.
Appellant timely appealed.
DISCUSSION
Appellant contends that the trial court erred by summarily
denying his petition without appointing counsel and holding an
evidentiary hearing, because his petition stated a prima facie
case and the record of conviction does not establish ineligibility as
a matter of law. He also argues that the trial court erred by
holding that section 1170.95 and its enabling legislation are
unconstitutional. Respondent agrees with both arguments,
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though it notes that it “does not concede that appellant is
actually eligible for relief, let alone that he is entitled to relief.”
Respondent contends, however, that the trial court’s ruling
should be upheld on an alternative ground: that appellant’s
petition, his second, is barred by the doctrine of collateral
estoppel. We address this latter, threshold issue first.
Collateral estoppel, also known as issue preclusion,
precludes the relitigation of issues argued and decided in
previous proceedings. (Lucido v. Superior Court (1990) 51 Cal.3d
335, 341 (Lucido); see also People v. Barragan (2004) 32 Cal.4th
236, 252-253.) The doctrine exists to advance three primary
policies: “preservation of the integrity of the judicial system,
promotion of judicial economy, and protection of litigants from
harassment by vexatious litigation.” (Lucido, supra, 51 Cal.3d at
p. 343.) It may be applied when five criteria are satisfied: “1) the
issue to be precluded must be identical to that decided in the
prior proceeding; 2) the issue must have actually been litigated at
that time; 3) the issue must have been necessarily decided; 4) the
decision in the prior proceeding must be final and on the merits;
and 5) the party against whom preclusion is sought must be in
privity with the party to the former proceeding.” (People v.
Garcia (2006) 39 Cal.4th 1070, 1077; see also Lucido, supra, 51
Cal.3d at p. 341.) The party seeking to apply collateral estoppel
bears the burden of showing these criteria are met. (Lucido,
supra, 51 Cal.3d at p. 341.)
Respondent argues that it has met that burden here;
appellant responds that it has not. We need not resolve this
dispute, because we agree with appellant that, even if the
requirements are met, the policy considerations underlying the
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doctrine of collateral estoppel are outweighed by other factors
here. (See Lucido, supra, 51 Cal.3d at pp. 342-343.)
“Collateral estoppel is not an inflexible, universally
applicable principle; policy considerations may limit its use where
the limitation on relitigation underpinnings of the doctrine are
[sic] outweighed by other factors.” (Jackson v. City of Sacramento
(1981) 117 Cal.App.3d 596, 603.) Its application may be limited
where the doctrine is inconsistent with principles of due process
and sound judicial policy. (See Gutierrez v. Superior Court (1994)
24 Cal.App.4th 153, 169.) This is particularly true in criminal
cases, where even the United States Supreme Court has
recognized that collateral estoppel “is not to be applied with the
hypertechnical and archaic approach of a 19th century pleading
book, but with realism and rationality.” (Ashe v. Swenson (1970)
397 U.S. 436, 444.) “‘Quite simply, the pursuit of judicial
economy and efficiency may never be used to deny a defendant
his right to a fair trial.’” (People v. Hogue (1991) 228 Cal.App.3d
1500, 1506.)
The Legislature enacted Senate Bill No. 1437 “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).)
Senate Bill No. 1437 added section 1170.95 to the Penal Code to
provide “a procedure for convicted murderers who could not be
convicted under the law as amended to retroactively seek relief.”
(People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Section
1170.95 was intended to be ameliorative, and our Supreme Court
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recently held that the threshold at which a petitioner is entitled
to the appointment of counsel and proceedings on the merits of
his or her petition is low: all that is required is a facially
sufficient petition. (See id. at p. 970.)
Appellant filed his first petition on February 26, 2019, less
than two months after section 1170.95 took effect. He filed the
petition without the assistance of counsel; because the petition is
not in the record, we do not know if it was facially sufficient or if
appellant requested counsel therein. We do know, however, that
the trial court summarily denied the petition without appointing
counsel. It is unclear whether appellant properly was made
aware of the denial; as appellant points out, the record does not
contain a proof of service of the order denying the first petition.
Appellant subsequently filed the instant petition, which
respondent agrees is facially sufficient. There is no indication
that appellant intended to be vexatious or redundant, or sought
to waste judicial resources in connection with his second petition,
which appears to be a good faith effort to seek ameliorative relief
to which respondent agrees he may be entitled.
Indeed, appellant supplemented the second petition with
transcript excerpts and the jury instructions from his trial in an
effort to demonstrate his entitlement to relief—and timely
appealed from the order of which it is clear he was given notice.
On these particular facts, and in light of the Legislature’s
expressed intent to provide sentencing relief to defendants who
may be potentially eligible under section 1170.95, and the
Supreme Court’s clear intent to ensure that such defendants with
potentially valid claims are appointed counsel and heard on the
merits, we conclude that application of collateral estoppel here
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would be inconsistent with the interests of justice and sound
judicial policy.4
We accordingly proceed to the merits of appellant’s claims.
As noted above, respondent agrees with appellant’s contention
that the trial court erred by denying his petition on constitutional
grounds. We concur. Every appellate court to consider the issue
has determined that Senate Bill No. 1437 and section 1170.95 are
constitutional, and we agree with these rulings. (See, e.g., People
v. Bucio (2020) 48 Cal.App.5th 300, 308-314; People v. Superior
Court of San Diego County (Gooden) (2019) 42 Cal.App.5th 270,
279-290; People v. Lamoureux (2019) 42 Cal.App.5th 241, 250-
267.)
We also agree with the parties that the instant petition was
facially sufficient and that the appointment of counsel and
further proceedings are required. As the Supreme Court
explained in Lewis, supra, 11 Cal.5th at pp. 959-960: “Pursuant
to section 1170.95, an offender must file a petition in the
sentencing court averring that: ‘(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
4 We note that section 1170.95, subdivision (b)(2) expressly
contemplates that a petitioner may file a second petition if his or
her first petition omits certain information required by the
statute. While it does not appear that appellant’s first petition
was denied on this basis, this provision further evinces the
Legislature’s intent that technical errors do not prevent
petitioners from pursuing relief.
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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,
subds. (a)(1)-(3); see also § 1170.95 subd. (b)(1)(A).) Additionally,
the petition shall state ‘[w]hether the petitioner requests the
appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).)” The trial
court “shall review the petition and determine if the petitioner
has made a prima facie showing that the petitioner falls within
the provisions” of section 1170.95. (§ 1170.95, subd. (c).) This
review is a limited one; if the petition is facially sufficient, the
trial court must appoint counsel if requested. (Lewis, supra, 11
Cal.5th at p. 961.) “[O]nly after the appointment of counsel and
the opportunity for briefing may the superior court consider the
record of conviction to determine whether the ‘the petitioner
makes a prima facie showing that he or she is entitled to relief.’
(§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 957.) If so,
the court must issue an order to show cause and provide the
parties with an opportunity for an evidentiary hearing.
(§ 1170.95, subds. (c), (d).)
There is no dispute that appellant met the pleading
requirements and requested counsel. The trial court accordingly
should have appointed counsel for appellant and ordered the
prosecution to respond to his petition. (§ 1170.95, subd. (c);
Lewis, supra, 11 Cal.5th at pp. 957, 970-971.) The trial court
should not have reviewed the record of conviction and made a
factual finding that appellant was a major participant who acted
with reckless indifference. (Lewis, supra, 11 Cal.5th at pp. 972,
974; People v. Drayton (2020) 47 Cal.App.5th 965, 980; overruled
in part by Lewis, supra, at p. 963.) This type of factual finding
may not made be until after the evidentiary hearing prescribed in
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section 1170.95, subdivision (d). (People v. Drayton, supra, 47
Cal.App.5th at p. 982.)
When a trial court erroneously fails to appoint counsel in
section 1170.95 proceedings, we consider whether the error was
harmless using the test set forth in People v. Watson (1956) 46
Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 973-974.) Here,
as respondent recognizes, appellant’s petition is potentially
meritorious and warrants further proceedings. Thus, the error
was not harmless, as there is a reasonable probability that
appellant’s petition would not have been summarily denied had
he been appointed counsel.
DISPOSITION
The order summarily denying appellant’s section 1170.95
petition is reversed. The matter is remanded with directions to
appoint counsel for petitioner, issue an order to show cause, and
to proceed consistent with section 1170.95, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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