Filed 12/6/21 P. v. Whitehead 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C093261
Plaintiff and Respondent, (Super. Ct. No. 08F03645)
v.
DAVID WHITEHEAD,
Defendant and Appellant.
Defendant David Whitehead appeals from the trial court’s order denying his
petition for resentencing brought pursuant to Penal Code section 1170.95. 1 He argues the
court erred in relying on a special circumstance finding to conclude no prima facie
showing had been made, and by ruling defendant would need to challenge the special
circumstance finding by habeas corpus petition prior to seeking section 1170.95 relief.
1 Further undesignated statutory references are to the Penal Code.
1
We disagree with defendant’s arguments and affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s Convictions
In 2011, following a trial in a case against defendant and his codefendants, the jury
found defendant guilty of first degree murder and attempted robbery (§§ 187, subd. (a),
664/211) with special circumstances of murder during the commission of robbery
(§ 190.2, subd. (a)(17)) and a personal use of a firearm enhancement (§ 12022.53, subd.
(b)). (People v. Medina (2016) 245 Cal.App.4th 778, 781, 787 (Medina).)
In our opinion on direct appeal, we summarized the incident resulting in these
convictions as follows: “[Defendant Brandon] Morton believed he had been ‘shorted’
several grams of methamphetamine in a drug sale. Morton, with [defendant Anthony
Arturo] Medina and [defendant David] Whitehead, met with the woman who had made
the sale. She was accompanied by her boyfriend, Jason Fletcher, and another man.
Morton shot and killed Fletcher. All three defendants were convicted of first degree
murder with a robbery special circumstance and attempted robbery.” (Medina, supra,
245 Cal.App.4th at p. 781.)
In its charge to the jury at the conclusion of the parties’ presentations, the trial
court included CALCRIM No. 703 (Special Circumstances: Intent Requirement for
Accomplice After June 5, 1990—Felony Murder (Pen. Code, § 190.2(d)), which told the
jury that if it found defendant was not the actual killer, in order to prove the special
circumstance true: “[T]the People must prove either that the defendant intended to kill,
or the People must prove all of the following:
“1. The defendant’s participation in the crime began before or during the killing;
“2. The defendant was a major participant in the crime;
“AND
“3. When the defendant participated in the crime, he/she acted with reckless
indifference to human life.”
2
The trial court sentenced defendant to a term of life without the possibility of
parole on the murder plus 10 years for the firearm enhancement. (Medina, supra,
245 Cal.App.4th at p. 787.) On March 17, 2016, we upheld these convictions on appeal,
but modified the judgment to award custody credits and impose and stay the sentence for
attempted robbery, which the trial court had not imposed. (Id. at pp. 786, 793.)
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which
became effective on January 1, 2019, 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).) The
legislation accomplished this by amending sections 188 and 189 and adding section
1170.95 to the Penal Code.
Section 188, which defines malice, now provides in part: “Except 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); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] 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.” (Stats. 2018, ch. 1015, § 3.)
3
Senate Bill No. 1437 also added 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 when all of the
following conditions apply: [¶] (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 . . . .
[¶] (3) The petitioner could not be convicted of first or second degree murder because of
changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
As relevant here, once a complete petition is filed, “[t]he 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. . . . 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.” (§ 1170.95, subd. (c).)
Defendant’s Petition for Resentencing
On February 27, 2019, defendant filed a form petition in propria persona
requesting resentencing under section 1170.95. On the form, defendant declared that a
complaint, information, or indictment filed against him allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine and at trial and that he was convicted of murder pursuant to the
felony-murder rule or the natural and probable consequences doctrine. He failed to make
the requisite declaration that he could not now be convicted of first or second degree
murder due to changes made to sections 188 and 189, and he failed to make any
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declarations related to first degree murder, including a declaration that he was not the
actual killer. The People moved to dismiss the petition, contending, inter alia, that
defendant failed to make a prima facie case that he was eligible for relief because the
special circumstance, found true, described that defendant was the actual killer, intended
to kill, or was a major participant in the underlying felony who acted with reckless
indifference to human life. The trial court appointed counsel and defendant, through
counsel, filed a reply brief.
The trial court denied defendant’s petition in a November 18, 2020 order without
hearing in a written decision that determined defendant was ineligible for resentencing.
In denying defendant’s petition, the trial court made the following findings: “The court
has now reviewed the pleadings of the parties and the record of conviction, and will now
determine whether defendant Whitehead has set forth a prima facie case for relief under
1170.95. As set forth below, the court finds that defendant Whitehead has not set forth
such a showing. [¶] At jury trial, a jury convicted defendant Whitehead of first degree
murder, and found true a 190.2 attempted-robbery special circumstance and an attaching
12022.53(b) personal use of a firearm enhancement. The jury also convicted defendant
Whitehead of 664/211 attempted robbery and found true an attaching 12022.53(b)
personal use of a firearm enhancement.” The court recognized that the jury did not find
defendant guilty of a carjacking charge but reasoned: “It is beyond a reasonable doubt
that the jury had simply determined that defendant Whitehead had not committed an
attempted carjacking, thus did not base its conviction of first degree murder based on
attempted-carjacking felony-murder theory, and for that reason found the attempted-
carjacking special circumstance not true. The jury did, however, find that defendant
Whitehead had committed attempted robbery, and could have found defendant
Whitehead guilty of first degree murder based on a robbery-murder theory, and in any
event did, in fact, determine that defendant Whitehead was a major participant in the
attempted robbery who acted with reckless indifference to human life. As such, this court
5
is not compelled by 1170.95(d)(2) to issue an order to show cause and go directly to
resentencing in this matter.”
The court further reasoned: “[I]t appears that any issue regarding the sufficiency
of the evidence of defendant Whitehead’s attempted-robbery special circumstance, to
show that he was a major participant in the attempted robbery who acted with reckless
indifference, would now be subject to the law-of-the-case doctrine, as it was fully
litigated in light of [People v. Banks (2015) 61 Cal.4th 788], and that decision on appeal
had not become final when the [People v. Clark (2016) 63 Cal.4th 522 (Clark)] decision
was rendered.”2 (See Medina, supra, 245 Cal.App.4th at pp. 788-791 [rejecting the
Banks-based challenge to the special circumstance on grant and transfer for
reconsideration].) The court concluded that defendant’s remedy was to “first obtain
postjudgment relief, such as in habeas corpus, from the special circumstances” and then
file a petition for relief under section 1170.95. The court alternatively reasoned that the
evidence was sufficiently substantial to support a jury finding that defendant acted with
reckless indifference.
Defendant timely appealed; the case was fully briefed in May 2021 and assigned
to this panel on August 13, 2021. The parties waived oral argument, and the case was
submitted on October 13, 2021.
2 The trial court correctly observed that this court upheld the special circumstance
finding after considering Banks, and while we issued our decision before our Supreme
Court decided Clark, supra, 63 Cal.4th 522, defendant subsequently petitioned for review
and the Supreme Court denied the petition two days after it issued its opinion in Clark.
However, because defendant argues that Banks and Clark must be applied together to the
special circumstance at issue here in order to properly evaluate its continued validity, our
prior consideration of the special circumstance in light of Banks does not foreclose
further examination of the question of its continued validity under the Banks/Clark cases
if the proper procedure is invoked.
6
DISCUSSION
Defendant contends that he established a prima facie case for relief, and the trial
court erred in relying on the record of conviction in reaching its decision and failing to
issue an order to show cause and hold an evidentiary hearing. Defendant specifically
argues the court erred in determining the special circumstance finding conclusively
established his ineligibility for resentencing because the jury necessarily concluded that
he was either the actual killer, a major participant, or acted with reckless indifference. He
posits that because the definitions of “major participant” and “reckless indifference to
human life” were clarified by our Supreme Court after the jury made its findings in
People v. Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, the special
circumstance findings from his trial are potentially invalid. Defendant asserts that
because this court’s opinion on remand predated Clark and did not thoroughly analyze
the reckless indifference to human life factors listed in Clark, an order to show cause and
evidentiary hearing is required to determine his eligibility for relief under section
1170.95. Under separate heading, he contends the trial court erred in concluding that he
must seek habeas corpus relief prior to seeking section 1170.95 resentencing. The
Attorney General disagrees on both points. Because we find the analyses of these issues
interrelated, we will address them together.
As a preliminary matter, we observe that our Supreme Court recently held that the
trial court may consider the record of conviction in determining whether the petitioner
has made a prima facie showing that they fall within the provisions of section 1170.95 in
People v. Lewis (2021) 11 Cal.5th 952, 970-972 (Lewis). Following Lewis, we conclude
that the trial court properly considered the record of conviction, including the jury’s
special circumstance finding, in concluding that defendant failed to make a prima facie
showing.
We next discuss the trial court’s conclusion that the jury’s special circumstance
finding rendered defendant ineligible for resentencing as a matter of law and conclude
7
defendant fails to demonstrate error. The Fourth Appellate District, Division One in
People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020, S264033,
and the Second Appellate District, Division One in People v. Galvan (2020)
52 Cal.App.5th 1134, review granted October 14, 2020, S264284 (Galvan), have reached
a contrary conclusion. (See People v. Murillo (2020) 54 Cal.App.5th 160, review granted
Nov. 18, 2020, S264978.) More recently, Division Five of the Second Appellate District,
in People v. York (2020) 54 Cal.App.5th 250, review granted November 18, 2020,
S264954 (York), criticized Galvan. (See People v. Smith (2020) 49 Cal.App.5th 85,
review granted July 22, 2020, S262835.) The Second Appellate District, Division One
then issued People v. Allison (2020) 55 Cal.App.5th 449, review denied December 23,
2020 (Allison) in direct response to York. The Fourth Appellate District, Division Two,
then followed Allison in People v. Jones (2020) 56 Cal.App.5th 474, review granted
January 27, 2021, S265854, as did the Second Appellate District, Division Two in
People v. Nunez (2020) 57 Cal.App.5th 78, review granted January 13, 2021, S265918.
Although certain of those cases also concern the appropriate stage in the section
1170.95 proceedings for appointment of counsel, an issue recently decided by our
Supreme Court in Lewis, supra, 11 Cal.5th at pp. 962-967, this case does not. Here, the
trial court appointed counsel for defendant, and the issue is whether defendant was able
to challenge the continued viability of the jury’s special circumstance findings in a
petition brought pursuant to section 1170.95. We find Galvan and Allison and the many
other reported and unreported cases that have followed these decisions more persuasive
than the few cases to the contrary.
“In Banks, the Court evaluated existing United States Supreme Court
jurisprudence on the issue and set out a series of considerations relevant to determining
whether a particular defendant was a major participant in the underlying felony.
[Citation] The Court did the same in Clark with respect to whether the defendant acted
with reckless indifference to human life. [Citation.] These new considerations clarified
8
the requirements for the felony murder special circumstance so significantly that courts
have allowed defendants to challenge the validity of pre-Banks and Clark special
circumstances findings via habeas corpus, making an exception to the rule that ordinarily
bars a defendant from challenging the sufficiency of the evidence in a habeas petition.
(Galvan, supra, 52 Cal.App.5th at p. 1141, review granted.) In Galvan, the appellate
court acknowledged these changes to section 190.2, subdivision (d) and considered
whether a defendant could relitigate his special circumstance conviction using section
1170.95. (Galvan, at p. 1141.) There, as here, the defendant was convicted of first
degree murder with a special circumstance finding under section 190.2, subdivision
(a)(17), made before Banks and Clark were decided. (Galvan, at pp. 1138-1139.) On
appeal, the defendant, like defendant here, argued that Banks and Clark had altered the
meaning of “major participant” and “reckless indifference to human life” such that he
was entitled to reconsideration of the conviction under section 1170.95. (Galvan, at
p. 1137.)
The Galvan court first considered the relevant statutory language: “In order to be
eligible for resentencing, a defendant must show that he or she ‘could not be convicted of
first or second degree murder because of changes to Section[s] 188 or 189 made
effective’ as part of Senate Bill No. 1437.” (Galvan, supra, 52 Cal.App.5th at p. 1142,
review granted (italics added); § 1170.95, subd. (a)(3).) The court concluded that as to
Galvan the requirement was not met, because “[a]lthough [the defendant] is asserting that
he could not now be convicted of murder, the alleged inability to obtain such a conviction
is not ‘because of changes’ made by Senate Bill No. 1437, but because of the clarification
of the requirements for the special circumstance finding in Banks and Clark. Nothing
about those requirements changed as a result of Senate Bill No. 1437. Just as was the
case before that law went into effect, the special circumstance applies to defendants who
were major participants in an underlying felony and acted with reckless indifference to
human life. If [the defendant] is entitled to relief based on Banks and Clark, the avenue
9
for such relief is not section 1170.95, but a petition for writ of habeas corpus.” (Galvan,
at p. 1142.) We agree with the trial court and the reasoning in Galvan that the
appropriate vehicle for asserting a challenge to the special circumstances finding is by a
petition for habeas corpus.
Defendant urges us to follow the opposing line of opinions, contending that
because “[t]he opinion on remand did not thoroughly analyze the following reckless
indifference to human life factors listed in Clark,” the special circumstance finding is not
law of the case. In one such opinion, York, supra, 54 Cal.App.5th 250, review granted,
the appellate court considered whether a habeas petition was a preferable route to relief.
(Id. at pp. 258-259.) The York court reviewed the language of section 1170.95,
subdivision (d)(2), which provides a streamlined path to relief under section 1170.95 if a
defendant has “ ‘a prior finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major participant in the felony.’ ” (York,
at p. 260.) Because the statute does not include a counterpart to this subdivision
accounting for a situation where there is a prior finding that a petitioner did act with
reckless indifference to human life and was a major participant in the underlying felony,
the court reasoned such a finding should not preclude a petitioner from relief. (Id. at
pp. 260-261.) The court concluded Galvan was incorrect when it found the defendant
there could only avail himself of relief “because of” Banks and Clark, rather than Senate
Bill No. 1437. Absent Senate Bill No. 1437, a successful Banks and Clark challenge
would invalidate only the special circumstance finding, whereas a successful section
1170.95 petition would invalidate the murder conviction. (York, at p. 261.)
The Allison court addressed York after ordering briefing on the precise issue here:
“Whether the trial court properly relied on [the defendant’s] admission of felony-murder
special circumstances (§ 190.2, subd. (a)(17)) as the sole basis for finding that he had not
made a prima facie showing that he was entitled to relief.” (Allison, supra,
55 Cal.App.5th at p. 456.) The Allison court first emphasized that section 1170.95
10
requires a prima facie showing by petitioner that he “ ‘could not be convicted of . . .
murder because of changes to Section 188 or 189 made’ in Senate Bill No. 1437.”
(Allison, at p. 456.) It noted that the requirements for a finding of felony murder under
the newly amended version of section 189 were identical to the requirements of the
felony-murder special circumstance that had been in effect at the time of the challenged
murder conviction (in the Allison’s case, 1997; in the instant case, 2014). (Allison, at
p. 456.) Thus, the special circumstance finding showed “as a matter of law that Allison
could still be convicted of felony murder even under the newly amended version of
section 189” and precluded a prima facie showing of eligibility. (Id. at p. 457.)
The Allison court disagreed with the argument to the contrary embraced by York,
that because no court had examined whether there was a factual basis for the special
circumstance finding since Banks and Clark were decided, the finding was insufficient to
show ineligibility as a matter of law. (Allison, supra, 55 Cal.App.5th at p. 457.) We
agree with the Allison court that Banks and Clark did not change the law, but merely
clarified the same principles that existed earlier. (See ibid; see also In re Miller (2017)
14 Cal.App.5th 960, 978.) As the Allison court noted, the pattern jury instructions remain
the same; Banks and Clark merely resulted in the addition of optional language thereto.
(Allison, at p. 457.)
We further observe that the language in section 1170.95, subdivision (d)(2)
anticipates, rather than precludes, the possibility of habeas relief before a section 1170.95
petition because one way to obtain a “prior finding” that meets the subdivision’s
requirements is via habeas. (In re Ramirez (2019) 32 Cal.App.5th 384, 406.) If a
defendant has successfully obtained such relief, the trial court must provide the petitioner
access to section 1170.95 relief. Nothing precludes relief under section 1170.95; the
language simply presumes a petitioner will pursue alternative relief first.
Finally, we disagree with York that reliance on a special circumstance finding to
determine that a defendant cannot make a prima facie case for resentencing as a matter of
11
law requires the trial court to make “a separate determination concerning the validity of
the special circumstance.” (York, supra, 54 Cal.App.5th at p. 262, review granted.) Such
reliance on the jury finding requires only a simple review of the record to determine
whether the factfinder found the special circumstance to be true and what that finding
entailed. Such a review of prior proceedings is fully contemplated by section 1170.95,
subdivision (c) and is grounded in sound policy. As our Supreme Court observed, the
purpose of section 1170.95 is “to ensure that murder culpability is commensurate with a
person’s actions, while also ensuring that clearly meritless petitions can be efficiently
addressed as part of a single-step prima facie review process.” (Lewis, supra, 11 Cal.5th
at p. 971.) We conclude that defendant’s special circumstance finding renders him
ineligible for relief under section 1170.95 as a matter of law. 3
For all of these reasons, the trial court did not err when it denied defendant’s
petition.
3 We note that defendant also challenged the trial court’s alternate reasoning that the
evidence was sufficiently substantial to support a jury finding that defendant acted with
reckless indifference. We need not reach the merits of this issue because we conclude the
trial court properly found defendant ineligible for relief as a matter of law. The merits
are properly presented as a habeas challenge, as we have explained.
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DISPOSITION
The trial court’s order is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Robie, J.
13