Filed 1/14/22 P. v. Harper CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074670
v. (Super.Ct.No. RIF100702)
JASON SCOTT HARPER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers
and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 2002, a jury convicted defendant and appellant Jason Scott Harper of
first degree felony murder and found true a robbery-murder special circumstance
allegation for defendant’s participation in the robbery of a store, which resulted in the
murder of the store’s manager. Although defendant was 16 years old at the time of the
robbery, the trial court sentenced him to state prison for life without the possibility of
parole. This court affirmed the judgment on direct appeal in 2004 but, more than a
decade later, the trial court resentenced defendant to 25 years to life after a federal district
court issued a writ of habeas corpus.
In January 2020, defendant petitioned the superior court to vacate his murder
conviction pursuant to Penal Code1 section 1170.95, a resentencing statute enacted as
part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). In a nutshell, that bill limited the
offense of murder under the felony-murder rule to defendants who: (1) are the actual
killer; (2) are not the actual killer but who share the killer’s intent to kill and aid and abet
in the killing; or (3) are a major participant in a felony and who act with reckless
indifference to human life; and it eliminated the offense of murder under the natural and
probable consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 846, 848.)
The superior court dismissed defendant’s petition because the jury in his trial had found
that he was a major participant in the robbery, who acted with reckless indifference to
human life, and those findings had been upheld on appeal. Defendant appeals, arguing
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
the jury’s special circumstance finding does not render him ineligible for relief under
section 1170.95.
In People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review granted January 27,
2021, S265854, this court held that defendants with undisturbed and final special
circumstance findings are barred as a matter of law from petitioning for relief under
section 1170.95. Instead, defendants (such as the defendant in this case) must petition an
appropriate court for a writ of habeas corpus and challenge the continued validity of the
jury’s finding in that proceeding. The holding in Jones, which we decline to revisit here,
dictates that we affirm the denial of defendant’s petition. 2
I.
PROCEDURAL BACKGROUND 3
In 2002, a jury convicted defendant of one count of first degree murder (§ 187,
subd. (a)) and found true a robbery-murder special circumstance allegation (§ 190.2,
2 Defendant separately petitioned the California Supreme Court for a writ of
habeas corpus, challenging the validity of the special circumstance finding. The Supreme
Court directed the Secretary of the Department of Corrections and Rehabilitation to show
cause before this court why defendant is not entitled to relief. (In re Harper on Habeas
Corpus, Oct. 28, 2020, S259563.) In a separate opinion, this court shall address
defendant’s petition for writ of habeas corpus. (In re Jason Harper on Habeas Corpus,
E076045.)
We previously reserved a ruling on defendant’s November 2, 2020 request that we
take judicial notice of documents from that original proceeding and take judicial notice of
the Supreme Court’s order. The request is hereby granted. (Evid. Code, §§ 452,
subd. (d), 459, subd. (a).)
3 The underlying facts of this case are immaterial to the narrow legal question
addressed in this opinion. A recitation of those facts will be provided in the opinion in
In re Jason Harper on Habeas Corpus, E076045.
3
subd. (a)(17)(A)). The trial court sentenced him to life without the possibility of parole
(LWOP).
On direct appeal, this court affirmed the judgment after rejecting defendant’s
assertions that: (1) insufficient evidence supported the jury’s findings that he acted with
reckless indifference to human life to support the special circumstance finding; (2) the
trial court abused its discretion when it failed to exercise its discretion to sentence him to
25 years to life instead of LWOP; and (3) his sentence of LWOP was cruel and/or
unusual punishment under the federal and state constitutions. (People v. Brown et al.
(Jan. 7, 2004, E032616) [nonpub. opn.].) In the context of his cruel and/or unusual
punishment argument, this court also concluded the record contained substantial evidence
that defendant was a major participant in the robbery. (Ibid.) The Supreme Court denied
defendant’s petition for review. (People v. Brown et al., review denied Mar. 30, 2004,
S122525.)
In 2015, the trial court denied defendant’s request to be resentenced to 25 years to
life, pursuant to Miller v. Alabama (2012) 567 U.S. 460. This court affirmed that order,
and the California Supreme Court denied review. (People v. Harper (June 14, 2016,
E063475) [nonpub. opn.], review denied Sept. 21, 2016, S236073.) However, in 2017, a
federal district court issued a writ of habeas corpus directing the trial court to resentence
defendant pursuant to Miller. (See Harper v. Davey (C.D. Cal., Nov. 28, 2017, No. ED
CV-16-02250-JFW (KES)) 2017 U.S. Dist. Lexis 196344.) On May 31, 2019, the trial
court resentenced defendant to 25 years to life.
4
As noted, ante, effective January 1, 2019, Senate Bill No. 1437 (2017-2018
Reg. Sess.) amended sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to limit the
application of the felony-murder rule and the crime of murder under the natural and
probable consequences doctrine. (§§ 188, subd. (a)(3), 189, subd. (e)(1)-(3).) In
addition, Senate Bill No. 1437 enacted section 1170.95 (Stats. 2018, ch. 1015, § 4),
which permits persons previously convicted of first or second degree murder under the
felony-murder rule or the natural and probable consequences doctrine, but who could not
be so convicted under the amendments to sections 188 and 189 made by Senate Bill
No. 1437, to petition the superior court to vacate their murder convictions and to
resentence them on any remaining counts.
In January 2020, defendant filed the instant petition in the superior court. Using a
check-box form, defendant alleged he was convicted of first degree murder “pursuant to
the felony murder rule or the natural and probable consequence doctrine,” but he could
no longer be convicted under those theories. The People filed no written opposition but,
at the hearing on the petition, the prosecutor asked that the petition be dismissed because
the jury had found that defendant was a major participant in the robbery, who acted with
reckless indifference to human life, for purposes of the robbery-murder special
circumstance allegation. The trial court agreed and dismissed the petition.
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II.
DISCUSSION
Defendant argues he is entitled to relief under section 1170.95, and the trial court
erred by finding that he had not made a prima facie showing for such relief because his
first degree murder conviction and the jury’s robbery-murder special circumstance
finding occurred before our Supreme Court issued its decisions in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Those
decisions “clarified the meaning of the special circumstances statute” (In re Scoggins
(2020) 9 Cal.5th 667, 671), specifically, the requirement under section 190.2,
subdivision (d), that a defendant who is “‘not the actual killer’” and is convicted of first
degree murder is eligible for the sentence of death or LWOP only if the jury finds he
acted with reckless indifference to human life and was a major participant in the
commission of the underlying felony, which resulted in the death (Scoggins, at p. 674).
This court recently addressed a petition filed by a similarly situated defendant. In
Jones, supra, 56 Cal.App.5th 474, the defendant was convicted of first degree murder and
attempted murder. The jury found true the robbery-murder special circumstance and that
the defendant personally used a firearm. The trial court sentenced him to LWOP for the
murder and life with the possibility of parole for the attempted murder. (Jones, at pp. 479-
480.) The defendant filed a petition for resentencing shortly after section 1170.95 went
into effect; the prosecutor argued Senate Bill No. 1437 was unconstitutional and, in the
alternative, that defendant was not entitled to relief because of the jury’s true finding that
he was a major participant in the robbery and acted with reckless disregard to human life.
6
The superior court—after reviewing the instructions given at the trial and verifying the
jury had been informed it could find true the robbery-murder special circumstance only if
it concluded he was a major participant who acted with reckless indifference to human
life—summarily denied the petition without conducting an evidentiary hearing. (Jones, at
pp. 479-480.)
On appeal, the defendant in Jones argued that the jury’s robbery-murder special
circumstance finding was invalid in light of Banks and Clark, those decisions constituted
changes in the law since his conviction and sentencing, and the superior court erred by
summarily denying his petition. (Jones, supra, 56 Cal.App.5th at p. 480.) We agreed
with the prosecutor “that the procedure established in section 1170.95 ‘is not a “plenary
proceeding” at which the defendant can reopen matters which have already been
adjudicated’—such as prior jury findings.” (Jones, at p. 480; see id. at p. 492 (conc. opn.
of Menetrez, J.) [agreeing with majority that “Section 1170.95 is not a proper procedural
vehicle for challenging a murder conviction by attacking a prior factual finding”].)
In Jones, we held defendants “with a special circumstance finding under
section 190.2, subdivision (d) [are] not eligible for relief under section 1170.95 as a
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matter of law. [4] This is because a jury has already found them to have satisfied the new
definition of felony murder under amended section 189. Although they were not the
actual killer, a jury found them to have been a major participant in the underlying felony
who acted with reckless indifference to human life. (E.g., People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 419 . . . [because ‘[t]he language of the special circumstance
tracks the language of Senate Bill 1437 and the new felony-murder statutes,’ a jury’s true
finding on § 190.2, subd. (d) renders a § 1170.95 petitioner ineligible for relief].)”
(Jones, supra, 56 Cal.App.5th at p. 482.)
As we explained in Jones, “A petitioner with a pre-Banks/Clark finding faces the
same bar to relief under section 1170.95 as a petitioner with a post-Banks/Clark finding.
This is because Banks and Clark did not create a new rule of law, but rather ‘clarified’ the
4 Six months before this court decided Jones, supra, 56 Cal.App.5th 474, another
panel of this court found that a superior court had erred by concluding a jury’s special
circumstance finding, “on its own,” rendered the defendant in that case to be ineligible
for relief under section 1170.95. (People v. Law (2020) 48 Cal.App.5th 811, 825, review
granted July 8, 2020, S262490.) Nonetheless, this court concluded the error was
harmless because the record of the defendant’s conviction demonstrated he was an active
participant and acted with reckless disregard to human life. (Ibid.)
Jones did not discuss the decision in Law, let alone expressly overrule it. We are
reluctant to overrule our prior decisions, especially ones of a recent vintage. (See Estate
of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9 [“Absent a compelling reason, the Courts of
Appeal are normally loath to overrule prior decisions from another panel of the same
undivided district or from the same division.”].) But, to the extent Law held that a
superior court considering a petition under section 1170.95 may not conclude as a matter
of law that the petitioner is ineligible for relief based on the jury’s true finding on a
special circumstance allegation under section 190.2, subdivision (d), that decision is
inconsistent with Jones and has been overruled sub silentio. (In re Lane (1962) 58 Cal.2d
99, 105 [“It is an established rule of law that a later decision overrules prior decisions
which conflict with it, whether such prior decisions are mentioned and commented upon
or not.”]; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1059 [same].)
8
already-existing meaning of the phrases ‘major participant’ and ‘reckless indifference to
human life’ for purposes of special circumstance allegations under section 190.2,
subdivision (d).” (Jones, supra, 56 Cal.App.5th at p. 482; see In re Scoggins, supra,
9 Cal.5th at p. 671.) Because the decisions in Banks and Clark did not “announce[] a
new rule of law” but merely clarified existing law that “‘“had theretofore [been]
misconstrued”’” (Jones, at p. 482), the remedy for defendants like Jones—whose murder
conviction became final before Banks and Clark—is to challenge the validity of the
special circumstance finding in a collateral, habeas corpus proceeding. 5 (Jones, at
pp. 482-483.)
Like the defendant in Jones, defendant here is barred “as a matter of law” from
obtaining relief under section 1170.95. (Jones, supra, 56 Cal.App.5th at p. 482.) A jury
found beyond a reasonable doubt that he was a major participant in the robbery and that
he acted with reckless indifference to human life. And on direct appeal, this court
concluded substantial evidence supported those findings. (People v. Brown et al., supra,
E032616.) Therefore, we must affirm the order dismissing his petition.
5 As indicated, ante, defendant did file a petition for writ of habeas corpus to
challenge the continued validity of his special circumstance finding, which we will
decide in a separate opinion. (See In re Jason Harper on Habeas Corpus, E076045.)
9
IV.
DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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