Filed 3/11/22 P. v. Thompson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B307808
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA156398)
v.
PHILLIP NORRIS THOMPSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Kathleen Kennedy, Judge. Reversed
and remanded with directions.
Sharon Fleming, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Daniel C. Chang and William
H. Shin, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________________________________
INTRODUCTION
Appellant Phillip Norris Thompson appeals from the
denial of his petition under Penal Code section 1170.95
(Section 1170.95) to vacate his first degree murder
conviction. At appellant’s 1999 trial, it was undisputed that
the perpetrators of the murder also committed a robbery,
which was not charged. The jury was instructed on two
theories of first degree murder: (1) felony murder, premised
on the robbery; and (2) premeditated and deliberate murder.
The jury was also instructed on a robbery-murder special
circumstance allegation, which -- unlike felony murder at the
time -- required findings that appellant at least was a major
participant in the robbery and acted with reckless
indifference to human life. The jury convicted appellant of
first degree murder, but found the robbery-murder special
circumstance allegation untrue. We affirmed in a prior,
unpublished opinion.
Years later, through the enactment of Senate Bill No.
1437 (2017-2018 Reg. Sess.) (SB 1437), the felony murder
rule was narrowed by the addition of requirements that the
defendant at least have been a major participant in the
2
felony and have acted with reckless indifference to human
life. Appellant filed a petition to vacate his murder
conviction under Section 1170.95, alleging he had been
convicted of felony murder and could not presently be
convicted in light of SB 1437. After issuing an order to show
cause and holding an evidentiary hearing, the superior court
denied the petition. Relying on dictum in our prior opinion,
the court reasoned that in light of the jury’s not-true finding
on the robbery-murder special circumstance allegation, the
verdict must have been based on the theory that appellant
directly aided and abetted a premeditated murder.
On appeal, appellant contends: (1) the court erred in
determining the jury necessarily convicted him under a still-
valid theory, rather than independently determining his
guilt under such a theory beyond a reasonable doubt; and (2)
this court should make such a determination in his favor,
rather than remanding the matter to the superior court. The
Attorney General contends the court properly determined
the jury convicted appellant as a direct aider and abettor,
relying on the jury’s not-true finding on the special
circumstance allegation and on the related dictum in our
prior opinion, the latter of which he argues is binding under
the doctrine of law of the case. He further contends any
error was harmless under the standard set forth in People v.
Watson (1956) 46 Cal.2d 818 (Watson), in light of
overwhelming evidence of appellant’s guilt as a direct aider
and abettor.
3
While the court’s reliance on our prior opinion was
understandable, we conclude it erred in determining the jury
necessarily rejected the felony murder theory and convicted
appellant as a direct aider and abettor; we further conclude
the error was prejudicial. We decline to follow the dictum in
our prior opinion, which is not law of the case. Accordingly,
we reverse the order denying appellant’s petition, and
remand to the superior court with directions to hold a new
evidentiary hearing.
BACKGROUND
A. Underlying Judgment
The People charged appellant with murder (Pen. Code,
§ 187, subd. (a)), and alleged, inter alia, the murder was
committed while appellant was an accomplice in the
commission of a robbery (id., § 190.2, subd. (a)(17)).
1. Trial Evidence
In August 1996, Wayne Rainey was found dead in the
bedroom of his apartment, with duct tape binding his hands
and feet and covering his eyes and mouth. A knife was
under his body, and an electric cord was around his neck. A
medical examiner determined Rainey died as a result of
multiple stab wounds and “probable” strangulation.
The prosecution primarily relied on the testimony of
accomplices Akeisha Bowman and Algerina Stewart
(codefendants who had pled guilty to voluntary
manslaughter), who testified to the following facts. Three
4
days before the discovery of Rainey’s body, Stewart told
Bowman that Rainey had raped her. Later that day,
appellant and two other accomplices, Herman Farris and
Albert Jacobs, went to Bowman’s apartment, where they
were informed of the rape. Farris asked Bowman for duct
tape, which she supplied. That evening, the women went to
Rainey’s apartment, where they paged appellant’s number
and informed him of Rainey’s address.
Shortly thereafter, appellant, Farris, and Jacobs
entered Rainey’s apartment. They had a gun and a butcher
knife, and they were wearing socks on their hands. They
told Bowman and Stewart to get on the floor of the living
room, then confronted Rainey in his bedroom. Appellant
returned to the living room and pulled out some wires from
the entertainment system. One of the men said, “Fuck this,
we gonna kill this fool. We gotta kill him.” The men duct
taped Rainey’s eyes, mouth, hands, and feet. Appellant
stood guard over Rainey with a knife, while the other two
men, assisted by Bowman and Stewart, filled bags with
Rainey’s possessions and loaded them into Farris’s and
Rainey’s cars. Jacobs then went into Rainey’s bedroom,
placed a cord around Rainey’s neck, and tried to strangle
him. Jacobs said “this fool won’t die,” then stabbed Rainey
several times with a knife. Some ten minutes later, all five
5
accomplices left Rainey’s apartment in Farris’s and Rainey’s
cars.1
Appellant did not testify or present any evidence
relevant to this appeal.
2. Jury Instructions
The trial court (Judge Jacqueline A. Connor) instructed
the jury on two theories of first degree murder, viz., (1)
felony murder, premised on the robbery of Rainey; and (2)
premeditated and deliberate murder. Pursuant to the
parties’ agreement, the court declined to instruct the jury on
second degree murder. The court delivered instructions on a
theory that appellant directly aided and abetted the murder,
as well as a theory that he aided and abetted only the
robbery, the natural and probable consequence of which was
murder.
Pursuant to CALJIC No. 8.80.1, the court instructed
the jury that if it found appellant guilty of first degree
1
The testimony of accomplices Bowman and Stewart was
corroborated in part by Leslie Spearman and Amet Palacio.
Spearman, Rainey’s neighbor, testified he saw appellant, Jacobs,
Farris, Bowman, and Stewart enter Rainey’s apartment on the
day of the murder (although Spearman’s testimony was not
consistent as to whether appellant was a member of this group,
or instead was a member of a group of five men who entered
Rainey’s apartment on an earlier date). Palacio testified he saw
appellant, Jacobs, and Farris together at a party the night of the
murder, and that all three men left the party around the same
time, early enough to commit the murder.
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murder, it must then determine the truth of the special
circumstance allegation that the murder was committed
during the commission of a robbery. Before delivering the
remainder of CALJIC No. 8.80.1, the court cautioned the
jury, “The definition of a murder committed during the
commission of robbery is a little different than first degree
murder, so you need to look at this carefully.” The court
proceeded to instruct the jury on the following requirements
of the special circumstance allegation, which were not
included in the instruction on first degree felony murder: “If
you find that a defendant was not the actual killer of a
human being, or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor, you
cannot find the special circumstance to be true [as to that
defendant] unless you are satisfied beyond a reasonable
doubt that such defendant with the intent to kill aided [and]
abetted . . . the murder in the first degree, or with reckless
indifference to human life and as a major participant, aided
[and] abetted . . . the crime of Robbery which resulted in the
death of a human being, namely Wayne Rainey.”2 (Italics
added.)
2
As noted, the instruction on first degree felony murder did
not include these requirements, instead stating: “If a human
being is killed by any one of several persons engaged in the
commission or attempted commission of the crime of Robbery, all
persons, who [either] directly and actively commit the act
constituting that crime, or who [aid and abet] its commission, are
(Fn. is continued on the next page.)
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3. Arguments and Verdicts
In closing argument, the prosecutor urged the jury to
convict appellant of first degree murder in reliance on either
the felony murder theory, the theory that appellant directly
aided and abetted a premeditated murder, or both. The
prosecutor further urged the jury to find true the felony-
murder special circumstance allegation, arguing appellant
either directly aided and abetted the murder with intent to
kill, or was a major participant in the robbery and acted with
reckless indifference to human life. Appellant’s counsel
argued appellant was not present during the robbery and
murder, challenging the credibility of accomplices Bowman
and Stewart on various grounds.
The jury convicted appellant of first degree murder,
but found the robbery-murder special circumstance
allegation not true. Appellant was sentenced to
imprisonment for 25 years to life.
4. Our Prior Opinion
On appellant’s direct appeal, he contended, inter alia,
the trial court erred in failing to instruct the jury on second
degree murder. Rejecting this contention, we held, “There is
no evidence to support a theory of second degree murder,
and thus, no error in failing to instruct on that crime.
Appellant was either guilty of murder on a felony murder or
guilty of murder of the first degree, whether the killing is
intentional, unintentional, or accidental.” (Italics added.)
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premeditated murder theory, or both, or not guilty of the
homicide at all.” (Italics added.) Although our holding did
not require us to determine which of these two theories of
first degree murder the jury relied on, we stated, in dicta,
“The jury found the special allegation that the murder was
committed during the course of a robbery to be untrue. Thus,
the verdict of first degree murder must have been based on
the theory of premeditation and deliberation.” We affirmed
the judgment.3
B. Section 1170.95 Petition
In January 2019, appellant filed a petition under
Section 1170.95 to vacate his murder conviction, alleging
that he had been convicted of felony murder, and that he
could not presently be convicted because of SB 1437’s
4
changes to the law. At appellant’s request, the superior
3
Our prior opinion additionally rejected appellant’s
contentions that: (1) the court erred in failing to instruct the jury
on an additional natural and probable consequences theory
premised on assault, rather than robbery, as the target offense;
(2) the court delivered an erroneous instruction on reasonable
doubt; and (3) there was insufficient evidence to corroborate the
testimony of accomplices Bowman and Stewart. Our rejection of
these contentions did not require us to determine whether, as we
stated in our quoted dictum, the verdict must have been based on
the premeditation theory.
4
In the alternative, appellant alleged he had been convicted
under a natural and probable consequences theory. We need not
address this allegation, as we conclude appellant’s allegation that
(Fn. is continued on the next page.)
9
court (Judge Kathleen Kennedy) appointed counsel for him.
In opposition to appellant’s petition, the prosecution argued
that the jury’s not-true finding on the robbery-murder
special circumstance allegation necessarily reflected the
jury’s rejection of the felony murder theory. The prosecution
quoted our prior opinion’s dictum that in light of the not-true
finding, “‘the verdict of first degree murder must have been
based on the theory of premeditation and deliberation.’” In
May 2019, the superior court issued an order for the
prosecution to show cause why relief should not be granted.
In September 2020, the court held an evidentiary
hearing, at which the parties offered no new or additional
evidence. Appellant’s counsel argued appellant was not
guilty under any still-valid theory because he did not act
with intent to kill or reckless indifference to human life. The
prosecutor argued it was clear from the verdict and the trial
evidence that the jury did not rely on the felony murder
theory.
The court denied the petition, in reliance on our prior
opinion and the jury’s not-true finding on the robbery-
murder special circumstance allegation. The court reasoned,
in relevant part, “[T]he Court of Appeal, in their opinion,
says that . . . the jury found this was a first degree murder
based upon malice because they rejected the natural and
he was convicted of felony murder was sufficient to entitle him to
a determination of his guilt under a theory that remains valid
after SB 1437.
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probable consequences doctrine. [¶] And there was no felony
murder either in this case.” The court concluded appellant
was ineligible for relief because he had been convicted under
a still-valid theory, viz., direct aiding and abetting.
Appellant timely appealed.
DISCUSSION
A. Principles
SB 1437 eliminated murder liability under any theory
of imputed malice other than the felony murder rule, which
it narrowed. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e);
Stats. 2018, ch. 1015, §§ 2, 3.) SB 1437 also enacted Section
1170.95. (Stats. 2018, ch. 1015, § 4.) Section 1170.95
permits a defendant who was convicted of murder under any
theory of imputed malice (including a felony murder theory),
but who could not presently be convicted in light of SB
1437’s changes to the law, to petition the sentencing court to
have the conviction vacated and to be resentenced on any
remaining counts. (Pen. Code, § 1170.95, subd. (a).) Where,
as here, the court finds the petitioner has made a prima facie
showing and issues an order to show cause, the court must
hold an evidentiary hearing on the petitioner’s eligibility for
relief. (Id., § 1170.95, subds. (c)-(d).) “At the hearing to
determine whether the petitioner is entitled to relief, the
burden of proof shall be on the prosecution to prove, beyond
a reasonable doubt, that the petitioner is guilty of murder . . .
under California law as amended by [SB 1437].” (Id.,
§ 1170.95, subd. (d)(3).) If the prosecution fails to meet its
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burden, the court must vacate the murder conviction and
resentence the petitioner. (Ibid.)
“Under the doctrine of the law of the case, a principle
or rule that a reviewing court states in an opinion and that
is necessary to the reviewing court’s decision must be
applied throughout all later proceedings in the same case,
both in the trial court and on a later appeal.” (People v.
Jurado (2006) 38 Cal.4th 72, 94.) The doctrine does not
apply to dictum. (See Anne H. v. Michael B. (2016) 1
Cal.App.5th 488, 499 [“‘The discussion or determination of a
point not necessary to the disposition of a question that is
decisive of the appeal is generally regarded as obiter dictum
and not as the law of the case’”]; Gyerman v. United States
Lines Co. (1972) 7 Cal.3d 488, 498 [“‘It is fundamental that
the point relied upon as law of the case must have been
necessarily involved in the case’”].)
B. Analysis
We conclude that notwithstanding the dictum in our
prior opinion, nothing in the record demonstrates the jury
necessarily convicted appellant under a direct aiding and
abetting theory, rather than under the first degree felony
murder theory on which it also had been instructed. The
verdict of first degree murder did not specify or suggest that
the jury rejected the theory of first degree felony murder.
Nor did the jury’s not-true finding on the robbery-murder
special circumstance allegation. That finding might have
reflected nothing more than a failure of proof regarding the
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allegation’s requirements that appellant at least have been a
major participant in the robbery and have acted with
reckless indifference to human life.5 These requirements of
the allegation went beyond the requirements of first degree
felony murder at the time of trial, as the trial court
emphasized by cautioning the jury to pay careful attention to
the allegation’s differences from first degree murder. Thus,
notwithstanding the not-true finding, the verdict of first
degree murder might have been based on the felony murder
theory.6
For the reasons stated above, we decline to follow the
dictum in our prior opinion that in light of the not-true
finding on the special circumstance allegation, “the verdict of
first degree murder must have been based on the theory of
premeditation and deliberation.” As explained, this
determination was not necessary to our rejection of
appellant’s claim on appeal that the jury should have been
5
The Attorney General acknowledges “the not true finding
on the special circumstance allegation . . . may have only
reflected that the jury was unsure about appellant’s exact role.”
6
The cases on which the Attorney General relies are
distinguishable. (See People v. Soto (2020) 51 Cal.App.5th 1043,
1050, 1055-1059, review granted Sep 23, 2020, and cause
remanded Nov. 17, 2021, S263939 [jury was not instructed on
felony murder]; People v. Stevenson (2018) 25 Cal.App.5th 974,
981-984 [same]; People v. Verdugo (2020) 44 Cal.App.5th 320,
333-336 [jury necessarily found intent to kill in convicting
defendant of conspiracy to commit murder]; People v. Medrano
(2021) 68 Cal.App.5th 177, 182-185 [same].)
13
instructed on second degree murder. That determination
was based on our observation that appellant was either
guilty of murder on a felony murder or premeditated murder
theory, or both, or not guilty of homicide at all. The dictum
is not binding under the law of the case doctrine. (See Anne
H. v. Michael B., supra, 1 Cal.App.5th at 499; Gyerman v.
United States Lines Co., supra, 7 Cal.3d at 498.) While the
trial court’s reliance on our language was understandable,
we conclude it erred in determining the jury necessarily
rejected the felony murder theory and convicted appellant as
a direct aider and abettor.
Contrary to the Attorney General’s contention, this
error was prejudicial even assuming, arguendo, the Watson
standard applies. (See People v. Sandoval (2015) 62 Cal.4th
394, 422 [under Watson standard, error is reversible if there
is a reasonable probability -- meaning more than an abstract
possibility -- that the appellant would have obtained a more
favorable result absent the error].) The record does not
enable us to determine how the superior court, had it sat as
an independent factfinder, would have evaluated the
evidence of appellant’s guilt under a still-valid theory. The
evidence at trial raised substantial issues of credibility, as
the prosecution relied primarily on the testimony of
accomplices Bowman and Stewart, whose credibility was
challenged on various grounds. The superior court did not
purport to evaluate their credibility, or any other evidence.
On this record, any conclusion as to what the court would
have found as an independent factfinder is speculative.
14
Finally, we decline appellant’s invitation to usurp the
role of factfinder by making our own determination of his
guilt under a still-valid theory. Section 1170.95
contemplates that the evidence will be evaluated by the
superior court in the first instance. (See Pen. Code,
§ 1170.95, subd. (d)(3).) The statute also provides the
prosecution the right to offer new or additional evidence.
(Ibid.) Although the prosecution has not yet exercised this
right, it may choose to exercise it on remand. Accordingly,
we will remand to the superior court with directions to hold
a new evidentiary hearing.
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DISPOSITION
The order denying appellant’s petition for resentencing
under Penal Code section 1170.95 is reversed. The matter is
remanded to the superior court with directions to hold a new
evidentiary hearing on appellant’s eligibility for relief from
his murder conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
16