Filed 3/30/22 P. v. Graves CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B309103
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA097218)
v.
ALEX DEMETRIUS GRAVES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Reversed and
remanded.
David L. Polsky, 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, Assistant
Attorney General, Amanda V. Lopez and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Alex Demetrius Graves
(defendant) appeals from the denial of his petition for vacatur
and resentencing pursuant to Penal Code section 1170.95.1
While this appeal was pending the Legislature enacted Senate
Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), which
amends section 1170.95. (Stats. 2021, ch. 551, § 2 [eff. Jan. 1,
2022].) In light of this recent legislation we asked the parties to
file supplemental briefs addressing the effect, if any, of Senate
Bill 775 on defendant’s appeal. In his supplemental brief,
defendant acknowledges that Senate Bill 775 is not relevant to
this appeal because the legislation expands section 1170.95 relief
to include attempted murder and manslaughter. Here defendant
challenges his murder conviction. Defendant asserts that Senate
Bill 775 bears some future relevance to his case, however, that is
not the issue here, and we leave it to defendant to file a new or
amended petition in the future if he chooses.
We do reach defendant’s contention that the trial court
erred in finding that he had not made a prima facie showing of
eligibility for relief under former section 1170.95. Respondent
agrees as do we. Thus we reverse and remand the matter to the
superior court with directions to issue an order to show cause and
conduct an evidentiary hearing pursuant to section 1170.95,
subdivision (d).
BACKGROUND
Defendant was convicted by jury in 2010 of the August
2007 murder of Kytuze Herrera (count 1) and the attempted
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2
murders of four other people (counts 2 through 5) arising from a
driveby shooting. Defendant was also convicted of grossly
negligent discharge of a firearm and carrying a concealed weapon
in October 2007 (counts 6 and 7).2 As the jury was unable to
agree to the degree of the murder, it was deemed to be in the
second degree. The special allegation under section 186.22,
subdivision (b)(l), that the crimes were committed for the benefit
of, at the direction of, and in association with a criminal street
gang, with the specific intent to promote, further and assist in
criminal conduct by gang members was found to be true. The
jury also found true the special allegations under section
12022.53, subdivisions (b), (c), (d), and (e)(1), that a principal
personally used and intentionally discharged a handgun.
Defendant was sentenced to a total prison term of 168 years to
life plus two years eight months.
Defendant was tried with codefendants Maurice Bennett
and Robert Maxwell. The evidence at trial showed that on
August 4, 2007, several people were outside a Lynwood liquor
store when a gray Mustang and white Camaro slowly passed.
Gunshots were fired from both cars toward the store, and four of
the individuals outside the store were struck by bullets.
Surveillance cameras recorded the event. One of the victims
later died from her wound. Additional driveby shootings
involving the Mustang were committed in August and October
2007. After the October shooting, police officers at the scene
observed a gray Mustang and a black SUV speeding away. Both
2 We summarize the facts relating to defendant’s trial from
the statement of facts in our nonpublished opinion affirming
defendant’s conviction in People v. Graves (Aug. 30, 2012,
B227100).
3
cars were stopped, and it was determined that the Mustang
belonged to defendant. Bennett was driving, and defendant was
in the front passenger seat. A .40-caliber handgun found behind
the back seat was later determined to be the murder weapon
used in the liquor store shooting and to have been used in two of
the three other shootings.
Bennett admitted in a police interview several months later
that he had been in Maxwell’s white Camaro during the liquor
store shooting. He said no one else was in the car with them, and
he identified one other person, not defendant, as being involved
in that shooting. Bennett also said there was another car that he
did not identify. When the occupants of the other car began
shooting, defendant did as well, although he claimed that he fired
into the air. Bennett told police that the people outside the store
were targeted because they were believed to be rival gang
members.
The police set up a surveillance and wiretap operation.
They learned from recorded conversations on defendant’s phone
that after defendant saw police fliers seeking information about
the shooting and containing a photograph of his car, he took steps
to rid himself of the Mustang and get a new car. After he traded
in the Mustang, police recovered it from the dealership. In a
recorded call, defendant spoke to an acquaintance after Bennett
was arrested. They discussed the arrest, and defendant said
Bennett had been arrested by the homicide division with bail set
at $1 million. It was agreed this meant that Bennett had been
charged with murder. The acquaintance asked, “Was Mo
[(meaning Bennett)] with ya’ll?” Defendant asked, “When?” The
acquaintance replied, “You know what I'm talking about,” and
defendant said, “Uhhh . . . I think, yeah.” In another call with
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another acquaintance, defendant said that Bennett was in jail
“[f]or the one eighty,” slang for murder.
In January 2019, defendant filed a petition for vacatur and
resentencing under former section 1170.95. Counsel was
appointed. The court received briefs from both defendant and the
prosecution. The parties submitted the matter on the briefs. The
trial court denied the petition on November 10, 2020, without
issuing an order to show cause.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends and respondent agrees that the trial
court erred by summarily denying the section 1170.95 petition
and should instead have issued an order to show cause and held
an evidentiary hearing. He argues that his petition stated a
prima facie case for relief and that the court lacked the authority
to weigh evidence or draw inferences and conclusions from
evidence at this stage of the proceedings.
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018
Reg. Sess.) amended the laws pertaining to felony murder and
murder under 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.” (Stats. 2018, ch. 1015, § 1,
subd. (f); see People v. Gentile (2020) 10 Cal.5th 830, 842.) This
provision “bars a conviction for first or second degree murder
under a natural and probable consequences theory.” (Gentile,
supra, at p. 846.) The Legislature also added former section
1170.95, which provides a procedure for convicted murderers to
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retroactively seek relief if they could not be convicted under
sections 188 and 189 as amended effective January 1, 2019.
(People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
At the time the trial court ruled on defendant’s petition
former section 1170.95 set forth three conditions to eligibility for
vacatur of a murder conviction and resentencing. As relevant
here the conditions are (1) the petitioner was charged with
murder “under the natural and probable consequences doctrine,”
(2) “petitioner was convicted of first degree . . . murder,” and (3)
“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, former subd. (a).) Upon receipt of a
petition alleging the three conditions for relief the trial court
must appoint counsel if requested, entertain briefing and hold a
hearing to determine whether the defendant has made a prima
facie showing of eligibility for resentencing. (§ 1170.95, subd. (c);
Lewis, supra, 11 Cal.5th at pp. 957, 962.)
The trial court may not engage in factfinding, weigh the
evidence, or exercise its discretion in determining whether the
defendant has made a prima facie showing; however, the court
may consider the record of conviction, including the court’s own
documents and appellate opinion, in order to distinguish
petitions with potential merit from those that are clearly lacking
merit. (Lewis, supra, 11 Cal.5th at pp. 970-972.) The court must
take the petitioner’s factual allegations as true, make a
preliminary assessment regarding whether the petitioner would
be entitled to relief if petitioner’s factual allegations were proved;
and only where the record of conviction contains established facts
showing that the petitioner is ineligible for resentencing as a
matter of law may the court find that no prima facie showing has
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been made and deny the petition without issuing an order to
show cause. (Id. at p. 971.) The “‘prima facie bar was
intentionally and correctly set very low.’” (Id. at p. 972.)
Finding that a fact is established as a matter of law at the
prima facie stage means that it is conclusively established. (See
People v. Duchine (2021) 60 Cal.App.5th 798, 815.)
The trial court did not identify any ineligibility as a matter
of law. Instead, the trial court relied on its analysis of the
evidence, engaged in factfinding and weighing the evidence at the
prima facie stage. (Lewis, supra, 11 Cal.5th at pp. 970-972.) The
court identified evidence and inferences to conclude that
defendant was ineligible for relief, inferring from the evidence
that defendant was the driver of a car involved in the liquor store
shooting because one of the two cars used belonged to him and
the gun used was later found in defendant’s car. The court also
noted that defendant had told his girlfriend he had to get rid of
his car and that someone was a bad shot because someone was
injured. The court assumed that defendant meant the female
victim who died, because it was a gang-related shooting, and the
intended victims appeared to be men.3 The court concluded that
defendant was directly responsible for the murder as an aider
and abettor and that defendant was a major participant in the
crime and acted with reckless disregard for human life. The trial
3 The court stated: “It’s the court’s position that it is
absolutely impossible to commit a drive-by shooting without a
driver and a shooter. And as the identified driver, at the very
least in this instance, he is directly an aider and abettor. But for
not him being a driver, a drive-by shooting could not possibly
occur. [¶] I don’t know how much more direct you could be an
aider and abettor than being a driver during a drive-by shooting.”
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court erred in resolving these factual issues at this stage in
proceedings. (See People v. Drayton (2020) 47 Cal.App.5th 965,
980.)
In addition to instructions defining murder, express malice
and implied malice, the original trial court instructed with
CALCRIM No. 520, which allowed the jury to convict defendant
of murder under the natural and probable consequences doctrine.
Respondent agrees with defendant that there is no indication in
the record that defendant was not convicted under a now-invalid
theory or was otherwise ineligible for relief as a matter of law
and that defendant thus made a prima facie showing of
entitlement to relief.
On remand the trial court therefore must issue an order to
show cause and hold an evidentiary hearing, absent a stipulation
that the defendant is eligible for resentencing. (Lewis, supra, 11
Cal.5th at p. 971; see § 1170.95, subds. (c), (d)(2).) At the
evidentiary hearing the prosecutor will bear the burden of
proving beyond a reasonable doubt that defendant remains guilty
of murder under California law as amended by the changes to
section 188 or 189 made effective January 1, 2019. (§ 1170.95,
subd. (d)(3).)4 We thus remand the matter for that purpose.
DISPOSITION
The order denying the section 1170.95 petition is reversed
and the matter is remanded for the issuance of an order to show
4 At that hearing the trial court must comply with the
clarified requirements of amended section 1170.95, subdivision
(d), as the amended statute is now in effect. We take no position
on the outcome of said hearing.
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cause and an evidentiary hearing pursuant to section 1170.95,
subdivision (d).
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
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