Filed 5/13/22 P. v. Lauer CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B307421
Plaintiff and Respondent, (Los Angeles County
Super. Ct No. A148449)
v.
JAMIE SAM LAUER,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of the County of Los Angeles, Renee Korn, Judge. Reversed and
remanded.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Idan Ivri and Wyatt E. Bloomfield, Deputy Attorneys
General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Jamie Lauer guilty of, among other
crimes, murder and attempted murder, and the trial court
sentenced him to life without the possibility of parole. Those
convictions were upheld on direct appeal and in a subsequent
habeas proceeding.
Defendant appeals from the trial court’s denial of his
postjudgment petition for resentencing under Penal Code section
1170.95.1 We reverse and remand the matter for further
proceedings consistent with this opinion.
II. FACTUAL BACKGROUND2
Defendant and codefendants John Butterfield, Jr., Timothy
Walder, and Larry Boone were convicted of crimes that “arose out
of an evening-long crime spree on the night of May 22–23, 1981.
[Defendants] were guests at the apartment of Kathleen
Williamson and Cassandra Craft. About 10 p.m., Boone
announced that he knew how to make some money and would
show everyone how. Boone and [defendants] left the apartment
and proceeded to the hotel room of [attempted murder victim]
Robert Kimberly, an acquaintance of Butterfield. Kimberly
1 All further statutory references are to the Penal Code.
2 The facts are taken from the unpublished opinion in the
postjudgment writ proceeding in In re Lauer, et al. (Jan. 24, 1989,
B011500, B014634, B018379) [nonpub. opn.] at pages 2–5
(Lauer II).
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invited everyone in for a beer. When the beer ran out, the group
proceeded to a liquor store to buy more. After Kimberly
purchased the beer, Boone drove to an unlighted area and
announced to Kimberly that he was being robbed.
“After knocking out one of Kimberly’s teeth, Boone
instructed Butterfield to ‘drive to the cemetery.’ Kimberly
pleaded with all four to let him go, promising to get them more
money and not to tell anyone what had happened. Walder was
heard to say, ‘He knows us. We’re going to have to kill him.’
“Near the cemetery, everyone got out of the car and
Kimberly was relieved of his wallet. He attempted to escape by
running down the road but the four managed to overtake him,
beat him, and stab him. (Altogether, Kimberly received about
eight blows to the head and eighteen stab wounds in his back.)
He feigned unconsciousness and heard Walder say, ‘That’s it, he’s
had it. He’s dead. Let’s go.’
“After the four departed, Kimberly managed to walk for
about two hours until he was found by a passing motorist and
taken to the hospital. He recovered from his wounds and
testified at [defendants’] trial.
“After leaving Kimberly for dead, [defendants] and Boone
returned to Williamson’s apartment with the beer and a wad of
bills. They remained only a short time before leaving again.
“They eventually went to the home of [murder victim] Ray
Martin, another acquaintance of Butterfield (who had previously
traded his motorcycle to Martin’s roommate in exchange for a
car). Martin’s roommate, Paul Fuller, returned home at about
2:30 a.m. to find the motorcycle lying on its side with the
headlight still on, but dimming. Inside his apartment, he found
the battered body of Martin, with blood and matted hair
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splattered on the wall. The coroner’s investigator testified at
[defendants’] trial that Martin had one stab wound in the chest,
seven stab wounds in the upper right quadrant of the back, a
deep laceration above and ‘into the right eye,’ and another deep
laceration on the back of the skull, with a skull fracture. This
was apparently caused by a hammer, which investigators later
found in a vacant lot, covered with blood.
“After leaving Martin’s apartment, [defendants] returned to
Williamson’s apartment, where Williamson noticed that Boone
had blood on his pants and Walder had blood on his knife and
hands. Later, when Williamson and Butterfield were in bed
together, Butterfield made two references to having been at the
scene of the crime: ‘I saw my Sporty there [the motorcycle] and I
wanted to burn it to the ground,’ and ‘I think that guy is dead.’
“The evidence at trial established that [defendants] had
sold tools and guns owned by Martin to a ‘fence’ for $100.
Although Martin had been paid in cash on the day of his murder,
his pockets had been turned inside out and all of the cash was
missing.” (Lauer II, supra, at pp. 2–5.)
III. PROCEDURAL BACKGROUND
Based on the two incidents on May 22 and 23, 1981,
defendant and codefendants Butterfield, Walder, and Boone were
convicted of the robbery and murder of Martin and the
kidnapping, robbery, and attempted murder of Kimberly. (In re
Lauer (1986) 228 Cal.Rptr. 794, 795, review granted Oct. 30, 1986
(Crim. 25360) (Lauer I).) The jury also found true a special
circumstance allegation that the murder was committed during
the course of a robbery. (Id. at p. 795.) All four defendants were
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sentenced to life imprisonment without the possibility of parole.
(Ibid.) The convictions were affirmed on appeal in People v.
Boone, et al. (Crim. No. 42811).3 (Lauer I, supra, 228 Cal.Rptr. at
p. 795.)
Defendant, Butterfield, and Walder filed separate petitions
for writs of habeas corpus, contending that the special
circumstance finding should be set aside under Carlos v. Superior
Court (1983) 35 Cal.3d 131 (Carlos) (overruled, in part, in People
v. Anderson (1987) 43 Cal.3d 1104, 1115 (Anderson)) because the
jury was not instructed that proof of intent to kill or aid in the
killing was essential to a finding of murder with special
circumstances. (Lauer I, supra, 228 Cal.Rptr. at p. 794, fn.
omitted.) On July 31, 1986, a prior panel of this division issued a
published opinion granting the habeas petitions under Carlos
and setting aside the special circumstance findings and the life
without the possibility of parole sentences. (Lauer I, supra, 228
Cal.Rptr. at p. 797.) The Supreme Court, however, granted
review as to each matter and remanded to the appellate court for
reconsideration under Anderson, supra, 43 Cal.3d 1104
(superseded by statute as stated in People v. Odom (2016) 244
Cal.App.4th 237, 251) and People v. Olde (1988) 45 Cal.3d 386
(Olde) (overruled on other grounds as stated in People v. Prieto
(2003) 30 Cal.4th 226, 256).4 (Lauer II, supra, at p. 2.)
3 The unpublished opinion in the consolidated direct appeals
from the judgments of conviction is not in our record, and the
parties agree that it is unavailable.
4 Anderson, supra, 43 Cal.3d at pages 1128 through 1129 and
Olde, supra, 45 Cal.3d at pages 413 through 414 held that error
5
On remand, the appellate court issued an unpublished
opinion, Lauer II, which reconsidered the habeas petitions under
Chapman, supra, 386 U.S. 18. (Lauer II, supra, at pp. 2, 8–9.)
The court observed that the evidence at trial “placed all four
defendants at the scene of Martin’s murder. The murder was
committed in a manner which strongly suggested that it was a
group effort. Unfortunately, the evidence did not reveal which
members of the group participated in the actual killing.” (Id. at
p. 7.) The court then concluded that the trial court’s error in
instructing the jury was harmless because “[f]irst, [defendants]
attempted unsuccessfully to present a diminished capacity
defense, indicating their recognition that the issue of their state
of mind at the time of the crimes was of some importance.
Second, the nature of the crimes charged was such that ‘no
rational jury could find’ that [defendants] committed the crimes
charged but did so without intending to kill.” (Id. at p. 8.)
Because “[t]he parties recognized that intent was an issue, and
the record not only establishes the necessary intent as a matter
of law, but shows the contrary evidence not worthy of
consideration[,]” the court denied the habeas petitions. (Id. at
pp. 8–9.)
On January 9, 2019, defendant filed a petition for
resentencing under section 1170.95. The prosecution filed an
initial opposition in June 2019 which attached a copy of Lauer II,
and defendant, with the assistance of appointed counsel, filed a
which implicates federal constitutional rights, including
instructional error, must be reviewed under the beyond-a-
reasonable-doubt harmless error standard in Chapman v.
California (1967) 386 U.S. 18 (Chapman).
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reply. Following further briefing by both parties, the trial court
held a hearing on August 6, 2020, and denied the petition on the
grounds that (1) defendant failed to make a prima facie showing
of eligibility for relief because the evidence established that he
was a direct aider and abettor in the murder and (2) under People
v. Galvan (2020) 52 Cal.App.5th 1134, review granted
October 14, 2020, S264284 (Galvan), the special circumstance
finding barred him from resentencing relief unless and until he
first obtained habeas relief from that finding.
The next day, the trial court issued a minute order
confirming its denial of the petition, finding that “[g]iven the
events surrounding the attempted murder of Kimberly, it defies
credulity that [defendant] went with the same three accomplices
to Martin’s apartment a short time later without full knowledge
that they were going to murder Martin, who was also an
acquaintance and could identify participants if not murdered. As
the court of appeal[ ] stated [in Lauer II], ‘no rational jury could
find’ a lack of intent to kill by [defendant] and his accomplices
when they went to Martin’s apartment to rob him.” The court
also cited Galvan, supra, 52 Cal.App.5th 1134 and concluded that
because the jury had found the special circumstance allegation to
be true, defendant was ineligible as a matter of law to have his
murder sentence vacated under section 1170.95.
Defendant appealed from the order denying his section
1170.95 petition and on August 24, 2021, we affirmed the order,
in part, and reversed and remanded, in part. On September 29,
2021, defendant filed a petition for review in our Supreme Court.
On October 25, 2021, the Governor signed Senate Bill
No. 775, which amended section 1170.95 to permit resentencing
of certain persons convicted of attempted murder under a natural
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and probable consequences theory. (§ 1170.95, subd. (a); see Sen.
Bill No. 775 (2021–2022 Reg. Sess.), as amended October 5, 2021,
p. 3; Stats. 2021, ch. 551, §§ 1–2.) The Supreme Court then
transferred the matter back to us with directions to vacate our
decision and reconsider the cause in light of Senate Bill No. 775.
We vacated our opinion and defendant and the Attorney General
then submitted additional supplemental briefs.
IV. DISCUSSION
A. Section 1170.95
Section 1170.95, as amended by Senate Bill No. 775,
“creates a procedure for convicted murderers [and attempted
murderers] who could not be convicted under the law as amended
to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th
952, 957 (Lewis).) Where a petitioner files a section 1170.95
petition that contains all of the statutorily required information
and requests counsel, the court must appoint counsel and order
briefing. (Id. at p. 966.)
When briefing has been completed, “the court shall hold a
hearing to determine whether the petitioner has made a prima
facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall
issue an order to show cause.” (§ 1170.95, subd. (c).) Within 60
days of issuance of the order to show cause, the trial court shall
hold a hearing “to determine whether the petitioner is entitled to
relief.” (§ 1170.95, subd. (d)(1) & (3).) “[T]he burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder under
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California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (d)(3).) The
trial court acts as the finder of fact when determining whether
the prosecution has met its burden beyond a reasonable doubt.
(See Ibid.; People v. Gentile (2020) 10 Cal.5th 830, 855 [“section
1170.95 requires the superior court to determine on an
individualized basis, after considering any new or additional
evidence offered by the parties, whether the defendant is entitled
to relief”].)
B. Murder Conviction
Defendant contends, among other things, that (1) the trial
court erred by weighing the evidence at the prima facie inquiry
stage of the resentencing proceeding; and (2) the harmless error
finding in Lauer II based on the prior record of conviction should
not preclude sentencing relief because section 1170.95,
subdivision (d)(3) permits both defendants and the prosecution to
introduce new or additional evidence on the issues of whether
defendant acted with the requisite intent to kill or was a major
participant who acted with reckless indifference to human life.
The Attorney General counters that the trial court’s denial of the
petition as to defendant’s murder conviction can be upheld under
two different legal theories not articulated by the court, namely,
the doctrines of law of the case and collateral estoppel.
We disagree with the Attorney General’s contention. In our
view, giving preclusive effect to the appellate opinion in Lauer II
at this preliminary stage would be inconsistent with our Supreme
Court’s opinion in Lewis, supra, 11 Cal.5th 952 that the bar at
the prima facie stage is intentionally low and appellate opinions,
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although probative on a particular issue, do not necessarily
“‘supply all [the] answers.’” (Id. at p. 972; see also § 1170.95,
subd. (d)(3) [“The court may also consider the procedural history
of the case recited in any prior appellate opinion”], italics added.)5
In the Lauer II habeas proceeding, the Supreme Court
directed the Court of Appeal to determine whether the trial
court’s failure to instruct the jury that proof of an intent to kill
was essential to a special circumstance finding constituted
prejudicial error under Chapman, supra, 386 U.S. 18. On
remand, the Court of Appeal in Lauer II determined that the
instructional error was harmless because no rational jury could
have found that defendant committed the charged crimes, “but
did so without intending to kill.” This conclusion does not
demonstrate, as a matter of law, that defendant cannot meet his
prima facie burden to show that he could not be convicted of
murder following the amendments to sections 188 and 189, i.e.,
that he did not act with the intent to kill and was not a major
participant in the robbery who acted with reckless indifference to
human life. (See, e.g. People v. Jurado (2006) 38 Cal.4th 72, 94;
People v. Berg (2019) 34 Cal.App.5th 856, 875, fn. 20.) As noted,
at the section 1170.95, subdivision (d)(3) hearing, the parties will
be permitted to introduce new evidence and arguments for the
trial court’s consideration. (§ 1170.95, subd. (d)(3); People v.
Smith (2020) 49 Cal.App.5th 85, 95, review granted July 22,
2020, S262835 (Smith).) Thus, unlike Lauer II, in which the
appellate court’s review was limited to the record of conviction
5 We note that the trial court did not have the benefit of the
amended statute or guidance provided by Lewis, supra, 11
Cal.5th 952.
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and any rational inferences to be drawn therefrom, the trial court
in the section 1170.95, subdivision (d)(3) hearing is not
necessarily so limited. We therefore agree with defendant that
the court erred by weighing the evidence and engaging in fact
finding prior to issuing an order to show cause and holding a
hearing at which the parties would be permitted to submit
additional evidence and arguments on whether defendant was
entitled to resentencing on his murder conviction. (See Lewis,
supra, 11 Cal.5th at pp. 971–972; Smith, supra, 49 Cal.App.5th
at p. 95.)
We next consider defendant’s contention that the trial court
erred in finding that the jury’s felony murder special
circumstances finding, made before People v. Banks (2015) 61
Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 were
decided, prevented defendant from making a prima facie showing
that he was entitled to relief. The Courts of Appeal are in
disagreement regarding this issue, which is currently pending
before the Supreme Court. (People v. Strong (Dec. 18, 2020,
C091162) [nonpub. opn.], review granted Mar. 10, 2021,
S266606.) In the absence of a decision by the Supreme Court, we
see no reason to depart from our prior holding that the special
circumstances finding does not prevent defendant from making a
prima facie showing that he is entitled to relief. (People v. York
(2020) 54 Cal.App.5th 250, 257–263, abrogated on another
ground in Lewis, supra, 11 Cal. 5th at p. 952.)
C. Sentence on Attempted Murder
Defendant contends, the Attorney General concedes, and
we agree that under Senate Bill No. 775, defendant is entitled to
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a remand for further proceedings on his attempted murder
conviction. We therefore will remand accordingly.
V. DISPOSITION
We reverse the trial court’s order denying defendant’s
section 1170.95 petition and remand with directions to issue an
order to show cause and hold a hearing pursuant to section
1170.95, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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