Filed 7/26/22 P. v. Thompson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE
THE PEOPLE,
Plaintiff and Respondent, G060421
v. (Super. Ct. No. C-33433)
MICHAEL THOMPSON, OPI NION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Lance Jensen, Judge. Affirmed in part, reversed in part and remanded with directions.
Rebecca P. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Steve Oetting, Acting Assistant Attorney General, Arlene A. Sevidal, Lynne
McGinnis and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and
Respondent.
In 1975, appellant Michael Thompson was sentenced to life in prison for
two first degree murders. He contends the trial court erroneously denied his recent
petition for resentencing for failure to state a prima facie case under Penal Code
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1170.95. As respondent concedes, appellant is right with respect to one of the murders,
which was carried out by a codefendant. However, as to the other murder, the record of
conviction shows Thompson personally acted with malice aforethought so as to render
him ineligible for resentencing as a matter of law. Therefore, we reverse the trial court’s
order and remand for further proceedings as to one of the murder counts and affirm its
order as to the other.
FACTUAL AND PROCEDURAL BACKGROUND
At the behest of a man who agreed to pay them $5,000, Thompson and his
codefendants John Solis and Robert Sesma agreed to murder Vaudra “Butch” Nunley.
As part of their murder plan, defendants lured Nunley to Solis’ house late one evening.
Nunley arrived at the house with a companion named Rue Steele. When they entered
Solis’ home, Sesma beat Steele to death, and Thompson severely beat Nunley.
Defendants then loaded the victims into the trunk of a car and took them to Thompson’s
house for burial. However, upon arrival, they discovered Nunley was not dead, so Sesma
finished him off with a gunshot to the head. After that, defendants buried the victims in
Thompson’s backyard and collected their bounty.
Following a joint jury trial, Thompson was convicted of two counts of first
degree murder, conspiracy to commit first degree murder, kidnapping and aggravated
assault. Sesma was convicted of first and second degree murder, conspiracy to commit
second degree murder and kidnapping. And Solis was convicted of two counts of second
degree murder and kidnapping. Their convictions were affirmed on appeal in People v.
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All further statutory references are to the Penal Code.
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Solis, et al. (Sept. 29, 1977, 4 Crim. 7689) [nonpub. opn.], as was Thompson’s sentence
of life in prison with the possibility of parole.
In 2019, Thompson petitioned to vacate his murder convictions and be
resentenced pursuant to section 1170.95, which narrowed the scope of vicarious liability
for the crime of murder. The trial court recognized Thompson’s jury was instructed on
the felony murder rule and the natural and probable consequences doctrine. However,
the court found the record of conviction established Thompson personally acted with the
intent to kill so as to render him ineligible for resentencing relief. With respect to the
targeted victim Nunley, the court found such intent was established by virtue of the jury
instructions and verdict on the conspiracy count. And with respect to Steele, the court
relied on the principle of transferred intent. In particular, the court found Thompson’s
“planning for the death of the victim Nunley supplied the necessary premeditation to
support the jurors’ first-degree murder conviction as to victim Steele[.]” Accordingly,
the court denied Thompson’s petition in its entirety for failure to establish a prima facie
case.
DISCUSSION
Thompson contends the record of conviction fails to support the trial
court’s finding that he acted with malice toward the victims. He also argues the trial
court engaged in improper factfinding in denying his petition. Respondent concedes
reversal is required with respect to the murder count involving Steele, and we find that
concession well taken. However, we also agree with respondent that Thompson’s
conviction for murdering Nunley is outside the scope of section 1170.95. He is not
entitled to relief on that count.
Thompson’s claim is rooted in Senate Bill No. 1437 (SB 1437), which
moderated California’s murder laws in two ways. First, the bill eliminated the natural
and probable consequences theory for the crime of murder by providing, “Malice shall
not be imputed to a person based solely on his or her participation in a crime.” (§ 188,
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subd. (a)(3).) Second, SB 1437 reined in the felony murder rule so that it can only be
applied to nonkillers if they aided and abetted the killer in committing first degree
murder, or they were a major participant in the underlying felony and acted in a manner
that was recklessly indifferent to human life. (§ 189, subd. (e).)
SB 1437 also created a statutory procedure, codified in section 1170.95, by
which defendants who have been convicted of murder based on the felony murder rule or
the natural and probable consequences doctrine may petition for vacatur and resentencing
if their conduct did not constitute murder as redefined by SB 1437. If the defendant ’s
petition makes a prima facie showing to that effect, the trial court must issue an order to
show cause and, absent a concession by the prosecution, conduct an evidentiary hearing.
(§ 1170.95, subds. (c), (d).) At the hearing, the prosecution must prove beyond a
reasonable doubt the defendant is ineligible for resentencing. (Id., subd. (d)(3).)
Otherwise, the court must vacate his murder conviction and resentence him per the terms
of section 1170.95.
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our Supreme Court
recognized the bar for establishing a prima facie case for resentencing under section
1170.95 is quite low, and the trial court’s role in determining whether that bar has been
cleared in a given case is limited in a variety of respects. (Id. at pp. 970-972.) For
instance, the trial court must accept the petitioner’s allegations as true and refrain from
judicial factfinding. (Ibid.) However, the trial court may consider the record of
conviction, which includes the jury instructions and verdict forms pertaining to the
underlying trial. (Ibid.; People v. Verdugo (2020) 44 Cal.App.5th 320, 329-333,
overruled on other grounds in Lewis, supra, 11 Cal.5th at pp. 961-962.) And if the record
of conviction shows the petitioner is ineligible for resentencing as a matter of law, the
trial court may summarily deny his petition without an evidentiary hearing. (Ibid.)
In this case, the record of conviction shows defendants were prosecuted
under two theories of first degree murder: Premeditation and lying in wait. (The jury
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was also instructed on felony murder, but only in the second degree and Thompson’s
conviction was found to be a first degree murder.) The lying-in-wait theory pertained
exclusively to the Steele killing. The jury was instructed: “Murder which is immediately
preceded by lying in wait is murder of the first degree. This instruction applies only to
the death of Rue Steele not the death of Butch Nunley. [¶] [Lying in wait means]
waiting and watching for an opportune time to act, together with a concealment by
ambush or some other secret design to take the other person by surprise. . . . Also, the
lying in wait must be for the purpose of killing another or inflicting great bodily injury[.]”
Several other instructions also stated that the crime of first degree lying-in-wait murder
could be based on either the specific intent to kill or the specific intent to inflict great
bodily injury.
Regarding the conspiracy charge, the jury was instructed “defendants are
charged with conspiracy to . . . murder . . . Butch Nunley,” and unless the defendants had
the specific intent to kill him, that crime was not committed. In addition, the jurors were
told a conspiracy to commit murder may be of the first or second degree. The judge
instructed them conspiracy to commit murder of the first degree exists “where the
conspirators with malice aforethought intend[ed] to kill by means of lying in wait” or
“where with malice aforethought the conspirators with premeditation and deliberation
intend[ed] that the victim be killed.”
The jury was also instructed, “Each member of a criminal conspiracy is
liable for each act . . . of every other member of the conspiracy if said act . . . is in
furtherance of the object of the conspiracy.” In addition, “Every conspirator is legally
responsible for an act of a coconspirator that follows as one of the probable and natural
consequences of the object of the conspiracy even though it was not intended as part of
the original plan . . . .” In a related instruction, the jury was told the natural and probable
consequences doctrine also applied in the context of aiding and abetting.
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Thus, the jury clearly had the option of convicting Thompson of first
degree murder based on a theory of vicarious or imputed liability. In ruling on
Thompson’s resentencing petition, the trial court recognized this possibility with respect
to Steele’s murder, which was solely carried out by codefendant Sesma. However, it
reasoned that possibility was largely irrelevant because even if Thompson did not intend
to kill Steele, his intent to kill Nunley transferred to Steele and supplied the requisite
malice to deny him resentencing relief on the Steele killing.
The problem with this theory, as respondent admits, is that the jury was
never instructed on transferred intent. Therefore, while the transferred intent theory may
enjoy substantial evidentiary support in the record, it cannot be used to justify the denial
of Thompson’s 1170.95 petition as to Steele. (See People v. Secrease (2021) 63
Cal.App.5th 231, 247, review granted June 30, 2021, S268862 [in reviewing a petition
for resentencing under section 1170.95, courts look at what the jury actually found at the
defendant’s trial, not what it could have found].)
The situation is different regarding Nunley, however. Thompson contends
the jury may have convicted him of murdering Nunley in the first degree based on the
theory of lying in wait. And because that theory merely required the intent to inflict great
bodily injury, the jury did not necessarily find he possessed the intent to kill, i.e., malice.
However, by its terms, the lying-in-wait instruction only applied to Steele’s murder.
Therefore, the jury would have known not to apply it in assessing Thompson’s culpability
for Nunley’s death. (See generally People v. Sanchez (2001) 26 Cal.4th 834, 852 [jurors
are presumed to understand and follow all instructions from the court].)
And the court’s conspiracy instructions were worded so as to require the
specific intent to kill. The court’s general conspiracy instruction made that clear by
informing the jury, “In the crime of conspiracy to commit murder . . . there must exist in
the minds of the perpetrators the specific intent that Butch Nunley be killed [.]” What’s
more, the court’s instruction defining conspiracy to commit murder in the first degree
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also brought this point home to the jury. Although the instruction stated a conviction for
that offense could be based on a conspiracy to commit premeditated murder or lying-in-
wait murder, it expressly stated, as set forth above, that proof of malice was required for
both of those theories. So even if the jury somehow believed that Thompson was guilty
of murdering Nunley under the lying-in-wait theory, his conviction for conspiring to
commit first degree murder shows the jury found he acted with the specific intent to kill.
(People v. Medrano (2021) 68 Cal.App.5th 177.) Therefore, he is not eligible for
resentencing relief on the Nunley murder. (Ibid.)
In arguing otherwise, Thompson contends the trial court engaged in
improper factfinding. As we have explained, that is certainly true for the Steele murder,
which the trial court upheld on the theory of transferred intent. However, as for the
Nunley murder, the trial court said it based its ruling “as a matter of law” on the jury
instructions that were given and the jury’s verdict. Since those records are part of the
record of conviction (People v. Verdugo, supra, 44 Cal.App.5th at pp. 329-333), the court
was entitled to consider them. (Lewis, supra, 11 Cal.5th at pp. 970-972.)
Thompson nonetheless contends we should not place much stock in the
particular instructions the jury received because we do not have a complete record of
Thompson’s trial. The record of conviction contains a complete set of jury instructions
but it does not contain the parties’ closing arguments. That is hardly surprising,
considering the trial took place almost 50 years ago. Seizing on that void, Thompson
contends it is possible the prosecutor may have flouted the law during his closing
argument and impermissibly encouraged the jurors to convict him of conspiracy to
commit first degree without finding he possessed the requisite intent to kill. That does
not even rise to the level of pure speculation. It is a complete flight of fancy. We are not
empowered to conjure up misconduct based on an incomplete record.
In any event, the record shows the jury was instructed that it must follow
the law as provided by the court, which clearly made the intent to kill a perquisite for
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finding Thompson guilty of conspiring to murder Nunley in the first degree. Given
Thompson’s conviction for that offense, he is not entitled to resentencing relief for
Nunley’s murder.
DISPOSITION
With respect to Thompson’s conviction for murdering Steele, the trial
court’s order denying resentencing relief is reversed, and the matter is remanded for an
evidentiary hearing pursuant to section 1170.95, subdivision (d). In all other respects, the
trial court’s order is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
GOETHALS, J.
SANCHEZ, J.
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