Filed 9/14/22 P. v. Hill CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A162732
v.
TYRELL HILL, (Alameda County
Super. Ct. No. 164489A)
Defendant and Appellant.
Defendant Tyrell Hill appeals from a postjudgment order denying his
petition for resentencing under former Penal Code section 1170.95 (now
§ 1172.6).1 The trial court rejected his request to appoint counsel and found
defendant ineligible for relief because it had previously concluded he failed to
make a prima facie case for relief and the current petition was an improper
“successive petition.”
On appeal, defendant contends he was entitled to counsel prior to the
court conducting its prima facie review. Moreover, defendant asserts such
failure was not harmless because the court relied on an order denying an
earlier petition that did not apply the definitions of a “major participant” and
“reckless indifference to human life” as set forth in People v. Banks (2015)
All statutory references are to the Penal Code. The Legislature
1
recently renumbered section 1170.95 (Stats. 2022, ch. 58, § 10).
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Thus, we cannot conclude the failure to appoint counsel was harmless under
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Accordingly, we reverse
the order denying defendant’s section 1172.6 petition.
I.
BACKGROUND
A. Factual Background
The following facts were set forth in this court’s prior nonpublished
opinion, People v. Hill (Nov. 19, 2013, A135250) (Hill I): The victims grew
medical marijuana in their home in West Oakland. Defendant learned of the
grow operation, and he and three accomplices decided to rob the growers of
their marijuana. During the robbery, the victims panicked and fled the
house. When they reached the front yard, they encountered one of the
robbers with a submachine gun. One of the victims struggled with the robber
over the gun, during which the victim was shot. Defendant and his
accomplices fled, and the police found the victim dead. Another individual,
who had been in custody the day of the robbery, informed police defendant
had told him about the robbery and shooting, and he believed defendant had
been wielding the submachine gun. Defendant admitted being involved in
the robbery but denied having a gun.
B. Procedural Background
“Defendant was charged with murder, including special circumstances
allegations that he committed the murder while engaged in a burglary and a
robbery, with enhancements for personal use of a firearm, intentionally
discharging a firearm, and discharging a firearm causing great bodily injury
or death, and two counts of felon in possession of a firearm, as well as an
allegation that defendant suffered a prior prison conviction. After pleading
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no contest to the felon in possession of a firearm charges and admitting the
prison prior, defendant proceeded to jury trial on the remaining charges and
allegations. . . . [H]e was found guilty of first degree murder with special
circumstances; the allegation that he personally used a firearm was found
true, as was the allegation that he intentionally discharged a firearm; the
other firearm enhancement was found not true. He was sentenced to life in
prison without the possibility of parole.” (Hill I, supra, A135250.)
Defendant appealed the judgment in Hill I, arguing in relevant part
that the trial court committed reversible error by failing to instruct on the
required elements for the felony-murder special circumstances. In assessing
whether the omission was harmless, this court evaluated the record to
determine whether defendant constituted a “major participant” in the
underlying felony. In doing so, this court cited People v. Smith (2005)
135 Cal.App.4th 914 for the definition of “major participant.”2 (Hill I, supra,
A135250.) And in considering that definition, this court concluded there was
“ample evidence supporting both [the ‘major participant’ and ‘reckless
indifference’] elements that were missing from the jury instructions,” and
affirmed the judgment. (Ibid.)
In 2019, defendant filed a petition for resentencing pursuant to former
section 1170.95. Defendant did not request counsel at that time. The court
denied the petition for failing to make a prima facie showing that defendant
was entitled to relief. The court noted Hill I “held that there was ample
2 The Attorney General argues this court cited Tison v. Arizona (1987)
481 U.S. 137, which the California Supreme Court also cited in deciding
Banks. But Tison was merely cited for an example of what would constitute
a “ ‘nonmajor participant.’ ” (Hill I, supra, A135250.) It does not indicate
this court was applying the same definition of “major participant” as later
established in Banks.
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evidence that [defendant] was a major participant and acted with reckless
disregard for human life. . . . [¶] Given these findings by the appellate court,
relief under [former] Penal Code section 1170.95 is unavailable to [defendant]
because he could still be convicted of first degree murder regardless of the
changes to Penal Code section 189 made by [Senate Bill] 1437.” Defendant
did not appeal the order but rather filed a habeas petition. This court denied
his habeas petition because it challenged an appealable order and failed to
provide an adequate record.
Shortly thereafter, defendant filed a second petition for resentencing as
to his first degree murder conviction. Defendant requested that the court
appoint counsel. However, no counsel was immediately appointed. Instead,
the trial court construed this petition as a motion for reconsideration and
denied it on the basis that the court would not reconsider its prior ruling.
Defendant filed an untimely appeal from that order.
In 2021, defendant filed a third petition for resentencing and requested
appointment of counsel. Counsel was not appointed at that time, and the
court denied the petition “for the same reasons” as set forth in its order
denying the first petition. Defendant timely appealed.
II.
DISCUSSION
A. Statutory Background
Effective January 1, 2019, Senate Bill 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437) amended “the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, 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
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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.)
Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be
convicted of murder, a principal must act with malice aforethought; malice
can no longer ‘be imputed to a person based solely on his or her participation
in a crime.’ (§ 188, subd. (a)(3).)” (In re R.G. (2019) 35 Cal.App.5th 141, 144.)
Senate Bill 1437 also “amended section 189, which defines the degrees of
murder, by limiting the scope of first degree murder liability under a felony-
murder theory. (§ 189, subd. (e).)” (People v. Turner (2020) 45 Cal.App.5th
428, 433.)
Senate Bill 1437 also added former section 1170.95, which permitted a
person convicted of murder under a now-invalid felony-murder or natural and
probable consequences theory to petition the superior court to vacate the
murder conviction and to be resentenced on any remaining counts. (People v.
Lewis (2021) 11 Cal.5th 952, 959 (Lewis); People v. Gentile, supra, 10 Cal.5th
at p. 843.) A petitioner is eligible for relief if he or she (1) was charged with
murder by means of a charging document that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine; (2) was convicted of first or second degree
murder; and (3) could no longer be convicted of first or second degree murder
due to the changes to sections 188 and 189 effectuated by Senate Bill 1437.
(Former § 1170.95, subd. (a).)
B. Denial of Petition for Resentencing
On appeal, defendant asserts the trial court erred in failing to appoint
counsel upon the filing of his petition for resentencing, and he was harmed by
the court’s failure to do so. We agree.
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1. Right to Counsel
Defendant contends he was erroneously denied his statutory right to
counsel. As our Supreme Court clarified, “the statutory language and
legislative intent of section [1172.6] make clear that petitioners are entitled
to the appointment of counsel upon the filing of a facially sufficient petition.”
(Lewis, supra, 11 Cal.5th at p. 957; see also § 1172.6, subd. (b)(3) [“Upon
receiving a petition in which the information required by this subdivision is
set forth or a petition where any missing information can readily be
ascertained by the court, if the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner.”].)
Here, defendant filed a facially sufficient petition. As required by
section 1172.6, defendant submitted a declaration stating a complaint was
filed against him allowing the prosecution to proceed under a felony-murder
theory or murder under the natural and probable consequences doctrine, he
was convicted of first or second degree murder, and he could not now be
convicted due to the legislative amendments to sections 188 and 189. (See
§ 1172.6, subds. (a)(1)–(3), (b)(1)(A).) His petition also set forth the superior
court case number and year of conviction, as well as a request to appoint
counsel. (See § 1172.6, subds. (b)(1)(B)–(C).) And the trial court
acknowledged the petition “contain[ed] the requisite pleadings.” Accordingly,
defendant was entitled to counsel, and the trial court erred in failing to
appoint counsel upon the filing of the petition.
2. Harmless Error
The Attorney General argues the trial court’s error in failing to appoint
counsel was harmless. We disagree.
The failure to appoint counsel under section 1172.6 is reviewed for
prejudice under Watson, supra, 46 Cal.2d at page 836. (Lewis, supra,
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11 Cal.5th at pp. 957–958.) Under that standard, defendant has the burden
to show a reasonable probability that he would have obtained a more
favorable result if the trial court had appointed counsel. (Id. at p. 974.)
Specifically, “a petitioner ‘whose petition is denied before an order to show
cause issues has the burden of showing “it is reasonably probable that if
[defendant] had been afforded assistance of counsel [his] petition would not
have been summarily denied without an evidentiary hearing.” ’ ” (Ibid.)
The trial court identified two grounds for denying defendant’s third
petition. First, the court noted defendant failed to appeal from his first
petition, did not timely appeal from his second petition, and “may not now
attempt to circumvent the procedures for appealing an appealable order and
seek review or reconsideration of his claim in this court th[r]ough successive
petitions.” Defendant argues he is not prohibited from filing successive
petitions, and cites various authorities considering subsequent petitions
under section 1172.6. The Attorney General does not dispute this point.
In People v. Farfan (2021) 71 Cal.App.5th 942, the Second District
Court of Appeal rejected an assertion that a defendant’s successive
section 1172.6 petition was procedurally barred. The court noted the initial
petition was denied in 2019, and authority decided after 2019 demonstrated
the “still-evolving state of section [1172.6] jurisprudence.” (Farfan, at
pp. 949–950.) The court explained, “In our view, application of collateral
estoppel to bar consideration of appellant’s 2020 petition would thwart
Senate Bill No. 1437’s overall purpose of ensuring that ‘a person’s sentence is
commensurate with his or her individual criminal culpability’ [citations], and
that ‘all those entitled to resentencing are able to obtain relief’ [citation].
This is especially true in this case, where the superior court never appointed
counsel even though appellant filed two facially sufficient petitions.” (Id. at
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p. 950.) We agree with the reasoning in Farfan and conclude the trial court
should not have rejected defendant’s third petition merely because it was
“successive.”
Second, the trial court rejected defendant’s third petition “for the same
reasons” it denied the first petition. The court further explained, “as
provided in this court’s order denying the first petition, [defendant] is
ineligible for relief under Penal Code section [1172.6] as a matter of law due
to the appellate court’s finding that instructional error on the special
circumstance allegation was harmless beyond a reasonable doubt because of
ample evidence demonstrating that [defendant] was a major participant who
acted with reckless indifference to human life.”
The Attorney General argues the trial court properly denied the third
petition on the merits because this court’s prior opinion—upon which the trial
court relied—“cited the same considerations later endorsed by Banks and
Clark,” despite being decided prior to those opinions. We disagree.
In Hill I, this court noted the trial court erred in failing to provide
CALJIC No. 8.80.1, which “would have indicated that: ‘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 . . . unless you are
satisfied beyond a reasonable doubt that such defendant with the intent to
kill [aided,] [abetted,] . . . [or] [assisted] any actor in the commission of the
murder in the first degree] [.] [, or with reckless indifference to human life
and as a major participant, [aided,] [abetted,] . . . [or] [assisted] in the
commission of the crime of [attempted robbery or burglary or attempted
burglary] which resulted in the death of a human being . . . .]’ ” (Hill I, supra,
A135250, italics omitted.) Citing People v. Smith, supra, 135 Cal.App.4th
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914, 928, we noted “A ‘ “ ‘major participant’ ” ’ in the underlying felony is one
whose participation is ‘ “ ‘notable or conspicuous in effect or scope’ ” ’ or
‘ “ ‘one of the larger or more important members’ ” ’ of the group committing
the underlying felony.” (Hill I, supra, A135250.) The opinion further noted,
“The mental state of reckless indifference to human life ‘ “[i]s one in which
the defendant ‘knowingly engage[es] in criminal activities known to carry a
grave risk of death’. . .” [citation] [and] requires the defendant be
“subjectively aware that his or her participation in the felony involved a
grave risk of death.” ’ ” (Ibid., italics added.) We thus concluded the error
was harmless because “ample evidence” supported the missing elements.
(Ibid.)
While People v. Smith, supra, 135 Cal.App.4th 914 relied on People v.
Proby (1998) 60 Cal.App.4th 922, with which Banks generally agreed, the
Banks court “found it necessary to examine the term [“major participant”]
more closely in light of” other authority. (In re Bennett (2018) 26 Cal.App.5th
1002, 1018–1019.) Banks then established a list of considerations for
assessing whether an individual was a “major participant.” (Banks, supra,
61 Cal.4th at p. 803.) Likewise, the Supreme Court in Clark subsequently
established a list of factors for evaluating whether a defendant acted with
reckless indifference to human life, including noting mere use of a gun is
insufficient to establish reckless indifference. (Clark, supra, 63 Cal.4th at
pp. 617–622.) Because Banks and Clark had yet to be decided, this court did
not employ that framework when evaluating the question of harmless error
in Hill I.3
3 This court also identified its role in the prior appeal as follows: “ ‘our
task in analyzing the prejudice from the instructional error is whether any
rational fact finder could have come to the opposite conclusion.’ ” (Hill I,
supra, A135250.) At the hearing stage for a petition for relief under
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The Attorney General next argues “any additional clarity provided by
Banks and Clark is not material here” because the evidence admitted at trial
clearly established defendant was a major participant who acted with
reckless indifference to human life. However, reaching this conclusion
requires a level of fact finding beyond the scope of the prima facie stage.
(Lewis, supra, 11 Cal.5th at p. 972.) As explained by the Supreme Court in
Lewis, a prima facie inquiry under section 1172.6 is “limited” and “ ‘ “the
court takes petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved.” ’ ” (Lewis, at p. 971.) At this stage
we cannot conclude, had defendant been properly appointed counsel, he
would not have obtained relief.
Finally, we note while this case was on appeal, the Supreme Court
resolved a split among the appellate courts and held: “Findings issued by a
jury before Banks and Clark do not preclude a defendant from making out a
prima facie case for relief under” section 1172.6. (People v. Strong (2022)
13 Cal.5th 698, 710.) In this case, defendant’s petition has never been
reviewed under the newer Banks and Clark standards. Thus, under the
Supreme Court’s recent ruling in Strong, the trial court erred by summarily
denying defendant’s section 1172.6 petition.
III.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed.
section 1172.6, “ ‘the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’ ”
(Lewis, supra, 11 Cal.5th at p. 960.)
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MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
WISS, J.
A162732
People v. Hill
Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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