Filed 10/26/22 P. v. Bergman CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315257
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA078839)
v.
KEVIN MICHAEL BERGMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Reversed and
remanded with directions.
Corey J. Robins, 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, Kenneth C. Byrne and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kevin Michael Bergman
(defendant) appeals from the denial of his petition for
resentencing brought pursuant to former section 1170.95 of the
Penal Code, now section 1172.6.1 Defendant contends that the
trial court erroneously found that he was ineligible for relief
under the statute as a matter of law. We conclude the denial was
improper under our Supreme Court’s recent decision in People v.
Strong (2022) 13 Cal.5th 698 (Strong) and reverse the order.2
BACKGROUND
In 2009, a jury convicted defendant of first degree murder
and found true the special circumstances that the murder was
committed during the commission of a robbery within the
meaning of section 190.2, subdivision (a)(17)(A) and a burglary,
within the meaning of section 190.2, subdivision (a)(17)(G).
Defendant was sentenced to prison for life without parole. We
affirmed the judgment in People v. Bergman (Feb. 23, 2011,
B219309) (nonpub opn.).
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no significant change in text.
(Stats. 2022, ch. 58, § 10.) For the sake of simplicity, we will
refer to the section by its new numbering only. All further
statutory references are to the Penal Code, unless otherwise
indicated.
2 The parties both responded to our invitation to address the
consequence of People v. Strong, supra, 13 Cal.5th 698 on this
case, which we considered.
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The underlying crime
In May 2008, defendant was angry with victim Dean
Modica because he believed Modica owed him money. After
defendant learned that Modica sold drugs and where he kept
them, defendant and three friends including Trevor Cooper and
Sean Schuck, went to Modica’s home to steal them. While two of
the friends remained in their car, defendant and Schuck found
Modica in his front yard and went into the house with him. After
about 10 minutes, Cooper went to check on them. Hearing a
commotion when he approached the front door, he entered, and
saw defendant and Modica wrestling or fighting upright, with
Modica’s back against the wall. Cooper saw Schuck approach
defendant from behind and lunge over him toward Modica.
Cooper claimed not to have seen a knife. Modica died as a result
of multiple sharp force injuries and sustained cuts consistent
with defensive wounds. The medical examiner could not confirm
whether Modica was or was not standing when he received the
injuries.
Petition for resentencing
In January 2019 defendant filed a petition to vacate his
murder conviction and for resentencing.3 Section 1172.6
3 Effective January 1, 2019, the Legislature 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).) The
Legislature also added former section 1170.95 (now section
1172.6), which provides a procedure for convicted murderers to
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authorizes a petitioner “convicted of felony murder or murder
under the natural and probable consequences doctrine” to vacate
his murder conviction if, as a threshold matter, he makes a
“prima facie showing” of entitlement to relief. (§ 1172.6, subds.
(a) & (c).) Such a petitioner is entitled to relief if he “could not
presently be convicted of murder” under the amendments to the
murder statutes that became effective on January 1, 2019. (Id.,
subd. (a)(3).) As relevant here, the murder statutes, even after
the amendments, still authorize a murder conviction based on
murder committed by someone else in the course of a jointly
committed felony as long as the defendant “was a major
participant in the underlying felony and acted with reckless
indifference to human life.” (§ 189, subd. (e)(3).)
Where a petition alleges the statutory conditions to
eligibility, as was done here, the trial court must appoint counsel,
entertain briefing by both parties, and then “proceed[] to
subdivision (c) to assess whether the petitioner has made ‘a
prima facie showing’ for relief. (§ [1172.6], subd. (c).)” (Lewis,
supra, 11 Cal.5th at p. 960; see id. at p. 962.) If the court
determines that a prima facie showing has been made, it issues
an order to show cause and then holds an evidentiary hearing
pursuant to section 1172.6, subdivision (d) to determine whether
to vacate the conviction and resentence the petitioner.
At the prima facie stage, the court must accept the
petitioner’s factual allegations as true and make a preliminary
assessment of entitlement to relief if the allegations were proved;
seek retroactive 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).)
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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
been made and deny the petition without issuing an order to
show cause. (Lewis, supra, 11 Cal.5th at p. 971; see People v.
Duchine (2021) 60 Cal.App.5th 798, 815.)
After he filed his petition, the trial court appointed counsel
for defendant, ordered the People to respond, received briefing
from both sides, and, after several continuances and further
briefing, held a prima facie review hearing. On September 8,
2021, after hearing the argument of counsel, the trial court
denied the petition upon finding that defendant had not made a
prima facie showing of eligibility for relief under the statute.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that the trial court erroneously denied
his petition by relying on facts and factual findings set forth in
the appellate opinion on direct appeal (People v. Bergman, supra,
B219309) and engaging in improper factfinding under a
substantial evidence standard at the prima facie stage.
Explaining its ruling, the trial court stated that “while . . .
there is no evidence that the defendant was the actual killer, the
jury did find beyond a reasonable doubt and the Court of Appeal
did affirm that evidence supported the conclusion that the
defendant was, if not the actual killer, a significant participant in
the attack under the act of reckless indifference to human life.”
Both defendant and the People interpret the court’s ruling as a
finding that the special circumstances the jury found true
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pursuant to section 190.2, subdivision (a)(17) rendered defendant
ineligible for relief as a matter of law.
In support of his petition in the trial court, defendant cited
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), arguing that, after he was
convicted in 2009, these authorities and subsequent cases
clarified the requirements to a determination of whether a
defendant was a major participant who acted with reckless
indifference to human life, and thus a special circumstance
finding does not preclude eligibility as a matter of law. Renewing
that argument here, defendant contends that the special
circumstance instruction given to the jury at his trial was
inadequate to explain the requirements necessary to make the
special circumstance findings. Defendant asks that the order
therefore be reversed with directions to the trial court to conduct
an evidentiary hearing.
At defendant’s trial, the jury was instructed that if the
defendant committed an act causing death during the
commission of a robbery or burglary either as the perpetrator or
aider and abettor of the robbery or burglary, he could be guilty of
first degree murder whether the killing was unintentional,
accidental, or negligent. The jury was also instructed that to find
the alleged special circumstances true, it was required to find
beyond a reasonable doubt that defendant acted with the intent
to kill or was a major participant in the crime and acted with
reckless indifference to human life. The instructions did not
define those terms or provide factors to guide the determination.
After initial briefing was complete in this appeal, the
California Supreme Court published Strong, supra, 13 Cal.5th
698. There, as here, the defendant was tried prior to the
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publication of Banks and Clark, and, under similar facts, the jury
found true a special circumstance alleged pursuant to section
190.2, subdivision (a). (See Strong, at pp. 703-704.) As in this
case, the trial court summarily denied the defendant’s section
1172.6 petition on the ground that the jury’s special circumstance
finding precluded the defendant from making a prima facie
showing of eligibility. (Strong, at p. 709.) In Strong our Supreme
Court held that this was wrong, reasoning that Banks and Clark
“substantially clarified” and narrowed the meaning of the terms
“major participant” and “reckless indifference”; and thus
“[f]indings issued by a jury before Banks and Clark” are not
preclusive. (Id. at pp. 721, 710.) More to the point, they “do not
preclude a defendant from making out a prima facie case for
relief.” (Id. at pp. 710, 716-717.)
Following the Strong opinion, the People concede their
original arguments have been rejected and agree that this
“matter should be remanded for the superior court to issue an
order to show cause and conduct an evidentiary hearing wherein
relief should be denied if the prosecution proves ‘beyond a
reasonable doubt, that the petitioner is guilty of murder or
attempted murder under California law as amended by the
changes to section 188 or 189 made effective January 1, 2019.
(§ 1172.6, subdivision (d)(3).)”
As defendant’s petition alleged the conditions for relief
under section 1172.6, and the trial court found no facts in the
record which conclusively refuted the allegations as a matters of
law, defendant made the required prima facie showing under
section 1172.6, subdivision (c), and the matter must proceed to an
evidentiary hearing under subdivision (d).
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DISPOSITION
The order denying the petition is reversed. The matter is
remanded with directions to the superior court to issue an order
to show cause, appoint counsel, and proceed with an evidentiary
hearing under section 1172.6, subdivision (d).
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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