People v. Carter CA4/2

Filed 11/8/22 P. v. Carter CA4/2
Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074159

v. (Super.Ct.No. FSB03821)

JERMAINE CORNELIUS CARTER, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.

Cindy Brines, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alan L.

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Amann, Lynne G. McGinnis, and A. Natasha Cortina, Deputy Attorneys General, for

Plaintiff and Respondent.

I

INTRODUCTION

In 1995, among other crimes, a jury convicted defendant and appellant Jermaine
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Cornelius Carter of first degree murder (Pen. Code, § 187) with true findings on the

special circumstance allegation that the murder occurred during a robbery (§ 190.2,

subd. (a)(17)) and the special circumstance of multiple murder (§ 190.2, subd. (a)(3)).

The jury also convicted defendant of second degree murder, during which he used a

handgun (§ 12022.5, subd. (a)). Defendant was sentenced to life without the possibility

of parole.

In 2019, defendant filed a petition to vacate his murder convictions under

section 1172.6 (formerly section 1170.95),2 which was enacted by the Legislature

through its passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,

ch. 1015). The trial court denied the petition, finding Senate Bill No. 1437

unconstitutional and, alternatively, concluding defendant was ineligible for relief as a

matter of law based on the jury’s special circumstance finding (first degree murder) and

because defendant was the actual killer (second degree murder).

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All future references are to the Penal Code unless otherwise stated.

2 Effective June 30, 2022, the Legislature renumbered section 1170.95 as
section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to
section 1172.6 for ease of reference unless otherwise indicated.

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 Defendant appealed that ruling, arguing the trial court erred in finding Senate Bill

No. 1437 unconstitutional and by concluding the special circumstance finding as to his

first degree murder conviction made him ineligible for relief as a matter of law. Relying

on People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th

522 (Clark), he argued the jury’s 1995 special circumstance finding did not conclusively

bar him from obtaining relief because a robbery-murder special circumstance finding

made before Banks and Clark is not dispositive. In our original opinion, we concluded

that Senate Bill No. 1437 is constitutional but found defendant’s special circumstance

finding rendered him ineligible for relief as a matter of law. We therefore affirmed the

summary denial of defendant’s petition.

The California Supreme Court granted review of our opinion and deferred action

pending its decisions in People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v.

Lewis (2021) 11 Cal.5th 952 (Lewis), and it has now transferred the matter back to us

with directions to vacate our original opinion and reconsider defendant’s appeal in light

of those decisions. In Strong, our Supreme Court held that a pre-Banks/Clark felony-

murder special circumstance finding does not render a section 1172.6 petitioner ineligible

for relief as a matter of law. Having reconsidered defendant’s appeal in light of Strong

and Lewis, we reverse the trial court’s order and remand the matter for further

proceedings pursuant to section 1172.6.

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 II

FACTUAL AND PROCEDURAL BACKGROUND 3

On February 27, 1994, defendant, Walter Reginald Beasley, James Charles

Beasley (the Beasley brothers), and the first victim were arguing in an alley in Rialto.

Gunfire erupted between defendant and the victim, and the victim was killed. The three

left in one of the Beasley brothers’ cars.

They drove to Ivan Ray Warren’s house and then took off with him in his car.

They drove to a store where two of the four entered, held up the clerk at gunpoint, had

him open the cash drawer, then shot him in the head, killing him.

Next, they traveled to the parking lot of a department store, where they robbed a

man whose disabled car was parked there. They then drove to the parking lot of a nearby

restaurant, where a woman and man were held up at gunpoint.

On August 25, 1994, an information was filed charging defendant with seven

felony counts: one count of attempted murder (§§ 664/187, subd. (a); count 1) of

Ronnie F.; one count of murder (§ 187, subd. (a); count 2) of William R. with a firearm

enhancement (§ 12022.5, subd. (a)); one count of second degree robbery (§ 211; count 3)

with a firearm enhancement (§ 12022.5, subd. (a)); one count of murder (§ 187, subd. (a);

count 4) of Robert K. with special allegations that the crime occurred during the

3 The summary of the factual background is taken from this court’s nonpublished
opinions from defendant’s prior appeals in case Nos. E015694 and E071716. (People v.
Carter (Jan. 14, 1997, E015694) [nonpub. opn.] (Carter I); People v. Carter (July 30,
2019, E071716) [nonpub. opn.] (Carter II).)

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commission of a robbery (§ 190.2, subd. (a)(17), and multiple murders (§ 190.2,

subd. (a)(3)); and three counts of second degree robbery (§ 211; counts 5, 6, & 7). 4

This matter went to trial by jury against both defendant and codefendant Warren.

Upon conclusion of the evidence, both defendants made motions under section 1118.1 for

dismissal of all charges against them. The trial court denied the motion in its entirety as

to codefendant Warren and granted defendant’s motion only as to count 1, attempted

murder. (See Carter II, E071716.)

Subsequently, the jury convicted defendant and codefendant Warren of four

counts of second degree robbery (§ 211), during one of which defendant used a handgun

(§ 12022.5, subd. (a)), and one count each of first degree murder (§ 187). As to both

defendants, the jury further found the special circumstance that the murder occurred

during a robbery (§ 190.2, subd. (a)(17)), and, as to defendant, the jury found the special

circumstance of multiple murder (§ 190.2, subd. (a)(3)). The jury also convicted

defendant of second degree murder, during which he used a handgun. Both defendants

received life terms without the possibility of parole, along with determinate terms.

(Carter II, supra, E071716.) In 1997, we affirmed the judgment in a nonpublished

opinion. (Ibid.)

4 The criminal complaint also named the Beasley brothers and Warren as
defendants. Both Beasley brothers entered a plea before trial and codefendant Warren
was tried with defendant.

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 On January 1, 2019, Senate Bill No. 1437 became effective, which amended the

felony-murder rule and the natural and probable consequences doctrine as it relates to

murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 also added

former section 1170.95 (now section 1172.6), which created a procedure for offenders

previously convicted of murder to seek retroactive relief if they could no longer be

convicted of murder under the new law. (Stats. 2018, ch. 1015, § 4.)

On July 3, 2019, defendant in propria persona filed a petition for resentencing

pursuant to section 1172.6, requesting that his murder convictions be vacated based on

changes to sections 188 and 189, as amended by Senate Bill No. 1437, and asking to be

resentenced.

The People moved to strike the petition based on the unconstitutionality of Senate

Bill No. 1437 and resulting statutes. The People thereafter filed an informal response to

the petition, along with a request for judicial notice of the underlying trial, arguing

defendant failed to state a prima facie case for relief.

On September 26, 2019, defendant’s appointed counsel filed an opposition to the

People’s motion to strike, arguing Senate Bill No. 1437 is constitutional. Defense

counsel also asserted that defendant had made a prima facie case for relief and that the

burden had shifted to the prosecution to establish he was not eligible for relief.

On October 9, 2019, the trial court issued a tentative decision finding Senate

Bill No. 1437 unconstitutional and, concluding alternatively, that defendant was

ineligible for relief. As to his second degree murder conviction (count 2), the court noted

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that defendant was the actual killer. As to his first degree murder conviction (count 4),

the court explained the attendant special circumstance finding, namely murder committed

in the commission of a robbery, established that defendant either acted with the specific

intent to kill or was a major participant who acted with reckless indifference to human

life. The court continued further hearing to permit the parties to prepare additional

briefing to address the tentative decision.

The parties ultimately submitted, and the trial court, following its tentative

decision, denied defendant’s petition on November 4, 2019, in a written ruling.

III

DISCUSSION

Defendant contends the trial court erred in relying on the jury’s pre-Banks and

Clark true finding on the robbery-murder special circumstance to deny his petition, and

thereby violated his due process rights. The People concede that under Strong, the

court’s order denying defendant’s petition for resentencing at the prima facie stage should

be reversed and the matter remanded for further proceedings. Because his conviction

predates our Supreme Court’s decisions in Banks, supra, 61 Cal.4th 788 and Clark,

supra, 63 Cal.4th 522, which clarified the meaning of “major participant” and “reckless

indifference to human life,” we concur that the trial court erred in denying defendant’s

petition at the prima facie stage and remand for further proceedings under section 1172.6.

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 A. Legal Background

In 2015 and 2016, our Supreme Court decided Banks and Clark, respectively,

which discuss when section 190.2 authorizes a special circumstance life without parole

sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra,

61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those decisions held that

participation in an armed robbery, on its own, is insufficient to support a finding the

defendant acted with reckless indifference to human life. Instead, the factfinder must

consider “the defendant’s personal role in the crimes leading to the victim’s death and

weigh the defendant’s individual responsibility for the loss of life, not just his or her

vicarious responsibility for the underlying crime.” (Banks, at p. 801, italics omitted.)

“The defendant must be aware of and willingly involved in the violent manner in which

the particular offense is committed,” thereby “demonstrating reckless indifference to the

significant risk of death his or her actions create.” (Ibid., italics added.) Banks provided

a non-exhaustive list of factors to consider when determining whether the defendant was

a major participant in the underlying felony. (Banks, at p. 803.) And Clark offered a

similar list for determining whether the defendant acted with reckless indifference to

human life. (Clark, at pp. 619-623.)

As noted previously, effective January 1, 2019, the Legislature passed Senate Bill

No. 1437 “‘to amend 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

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participant in the underlying felony who acted with reckless indifference to human life.’”

(People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015,

§ 1, subd. (f).) The Legislature accomplished this by amending sections 188 and 189.

Effective January 1, 2022, Senate Bill No. 775 expanded the scope of those changes to

encompass, among other things, murder convictions “under the natural and probable

consequences doctrine or other theory under which malice is imputed to a person based

solely on that person’s participation in a crime.” (§ 1172.6, subd. (a), as amended by

Stats. 2021, ch. 551, § 2.)

Section 188, which defines malice, now provides in part: “Except as stated in

subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime

shall act with malice aforethought. Malice shall not be imputed to a person based solely

on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)

Section 189, subdivision (e), now limits the circumstances under which a person may be

convicted of felony murder: “A participant in the perpetration or attempted perpetration

of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs

is liable for murder only if one of the following is proven: [¶] (1) The person was the

actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill,

aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the

actual killer in the commission of murder in the first degree. [¶] (3) The person was a

major participant in the underlying felony and acted with reckless indifference to human

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life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e); Stats. 2018,

ch. 1015, § 3.)

Senate Bill No. 1437 also created a procedure for offenders previously convicted

of felony murder or murder under the natural and probable consequences doctrine to seek

retroactive relief if they could no longer be convicted of murder under the new law.

(Gentile, supra, 10 Cal.5th at p. 843; see Lewis, supra, 11 Cal.5th at p. 959.) Under

section 1172.6, such offenders may petition to have their convictions vacated and are

entitled to relief if (1) the complaint or information filed against them allowed the

prosecution to proceed under a felony murder or natural and probable consequences

theory; (2) they were “convicted of murder, attempted murder, or manslaughter following

a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been

convicted of murder or attempted murder”; and (3) they “could not presently be

convicted of murder or attempted murder because of changes to Section 188 or 189.”

(§ 1172.6, subd. (a).) If a petition makes a prima facie showing the offender is entitled to

relief, the trial court must issue an order to show cause and hold “a hearing to determine

whether to vacate the murder, attempted murder, or manslaughter conviction and to recall

the sentence and resentence the petitioner on any remaining counts in the same manner as

if the petitioner had not previously been sentenced.” (§ 1172.6, subds. (c), (d)(1).) At

that hearing, the People bear the burden “to prove, beyond a reasonable doubt, that the

petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3); see Lewis, at p. 960.)

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 The prima facie inquiry under section 1172.6, subdivision (c), is “limited.”

(Lewis, supra, 11 Cal.5th at p. 971.) 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.”’” (Ibid.) Although the

court may rely on the record of conviction (including a prior appellate court opinion) in

determining whether defendant has made a prima facie showing, the court “should not

engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’”

(Id. at p. 972; see id. at p. 971.)

In Senate Bill No. 775, the Legislature amended the language of section 1172.6,

expanding the scope of the petitioning process and clarifying some of the procedural

requirements. (Stats. 2021, ch. 551, § 2.) Section 1172.6 now provides that, upon

receiving a petition, if the petitioner has requested counsel, the court must appoint

counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).)

B. Standard of Review

In this case, the trial court denied defendant’s petition at the prima facie stage

under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the

record of conviction demonstrates that the petitioner is ineligible for relief as a matter of

law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, which we

review de novo. (See id. at p. 961.) The interpretation and application of a statute to

factual findings is a question of law subject to de novo review as well. (Ibid.; People v.

Johnson (2016) 1 Cal.App.5th 953, 960.)

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 C. Analysis

Our Supreme Court recently made clear that when, as here, a defendant’s case

“was tried before both Banks and Clark, the special circumstance findings do not

preclude him from making out a prima facie case for resentencing under section 1172.6.”

(Strong, supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have

been sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The

Strong court noted that the Banks and Clark cases “both substantially clarified the law

governing findings under . . . section 190.2, subdivision (d).” (Id. at p. 706.) The court

explained that a pre-Banks and Clark special circumstance finding does not negate the

showing that the petitioner could not presently be convicted of murder or attempted

murder because of changes to section 188 or 189 “because the finding alone does not

establish that the petitioner is in a class of defendants who would still be viewed as liable

for murder under the current understanding of the major participant and reckless

indifference requirements.” (Strong, at pp. 717-718.)

Noting the differences between pre- and post-Banks and Clark special

circumstance requirements, the Supreme Court observed the changes may “have altered

what evidence defense counsel would have sought to introduce[,] . . . might have

fundamentally altered trial strategies,” and may have affected what jury instructions were

requested or given. (Strong, supra, 13 Cal.5th at p. 719.) “An after-the-fact court review

of a pre-Banks and Clark record does not account for all these differences. . . . And

as the Legislature has made explicit in a recent amendment to the predecessor to

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section 1172.6, a court determination that substantial evidence supports a homicide

conviction is not a basis for denying resentencing after an evidentiary hearing. [Citation.]

Nor, then, is it a basis for denying a petitioner the opportunity to have an evidentiary

hearing in the first place.” (Id. at p. 720.) Thus, neither “the jury’s pre-Banks and Clark

findings nor a court’s later sufficiency of the evidence review amounts to the

determination section 1172.6 requires, and neither set of findings supplies a basis to

reject an otherwise adequate prima facie showing and deny issuance of an order to show

cause.” (Id. at p. 720.)

Here, the jury made its special circumstances finding in 1995, about 20 years

before Banks and Clark. And the trial court found defendant ineligible for relief as to his

first degree murder conviction based on the attendant special circumstance finding,

namely that the murder was committed in the commission of the robbery. Pursuant to

Strong, that finding does not preclude defendant from stating a prima facie case for relief.

(Strong, supra, 13 Cal.5th at p. 721.) Furthermore, a defendant’s prima facie case is not

barred even if the trial evidence was sufficient to support the special circumstance finding

after Banks and Clark. (Strong, at p. 710; Lewis, supra, 11 Cal.5th at p. 972 [in

reviewing the record at the prima facie stage, “a trial court should not engage in

‘factfinding involving the weighing of evidence or the exercise of discretion’”].)

Defendant’s resentencing petition was facially sufficient and alleged the essential

facts necessary for relief under section 1172.6. Nothing in the record demonstrates

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defendant is ineligible for relief as a matter of law, so we must remand the matter for

further proceedings under section 1172.6.

IV

DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is reversed.

The matter is remanded for further proceedings pursuant to section 1172.6.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:

McKINSTER
Acting P. J.

MENETREZ
J.

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