Filed 11/10/22 P. v. Bloxton CA2/2
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307556
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA018339)
v.
OPINION ON REMAND
DANTE LAVELL BLOXTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gary J. Ferrari. Reversed and remanded.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Rob Bonta,
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Wyatt Bloomfield and Nicholas J. Webster, Deputy Attorneys
General, for Plaintiff and Respondent.
******
Dante Lavell Bloxton (defendant) appeals the trial court’s
denial of his petition for relief under Penal Code1 section 1172.6
(former section 1170.95).2
We previously affirmed the court’s order in an unpublished
opinion, People v. Bloxton (July 29, 2021, B307556), concluding
the record established defendant was ineligible for resentencing
as a matter of law based on the true finding on the special
circumstance allegation by the jury at trial. Upon review, the
California Supreme Court transferred this case back to us to
reconsider in light of People v. Strong (2022) 13 Cal.5th
698 (Strong). We now reverse the court’s order and remand the
matter for the court to conduct an evidentiary hearing under
section 1172.6.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
For the sake of simplicity, we will refer to the section by its
new numbering only.
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FACTS AND PROCEDURAL BACKGROUND
I. Facts3
A. The underlying crimes
On a Sunday night in August 1993, defendant, Efren
Bullard (Bullard) and others approached two men who were
using a gas station pay phone in Long Beach, California.
Defendant and Bullard had firearms. With guns drawn,
defendant and his companions demanded that the men hand over
their valuables. Defendant and his group soon realized that the
two men had driven separate cars—namely, a Bronco and a
Camaro. From the Bronco, the group pulled out one man’s wife
by her hair and demanded her jewelry and money; they then
proceeded to ransack the Bronco. After a third man got out of the
Camaro, defendant and his group lined up all four victims by the
Bronco and demanded that they turn out their pockets. One
member of the group commented that he was “going to kill all of
the victims because they were Mexican.” When the robbers went
to ransack the Camaro, they discovered David Hoppes (Hoppes)
inside the car. Defendant and Bullard pulled Hoppes from the
Camaro and started to beat him and to go through his pockets.
When Bullard announced his intention to kill Hoppes because
Hoppes “was White,” defendant responded, “I don’t care.”
Moments later, Bullard shot Hoppes in the leg and, after Hoppes
collapsed and started to crawl away, defendant and Bullard
walked up to him in tandem. While standing over Hoppes,
Bullard shot him repeatedly. The multiple gunshot wounds were
fatal. The robbers then ran off.
3 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Bloxton (July
23, 1998, B113892).)
3
B. Prosecution, conviction and appeal
The People charged defendant with (1) the murder of
Hoppes (§ 187, subd. (a)), and (2) five counts of second degree
robbery (§ 211). As to the murder, the People alleged a special
circumstance—namely, that it was committed in the course of a
robbery (§ 190.2, subd. (a)(17)(A)), which could be found true only
if defendant was a major participant in the robbery and acted
with reckless indifference to human life. The People further
alleged that defendant and Bullard “personally use[d] a firearm”
(§ 12022.5, subd. (a)), and that a principal was “armed with a
firearm” (§ 12022, subd. (a)(1)).
A jury convicted defendant of murder and four counts of
second degree robbery, and found true all of the allegations.
The trial court sentenced defendant to prison for life
without the possibility of parole (LWOP) plus 15 years.
Specifically, the court sentenced defendant to LWOP plus five
years (for the firearm enhancement) on the murder count, and a
consecutive 10 years for one of the second degree robbery counts
(comprised of base sentence of five years plus five years for the
firearm enhancement). The court stayed or concurrently ran the
remaining sentences.
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On December 24, 2018, defendant filed a petition seeking
resentencing for the murder conviction under section 1172.6.4
4 The petition for section 1172.6 relief was included within a
petition for a writ of habeas corpus that sought to vacate his
murder conviction under People v. Chiu (2014) 59 Cal.4th 155.
Defendant filed a second petition for a writ of habeas corpus on
4
The court appointed counsel for defendant, and ordered the
parties to submit further briefing. Following a hearing, the trial
court “summarily denied” defendant’s petition. The court found
that defendant had not “establish[ed] a prima facie case for relief”
under section 1172.6 because one of the elements of that prima
facie case—namely, that defendant could not be convicted of first
degree murder under the amended murder statute—was
foreclosed by “the jury[’s finding] beyond a reasonable doubt [that
defendant] was a major participant in the underlying felony
[who] acted with reckless indifference to human life.”
As noted above, we affirmed, but our Supreme Court
vacated our prior opinion and has remanded the matter for us to
reconsider in light of Strong.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1172.6 petition on the ground that the jury’s
prior special circumstance finding rendered him ineligible for
relief under section 1172.6. Because this argument turns on
questions of statutory construction and the application of law to
undisputed facts, our review is de novo. (People v.
Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018.)
Section 1172.6 authorizes a defendant “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.
January 28, 2020, seeking a hearing to preserve evidence for a
future juvenile offender parole hearing under People v. Franklin
(2016) 63 Cal.4th 261. Neither petition was before us in that
appeal.
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(§ 1172.6, subds. (a) & (c).) This, in turn, requires a showing
that, among other things, 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).) These
statutes, even as amended, 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).)
In Strong, supra, 13 Cal.5th 698, our Supreme Court
confronted the same basic facts present in this case. There, as
here, the defendant’s jury found true the special circumstance
that he was a “major participant” who acted with “reckless
indifference” to human life. There, as here, the jury’s finding was
made prior to the issuance of Banks, supra, 61 Cal.4th 788
(Banks) and Clark, supra, 63 Cal.4th 522 (Clark). There, as here,
the defendant was seeking relief under section 1172.6 and the
trial court had summarily denied him that relief on the ground
that jury’s pre-Banks and pre-Clark finding was binding. Strong
held that this was wrong. Strong reasoned that Banks and Clark
“substantially clarified”—and narrowed—the meaning of the
terms “major participant” and “reckless indifference.” (Strong, at
p. 721.) As a result, Strong concluded, “[f]indings issued by a jury
before Banks and Clark” are not preclusive and, more to the point
“do not preclude a defendant from making out a prima facie case
for relief.” (Id. at pp. 710, 716-717.) Strong went on to hold that
it was inappropriate for any court—trial or appellate—to
evaluate whether substantial evidence supports the jury’s pre-
Banks and pre-Clark finding if that evidence is viewed through
the narrowed Banks and Clark prisms. (Id. at pp. 719-720.) In
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sum, Strong held that a pre-Banks and pre-Clark special
circumstance finding does not warrant summary denial of
a section 1172.6 petition; instead, the matter must proceed to an
evidentiary hearing. (Id. at p. 720.)
Strong disposes of this appeal. Defendant’s special
circumstance finding was made prior to Banks and Clark, and
thus cannot provide the basis for the summary denial of his
petition. He is entitled to an evidentiary hearing. Because we
have concluded that he has not received such a hearing,
we remand for one.
DISPOSITION
The court’s order denying defendant’s petition for
resentencing is reversed, and the matter is remanded for an
evidentiary hearing under section 1172.6.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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