Filed 3/17/23 P. v. Pierce CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C093003
v. (Super. Ct. No. 06F04599)
JAYSHAWN VISA PIERCE, ON TRANSFER
Defendant and Appellant.
In 2008, a jury found defendant Jayshawn Visa Pierce guilty of first degree murder
and attempted robbery. (People v. Pierce (May 18, 2010, C060588) [nonpub. opn.]
(Pierce).) The jury found true a special circumstance allegation that the murder was
committed during the attempted robbery, but found not true the allegation that defendant
had intentionally and personally used a firearm in the commission of the murder. The
trial court sentenced defendant to life without the possibility of parole plus two years
eight months. In May 2010, this court modified the judgment to correct sentencing errors
and affirmed the judgment as modified. (Ibid.)
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Defendant subsequently petitioned the trial court for resentencing under what is
now Penal Code section 1172.61 based on changes made to the felony-murder rule by
Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court denied defendant’s petition,
finding the record established defendant was ineligible for resentencing because the jury
found true the special circumstance allegations, and because defendant was the actual
killer or at least a major participant. Defendant appealed, arguing, among other things,
that the trial court erred in determining he was ineligible for resentencing as a matter of
law based on the jury’s special circumstance finding. This court affirmed the trial court’s
order.
The California Supreme Court transferred the case back to this court with
directions to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698
(Strong). We conclude the trial court’s order denying the petition for resentencing must
be reversed and the matter remanded for further proceedings consistent with this opinion.
BACKGROUND
Defendant and his codefendants were looking for someone to rob so they could
pay bail money for a friend. They waited outside a nightclub and followed two
individuals. Defendant approached the victims with a shotgun and said “Give me your
shit” or something to that effect. The victims offered a purse and said they did not want
any trouble, but defendant shot and killed one of them. (Pierce, supra, C060588.)
The jury found defendant guilty of first degree murder (§§ 187, 189) and two
counts of attempted robbery (§§ 211, 664). As to the murder count, the jury found
true the special circumstance allegation that the murder was committed during the
attempted robbery. (§ 190.2, subd. (a)(17).) But it found not true the allegation that
defendant had intentionally and personally used a firearm in the commission of the
1 Undesignated statutory references are to the Penal Code.
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murder. (§ 12022.53, subd. (d).) The trial court sentenced defendant to life without the
possibility of parole plus two years eight months. Following a direct appeal, this court
modified the judgment to correct sentencing errors and affirmed the judgment as
modified. (Pierce, supra, C060588.)
On May 22, 2019, defendant filed a petition in the trial court to vacate his first
degree murder conviction under what is now section 1172.6. The petition asserted a
“complaint, information, or indictment was filed against [him] that allowed the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine.” Defendant also declared that at trial, he was
“convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural
and probable consequences doctrine.” He declared that following the amendments made
to sections 188 and 189, he could not now be convicted of first degree murder. He left
blank the remaining form petition questions about whether he was an actual killer or was
a major participant in a felony. The trial court appointed counsel for defendant.
In a written order, the trial court denied defendant relief. It found that because of
the special circumstance finding, defendant had not made a prima facie showing of
eligibility. The trial court also reasoned that even if defendant was not precluded from
relief based on the special circumstance finding because the finding occurred prior to the
Supreme Court decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), it would make no difference because defendant was
the actual killer or at least a major participant under Banks.
After this court affirmed the trial court’s order denying defendant’s petition, the
California Supreme Court transferred the case back to us with directions to reconsider the
matter in light of Strong, supra, 13 Cal.5th 698.
DISCUSSION
Defendant originally argued that the trial court should have issued an order to
show cause and conducted an evidentiary hearing. In both his original and supplemental
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briefing, he contends the trial court erred in relying on the jury’s special circumstance
finding to establish that he was a major participant who acted with reckless indifference
to human life, because the California Supreme Court clarified the special circumstances
analysis after his conviction in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th
522. In addition, he challenges the trial court’s reasoning that defendant is ineligible for
relief because he was the actual killer, claiming the determination was improper under
People v. Lewis (2021) 11 Cal.5th 952 (Lewis). The People respond that defendant is
ineligible for relief because the record of conviction unequivocally shows he was the
actual killer.
A
The Legislature enacted and the Governor signed Senate Bill No. 1437, effective
January 1, 2019 (Stats. 2018, ch. 1015, § 4), determining that the change in law was
“ ‘necessary 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
participant in the underlying felony who acted with reckless indifference to human life.’ ”
(People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275.) As pertinent here,
Senate Bill No. 1437 added what is now section 1172.6, which permits a person
convicted of felony murder or murder under a natural and probable consequences theory
to petition the sentencing court to vacate the murder conviction and resentence the person
on any remaining counts if, among other things, the petitioner could not be convicted of
first or second degree murder due to the change in the law. (§ 1172.6, subd. (a).)
Section 190.2, subdivision (d) provides that, for the purposes of those special
circumstances based on the enumerated felonies in paragraph (17) of subdivision (a),
which include robbery, an aider and abettor must have been a major participant and have
acted with reckless indifference to human life. (§ 190.2, subd. (d); Tapia v. Superior
Court (1991) 53 Cal.3d 282, 298.) In Banks and Clark, the California Supreme Court
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construed section 190.2, subdivision (d). (People v. Torres (2020) 46 Cal.App.5th 1168,
1179.) And in Strong, the Supreme Court concluded that “[f]indings issued by a jury
before Banks and Clark do not preclude a defendant from making out a prima facie case
for relief under Senate Bill [No.] 1437. This is true even if the trial evidence would
have been sufficient to support the findings under Banks and Clark.” (Strong, supra,
13 Cal.5th at p. 710.)
B
The People nevertheless claim defendant was the actual killer and therefore
ineligible for relief.2 Defendant counters that the trial court made an impermissible
evidentiary determination at the prima facie stage.
Lewis clarified the procedure for determining whether a petitioner has made a
prima facie showing. The trial court may review the entire record of conviction,
including the opinion in the direct appeal, but it should not engage in factfinding
involving the weighing of evidence or the exercise of discretion unless the record clearly
refutes the petitioner’s allegations. (Lewis, supra, 11 Cal.5th at 971-972.)
In this case, the trial court referenced facts set forth in this court’s opinion on
direct appeal and reasoned: “There does not appear to have been any evidence
introduced at trial to show that anyone except [defendant] fired the final shot. However,
in [defendant’s] recorded phone conversation with [a friend] at the jail, [defendant] told
[his friend] that his finger had slipped. Thus, there was evidence that showed that
[defendant] did not intend to actually pull the trigger, and that his finger had accidentally
slipped. For this reason, it appears that the jury found the [section 12022.53,
subdivision (d)] gun enhancement allegation to be not true. It does not appear that the
jury necessarily found that [defendant] was not the actual shooter. [¶] As the Third
2 We granted the People’s motion to incorporate by reference the record on appeal in the
related case on direct appeal, Pierce, supra, C060588.
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District affirmed the judgment, the true finding on the felony-murder special
circumstance remains in place. Nor does it appear from the record that [defendant] was
anything but the actual shooter.”
The trial court relied on facts recited in this court’s prior opinion. But effective
January 1, 2022, the Legislature limited a trial court’s use of such a factual summary.
(People v. Clements (2022) 75 Cal.App.5th 276, 292.)
C
Based on current applicable law, we will remand the matter to the trial court
to give it the opportunity to consider the entire record of conviction and determine
if defendant is entitled to an order to show cause and an evidentiary hearing.
DISPOSITION
The order denying defendant’s section 1172.6 petition is reversed, and the matter
is remanded to the trial court for further proceedings consistent with this opinion.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
RENNER, J.
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