Filed 4/14/23 P. v. Aikens CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B319872
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA355108)
v.
KENYON AIKENS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael D. Carter, Judge. Reversed with
directions.
Law Office of Stein and Markus, Andrew M. Stein,
Joseph A. Markus; and Brentford Ferreira for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kenyon Aikens (defendant)
appeals from the order denying his petition for vacatur of his
murder conviction and resentencing, filed pursuant to Penal Code
former section 1170.95 (now § 1172.6).1 Defendant contends the
trial court erred in finding his petition failed to make a prima
facie showing of eligibility under the statute. Both parties assert
that the matter must be remanded for an evidentiary hearing
pursuant to section 1172.6, subdivision (d). We agree and reverse
with directions.
BACKGROUND
The 2014 judgment
In 2014, a jury convicted defendant and a codefendant of
first degree murder, attempted robbery, and first degree
burglary. The jury found true the special circumstance alleged
pursuant to section 190.2, subdivision (a)(17), that defendants
committed the murder in the commission or attempted
commission of burglary and robbery. The jury also found true the
allegation as to both defendants that a principal was armed in
the commission of the offenses (§ 12022, subd. (a)(1)). Defendant
was sentenced to life in prison without the possibility of parole.
1 Effective June 30, 2022, Penal Code former section 1170.95
was renumbered section 1172.6, with no change in text. (Stats.
2022, ch. 58, § 10.) We will refer to the section by its new
number.
All further unattributed code sections are to the Penal Code
unless otherwise stated.
2
We affirmed the judgment against defendant in People v. Aikens
et al. (Nov. 2, 2017, B270559) [nonpub. opn.].
Senate Bill No. 1437
Effective January 1, 2019, the Legislature passed Senate
Bill No. 1437, amending 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 section 1172.6,
which provided a procedure for those convicted of murder to seek
retroactive relief if they could not be convicted under sections 188
and 189 as amended effective January 1, 2019. (See People v.
Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
As relevant here, a section 1172.6 petition must set forth
three conditions to be eligible for resentencing: (1) the petitioner
was charged with murder under a theory of felony murder, (2) the
petitioner was convicted of murder and (3) could not presently be
convicted of murder because of changes to section 189, effective
January 1, 2019. (See § 1172.6, subd. (a).) Where a petition
alleges the statutory conditions to eligibility, 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 must
issue an order to show cause and then hold an evidentiary
hearing pursuant to section 1172.6, subdivision (d) to determine
3
whether to vacate the conviction and resentence the petitioner.
(§ 1172.6, subd. (c); Lewis, supra, at p. 960.)
Defendant’s first section 1172.6 petition
In April 2019, prior to the publication of Lewis, supra, 11
Cal.5th 952, defendant filed a petition pursuant to section 1172.6,
which alleged all three conditions required by section 1172.6,
subd. (a), as follows: Defendant had been charged with murder
by information that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine2; defendant was convicted of
murder at trial; defendant was not the actual killer, nor did he
aid and abet the actual killer with intent to kill; defendant was
not a major participant in the felony or act with reckless
indifference to human life; the victim was not a police officer; and
defendant could not now be convicted of murder because of the
changes made to sections 188 and 189, effective January 1, 2019.
Defendant also requested that counsel be appointed.
The trial court appointed counsel, entertained briefing from
both sides, and heard argument. On January 14, 2020, the trial
court denied the petition at the prima facie stage without issuing
an order to show cause or calling an evidentiary hearing. The
court relied on the finding in the appellate opinion in People v.
Aikens et al., supra, B270559, that substantial evidence
supported a finding that defendant was the actual killer.3
2 In response to the petition, the prosecution acknowledged
that the theory advanced at trial was felony murder.
3 Though the jury did not make that finding, it instead found
that a principal used a firearm. The appellate court inferred that
defendant was the shooter since although both defendant and
codefendant were in the room with the victim, substantial
4
The Lewis decision and Senate Bill No. 775
Before the California Supreme Court issued Lewis, supra,
11 Cal.5th 952, there had been a split of authority in the courts of
appeal regarding whether the prima facie determination could be
made based on a substantial evidence review of the record of
conviction to support the conclusion the petitioner could still be
convicted of murder following the amendments to sections 188
and 189. (See People v. Aleo (2021) 64 Cal.App.5th 865, 871–872,
and cases cited therein.) Lewis held that the courts may look to
the record of conviction at the prima facie stage, but cautioned
that the “ ‘prima facie bar was intentionally and correctly set
very low,’ ” and that “[i]n reviewing any part of the record of
conviction at this preliminary juncture, a trial court should not
engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) 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. Only where
the record of conviction contains established facts showing that
petitioner is ineligible for resentencing as a matter of law may
the court find no prima facie showing has been made. (Id. at
p. 971; see People v. Duchine (2021) 60 Cal.App.5th 798, 815.)4
evidence showed that defendant was armed during the robbery
and pointed a gun at the victim, that only one gun was fired, and
there was insufficient evidence that the codefendant was also
armed.
4 “[A]s a matter of law” means that the record of conviction
conclusively refutes the allegations of the petition without resort
to factfinding, weighing of evidence, or credibility determinations.
(People v. Lopez (2022) 78 Cal.App.5th 1, 14.) For example,
5
The Legislature thereafter passed Senate Bill No. 775
(2021-2022 Reg. Sess.), effective January 1, 2022. Senate Bill
No. 775 which was intended to clarify the discussion in Lewis,
supra, 11 Cal.5th at pages 970-972, regarding the evidence a
court may consider at a resentencing hearing; and it codified the
holding in Lewis at pages 961-970 regarding the right to counsel
and the standard for determining the existence of a prima facie
case. (Stats. 2021, ch. 551, § 1, subds. (b), (d).) The amendment
also reaffirmed that the proper burden of proof for a resentencing
hearing is beyond a reasonable doubt. (Id. at § 1, subd. (c).)
Defendant’s second petition
In January 2022, defendant filed a second resentencing
petition, which was heard by a different judge.5 The prosecution
filed opposition asserting that the petition should be denied as an
improper successive petition. The trial court agreed but also
reached the merits of the petition. The court conducted a review
of the of the record of conviction, including the appellate opinion
in People v. Aikens et al., supra, B270559, and found the evidence
supported its own conclusion that defendant was the actual
shooter, as well as the appellate court’s conclusion that
substantial evidence supported a finding that defendant was the
actual shooter. In addition, upon reviewing the factors outlined
in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
where the record of conviction shows no jury instructions were
given regarding felony murder or the natural and probable
consequences doctrine, a petitioner is ineligible for relief as a
matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 677.)
5 The first petition was heard and denied by the Honorable
Lisa B. Lench. The second petition was heard and denied by the
Honorable Michael D. Carter.
6
(2016) 63 Cal.4th 522, the court found the facts supported the
jury’s finding that defendant was a major participant in the crime
who displayed a reckless indifference to human life. Based on
these findings, the trial court concluded that defendant had failed
to make a prima facie showing of eligibility for relief, and on
February 14, 2022, the court denied the second petition.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant and the People agree that due to the change in
law after the first petition was denied, the second petition was
not barred.
In denying the first petition, the trial court reviewed the
facts summarized in People v. Aikens et al., supra, B270559, and
found “that the evidence weighs in significant favor to the finding
by the court of appeal that there was substantial evidence that
[defendant] was the actual killer in this matter.” After that
ruling, the California Supreme Court limited the use of facts set
forth in appellate opinions and held that the court may not weigh
evidence or engage in factfinding at the prima facie stage.
(Lewis, supra, 11 Cal.5th 971–972.) The Legislature then
codified the Lewis holding. (See Stats. 2021, ch. 551, § 1, subds.
(b), (d).) To bar a second petition on the basis of procedure held
to be improper by the Supreme Court and the Legislature “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.’ ” (People v. Farfan (2021)
71 Cal.App.5th 942, 950, citing and quoting Lewis, supra, 11
Cal.5th at pp. 968, 971, and People v. Gentile (2020) 10 Cal.5th
830, 842–843.)
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The trial court here did not find the decision in Lewis,
supra, changed the law or that it held the court could not make
factual findings. Regardless of whether Lewis made new law or
that it did not, it significantly clarified the procedure to be
followed at the prima facie stage. As our high court recently
explained, a judicial opinion clarifying existing law can amount to
“the sort of significant change that has traditionally been thought
to warrant reexamination of an earlier-litigated issue.” (People v.
Strong (2022) 13 Cal.5th 698, 717 (Strong).) As recognized by the
Legislature in Senate Bill No. 775, Lewis was such an opinion,
and we thus agree with the parties that the trial court erred in
denying the petition as successive.
We also agree with both parties that the Strong decision,
published not long after the trial court denied the second petition,
requires remand so the trial court can issue an order to show
cause and conduct an evidentiary hearing pursuant to section
1172.6, subdivision (d). As stated in Strong, “ ‘[a] finding that
there is substantial evidence to support a conviction for
murder . . . is insufficient to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing’ . . . .” (Strong,
supra, 13 Cal.5th at p. 720.) The court explained that “[t]he
Legislature has made explicit in a recent amendment to the
predecessor to section 1172.6, [that] a court determination that
substantial evidence supports a homicide conviction is not a basis
for denying resentencing after an evidentiary hearing. (Former
§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2.)
Nor, then, is it a basis for denying a petitioner the opportunity to
have an evidentiary hearing in the first place.” (Strong, supra, at
p. 720, italics added.)
8
Thus the trial court erred in denying defendant’s
sufficiently pleaded petition at the prima facie stage based upon
its finding that substantial evidence supported a murder
conviction, either as the actual killer or as a major participant in
an underlying felony who acted with reckless disregard for
human life. In Banks, supra, 61 Cal.4th 788, and Clark, supra,
63 Cal.4th 522, our Supreme Court enunciated factors for
determining whether a participant played a major role and acted
with reckless disregard for human life, making Banks and Clark
comparable to the kind of significant change in law traditionally
found to warrant a reexamination of earlier litigated decisions.
(Strong, supra, 13 Cal.5th at pp. 719–720.) As defendant was
convicted in 2014, prior to the publication of Banks and Clark,
the jury’s true finding under the felony-murder special
circumstance of section 190.2, subdivision (a)(17), was based on
outdated standards and did not authorize the denial of the
petition. (See Strong, supra, at pp. 717–720.) Furthermore, the
trial court was not authorized to make its own determination by
weighing the facts in relation to the clarified Banks and Clark
factors as factfinding is prohibited at the prima facie stage. By
doing just that the court denied defendant a determination
beyond a reasonable doubt that the correct standards were met.
(See Strong, supra, at pp. at p. 720, citing Lewis, supra, 11
Cal.5th at p. 972.)
Thus we remand the matter for the issuance of an order to
show cause and further proceedings in accordance with section
1172.6, subdivision (d).
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DISPOSITION
The denial of the section 1172.6 petition is reversed. The
matter is remanded with directions to issue an order to show
cause pursuant to section 1172.6, subdivision (c) and for further
proceedings in accordance with subdivision (d).
NOT TO BE PUBLISHED.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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