Filed 9/7/23 P. v. Thomas CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C097130
Plaintiff and Respondent, (Super. Ct. No. 97F07150)
v.
JAMES BERTRAM THOMAS,
Defendant and Appellant.
In an unpublished opinion, a different panel of this court upheld defendant James
Bertram Thomas’s conviction for first degree murder and attempted robbery. (People v.
Thomas (Aug. 27, 1999, C029910.) (Thomas).) The trial court sentenced defendant to
life without the possibility of parole. In February 2022, defendant filed a petition for
resentencing under Penal Code1 section 1172.6.2 After appointing counsel but without
briefing or a hearing, the trial court denied the petition, finding defendant could still be
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, former section 1170.95 was recodified without
substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his
petition under former section 1170.95, but we will refer to the current section 1172.6
throughout this opinion.
1
convicted of felony murder because he was the actual killer based on language from our
prior opinion. Defendant argues the trial court erred by denying his petition without
giving defendant an opportunity to brief the case or holding a hearing. Defendant also
argues the trial court erred by not granting him an evidentiary hearing because he is not
ineligible for resentencing as a matter of law. We reverse.
BACKGROUND
We take the facts from our prior opinion. (Thomas, supra, C029910.)3 According
to our opinion, on the night of September 2, 1997, the victim, truck driver Darrell Gaskill,
called his brother from the road to tell him he would be in Dixon the following morning.
Gaskill cashed his paycheck that day and had about $2,000 in cash on him. (Ibid.)
Gaskill met up with a prostitute, Nikita Powell, and her friend, Janith Poole, in the
parking lot of a market/gas station. Powell agreed to perform an act of prostitution
involving Poole for money. The three went into the sleeper portion of Gaskill’s truck to
discuss the transaction. Then, Powell left, secured drugs from a friend, and returned.
After the three smoked the drugs and engaged in sexual activity, Powell wanted more
drugs. Gaskill gave her $10 for drugs and some money for gas. Defendant met up with
Powell while she was putting gas in her car. (Thomas, supra, C029910.)
After securing more drugs, Powell, defendant, and a third person, T.G., went to an
apartment to smoke the drugs. At that point, Powell brought up the idea of robbing
Gaskill. Defendant said he would do it, but needed a gun. (Thomas, supra, C029910.)
Defendant and Powell drove to an intersection where defendant got out of the car.
When he got back in the car, Powell did not see if he had a gun or a knife. The two
planned the robbery on the way back to Gaskill’s truck. (Thomas, supra, C029910.)
3 We granted defendant’s motion to incorporate by reference the record of his prior
appeal. (Cal. Rules Court, rule 8.147(b).) We provide this summary of facts from the
prior opinion in defendant’s direct appeal solely for context and do not rely on these facts
for our analysis or disposition here. (§ 1172.6, subd. (d)(3).)
2
Meanwhile, Poole and Gaskill stayed in the truck. When Powell did not return
immediately, Poole warned Gaskill to hide his money. (Thomas, supra, C029910.)
Forty minutes later, Powell knocked on the truck’s door, and Poole let her in.
Defendant climbed in soon after with a gun and told Gaskill, “This is a mother fuckin’
holdup.” Poole got out of the truck, and pleaded with defendant not to hurt Gaskill.
Defendant hit Gaskill in the head with a gun, demanding his wallet. Powell tried to pull
defendant out of the truck while Gaskill pushed defendant out of the truck. Defendant
got up, turned around, and shot Gaskill. (Thomas, supra, C029910.)
Defendant and Powell got into Poole’s car, and defendant told Poole to drive. In
the middle of the block, Powell got out of the car with the gun. When they got back to
the apartment, defendant complained to others, “[M]an, these mother fuckin’ bitches
don’t even know how to pull a robbery.” T.G. told a sheriff’s deputy that defendant said
he “accidentally shot a white dude because the dude pushed him.” (Thomas, supra,
C029910.)
Poole drove back to the market/gas station an hour later to see if Gaskill was still
alive. She parked near the truck, looked inside, and called out his name, but got scared
and left. After smoking crack for two days, her sister persuaded her to talk to the police.
(Thomas, supra, C029910.)
T.G. drove Powell to the scene of the crime the next morning. The area was
cordoned off. T.G. called sheriff’s deputies and named defendant and Powell as the
persons responsible for the shooting. (Thomas, supra, C029910.)
Powell turned herself in and pled guilty to first degree murder. In exchange for
her truthful testimony at trial, the prosecution agreed not to pursue the special-
circumstance allegation against her. (Thomas, supra, C029910.)
No physical evidence tied defendant to the shooting. In his defense, defendant
challenged the credibility of T.G., Powell, and Poole and claimed he did not kill Gaskill.
He also introduced evidence that another African American man had been in the area the
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night of the shooting and had returned to the market/gas station three times in the
following days. This man approached the clerks in a threatening manner. Sheriff
deputies did not follow up on a call from the defense investigator informing them the
clerks had been threatened by someone. (Thomas, supra, C029910.)
The trial court instructed the jury on the subjects of principals and aiders and
abettors of crimes as follows: “Persons who are involved in committing or attempting to
commit a crime are referred to as principals in that crime. Each principal, regardless of
the extent or manner of participation, is equally guilty. [¶] Principals, include: [¶] One,
those who directly and actively commit or attempt to commit the act constituting the
crime, or [¶] [t]wo, those who aid and abet the commission or attempted commission of
the crime. [¶] A person aids and abets the commission or attempted commission of a
crime when he or she: [¶] One, with knowledge of the unlawful purpose of the
perpetrator, and [¶] [t]wo, with the intent or purpose of committing or encouraging or
facilitating the commission of the crime, and [¶] [t]hree, by act or advice aids, promotes,
encourages, or instigates the commission of the crime.” The trial court also instructed the
jury, “If a human being is killed by any one of several persons engaged in the
commission or attempted commission of the crime of attempted robbery, all persons, who
either directly and actively commit the act constituting that crime, or who with
knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or
purpose of committing, encouraging or facilitating the commission of the offense, aide,
promote, encourage or instigate by act or advice its commission, are guilty of murder of
the first degree, whether the killing is intentional, unintentional or accidental.”
On the subject of the natural and probable consequences doctrine, the trial court
stated, “One who aids and abets another in the commission of a crime or crimes is not
only guilty of those crimes, but is also guilty of any other crime committed by a principal
which is a natural and probable consequence of the crimes originally aided and abetted.”
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Turning to the special-circumstance allegation, the trial court instructed the jury
with a modified version of CALJIC 8.80.1, “In order to be guilty of murder, as an aider
and abettor to a felony murder, the accused and the killer must have been jointly engaged
in the commission of the attempted robbery at the time the fatal wound was inflicted. [¶]
If you find . . . [d]efendant in this case guilty of murder of the first degree, you must then
determine if the following special circumstance is true or not true: [¶] The murder
occurred while . . . [d]efendant was engaged in the attempted commission of the crime of
robbery. [¶] The People have the burden of proving the truth of a special circumstance.
If you have a reasonable doubt as to whether a special circumstance is true, you must find
it to be not true. [¶] If you are satisfied beyond a reasonable doubt that . . . [d]efendant
actually killed a human being, you need not find . . . [d]efendant intended to kill in order
to find the special circumstance to be true.”
On the elements of the special-circumstance enhancement, the trial court further
instructed the jury with CALJIC 8.81.17, “To find that the special circumstance referred
to in these instructions as murder in the commission of an attempted robbery is true, it
must be proved: [¶] One, the murder was committed while . . . [d]efendant was engaged
in the commission or attempted commission of a robbery; and [¶] [t]wo, the murder was
committed in order to carry out or advance the commission of the crime of attempted
robbery or to facilitate the escape therefrom or to avoid detection. In other words, the
special circumstance referred to in these instructions is not established if the attempted
robbery was merely incidental to the commission of the murder.”
When asked by the jury during deliberations about the apparent conflict in the last
two instructions, the trial court added, “There is no conflict . . . . [¶] The special
circumstance alleges that the murder of . . . Gaskill was committed by . . . defendant
while . . . defendant was engaged in the attempted commission of the crime of robbery.
[¶] You need not find . . . defendant intended to kill in order to find the special
circumstance to be true. The killing may have been intentional, unintentional, or
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accidental. The murder need only have been committed in order to carry out or advance
the commission of the crime of attempted robbery or to facilitate the escape therefrom or
avoid detection.” At no time did the trial court instruct the jury it had to find defendant
was the actual killer to find the special circumstance true.
Finally, as to the firearm enhancement, the trial court instructed the jury it must
find that defendant personally used a firearm in the commission of those crimes. The
definition of “personally used” meant defendant “intentionally displayed a firearm in a
menacing manner, intentionally fired it or intentionally struck or hit a human being with
it.”
The jury found defendant guilty of murder and attempted robbery and found true
that he personally used a firearm in commission of the murder and attempted robbery,
and found true the robbery-murder special-circumstance allegation.
The trial judge sentenced defendant to life without the possibility of parole, plus
10 years for the firearm enhancement.
On February 25, 2022, defendant filed a petition for resentencing under
section 1172.6. On March 17, 2022, after appointing defendant counsel, but without
holding a hearing or receiving any briefing, the trial court summarily denied defendant’s
petition, finding him ineligible for relief because he was the actual killer. After
reviewing our prior opinion, the trial court found the jury’s true finding that the special
circumstance⸺the murder occurred during the course of an attempted robbery⸺meant
the jury determined defendant killed his victim while engaged in the attempted
commission of a robbery and the murder was committed to carry out or advance the
commission of the crime of attempted robbery, to facilitate escape from that crime, or to
avoid detection. This, in turn, meant defendant was the actual killer and ineligible for
resentencing as a matter of law. The trial court found our prior opinion was a part of the
record of conviction, and our conclusion there was sufficient evidence to support the
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jury’s special-circumstance finding was law of the case on the question as to whether
defendant was the actual killer.
We granted defendant’s request for permission to file the notice of appeal under
the constructive filing doctrine.
DISCUSSION
Defendant argues the trial court erred in failing to grant him the opportunity to
brief the matter or hold an evidentiary hearing. Further, defendant asserts the trial court
erred in denying his petition because he is not ineligible for relief as a matter of law. We
agree the trial court erred in failing to allow defendant the opportunity to submit a brief or
hold a hearing. We further conclude, at this stage of the proceedings, the determination
of whether defendant was the actual killer requires impermissible factfinding and thus
reverse and remand this case for further proceedings.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was enacted “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.” (Stats. 2018,
ch. 1015, § 1, subd. (f).) The legislation accomplished this by amending sections 188 and
189 and adding section 1172.6.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of [s]ection 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).) This language eliminated
the use of the natural and probable consequences doctrine in murder prosecutions but left
intact implied malice murder for direct aiders and abettors. (People v. Gentile (2020)
10 Cal.5th 830, 838-839, 846-848, 850.)
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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 life, as described in subdivision (d) of [s]ection 190.2.” (Stats.
2018, ch. 1015, § 3.) Thus, a defendant who is the actual killer or aided and abetted the
murder with the intent to kill is ineligible for resentencing under section 1172.6 as a
matter of law. (See also People v. Garcia (2022) 82 Cal.App.5th 956, 973 [an actual
killer is not eligible for § 1172.6 resentencing]; People v. Estrada (2022) 77 Cal.App.5th
941, 945 [murder conviction based on direct aiding and abetting with intent to kill is
ineligible for § 1172.6 resentencing].)
Section 1172.6 allows “those convicted of felony murder or murder under the
natural and probable consequences doctrine to seek relief.” (People v. Gentile, supra,
10 Cal.5th at p. 843.) Section 1172.6, subdivisions (b) and (c) create a two-step process
for evaluating a petitioner’s eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952,
960 (Lewis).) In the first step, the trial court determines whether the petition is facially
sufficient under section 1172.6, subdivision (b). (Lewis, at p. 960.)
Upon submission of a facially sufficient petition that requests counsel, the court
shall appoint counsel and provide the parties an opportunity to submit briefs. (§ 1172.6,
subds. (b)(3), (c).) Following briefing, the court must hold a hearing to determine
whether the petitioner has made a prima facie case for relief. (§ 1172.6, subd. (c).) If a
sufficient prima facie showing is made, the court must issue an order to show cause.
(§ 1172.6, subds. (c), (d).)
8
As our Supreme Court explained, “While the trial court may look at the record of
conviction after the appointment of counsel to determine whether a petitioner has made a
prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c)
is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “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. If so, the court must issue an order to show cause.” ’ [Citations.] ‘[A]
court should not reject the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if the record, including
the court’s own documents, “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)
Whether the petitioner has made a prima facie showing of entitlement to relief
under section 1172.6 is a “ ‘purely legal conclusion, which we review de novo.’ ”
(People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
Both parties agree, as do we, the trial court erred in failing to receive briefing or
hold a hearing to determine whether defendant made a prima facie showing he was
entitled to relief. (§ 1172.6, subds. (b)(3), (c).) The People argue any error in this regard
is harmless because defendant was the actual killer and ineligible for resentencing as a
matter of law.
In arriving at this finding, the trial court relied on our prior opinion. Trial courts
are permitted to review the record of conviction at the prima facie stage and “[a]ppellate
opinions . . . are generally considered to be part of the record of conviction.” (Lewis,
supra, 11 Cal.5th at p. 972.) “[T]he probative value of an appellate opinion is case
specific, and ‘it is certainly correct that an appellate opinion might not supply all
answers.’ ” (Ibid.) Further, “the factual summary in an appellate opinion is not evidence
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that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for
resentencing.” (People v. Flores (2022) 76 Cal.App.5th 974, 988.)
Here, our prior opinion does not resolve the question of whether defendant was the
actual killer as a matter of law. Rather, we answered the question of whether there was
substantial evidence to support the jury’s verdict finding that the special-circumstance
allegation was true. We focused on defendant’s argument the shooting was either
accidental or committed after the robbery was abandoned. Viewed through this lens, we
examined the evidence presented at trial and concluded the record contained sufficient
evidence to warrant the inference of guilt drawn by the trier of fact. Our conclusion,
based upon the facts presented in that appeal, that a reasonable jury could infer defendant
shot at Gaskill in furtherance of the robbery, was not a legal conclusion that as a matter of
law defendant was Gaskill’s actual killer. Thus, the reliance on our prior opinion to
determine defendant was the actual killer was error.
At this prima facie stage, we cannot conclude defendant was the actual killer
without engaging in impermissible factfinding. At trial, there were three separate
theories under which the jury could have found defendant guilty of first degree murder
and decide the special-circumstance allegation was true. Importantly, two of those
theories did not require the jury to find defendant was the actual killer or had the intent to
kill.
First, the jury could have found defendant used a gun to shoot and kill Gaskill
during the robbery, thus, making him the actual killer and first degree murderer.
(CALJIC 8.10.)
Second, however, the jury could have found defendant guilty of murder under a
felony-murder theory as a participant in the plot to rob Gaskill. Indeed, this was the
argument advanced by the prosecutor in his closing argument. According to the
prosecutor, all he was required to prove was “a human being was killed, that the killing
was unlawful, . . . and that the killing occurred during . . . an attempted robbery.” This
10
was confirmed by the jury instructions given in accord with this argument. As evident,
this basis for finding defendant guilty of murder did not require the jury to find defendant
was the actual killer, nor did it require the jury to find defendant had the intent to kill the
victim.
Third, the jury could have found defendant guilty of murder under the natural and
probable consequences doctrine. As noted ante, the judge instructed the jury that aiders
and abettors are “also guilty of any other crime committed by a principal [that] is a
natural and probable consequence of the crimes originally aided and abetted.” Thus, the
jury could have found defendant guilty of first degree murder because the murder was a
natural and probable consequence of the robbery. At the same time, the jury could have
found defendant was only aiding and abetting the robbery, without finding defendant
actually killed the victim or had the intent to kill him.
Thus, under two separate theories, the jury could have found defendant guilty of
murder without finding he was the actual killer or acted with the intent to kill.
The jury instructions and the jury’s true finding on the robbery-murder special-
circumstance allegation do not provide the linchpin to conclude defendant was
necessarily the actual killer or acted with an intent to kill as a matter of law. The trial
court instructed the jury on the two elements of this special-circumstance allegation as
first, “the murder was committed while . . . [d]efendant was engaged in the commission
or attempted commission of a robbery; and [¶] [second,] the murder was committed in
order to carry out or advance the commission of the crime of attempted robbery or to
facilitate the escape therefrom or to avoid detection.”
On the question of whether he was the actual killer or had the intent to kill, the
trial court initially instructed the jury, “If you are satisfied beyond a reasonable doubt that
. . . [d]efendant actually killed a human being, you need not find . . . [d]efendant intended
to kill in order to find the special circumstance to be true.” This instruction suggests that
11
in order to find the special circumstance true, the jury had to find either defendant was
the actual killer, or he was an aider and abettor who had the intent to kill Gaskill.
The trial court’s follow up instruction, however, injected a third option into the
mix, which makes it impossible to conclude as a matter of law defendant was the actual
killer or had the intent to kill. In response to a note from the jury, the trial court told the
jury, “The special circumstance alleges that the murder of . . . Gaskill was committed by
. . . defendant while . . . defendant was engaged in the attempted commission of the crime
of robbery. [¶] You need not find . . . defendant intended to kill in order to find the
special circumstance to be true. The killing may have been intentional, unintentional, or
accidental. The murder need only have been committed in order to carry out or advance
the commission of the crime of attempted robbery or to facilitate the escape therefrom or
avoid detection.” This instruction’s reference to the murder committed by defendant was
equally applicable to each of the three theories that we set forth ante, two of which
required neither that he was the actual killer, nor had the intent to kill.
Importantly, the last sentence of this instruction removed the requirement
defendant had to be either the actual killer or acted with the intent to kill to find the
special circumstance true. Rather, it allowed the jury to find the special circumstance
true solely based on the fact the murder was committed to carry out the attempted
robbery, facilitate escape, or avoid detection, regardless of who was the actual killer and
whether defendant had the intent to kill. Indeed, the prosecutor added ambiguity on this
point when he argued to the jury, “[T]he elements that must be proven to establish the
robbery-murder special circumstance are exactly the same as the first degree felony
murder.” Without an instruction requiring defendant to be the actual killer or to have the
intent to kill, this record of conviction does not answer this question as a matter of law.
The jury’s true finding defendant used a firearm in the commission of the
attempted robbery and murder does not support the trial court’s finding either. “Section
12022.53, subdivision (d) provides that the defendant must have intended to discharge a
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firearm, but does not refer to an ‘intent to achieve any additional consequence.’
[Citation.] It is thus a general intent enhancement, and does not require the prosecution
to prove that the defendant harbored a particular mental state as to the victim’s injury or
death.” (People v. Offley (2020) 48 Cal.App.5th 588, 598.) The jury in this case was
instructed accordingly. The trial court told the jury that it would need to decide whether
defendant “intentionally displayed a firearm in a menacing manner, intentionally fired it
or intentionally struck or hit a human being with it” but not whether he actually used it to
kill the victim, or intended to kill.
In short, the trial court did not instruct the jury in a manner which establishes, as a
matter of law, the jury found as a matter of law defendant was the actual killer or had the
requisite intent to kill. There was no instruction requiring the jury to conclude defendant
was either the actual killer or had the intent to kill to find him guilty of first degree
murder or to find the robbery-murder special circumstance true. Moreover, the jury
instructions, arguments of counsel, and facts in the record support an inference the jury
may have found the special circumstance true without determining defendant was the
actual killer. First, the court gave the aiding and abetting and natural and probable
consequences jury instructions that do not require defendant to have been the actual
killer. Second, the prosecutor argued the jury need only find “a human being was killed,
that the killing was unlawful, . . . and that the killing occurred during . . . an attempted
robbery” to find defendant guilty of felony murder. The prosecutor coupled this
argument with the contention the elements of the special-circumstance allegation were
“exactly” the same as felony murder. Third, the record disclosed evidence Powell, not
defendant, had the gun after the killing. In addition, there was evidence another African
American man had been present the night of the killing.
Typically, when an instructional error occurs, a harmless error analysis is utilized.
Because the instructions and the jury’s verdict do not necessarily establish defendant was
the actual killer or had an intent to kill, this analysis would require us to determine
13
whether the evidence of defendant being the actual killer or “defendant’s intent to kill is
overwhelming and the jury ‘ “could have had no reasonable doubt” that . . . defendant
had the intent to kill.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 929.) This kind of
evidentiary factfinding is improper at section 1172.6’s limited prima facie stage.
We are left with a resentencing petition that is facially sufficient and a record of
conviction that does not establish defendant is ineligible for relief as a matter of law.
(§ 1172.6, subds. (a)-(c); Lewis, supra, 11 Cal.5th at pp. 970-972.) We must reverse and
remand the matter for the trial court to issue an order to show cause, and, to the extent
necessary, conduct an evidentiary hearing. (§ 1172.6, subd. (d).) We express no opinion
on the ultimate resolution of the petition.
DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is reversed.
The case is remanded to the trial court for issuance of an order to show cause.
/s/
ROBIE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
KRAUSE, J.
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