Filed 11/9/23 P. v. Greenwood 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,
Plaintiff and Respondent, C097600
v. (Super. Ct. No. 10F08037)
MARQUIS GREENWOOD,
Defendant and Appellant.
Defendant Marquis Greenwood, convicted by jury of felony murder among other
things and sentenced to indeterminate and determinate terms in prison, challenges the
trial court’s subsequent order denying his petition for resentencing under Penal Code
1
former section 1170.95 (now section 1172.6).1 Defendant claims the trial court
improperly relied at the prima facie stage on facts recited in this court’s prior opinion and
the jury’s true findings on enhancement and special circumstance allegations to conclude
that defendant was the actual killer and not eligible for relief.
We will reverse the trial court’s order and remand the matter.
BACKGROUND
In December 2010, defendant and his accomplice, Tiekarian Troutman, planned to
rob a small market. Another accomplice, Shayana Hollis, waited in the car. Wearing ski
masks, defendant and Troutman entered the store. Troutman had their gun. The unarmed
store owners, a husband and wife, resisted and defendant and Troutman fled. Hollis
heard a gun go off but could not see what was happening in the store. The female store
owner did not hear a gunshot; her husband heard a loud sound but did not see a gun.
Hollis saw defendant and Troutman run out of the store. One of them tripped and fell but
got up, then both stumbled and fell. Troutman had been shot. Defendant dropped Hollis
and Troutman off at a medical clinic where Troutman died from a gunshot wound.
(People v. Greenwood (July 22, 2016, C073647) [nonpub. opn.] (Greenwood).)2
The prosecution presented testimony from Hollis that Troutman said defendant
had shot him, as well as testimony from other witnesses that defendant admitted he shot
Troutman. Defendant testified at trial that Troutman said he shot himself when he
stumbled. (Greenwood, supra, C073647.)
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022,
former section 1170.95 was renumbered section 1172.6 without change to the text.
(Stats. 2022, ch. 58, § 10.) We will refer to the current statute.
2 We granted defendant’s request to incorporate by reference the record in case
No. C073647.
2
A jury convicted defendant of first degree murder and attempted robbery. The
jury found true enhancement allegations that defendant personally used and discharged a
firearm in committing murder and attempted robbery (§ 12022.53, subds. (b), (c)), and it
also found true a special circumstance allegation that defendant committed murder while
engaged in attempted robbery (§ 190.2, subdivision (a)(17)). The trial court sentenced
defendant to life without the possibility of parole for the murder, plus 20 years for the
firearm enhancement and three years (stayed) for the attempted robbery. (Greenwood,
supra, C073647.)3
This court affirmed the judgment. Among other things, defendant contended on
appeal that the trial court’s answers to jury questions improperly allowed jurors to find
him guilty of murder under the felony-murder rule even if Troutman accidentally shot
himself. During deliberations, the jury asked if defendant could be found guilty of first
degree murder if he never touched the gun and Troutman shot himself. Over a defense
objection, the trial court answered “Yes” if defendant actively participated in the events
that caused the death, i.e., the events surrounding the discharge of the gun. This court
concluded that even if the felony-murder rule did not apply if Troutman shot himself, the
jury’s true findings on the section 12022.53 firearm enhancements that defendant
personally used and discharged the gun established that the jury rejected defendant’s
testimony that Troutman shot himself. (Greenwood, supra, C073647.)
In November 2021, defendant filed a petition for resentencing under section
1172.6. The form petition had boxes checked asserting defendant was convicted under a
theory of felony murder or the natural and probable consequences doctrine and could not
3 The jury also found defendant guilty of a robbery and carjacking that preceded the
attempted robbery and murder at the market. The trial court sentenced defendant to nine
years for the carjacking and five years (stayed) for the robbery. (Greenwood, supra,
C073647.)
3
now be convicted of murder because of changes made to sections 188 and 189, effective
January 1, 2019. The petition also checked optional boxes that defendant was convicted
of felony murder and could not now be convicted due to changes to section 189, because
defendant was not the actual killer, did not with intent to kill aid and abet the killer in the
commission of murder in the first degree, and was not a major participant in the felony
and did not act with reckless indifference to human life in the course of the felony. The
trial court appointed the public defender to represent defendant and the parties submitted
briefs.
On October 28, 2022, the trial court conducted a hearing to determine whether
defendant’s petition made a prima facie showing of eligibility for relief under section
1172.6. The trial court observed that in People v. Lewis (2021) 11 Cal.5th 952 (Lewis),
the California Supreme Court said the trial court could consider a prior appellate opinion
at the prima facie stage, although the high court cautioned against the use of facts recited
in the opinion. The trial court queried counsel for the parties whether it could conclude
that there was only one gun involved based on the undisputed facts set forth in this
court’s prior opinion. The trial court further inquired whether the jury’s true findings on
the firearm enhancement allegations, as well as on the attempted robbery-murder special
circumstance allegation, answered the question that defendant was the actual killer
without the need for an evidentiary hearing.
Defense counsel said the jury’s true findings would only answer whether
defendant was the actual killer if the jury had found that defendant discharged the firearm
causing death. Counsel noted that a hypothetical sequence in which Troutman shot
himself when he fell and then defendant picked up the gun and discharged it would also
fit the jury’s findings. The prosecutor responded that the trial court could rely on this
court’s prior opinion that the jury’s firearm use and discharge findings necessarily
rejected defendant’s claim that Troutman shot himself.
4
The trial court read from the factual recitation in this court’s prior opinion,
indicating it supported the conclusion there was only one gun. The trial court then said it
could properly rule defendant is ineligible as a matter of law based on the jury
instructions that were given, including CALCRIM No. 730, the special circumstances
instruction, and the instructions involving personal use and personal discharge of a
firearm. The trial court said it is not a strained reading to say defendant is the actual
killer in this case, and it concluded his petition did not state sufficient facts to justify an
order to show cause evidentiary hearing as a matter of law.
DISCUSSION
Defendant contends the trial court erred in denying his petition at the prima facie
stage because the firearm findings did not require proof that defendant personally caused
Troutman’s death, and the jury made no finding as a matter of law that defendant fired
the fatal shot. In addition, defendant argues the trial court should not have used this
court’s prior opinion to find that there was only one gun.
Under subdivision (c) of section 1172.6, the trial court must “determine whether
the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall issue an order to show
cause. If the court declines to make an order to show cause, it shall provide a statement
fully setting forth its reasons for doing so.” (§ 1172.6, subd. (c).)
To make a prima facie determination, trial courts are not limited to the allegations
of the petition; rather they may “rely on the record of conviction in determining whether
that single prima facie showing is made.” (Lewis, supra, 11 Cal.5th at p. 970.) The court
in Lewis further stated that “[a]ppellate opinions . . . are generally considered to be part of
the record of conviction,” but cautioned 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.’ ” (Id. at p. 972.)
5
We review de novo “a trial court’s determination on whether a petitioner has made
a prima facie showing.” (People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden); see
People v. Lopez (2022) 78 Cal.App.5th 1, 14 (Lopez).)
Defendant was convicted of first degree murder on a felony-murder theory.
The jury was instructed with CALCRIM No. 540A, the pattern instruction on felony
murder, which, as given, allowed the jury to convict defendant of first degree murder if
the prosecution proved that defendant (1) attempted to commit robbery, (2) intended to
commit robbery, and (3) while attempting to commit robbery, caused the death of another
person. CALCRIM No. 540A further instructed: “A person may be guilty of felony
murder even if the killing was unintentional, accidental, or negligent.” (See People v.
Vang (2022) 82 Cal.App.5th 64, 81 (Vang) [the requisite mental state for felony murder
“is simply the specific intent to commit the underlying felony”].)
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 3)
“significantly narrowed the scope of the felony-murder rule. It also created a path for
relief for defendants who had previously been convicted of murder on a felony-murder
theory but who could not be convicted under the new law. Resentencing is available
under the new law if the defendant neither killed nor intended to kill and was not ‘a major
participant in the underlying felony [who] acted with reckless indifference to human life,
as described in subdivision (d) of Section 190.2.’ ” (People v. Strong (2022) 13 Cal.5th
698, 703 (Strong), citing §§ 189, subd. (e), 1172.6.)4
4 The jury was instructed with CALCRIM No. 703 that, in considering the special
circumstance of murder committed while engaged in attempted robbery, defendant
could be found guilty of first degree murder even though he was not the actual killer if he
was a major participant in the crime and acted with reckless indifference to human life.
However, the court in Strong held that such a jury finding, which, as here, pre-dated the
court’s guidance in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522 on the meaning of these phrases, did not preclude a prima facie showing
of relief under section 1172.6. (Strong, supra, 13 Cal.5th at p. 703.) The parties and the
trial court agreed that, under Strong, the jury’s true finding on the special circumstance
6
Here, the trial court determined that defendant was the actual killer and ineligible
for relief as a matter of law based on its conclusion there was only one gun, coupled with
the jury’s findings on the firearm enhancements and special circumstance. “[D]efendants
convicted of felony murder are not eligible for relief [under section 1172.6] if they were
the actual killer.” (Harden, supra, 81 Cal.App.5th at p. 53; see also Strong, supra,
13 Cal.5th at p. 710.)
However, a subsequent change in the law clarified that a trial court may not
rely on factual summaries in an appellant opinion at the prima facie stage. (Senate Bill
No. 775 (2019-2020 Reg. Sess.), Stats. 2021, ch. 551, § 2, effective January 1, 2022;
People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9; People v. Clements (2022)
75 Cal.App.5th 276, 292.) As the court in People v. Flores (2022) 76 Cal.App.5th 974
(Flores) observed: “If such evidence may not be considered at an evidentiary hearing to
determine a petitioner’s ultimate eligibility for resentencing, we fail to see how such
evidence could establish, as a matter of law, a petitioner’s eligibility for resentencing at
the prima facie stage.” (Id. at p. 988; see also Strong, supra, 13 Cal.5th at p. 720.)
At the time the trial court ruled on defendant’s petition, its use of the facts recited
in this court’s prior opinion was arguably permissible. But, under the changes to section
1172.6 made by Senate Bill No. 775, the trial court should not have relied on those facts.
The People nevertheless argue such use of this court’s prior opinion was harmless.
“To demonstrate prejudice from the denial of a section [1172.6] petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing.” (Flores, supra, 76 Cal.App.5th at p. 986; see also People v. Flint
(2022) 75 Cal.App.5th 607, 613.)
was insufficient alone to hold defendant ineligible as a matter of law for section 1172.6
relief.
7
The People maintain that the testimony of Troutman and Hollis presented the jury
with two conflicting theories at trial: defendant testified that Troutman shot himself
when he fell, while Hollis testified that defendant admitted he shot Troutman while trying
to shoot the female proprietor of the market. The People argue that to find defendant
guilty of felony murder for Troutman’s death and also find true that defendant personally
used and discharged a firearm, the jury necessarily rejected the defense’s theory that
Troutman accidentally shot himself.
However, our review of the relevant jury instructions indicates that they do not
require the jury to find that defendant was the actual killer. As given at trial,
CALCRIM No. 3146, the instruction on section 12022.53, subdivision (b), instructed the
jury that defendant personally uses a firearm when he intentionally: (1) “Displays the
weapon in a menacing manner”; (2) “Hits someone with the weapon”; or (3) “Fires the
weapon.” (Italics added.) CALCRIM No. 3146 did not require the jury to find that
defendant fired a shot. The instruction on section 12022.53, subdivision (c), CALCRIM
No. 3148, instructed the jury that defendant personally discharged a weapon if defendant:
(1) “personally discharged a firearm during the commission of the crime”; and (2)
“intended to discharge the firearm.” CALCRIM No. 3148 did not require the jury to find
that defendant shot Troutman (or anyone) in discharging the firearm.
Other instructions were couched in the general language of causation.
CALCRIM No. 730 on the special circumstance of murder committed during an
attempted robbery required the jury to find that “defendant did an act that caused the
death of a person,” not that defendant personally killed a person. In employing this
language, the instruction echoed CALCRIM No. 540A on felony murder, which told the
jury that the People must prove that “[w]hile attempting to commit robbery, the defendant
caused the death of another person.” However, “[t]o personally kill the victim is to
directly cause the victim’s death, not just to proximately cause it.” (Vang, supra,
82 Cal.App.5th at p. 90.)
8
The court in Lopez said these instructions create a possibility that a jury could
convict a defendant of felony murder and find true a special-circumstance allegation
without finding the defendant to be the actual killer. In that case the jury was not
instructed it had to find that the defendant personally killed the victim to convict him; the
jury was instructed it only had to find that the defendant committed an act that caused the
victim’s death. (Lopez, supra, 78 Cal.App.5th at p. 20.)
In this case, the People agree these jury instructions did not require the jury to find
that defendant was the actual killer. But the People nevertheless claim “those same
instructions viewed within the context of the record as whole, including trial testimony,
party arguments, and necessary factual findings by the jury” demonstrate that defendant
was the actual killer. We disagree. In similar circumstances, the court in Lopez
concluded: “The record of conviction does not establish defendant is ineligible for relief
under section [1172.6] as a matter of law. In order to conclude defendant is ineligible for
relief as a matter of law, we would have to weigh the evidence and find defendant to have
been the actual killer, which would be impermissible at this stage.” (Lopez, supra,
78 Cal.App.5th at p. 20, citing Lewis, supra, 11 Cal.5th at p. 972.) In this instance,
to conclude that defendant was the actual killer as a matter of law, we would have to
(1) find that the evidence showed there was only one gun, and (2) determine that Hollis’s
testimony was credible while defendant’s was not -- both of which are impermissible at
the prima facie stage.5 (Lewis, at p. 972.)
5 As defense counsel suggested, the conclusion might be different if the jury had
rendered a true finding on a section 12022.53, subdivision (d) enhancement after being
instructed with CALCRIM No. 3149 directing the jury to determine whether the People
proved that defendant personally and intentionally discharged a firearm during the
attempted robbery, which caused great bodily injury to, or death of, a person who was not
defendant’s accomplice. (See Harden, supra, 81 Cal.App.5th at pp. 55-56 [“the jury’s
true finding that [the defendant] personally inflicted great bodily injury necessarily means
it determined [the defendant] strangled [the victim]”]; but see People v. Offley (2020)
48 Cal.App.5th 588, 598 [enhancement under section 12022.53, subd. (d) does not show
9
We conclude the trial court erred in denying defendant’s section 1172.6 petition
without issuing an order to show cause and conducting an evidentiary hearing.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed. The matter
is remanded to the trial court with directions to issue an order to show cause and conduct
an evidentiary hearing. (§ 1172.6, subd. (d).)
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
BOULWARE EURIE, J.
the defendant acted with malice aforethought and establish as a matter of law that the
defendant is ineligible for relief].)
10