Filed 1/23/24 P. v. Harris CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B323662
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA057798)
v.
RODERICK HARRIS,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Laura Ellison, Judge. Affirmed in part and dismissed in
part.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Seth P. McCutcheon,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Roderick Harris, who was convicted of first degree murder,
appeals from the trial court’s order denying his petition for
resentencing under Penal Code former section 1170.95 (now
section 1172.6).1 He contends the trial court erred in declining to
appoint counsel, allow briefing and hold a hearing on his facially
sufficient petition, before denying the petition on the ground he is
ineligible for relief. Any errors are harmless because it is not
reasonably probable he would have obtained a more favorable
result in the absence of such errors. The record of conviction
demonstrates, without resort to impermissible factfinding, that
he is ineligible for relief as a matter of law because he was
prosecuted under the theory that he was the actual killer, who
committed a willful, deliberate, and premeditated first degree
murder. He was not prosecuted under any theory that could
render him eligible for relief—felony murder based on
participation in another crime, natural and probable
consequences, or a theory of imputed malice. Accordingly, we
affirm the order.
Harris also appeals from the trial court’s order denying his
motion to stay his restitution fines until the prosecution
demonstrates his ability to pay such fines. The order is not
appealable, as the trial court and this court lost jurisdiction to
reduce his fines in 2007, when his direct appeal concluded and
the judgment of his convictions became final. Accordingly, we
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). In the discussion section of this opinion, we refer to
the statute by its current designation, section 1172.6.
Undesignated statutory references are to the Penal Code.
2
dismiss the appeal from the order denying his motion to stay the
restitution fines.
BACKGROUND
I. Trial and Direct Appeal2
A. Charges
An information charged Harris with the murder of Michael
Trent Martin (which occurred on or about October 27, 2003) and
possession of a firearm by a felon. The information alleged, in
pertinent part, that Harris personally and intentionally
discharged a firearm, proximately causing great bodily injury and
death to Martin. (§ 12022.53, subd. (d).) The information did not
charge anyone other than Harris with Martin’s murder.
B. Jury Instructions Given and Prosecutor’s
Argument to the Jury
The only theory of first degree murder presented to the jury
was willful, deliberate, and premeditated murder. After
instructing the jury on the elements of murder, including that the
killing was done with malice aforethought (CALJIC No. 8.10),
and providing the definition of malice (CALJIC No. 8.11), the
trial court instructed the jury with CALJIC No. 8.20, as follows,
in pertinent part:
“All murder which is perpetrated by any kind of willful,
deliberate and premeditated killing with express malice
aforethought is murder of the first degree.
2 We take the procedural history regarding Harris’s murder
conviction from the record in his direct appeal. (See People v.
Harris (July 26, 2007, B190213) [nonpub. opn.].) We previously
granted Harris’s request for judicial notice of the appellate record
in case No. B190213.
3
“The word ‘willful,’ as used in this instruction, means
intentional.
“The word ‘deliberate’ means formed or arrived at or
determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action. The
word ‘premeditated’ means considered beforehand.
“If you find that the killing was preceded and accompanied
by a clear, deliberate intent on the part of the defendant to kill,
which was the result of deliberation and premeditation, so that it
must have been formed upon pre-existing reflection and not
under a sudden hear of passion or other condition precluding the
idea of deliberation, it is murder of the first degree.
“[¶] . . . [¶]
“To constitute a deliberate and premeditated killing, the
slayer must weigh and consider the question of killing and the
reasons for and against such a choice and, having in mind the
consequences, he/she decides to and does kill.” (CALJIC No.
8.20.)
The trial court did not instruct the jury on aiding and
abetting, as the prosecution’s only theory of the case was that
Harris was the actual killer, who fired multiple gunshots at the
victim. Nor did the court instruct the jury on felony murder, or
first degree murder liability under the natural and probable
consequences doctrine or theory of imputed malice based on
Harris’s participation in a crime.
The trial court did instruct the jury on second degree
implied malice murder (a crime of which Harris was not
convicted). (See CALJIC No. 8.31.) The court also instructed the
jury on the special enhancement allegation that Harris
personally and intentionally discharged a firearm, proximately
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causing great bodily injury and death to Martin. (See CALJIC
No. 17.19.5.)
During argument, in discussing express malice and implied
malice murder, the prosecutor told the jury, in pertinent part, “if
you didn’t find that the defendant [Harris] intended to kill, it
can’t be first degree murder.” The prosecutor added, “intent to
kill but without premeditation and deliberation would be a
second degree murder. With premeditation and deliberation
would be a first degree murder.”
C. Verdicts and Sentence
The jury found Harris guilty of Martin’s murder and
possession of a firearm by a felon. As reflected on the verdict
form, the jury found the murder to be in the first degree. The
jury found to be true the firearm enhancement allegation that
Harris personally and intentionally discharged a firearm,
proximately causing great bodily injury and death to Martin. In
March 2006, after finding prior conviction allegations to be true,
the trial court sentenced Harris to 75 years to life in prison.
Harris appealed from the judgment of his convictions. In
July 2007, this court affirmed the judgment. (People v. Harris,
supra, B190213.)
II. Harris’s Petition for Resentencing
In 2018, the Legislature enacted Senate Bill No. 1437,
effective January 1, 2019, “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.” (Sen. Bill No.
1437 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1015, § 1(f), p. 6674;
5
§§ 188, subd. (a)(3) & 189, subd. (e).) Senate Bill No. 1437
amended sections 188 (defining malice) and 189 (felony murder)
and added section 1170.95, now renumbered section 1172.6,
which established a procedure for vacating murder convictions
and resentencing defendants who could no longer be convicted of
murder in light of the amendments to sections 188 and 189.
(Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
Senate Bill No. 1437 added the following provision to
section 188 (Stats. 2018, ch. 1015, § 2): “Except as stated in
subdivision (e) of Section 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).) The effect of this
amendment was to “eliminate[ ] natural and probable
consequences liability for first and second degree murder.”
(People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile).) Effective
January 1, 2022, Senate Bill No. 775 amended former section
1170.95, subdivision (a) to provide, among other things, that the
statute applies to individuals convicted of murder on a “theory
under which malice is imputed to a person based solely on that
person’s participation in a crime.” (Stats. 2021, ch. 551, § 2.)
On or about July 20, 2022, Harris, as a self-represented
litigant filed a petition for resentencing under former section
1170.95 (although by then the statute already had been
renumbered section 1172.6). Using a preprinted form, he
checked all the boxes for a facially sufficient petition. He also
checked the box to request appointment of counsel. The same
day, the trial court summarily denied the section 1172.6 petition
without appointing counsel, allowing briefing, or holding a prima
facie hearing. As reflected in the court’s minute order, the court
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concluded Harris is ineligible for resentencing, explaining: “The
petitioner was convicted of first degree premeditated murder and
the jury found that petitioner personally and intentionally
discharged a firearm which proximately caused death to Michael
Martin.”
III. Notices of Appeal
On August 8, 2022, Harris filed a notice of appeal from the
July 20, 2022 order denying his section 1172.6 petition for
resentencing. Also on August 8, 2022, Harris filed a notice of
appeal from a July 11, 2022 order denying his “Motion to Stay
Restitution Fines in Excess of $200.00 Unless the People
Demonstrate Defendant Has the Ability to Pay” under section
1202.4, a motion he filed as a self-represented litigant. Both
notices of appeal were lodged under the same appellate case No.,
B323662.
We dismiss the appeal from the order denying the motion
to stay fines because it is not an appealable order. As Harris
concedes in his briefing in this appeal, at this juncture, no court
has jurisdiction to reduce his fines because the judgment of his
convictions became final in 2007. (See People v. Torres (2020) 44
Cal.App.5th 1081, 1084-1088 [order denying motion to reduce
restitution fine based on inability to pay was not appealable
because the defendant made the motion after the conclusion of
his direct appeal, when the court no longer had jurisdiction].)
Harris contends, however, that if he “prevails on his motion for
resentencing under section 1172.6” the “trial court at the
resentencing hearing should consider whether [he] has the ability
to pay restitution fines, as well as any other fines and fees.”
Because we are affirming the order denying Harris’s section
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1172.6 petition for the reasons explained below, we need not
address this contention further.
DISCUSSION
I. Section 1172.6 and Other Applicable Law
Under section 1172.6, subdivision (a), “A person convicted
of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime, or attempted murder under
the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
or attempted murder. [¶] (3) The petitioner could not presently
be convicted of murder or attempted murder because of changes
to Section 188 or 189 made effective January 1, 2019.”
When a defendant files a facially sufficient petition under
section 1172.6, the trial court must appoint counsel to represent
the petitioner, allow briefing from both sides, and hold a hearing
to determine whether the petitioner has made a prima facie
8
showing for relief. (§ 1172.6, subds. (b)-(c).) 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.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.)
If the trial court issues an order to show cause, the final
step in the process is a hearing to determine if the petitioner is
entitled to relief, where the trial court must vacate the
petitioner’s murder or attempted murder conviction and
resentence him or her on any remaining counts unless the
prosecution can “prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
When a trial court errs in declining to appoint counsel for a
defendant in connection with a section 1172.6 petition for
resentencing, we review for harmless error under the standard
set forth in People v. Watson (1956) 46 Cal.2d 818, which requires
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a defendant to “ ‘demonstrate there is a reasonable probability
that in the absence of the error he . . . would have obtained a
more favorable result.’ ” (People v. Lewis (2021) 11 Cal.5th 952,
974.) “More specifically, a [defendant] ‘whose petition is denied
before an order to show cause issues has the burden of showing
“it is reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.” ’ ” (Ibid.)
II. Harris Is Ineligible for Relief Under Section 1172.6
as a Matter of Law
Harris contends the trial court erred in declining to appoint
counsel, allow briefing and hold a hearing on his facially
sufficient petition, before denying the petition on the ground he is
ineligible for resentencing. We agree the court made these
procedural errors. Harris further contends the errors were
“prejudicial because there is nothing in the record of conviction
establishing as a matter of law that [he] is ineligible for relief.”
To the contrary, the record of conviction establishes Harris was
not “convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime.” (§ 1172.6, subd. (a).) Thus, Harris is
ineligible for relief under section 1172.6 as a matter of law, and
he cannot establish it is reasonably probable he would have
obtained a more favorable result in the absence of the errors.
Based on the jury instructions given at Harris’s trial, as
summarized above, the jury was required to find Harris acted
with intent to kill in order to find him guilty of willful, deliberate
and premeditated first degree murder as it did. (See CALJIC No.
8.20.) Further, as reflected on the verdict form, the jury found
10
Harris personally and intentionally fired upon Martin, causing
Martin’s death. Thus, the jury necessarily found that acting with
express malice (intent to kill), Harris actually killed Martin,
rendering Harris ineligible for relief under section 1172.6.
The record of conviction forecloses any possibility that the
jury imputed malice to Harris based on his participation in
another crime. The only offense placed in front of the jury was
express malice murder. No other target offense was advanced by
the prosecution or the defense.
Harris’s citation of People v. Langi (2022) 73 Cal.App.5th
972 is misplaced. There, the Court of Appeal reversed an order
denying a petition for resentencing under former section 1170.95.
The appellate court concluded: “Because the record of conviction
does not conclusively negate the possibility that the jury found
appellant guilty of second degree murder by imputing to him the
implied malice of the actual killer, without finding that he
personally acted ‘with knowledge of the danger to, and with
conscious disregard for, human life’ [citation], an evidentiary
hearing is required.” (Langi, at p. 984.) Here, unlike in Langi,
Harris was not convicted of implied malice second degree murder,
and as discussed above, Harris’s record of conviction
demonstrates the jury found he acted with intent to kill when he
fired upon Martin and committed first degree murder.
Citing People v. Offley (2020) 48 Cal.App.5th 588, Harris
argues, “a jury’s true finding on a section 12022.53, subdivision
(d), enhancement for personally using and discharging a firearm
proximately causing great bodily injury or death does not render
a person ineligible for resentencing under section 1172.6 as a
matter of law.” Offley is inapplicable here. There, two
defendants were found guilty of murder after the trial court
11
instructed the jury on the natural and probable consequences
doctrine as it applied to co-conspirators. (Id. at p. 593.) The trial
court summarily denied the defendants’ petitions for
resentencing under former section 1170.95 on the ground “that
both defendants were ineligible for relief” as a matter of law
“because they had received sentence enhancements under section
12022.53, subdivision (d) for intentionally discharging a firearm
and proximately causing the victim’s death.” (Id. at p. 592.) In
actuality, only one of the defendants received an enhancement
under section 12022.53, subdivision (d). As to that defendant, we
concluded in our appellate opinion that we could not “rule out the
possibility that the jury relied on the natural and probable
consequences doctrine in convicting [him].” (Id. at p. 599.) We
noted, however, that “if the jury did not receive an instruction on
the natural and probable consequences doctrine, the jury could
not have convicted the defendant on that basis, and the petition
should be summarily denied.” (Ibid.)
Here, in contrast to Offley, there was only one defendant
(Harris) and no conspiracy instruction based on the natural and
probable consequences doctrine. In finding Harris guilty of first
degree murder, Harris’s jury could not have relied on any theory
of murder liability which could render Harris eligible for relief
under section 1172.6—felony murder merely based on
participation in a target offense, natural and probable
consequences, or imputed malice—because the jury was not
instructed on any such theory, and no such theory was argued to
the jury. As explained above, the record of conviction establishes
Harris is ineligible for relief under section 1172.6 as a matter of
law, without resort to impermissible factfinding, and the trial
12
court’s errors are harmless.3 Accordingly, we affirm the order
denying Harris’s petition for resentencing.
DISPOSITION
The July 20, 2022 order denying the section 1172.6 petition
is affirmed. The appeal from the July 11, 2022 order denying the
motion to stay fines is dismissed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
3 Harris asserts that any conclusion that he “was the sole
shooter” is “a conclusion [that] requires a factual finding, which is
prohibited at the prima facie stage.” A relevant conclusion that
requires no factfinding is that Harris was prosecuted as the sole
shooter. The trial court gave no jury instructions on aiding and
abetting. Thus, to find Harris guilty of first degree murder, the
jury was required to find that he intended to kill and actually did
kill Martin.
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