People v. Riley CA4/2

Filed 6/24/21 P. v. Riley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075100

v. (Super.Ct.No. RCR19436)

JACK DEWAYNE RILEY, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi,

Judge. Reversed and remanded with directions.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin

Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

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 I

INTRODUCTION

Defendant and appellant Jack Dewayne Riley appeals from a postjudgment order

denying his Penal Code1 section 1170.95 petition to vacate his second degree murder

conviction and obtain resentencing under the procedures established by Senate Bill

No. 1437 (Senate Bill 1437). Defendant argues the trial court erred in finding him

ineligible for relief as a matter of law because the court misconstrued his record of

conviction in finding he was not convicted under the natural and probable consequences

doctrine or under the felony-murder theory. The People agree the record shows

defendant could have been convicted of murder under the natural and probable

consequences doctrine, and therefore the matter must be remanded to the trial court for it

to issue an order to show cause and conduct an evidentiary hearing to determine whether

relief should be granted.

Having thoroughly reviewed the record, we reverse the trial court’s order because

the record of conviction does not show as a matter of law that defendant is not entitled to

resentencing. We thus remand the case to the trial court to issue an order to show cause

and conduct an evidentiary hearing.

1 All future statutory references are to the Penal Code unless otherwise stated.

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 II

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background2

On the night of June 11, 1991, Carol Romine was working as a prostitute. Scott

Hayden, riding a motorcycle, approached Romine; Romine agreed to a sexual act in

exchange for $40. Romine and Hayden retired to Romine’s motel room, where Hayden

gave Romine the $40 and they engaged in the agreed-upon sexual act.

Hayden afterward produced a pistol from his duffel bag, held the gun to Romine’s

head, and demanded his money back. Romine gave Hayden the $40.

Michael Rowe, Romine’s boyfriend, was in another room of the motel and

happened to observe Hayden holding the gun to Romine’s head. Rowe, with the aid of a

friend, accosted Hayden as Hayden was leaving Romine’s room. Rowe put his hand in

Hayden’s back and told him to “freeze.” Hayden dropped his duffel bag and put his

hands in the air. Romine came out of her room, yelling that she had been robbed; Rowe

told someone to call the police. Hayden said he was not waiting for the police. Rowe

retrieved the $40 from Hayden’s pocket as Hayden mounted his motorcycle and left. In a

loud, angry voice, Hayden vowed to return. Fearing Hayden, Rowe and Romine moved

to a different motel room, in possession of the $40 and Hayden’s duffel bag. Hayden’s

gun was inside the duffel bag.

2 The factual background is taken verbatim from this court’s partially published
opinion in defendant’s direct appeal, case No. E011269, which is part of the record on
appeal in this case. (People v. Riley (1993) 20 Cal.App.4th 1808, 1810-1812.)

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 Hayden returned about 30 to 45 minutes later, riding as a passenger with defendant

in defendant’s truck. Defendant drove slowly around the motel parking lot. The victim,

David Woods, was in the parking lot with some other motel residents. Defendant stopped

the truck and Hayden fired two gunshots out the driver’s window. Woods fell down.

After a few seconds’ pause, several more shots were fired toward Woods. Witnesses

observed defendant’s truck drive slowly in the parking lot, exit, make a U-turn, and drive

once more slowly past the motel. Woods was struck by a bullet that entered the shoulder

area and exited his chest. He died in the motel parking lot.

The next day, defendant gave a gun to Lewis Rivenbark, defendant’s business

partner, for safekeeping. Defendant bragged that the gun had been used in a killing.

When police later recovered the gun, they determined that the gun was used to fire a

bullet found at the scene of the killing.

When defendant was arrested, he gave a videotaped statement to police. At first,

defendant denied knowing about or being present at the shooting at the motel. Defendant

claimed to have been at home all evening. When police told defendant that defendant’s

girlfriend failed to confirm his alibi, defendant changed his story.

Defendant told police he had come home very drunk. Hayden came to defendant’s

house and told him he had been robbed after patronizing a prostitute. Hayden’s bag and

gun were taken. Defendant suggested that they go in his truck to the motel, to try to get

Hayden’s possessions back. Defendant gave Hayden a .357 pistol and a speed loader.

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 Defendant drove Hayden back to the motel in defendant’s truck. Hayden saw a

Black man and told defendant the man had been involved in the robbery. Hayden leaned

across defendant and yelled, “Hey, Ni[ ]r,” out the window. Hayden, still leaning across

defendant’s body, rapidly fired several shots out of the driver’s side window. Defendant

said he did not realize Hayden was going to shoot anyone and he drove quickly away

after Hayden fired the shots. Defendant did not know for sure if Hayden’s shots had

struck anyone. Defendant told police he had thrown the pistol away in the bottom of a

lake.

Defendant testified in his own behalf at trial. He claimed he had been drinking all

afternoon on the day of the shooting. That night, Hayden came to defendant’s house,

saying he had been robbed by three Black men. Defendant asked Hayden if he wanted to

go back to the motel; Hayden said he did not want to go on his motorcycle because it

would be recognized. He asked defendant to drive him to the motel, and defendant

agreed. Defendant also lent Hayden a loaded revolver, and a speed loader with five more

bullets.

On the way back to the motel, Hayden for the first time told defendant about the

circumstances of the robbery; i.e., that Hayden had first held his gun to the prostitute’s

head. Defendant knew that Hayden had boasted before that he had once shot someone

who robbed him. Defendant testified that, when they arrived at the motel, defendant told

Hayden he would not get out of the truck and that they should go home and call the

police. Defendant claimed that he did not know Hayden was going to shoot anyone, and

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he was surprised when Hayden started firing out of the driver’s window. Defendant

drove immediately away. Defendant told his girlfriend to say that defendant had not left

the house that evening. The next day, defendant gave the gun to Rivenbark; Rivenbark

was supposed to throw the gun in a lake. When defendant later learned that Rivenbark

had not disposed of the gun, defendant’s lawyer contacted police and told them where

they could find the gun.

A witness who was present at the motel testified that he saw Hayden, in the

passenger seat, fire the shots at Woods. Defendant was leaning back while Hayden was

shooting.

In rebuttal, a police officer testified that defendant told him that, when Hayden

came to defendant’s house on the night of the shooting, Hayden was very angry about

having been robbed.

B. Procedural Background

In August 1991, defendant, together with Hayden, was charged in count 1 with the

murder of David Woods (§ 187, subd. (a)). Count 1 also alleged that a principal to the

offense was armed with a firearm under section 12022, subdivision (a)(1). Count 2

alleged that defendant was an accessory after the fact with respect to the murder (§ 32),

and count 3 charged both defendant and Hayden with shooting at an inhabited dwelling

(§246), and alleged both that defendant had personally used a firearm, and that a principal

was armed with a firearm in the commission of the offense (§§ 1203.06, subd. (a)(1),

12022.5, 12022, subd. (a)(1)).

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 Defendant’s jury trial was severed from Hayden’s. In March 1992, the jury found

defendant not guilty of first degree murder as charged in count 1, and was unable to reach

a verdict on second degree murder. The jury found defendant guilty as to count 2 and

acquitted him of the charge of shooting at an inhabited dwelling in count 3. The trial

court declared a mistrial as to count 1, and the murder count was retried. At the second

trial, in May 1992, a new jury found defendant guilty of second degree murder and found

true the allegation that a principal was armed with a firearm in the commission of the

offense. The trial court sentenced defendant to a term of 15 years to life, plus one year

for the firearm enhancement.

Defendant subsequently appealed, arguing, in pertinent part, the trial court erred in

instructing the jury on liability under the natural and probable consequences doctrine

pursuant to CALJIC No. 3.02. On December 16, 1993, we affirmed the convictions.

On April 4, 2019, defendant in propria persona filed a petition for resentencing

pursuant to section 1170.95. He claimed that he was entitled to resentencing because he

was convicted of murder under the natural and probable consequences doctrine or felony-

murder rule and could not now be convicted of second degree murder based on changes

to sections 188 and 189 as amended by Senate Bill 1437.

The People initially opposed the petition solely on constitutional grounds, and

defendant, through appointed counsel, replied to those arguments. Thereafter, the People

filed a response to defendant’s petition on the merits. Relying on the facts from this

court’s opinion from defendant’s direct appeal, the People argued that those facts

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established defendant was a major participant who acted with reckless indifference to

human life.

Following further briefing and oral argument by the parties, on March 11, 2020,

the trial court denied defendant’s petition and issued a written order. The court explained

that defendant “was determined to be a ‘principal in the murder’ of the victim as

evidenced by the jury instructions, facts contained in the sentencing report, the abstract of

judgment, verdict forms, and particularly the facts set forth in” this court’s partially

published decision. The court also clarified that “there is no suggestion or indication in

the court file, record of conviction, or preliminary hearing transcript that Petitioner was

involved in the commission of a ‘target crime’ [or underlying felony] for which the

murder of Woods would have been reasonably foreseeable. Accordingly, he was not

convicted under the natural and probable consequences doctrine. By contrast, as

reflected in the Court of Appeal opinion, Petitioner was a principal in Woods’ murder by

virtue of his involvement and participation during the events in question. His actions and

conduct in concert with those of Hayden make Petitioner directly culpable and

responsible for the murder of Woods.”

The court further observed, “[i]n the instant case, the court did not instruct with

CALJIC 3.02, which would have been required had a murder conviction under the natural

and probable consequences doctrine been sought by the prosecution or contemplated by

the court. Moreover, no instruction or verdict form exists as to any other offense relating

to the murder count, which also would have been necessary to support a murder

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conviction under the natural and probable consequences doctrine.” To further support its

findings, the court also noted that the jury was instructed with CALJIC 17.15 (Defendant

Armed in Commission of Crime) and the jury found true a principal was armed in the

commission of the murder. The court concluded defendant had failed to establish a prima

facie showing of entitlement to relief under section 1170.95 because he was “neither

convicted under the felony murder rule nor the natural and probable consequences

doctrine.” Defendant timely appealed.

III

DISCUSSION

Defendant argues the trial court erred in concluding he had not made a prima facie

showing of eligibility for relief because the court misconstrued the record of conviction

in finding he was not convicted under the natural and probable consequences doctrine

and, therefore, the court erred in denying his petition without issuing an order to show

cause and holding an evidentiary hearing on his murder conviction. The People concede

the error and agree that the denial should be reversed and remanded with directions to

issue an order to show cause and conduct a hearing. As we explain, we agree with the

parties.

Prior to the enactment of Senate Bill 1437, a defendant who aided and abetted a

crime that resulted in a victim’s death could be convicted under the natural and probable

consequences theory even if the defendant did not act with malice. (People v. Offley

(2020) 48 Cal.App.5th 588, 595 (Offley).) “The natural and probable consequences

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doctrine provides that ‘ “[a] person who knowingly aids and abets criminal conduct is

guilty of not only the intended crime [target offense] but also of any other crime the

perpetrator actually commits [nontarget offense] that is a natural and probable

consequence of the intended crime . . . .” [Citation.]’ [Citation.] The doctrine

‘ “imposes vicarious liability for any offense committed by the direct perpetrator that is a

natural and probable consequence of the target offense . . . .” [Citation.]’ ” (People v.

Duke (2020) 55 Cal.App.5th 113, 120, review granted Jan. 13, 2021, S265309.)

The Legislature enacted Senate Bill 1437 “after determining that there was further

‘need for statutory changes to more equitably sentence offenders in accordance with their

involvement in homicides.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 838-839.)

Senate Bill 1437 changed the law on murder as it relates to the felony-murder rule and

the natural and probable consequences doctrine. (People v. Martinez (2019) 31

Cal.App.5th 719, 722.) Senate Bill 1437 also added section 1170.95, which allows

defendants convicted of murder based on the natural and probable consequences doctrine

or felony-murder rule to petition for resentencing. (People v. Martinez, at pp. 722-723.)

Senate Bill 1437 did not alter the viability of a murder conviction based on direct aiding

and abetting liability. “One who directly aids and abets another who commits murder is

thus liable for murder under the new law just as he or she was liable under the old law.”

(Offley, supra, 48 Cal.App.5th at p. 596.)

“Under section 1170.95, subdivision (a), ‘A person convicted of felony murder or

murder under a natural and probable consequences theory may file a petition with the

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court that sentenced the petitioner to have the petitioner’s murder 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 or murder under the

natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first

degree or second degree murder following a trial or accepted a plea offer in lieu of a trial

at which the petitioner could be convicted for first degree or second degree murder. [¶]

(3) The petitioner could not be convicted of first or second degree murder because of

changes to Section 188 or 189 made effective January 1, 2019.’ ” (People v. Nguyen

(2020) 53 Cal.App.5th 1154, 1164.)

Under section 1170.95, subdivision (b), a petitioner initiates the process of seeking

resentencing by filing a petition in the sentencing court that is facially sufficient,

containing certain basic information and a declaration from the petitioner that he or she is

eligible for relief. (People v. Cooper (2020) 54 Cal.App.5th 106, 114, review granted

Nov. 10, 2020, S264684.) The court then determines whether the petitioner has made a

prima facie showing that he or she qualifies for relief. (§ 1170.95, subd. (c).) If the

petitioner makes a prima facie showing that he or she is eligible for and entitled to relief

under the statute, then the trial court “shall issue an order to show cause.” (§ 1170.95,

subds. (b) & (c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327-329, review granted

Mar. 18, 2020, S260493 (Verdugo).)

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 “ ‘A prima facie showing is one that is sufficient to support the position of the

party in question.’ ” (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted

Mar. 18, 2020, S260598.) When conducting a prima facie review, the court’s “role . . . is

simply to decide whether the petitioner is ineligible for relief as a matter of law, making

all factual inferences in favor of the petitioner.” (Verdugo, supra, 44 Cal.App.5th at

p. 329, italics added.) Whether a petitioner has made the requisite prima facie showing is

a predominantly legal question. We thus review the trial court’s ruling de novo. (People

v. Drayton (2020) 47 Cal.App.5th 965, 981.)

Here, the record affirmatively demonstrated that defendant was charged with

murder, that the jury was instructed on second degree murder and the natural and

probable consequences doctrine, and that the jury returned verdicts of second degree

murder as to defendant. In light of that record, the trial court could not determine at the

initial stage of the process—as a matter of law and without resort to factfinding—that the

jury did not base its second degree murder finding on the natural and probable

consequences doctrine. (Verdugo, supra, 44 Cal.App.5th at p. 329.) Because the record

showed that defendant could have been convicted under a theory of murder that was no

longer viable under the revisions to sections 188 and 189, the court erred in denying the

petition at this stage in the proceedings. Accordingly, the order denying the petition must

be reversed and the matter remanded with directions to issue an order to show cause and

hold a hearing under section 1170.95, subdivision (d).

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 IV

DISPOSITION

The order denying defendant’s petition for resentencing under section 1170.95 is

reversed and the matter is remanded with directions to hold further proceedings on the

petition. Upon remand, the trial court shall issue an order to show cause and conduct a

hearing in accordance with section 1170.95, subdivision (d).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
Acting P. J.
We concur:

SLOUGH
J.

FIELDS
J.

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