Filed 6/25/21 P. v. Player CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B303259
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A900447)
v.
LAVELL TYRONE PLAYER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura C. Ellison, Judge. Reversed and
remanded with directions.
Nancy J. King, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Lindsay Boyd, Deputy Attorneys
General, for Plaintiff and Respondent.
_______________________
In 1984, a jury convicted Lavell Tyrone Player of murder.
On direct appeal, due to the lack of a jury finding that the crime
was first or second degree murder, we deemed it to be second
degree murder by operation of law. (See Pen. Code, § 1157.)1 In
2018, Player petitioned the trial court under section 1170.95 for
resentencing. The trial court denied the petition on the ground
that Player was an aider and abettor who acted with an intent to
kill, and thus, could still be convicted under current law.
Player argues the trial court erred in denying his petition
without first issuing an order to show cause pursuant to section
1170.95, subdivision (c). The People agree the trial court
exceeded the scope of its prima facie review and that remand is
appropriate. We agree and reverse with instructions for the trial
court to issue an order to show cause and conduct a hearing
pursuant to section 1170.95, subdivisions (c) and (d).
FACTUAL AND PROCEDURAL SUMMARY
A. Summary of Facts
This court affirmed the judgment against Player on
May 22, 1984. (People v. Player (May 22, 1984, 2d Crim.
No. 43957) [nonpub. opn.] (Player).) Because the appeal before us
does not require a detailed recitation of the facts, we provide a
short summary derived from Player’s direct appeal.
In the early morning of December 19, 1981, Toney Lewis
was shot and killed in his van in a parking lot near the
intersection of El Segundo Boulevard and Vermont Avenue.
Carolyn Spence was in Lewis’s van at the time of the shooting
1Subsequent undesignated statutory citations are to the
Penal Code.
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and was robbed. Spence testified that two assailants approached
the vehicle and one was armed. The gunman repeatedly asked
Lewis for his wallet and coat. The gunman took the keys from
the ignition. (Player, supra, 2d Crim. No. 43957 at pp. 3-4.)
Lewis repeatedly protested, saying “[d]on’t take my van.”
The gunman pushed Lewis back and grabbed some chains from
Lewis’s neck. The gunman said, “[t]hat’s all right, mother-fucker.
You are going to die, anyway.” According to Spence, the gunman
pushed Lewis, grabbed him, and then shot him. (Player, supra,
2d Crim. No. 43957 at p. 4.)
There was conflicting testimony as to the physical
description of the assailants. At trial, Spence initially identified
Player as the gunman. On cross-examination, however, she was
confronted with her previous identification of Player’s brother
Marcus as the gunman, and conceded her identification of Player
as the shooter was a mistake. She further testified she did not
see Player the night Lewis was shot. (Player, supra, 2d Crim. No.
43957 at p. 5.)
After Marcus was arrested, Player told his girlfriend, “I am
the one that killed the guy behind Denny’s.” He also told her,
“[e]verybody around here knows that I did it.” (Player, supra, 2d
Crim. No. 43957 at pp. 6-7.)
The People charged Player and his brother Marcus with the
murder of Lewis. (§ 187). The information further alleged that
the murder was committed during the commission of a robbery
and an attempted robbery (§§ 190.2, subd. (a)(17)(i), 211, 664).
The People also charged Player with the robbery of Spence and
with the attempted robbery of Lewis. (§§ 211, 664.) As to all
counts, the People alleged that Player personally used a firearm
and that a principal was armed with a firearm (§§ 1203.06,
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subd. (a)(1), 12022, subd. (a), 12022.5). (Player, supra, 2d Crim.
No. 43957 at pp. 2-3.)
Player was convicted after a jury trial of murder, robbery,
and attempted robbery. The jury found true the allegation that a
principal was armed with a firearm during the commission of the
offense, but did not find true the robbery special circumstance
and personal use of a firearm allegations. Player was sentenced
to 26 years to life in state prison.
B. Direct Appeal
On direct appeal, we deemed the crime to be second degree
because the jury did not specify the degree of murder. On
remand, Player was resentenced to 16 years to life in state
prison.
Our opinion addresses Player’s argument that the evidence
was insufficient to support his conviction for murder as follows.
“[W]e find sufficient evidence of [Player]’s knowledge of the
unlawful purpose of the act proposed by Marcus, namely to
commit a robbery, and his consent to participate as evidenced by
his affirmative response to Marcus’ suggestion to go make some
money. [¶] [Player was] obviously aware that one of [the
assailants] was armed with a weapon which had been test
fired. . . .” (Player, supra, 2d Crim. No. 43957 at p. 10.)
“[Player’s] intentional presence in a situation in which he was
part of a planned armed robbery, where one of the assailants told
the victim ‘you’re going to die anyway,’ coupled with his
knowledge that the threat could be carried out with an operable
weapon, shows his knowledge of the intent and purpose of killing
the victim Lewis.” (Id. at p. 12.) “[T]he inescapable conclusion is
that the jury decided that [Player] was present, participated in
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the robbery and the shooting and therefore guilty of murder, at
least as an aider or abettor.” (Id. at p. 15.)
In addressing Player’s claim, we noted that the trial court
instructed the jury with a version of CALJIC No. 3.01, which had
been “rejected as erroneous” by our high court in People v.
Beeman (1984) 35 Cal.3d 547. The instruction was “erroneous
because it failed to adequately inform the jury that an aider or
abettor must be found to have acted with knowledge of the
criminal purpose of the perpetrator and with an intent or purpose
either of committing, encouraging or facilitating the commission
of the offense charged.” (Player, supra, 2d Crim. No. 43957 at
p. 13.)
C. Section 1170.95 Petition
On December 31, 2018, Player filed a petition for
resentencing pursuant to section 1170.95, claiming that he was
convicted of murder based on a felony-murder theory. The People
filed an opposition supported by our opinion on direct appeal, the
preliminary hearing and trial transcripts, and the jury
instructions. Counsel for Player filed a reply and two
supplemental briefs.
The resentencing court held a hearing on whether Player’s
petition made a prima facie showing that he fell within the
provisions of section 1170.95. The prosecutor argued, in part,
that the opinion on direct appeal concluded that Player was an
aider and abettor. The court agreed and quoted the opinion’s
conclusion that Player had knowledge of the intent to kill the
victim. The court then stated that it was “very clear from the
facts as outlined not just in the trial transcripts but in the Court
of Appeal’s opinion” that “there’s more than ample evidence here
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to . . . find he was the aider and abettor at the very least with a
stated purpose and intent to kill.”
Player filed a timely notice of appeal.
DISCUSSION
A. Legal Framework
Prior to the enactment of Senate Bill No. 1437, a defendant
who aided and abetted a crime that resulted in a victim’s death
could be convicted even if the defendant did not act with malice
under the natural and probable consequences theory. (People v.
Offley (2020) 48 Cal.App.5th 588, 595.) Existing law also
permitted a conviction for felony murder by simply imputing
malice to those who commit an inherently dangerous felony
which resulted in homicide. (See People v. Chun (2009) 45
Cal.4th 1172, 1184.)
The Legislature enacted Senate Bill No. 1437 “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);
see People v. Gentile (2020) 10 Cal.5th 830, 842; see also § 189,
subd. (e)(2) [redefining the prerequisites for application of the
felony-murder rule].)
The legislation did not alter the viability of a murder
conviction based on direct aiding and abetting liability. (People v.
Offley, supra, 48 Cal.App.5th at p. 596 [“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”].) For direct aider and abettor liability, “the aider and
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abettor must possess malice aforethought.” (People v. Gentile,
supra, 10 Cal.5th at p. 844; see People v. McCoy (2001) 25 Cal.4th
1111, 1118 [one who directly aids and abets in murder “must
know and share the murderous intent of the actual
perpetrator”].)
Senate Bill No. 1437 also added section 1170.95, which
allows defendants convicted of murder based on a now
invalidated theory to petition for resentencing. (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18, 2020,
S260598; see § 1170.95, subd. (a).)
Section 1170.95 sets forth a multistep decision-making
process. First, a petitioner must make a prima facie showing
that he was “ ‘convicted of felony murder or murder under a
natural and probable consequences theory,’ ” and that “ ‘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, citing § 1170.95,
subd. (a).)
At these initial stages, “the ‘trial court should not evaluate
the credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
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eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record “contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.” [Citation.]
However, this authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95,
[subdivision] (d) is limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of
discretion . . . .’ [Citation.]” (People v. Nguyen, supra, 53
Cal.App.5th at pp. 1165-1166.) A petitioner fails to establish a
prima facie showing if the petition is untrue as a matter of law.
(Ibid.; see also People v. Swanson (2020) 57 Cal.App.5th 604, 612,
review granted Feb. 17, 2021, S266262 [stating that the “contents
of the record of conviction defeat a prima facie showing when the
record shows as a matter of law that the petitioner is not eligible
for relief”]; but see People v. Garcia (2020) 57 Cal.App.5th 100,
116, review granted Feb. 10, 2021, S265692 [“The trial court
should not accept the petitioner’s assertions as true and issue an
order to show cause if substantial evidence in the record supports
a murder conviction under current law”].)
“ ‘If the petitioner makes a prima facie showing that he or
she is entitled to relief, the court shall issue an order to show
cause.’ ” (People v. Offley, supra, 48 Cal.App.5th at p. 596,
quoting § 1170.95, subd. (c).) Thereafter, “the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing. . . .” (§ 1170.95,
subd. (d)(3).) “The prosecutor and the petitioner may rely on the
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record of conviction or offer new or additional evidence to meet
their respective burdens.” (Ibid.)
B. Player Established a Prima Facie Case for
Resentencing
Player contends he was charged with a murder that
occurred during a robbery, and the jury’s finding that he did not
personally use a firearm indicates he was convicted under a now
invalid theory of felony murder. He argues, and the Attorney
General agrees, that the trial court erred in denying his petition
for resentencing before holding a hearing with respect to the
murder conviction.
The resentencing court rested its decision in part on our
opinion on direct appeal, in which we concluded that Player aided
and abetted the murder based on his presence during an armed
robbery at which an assailant told the victim he was going to die,
“coupled with his knowledge that the threat could be carried out
with an operable weapon, show[ing] his knowledge of the intent
and purpose of killing the victim.” (Player, supra, 2d Crim
No. 43957 at p. 12.) We did not conclude that Player had the
specific intent to kill. Rather, our holding suggests that the facts
supported a verdict based on application of the felony-murder
rule or the natural and probable consequences doctrine.
As we noted on direct appeal, the instructions on aider and
abettor liability as provided to the jury were subsequently
invalidated under Beeman, and thus we cannot rely on the
instructions to conclude the jury found Player guilty under a
valid theory of direct aider and abettor liability. Thus, nothing in
the record of conviction indicates that Player was necessarily
convicted of murder based on a theory that he was the actual
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shooter, harbored the intent to kill, or was a major participant in
the robbery and acted with reckless indifference to human life.
In arriving at its conclusion that our opinion and the trial
transcripts showed that Player was convicted as a direct aider
and abettor, the resentencing court necessarily engaged in
factfinding at the prima facie stage, which it was not authorized
to do. (People v. Nguyen, supra, 53 Cal.App.5th at pp. 1165-1166;
see People v. Drayton (2020) 47 Cal.App.5th 965, 980 [a
resentencing court’s decision-making authority at the prima facie
stage “is limited to readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion”].)
Accordingly, the matter must be remanded for an order to
show cause pursuant to section 1170.95, subdivision (c), and a
hearing pursuant to section 1170.95, subdivision (d), during
which the parties “may rely on the record of conviction or offer
new or additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).) We express no opinion on Player’s
ultimate entitlement to relief following a hearing.
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DISPOSITION
The order denying Player’s petition for resentencing under
section 1170.95 is reversed and the matter is remanded to the
superior court. On remand, the superior court shall issue an
order to show cause and conduct a hearing in accordance with
section 1170.95, subdivisions (c) and (d).
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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