Filed 7/19/21 P. v. Anderson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

YOLANDA RAE ANDERSON,

Defendant and Appellant. B 3 06032

(Los Angeles County Super. Ct. No. VA008469)

APPEAL from an order of the Superior Court of
Los Angeles County, Debra Cole

- Hall, Judge. Reversed and
remanded. Gibson, Dunn & Crutcher, Courtney M. Johnson, Eric D. Vandevelde for Defendant and Appellant. Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen,2

Supervisin g Deputy Attorney General, and Peggy Z. Huang, Deputy Attorney General for Plaintiff and Respondent.

________________________

Yolanda Rae Anderson

, convicted of two counts of first degree murder in 19 93 , appeals the superior court’s order denying h er pet ition for resentencing under Penal Code
section 1170.95 1 based on the court’s finding Anderson had not made a prima facie showing she was entitled to relief. Anderson
contends , and the Attorne y General concedes, the superior court erred by prematurely eng aging in factfinding not permitted
before issuing an order to show cause and conducting an evidentiary hearing

. We agree , reverse the order denying
Anderson ’s petition and remand with directions to issue an order
to show cause and to conduct further proce edings in accordance
with section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND

1. Anderson ’s Felony

- murder Conviction Anderson was charged in an information filed October 10, 1991 with two counts of first degree murder (§ 187, subd. (a)) a nd two counts of first degree robbery (§§ 211, 212.5) with special allegations that a principal had been armed with a firearm during the commission of all four offenses (§ 12022, subd. (a)(1)). The information did not include accomplice

- liability, felony

murder special

- circumstance allegation s (see §§ 190.2,
subds. (a)(17), (d)). Our opinion affirming Anderson’s judgment of conviction
describe d the evidence presented at trial, which included

1 Statutory references are to this code.3

Anderson’s testimony. ( People v. Anderson (Sept. 20, 1994,
B0769 60) [nonpub. opn.].) Late at night on June 27, 1991 Anderson went to the Hammock family ’s apartment in Downey with Samuel Simpson, a former boyfriend, and Samuel’s brother, La France Simpson. Anderson knew the Hammock family. As instructed by Samuel
Si mpson , Anderson knocked on the door and asked the family’s

11

- year

- old son to let her inside and to wake his mother, explaining she was experiencing an emergency. When the boy went to get his mother, the Simpsons entered the home.
Anderson returned to he r car. The Simpsons tied up the boy; demanded money and jewelry from his parents, Thomas and Lawana Hammock; ransacked the home taking valuables; and
shot and killed Thomas and Lawana Hammock. According to the preliminary hearing testimony of one of
the Hammocks’ neighbors, admitted at trial after the court found the neighbor was unavailable, Anderson, followed by two men, got out of a car that parked in the lot next to the Hammocks’ apartment complex. Anderson walked into the apartment building; the two men jumped over the surrounding wall. A few minutes later Anderson returned to the car, sat in the driver’s seat and started the engine. She then opened the front passenger door, revved the engine “as if to give a signal,” and turned the lights on and o ff. Fifteen minutes later the two men jumped back over the wall and returned to the car. Anderson drove away with
the two men inside. Anderson testified the Simpsons drove her to an apartment Samuel Simpson said belonged to a former girlfriend to pick u p his son. Anderson did not recognize it as the Hammocks’ residence and insisted she had no idea the Simpsons planned a4

robbery. At the apartment she knocked on the door, as directed,
and said it was “Yolanda.” She could not see inside and did not

recog nize the boy’s voice when he responded. She asked to speak to the boy’s parents, as the Simpsons instructed, and then
returned to the car where she waited until the two men came back . Samuel Simpson told her to drive when they left the area.
She found o ut later the Simpsons had committed robbery and murder at the apartment.
On cross

- examination Anderson explained she visited the Hammocks frequently at another location and had been to the Downey apartment only once and did not recognize it. She
testifie d the Simpsons accompanied her to the front door of the apartment (rather than jumping over a wall) and she did not see, and was not aware, that they had weapons. At the door Samuel Simpson grabbed her, ordered her to return to the car and
threatened her daughter’s safety if she did not do as he said. She denied she had acted intentionally as the getaway driver for the robbery. 2 The jury convicted Anderson of two counts of first degree murder and two counts of first degree robbery and found true the

sp ecial allegation a principal had been armed with a firearm. Anderson was sentenced to an aggregate indeterminate state prison term of 51 years to life. We affirmed Anderson’s

2 With her reply brief in support of the petition for resentencing, Anderson attached tr anscripts of two parole consideration hearings dated August 10, 2017 and February 5, 2019. During those hearings Anderson admitted she knew the Simpsons planned to rob the Hammocks after she allowed them to gain access to the home. She continued to deny knowing either man was armed.5

convictions on appeal, rejecting her contentions it was error to
admit the neig hbor’s preliminary hearing testimony and the
definition of reasonable doubt in the version of CALJIC No. 2.90
used by the trial court violated her right to due process. ( People
v. Anderson

, supra , B076960.)

2. Anderson ’s Petition for Resentencing

On Apr il 15 , 2019 Anderson , represent ed by counsel , filed a petition for resentencing under section 1170.95

. With the petition Anderson submitted her declaration under penalty of

per jury stating she had been convicted of two counts of first degree murder under the felony

- murder rule. Anderson further
declared she could not now be convicted of first or second degree murder because of changes made to sections 188 and 189 by
S enate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Stats. 2 018,
ch. 1015) (Senate Bill 1437 ) and specifically averred she was not the actual killer in her commitment offenses, did not aid or abet the actual killer with an intent to kill, and was not a major participant in the felony and had not acted with reckless indifference to human life during th e course of the robbery

. The District Attorney filed an opposition to the petition on January 29, 2020, contending Anderson was ineligible for resentencing because she had been a major participant in the
robberies and had acted with reckless indifference t o human life and, therefore, could still be convicted of first degree murder under the amended felony

- murder rule

. The District Attorney also argued Anderson could be convicted of second degree murder under a theory of implied malice. Anderson filed a re ply brief on February 19, 2020. The superior court held a hearing o n March 5, 2020 to determine whether Anderson had established a prima facie case6

for relief. Following argument of counsel, the court denied Anderson’s petition

. After summarizing its vi ew of the facts, the
court stated : “In reviewing this case to see whether or not the defendant was a major participant in the underlying felony, the
court read the Banks case and the factors. [ 3 ] And you don’t have
to have all of those factors in order to be deemed a major participant. . . . [Anderson], in her statement, had indicated she didn’t know where they were going; she was just dropping these guys off somewhere. And her credibility

— let me put it this way. Do I believe she was a major participant ? You bet I do. When you create a situation, and you trick that young boy into letting you into

— letting you in, and then you allow t w o other men to enter that home and kill that boy’s parents in front of [him] , yes, she was a major participant. No, she wasn’t there at the time of the shooting, but she was involved in the planning and the execution of that robbery that led to the death of the two victims in this case. And the court finds the defendant was a major participant in the underlying felony murd er and acted with reckless indifference to life. And the court finds there is no prima
facie case.”
A nderson filed a timely notice of appeal. 4

3 In People v. Banks (2015) 61 Cal.4th 788 the Supreme Court identified factors that courts should consider in determining whether a defendant was a “major participant” within the meaning of the special circumstance statute for aiders and abettors of felony murder ( § 1 90.2, subd s

. (a)(17), (d) )

.

4 Anderson was granted parole and released from custody in October 2020. The change in her status does not moot her appeal . (Cf

. People v. Nuckles (2013) 56 Cal.4th 601, 609 [“a

c onvicted felon rele a sed on parole is subject to substantial restraints on his liberty and is deemed to remain in the7 DISCUSSION

1. Senate Bill 1437 and the Section 1170.95 Petition Procedure

S enate Bill 1437 eliminated the na tural and probable consequences doctrine as a basis for finding a defendant guilty of murder ( People v. Gentile (2020) 10 Cal.5th 830, 842

- 843 ( Gentile )) and significantly narrowed the felony

- murder exception to the malice requirement for murder . (See, e. g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236 , review granted
Mar. 10, 2021, S266652; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080.) It also authorized, through new section 1170.95, an individual convicted of felony murder or murder based o n the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437’s changes to the definiti on of the crime. (See Gentile

, at p. 859.) If the section 1170.95 petition contains all the required information, including a declaration by the petitioner that he or she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), s ection 1170.95, subdivision (c), prescribes a process for the court to determine whether to issue an order to show cause and hold an evidentiary hearing to consider if the murder conviction should be vacated and the petitioner resentenced on any remaining counts: “The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of

constructive custody of the Department of Corrections and Rehabili t ation”] .)8

this section. If the petitioner has requested counsel, the court shall appoint counsel to repre sent the petitioner. The prosecutor shall file and serve a response .

. . and the petitioner may file and serve a reply

. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to
show cau se.” In determining whether the petitioner has carried the burden of making the requisite prima facie showing he or she falls within the provisions of section 1170.95 and is entitled to relief, the superior court properly examines the record of
convictio n and “can dismiss any petition filed by an individual who was not actually convicted of first or second degree murder.” ( People v. Verdug o (2020) 44 Cal.App.5th 320, 330 ( Verdugo ), review granted Mar. 18, 2020, S260493.) “The record of conviction might also include other information that establishes the petitioner is ineligible for relief as a matter of law because he or she was convicted on a ground that remains valid notwithstanding Senate Bill 1437’s amendments to sections 188 and 189 (see § 1170.95, subd. (a)(3))

— for example, a petitioner
who admitted being the actual killer as part of a guilty plea or who was found to have personally and intentionally discharged a firearm causing great bodily injury or death in a single victim
homicide within the mea ning of section 12022.53,
subdivision (d).” ( Ibid .) As this portion of our decision in Verdugo emphasized , for relief to be denied without the court first issuing an order to show cause and conducting an evidentiary hearing, the record of conviction must establish the petitioner’s ineligibility as a matter of law. ( Ibid .; s ee People v.
Smith (2020) 49 Cal.App.5th 85, 92, review granted July 22, 2020, S262835 [“[i]f it is clear from the record of conviction that9

the petitioner cannot establish eligibility as a matter of law , the trial court may deny the petition ”]; People v. Cornelius (2020)

44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [record must show defendant is “ indisputably ineligible for
relief ” ] .) Once the section 1170.95, subdivis ion (c), prima facie showings have been made, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1). ) At the hearing the prosecution has the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3); Rodriguez

, supra , 58 Cal.App.5th at

p. 230, review granted; People v. Lopez (2020) 56 Cal.A pp.5th 936, 949, review granted Feb. 10, 2021, S265974; but see People
v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309.) The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence t o meet their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898

- 899, review granted Aug. 12, 2020, S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981; People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 1 8, 2020, S260598.)

2. The Superior Court Erred in Denying Anderson ’s Petition Without an Evidentiary Hearing Anderson’s petition complied with the statutory requirements of section 1170.95; and her declaration, if accepted as true, made a prima facie show ing of her eligibility for relief. The superior court’s contrary ruling was based on its finding that10

Anderson could still be convicted of murder under the felony

murder rule.
At the time of Anderson’s trial , section 189 permitted a conviction for felony murder by imputing malice to a participant in an inherently dangerous felony , including robbery, that resulted in homicide, even if the death was accidental. (See People v. Chun (2009) 45 Cal.4th 1172, 1184.) As amended by Senate Bill 1437, sectio n 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual’s participation in a
crime and requires proof of malice to convict a principal of murder except under the revised felony

- murder rule as set forth in new section 189, subdivisio n (e). S ection 189, subdivision (e), in turn, limits the felony

- murder exception to the ma lice requirement to situations in which the defendant was the actual killer, aided or abetted the underlying serious felony with the intent to kill, or was a major p articipant in the felony and acted
with reckless indifference to human life. It is undisputed that Anderson was not the actual killer of
Thomas and Lawana Hammock. As discussed, although the District Attorney argued the evidence would support a finding
th at Anderson had acted with implied malice and could be found guilty of second degree murder, there was never a suggestion Anderson had acted during the robbery with express malice

— that is, an intent to kill. Rather, the superior court’s ruling was predica ted on the third felony

- murder category, finding that Anderson had been a major participant in the robbery of the Hammock family and had acted with reckless indifference to human life. Those findings are necessarily fact

- intensive. (See In re Scoggins (2 020) 9 Cal.5th 667, 683 [determining whether a defendant was a major participant in an underlying11

felony who acted with reckless indifference to life within the meaning of the special circumstance statute “requires a fact

intensive, individualized inquiry” ] ; In re Parrish (2020)
58 Cal.App.5th 539, 54 2 [Supreme Court has prescribed “a fact

intensive and individualized inquiry” to determine whether the evidence demonstrates reckless indifference and major participation] .)
T he Attorney General acknowledges, a lthough the evidence
that Anderson could still be convicted of murder under the felony

murder rule may be strong, the record of conviction does not
establish as a matter of law that s he is ineligible for resentencing as a major participant in the robberies who acted with reckless indifference to human life. The superior court’s ruling that
Anderson could still be convicted of first degree murder required the court to weigh the evidence , including Anderson’s credibility, and engage in factfinding , act ivitie s not permitted under
section 1170.95 prior to the issuance of an order to show cause

. As the court explained in People v. Drayton

, supra , 47 Cal.App.5th at page 980

, “ w hen assessing the prima facie showing, the trial court should assume all facts stated in the
section 1170.95 petition are true. [Citation.] 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

. . . . However, this authority to make determinations without conducting an evidentiary hearing pursuant to
section 1170.95, subd [ ivision] (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 (such as determining whether the petitioner showed reckless indifference to human life12

in the commission of the crime). [¶] If, accepting the facts asserted in the petition as true, the petitioner would be entitled
to relief because he or she has met the requirements of
section 1170.95 [, subdivision] (a), then the trial court should
issue an order to show cause. ” (Accord, People v. Duchine (2021)
60 Cal.App.5th 798, 815 [“the time for weighing and balancing and making findin gs on the ultimate issues arises at the evidentiary hearing stage rather than the prima facie stage, at least where the record is not dispositive on the factual issues ”] .) Accordingly, as both parties agree, the matter must be remanded for the superior c ourt to conduct an evidentiary hearing in accordance with section 1170.95, subdivision (d).
DISPOSITION The order denying Anderson ’s section 1170.95 petition is reversed. On remand the superior court is to issue an order to
show cause and to conduct furt her proceedings in accordance with section 1170.95, subdivision (d).

PERLUSS, P. J.
We concur:

SEGAL , J.

FEUER, J.