Filed 3/26/21 P. v. Grandberry CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ERNEST RONDELL 

GRANDBERRY,

Defendant and Appellant.

B305238

Los Angeles County

Super. Ct. No. A388090-02

APPEAL from an order of the Superior Court of 

Los Angeles County, William C. Ryan, Judge. Reversed

and remanded.

Emry J. Allen, 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, Steven D. Matthews and Michael J. Wise, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

In 1983 Ernest Rondell Grandberry pleaded guilty to first 

degree murder as well as two felony sex crimes. He admitted 

a firearm enhancement. In accordance with Grandberry’s plea 

agreement with the People, the court sentenced him to 27 years 

to life in the state prison. In 2019, after the Legislature passed 

Senate Bill No. 1437 (SB 1437), Grandberry filed a petition for 

resentencing under Penal Code section 1170.95.1 The trial court 

denied the petition, stating Grandberry was ineligible for relief 

because (1) he “acted with a reckless indifference to human life 

and was a major participant in the [felonies underlying the 

murder],” and (2) “he, with the intent to kill, aided and abetted 

the actual killer in the commission of murder in the first degree.”

On appeal, the Attorney General agrees with Grandberry 

that we must return the case to the trial court for an order to 

show cause and an evidentiary hearing, because—in the Attorney 

General’s words—“[a]lthough the facts overwhelmingly support 

the trial court’s conclusion, the court may not actually weigh 

the facts without issuing an order to show cause and holding 

a section 1170.95, subdivision (d), hearing.”

FACTS AND PROCEDURAL BACKGROUND

1. The murder, attempted murder, sex crimes, and 

plea agreement

In the wee morning hours of February 16, 1983, Coleen 

Hawkins and Azell Moore were sitting in Moore’s parked car.2 

“[T]hree gun-wielding males” approached. They turned out to be 

1 References to statutes are to the Penal Code.

2 As the trial court noted, “the factual record [in this case] is 

scant.” The case settled before the preliminary hearing. We take 

the facts—as did the trial court—from the probation officer’s 

report.
3

Grandberry, Bobby Ray Appleberry, and Barry Lee Brookins. 

The threesome ordered Moore to get out of the car and into 

the trunk. The three men got into the car along with Hawkins. 

As one of the men drove,3 Appleberry forced Hawkins to orally 

copulate him.

About 20 minutes later, the perpetrators drove into a 

garage. “Moore was removed from the trunk. He was told to 

keep his head down and was robbed of his watch, wallet, money 

and a necklace. He was ordered back into the trunk . . . and was 

driven around on surface streets and freeways for approximately 

an hour and a half.”

“During this time,” the three perpetrators “sexually 

assaulted victim Hawkins, forcing her to orally copulate them 

and engage in sex acts with all three.” At some point the car 

stopped and “Moore was removed from the trunk and told to 

start walking.” Moore begged the men not to kill him. Moore 

then “felt a blow to the head and was rendered unconscious.”

When Moore came to, he was on the grounds of a high 

school. He walked to a telephone and called the police. Moore 

was taken to a hospital. He had been shot and had surgery 

to remove bullet fragments from the back of his head. Moore 

spent nearly two weeks in the hospital.

Later that day, police saw Appleberry getting out of 

Moore’s car, which had been reported stolen. Appleberry 

gave authorities information about “where the female victim 

of the kidnapping might be found.” Police found Hawkins’s body 

in a field, “dead of a gunshot wound to the head.” Appleberry 

later admitted he’d shot her. He also implicated Grandberry. 

3 The probation report states two of the men got into the 

front and one—Appleberry—got into the back, but it doesn’t 

reflect who drove.
4

Grandberry “admitted his part in the kidnap, robbery and rape.” 

Police later arrested Brookins, who admitted shooting Moore 

“because he wanted all of Moore’s money.”

The probation report stated that “although Grandberry 

fired no shots, all defendants were equally culpable in the death 

of Hawkins.”

Grandberry and his co-defendants were charged with 

murder, attempted murder, robbery, kidnapping for robbery, 

forcible oral copulation in concert, forcible rape in concert, 

forcible oral copulation, and forcible rape.4 On April 28, 1983, 

before the preliminary hearing, all three defendants entered 

into plea agreements with the People. Grandberry pleaded guilty 

to first degree murder, oral copulation in concert, and rape in 

concert. He also admitted that he used a firearm within the 

meaning of section 12022.5. In exchange, the prosecution 

agreed to strike the special circumstance allegations and 

dismiss the remaining counts.

As a factual basis for the plea, the prosecutor asked 

Grandberry if he was entering his plea “because you were 

involved in a situation where Coleen Hawkins was shot and 

killed, where Azell Moore was shot but not killed and where, 

in fact, you raped and orally copulated Coleen Hawkins on 

February 16, 1983?” Grandberry answered, “Yes.”

On June 3, 1983, in accordance with the plea agreement, 

the court sentenced Grandberry to 27 years to life in the state 

prison: 25 to life for Hawkins’s murder plus two years for the use 

of a firearm. The court imposed the midterm of seven years each 

4 The record on appeal does not contain a copy of the felony 

complaint.
5

on the counts for forcible oral copulation in concert and forcible 

rape in concert, to be served concurrently with the murder count.

2. Grandberry’s petition for resentencing and the 

trial court’s decision

On February 4, 2019, Grandberry filed a petition for 

resentencing under section 1170.95. On a downloadable form, 

Grandberry checked boxes 1, 2b, 3, 4, 5 and its subboxes, and 8. 

The trial court (the Honorable William C. Ryan)—noting that 

the Office of the Public Defender had represented Grandberry in 

the 1983 proceedings—reappointed that office to represent him.

On August 14, 2019, the district attorney filed a response 

to Grandberry’s petition. The prosecution devoted most of its 

response to arguing SB 1437 is unconstitutional. The prosecution 

also contended Grandberry “intended to kill and was a ‘major 

participant’ who acted with a ‘reckless indifference to human life’ 

meeting the newly enacted section 189(e).” The prosecution 

cited People v. Banks (2015) 61 Cal.4th 788 and People v. Clark

(2016) 63 Cal.4th 522, and then applied the “five-part test” 

of Banks to the facts set forth in the probation report. The 

prosecution argued the “facts clearly and logically indicate 

that petitioner was part of the planning and execution of all 

the criminal events that occurred and led to Ms. Hawkins’ death. 

If he was not part of the planning, he had multiple opportunities 

to stop the events using his own firearm or flee from the events 

during their execution. Not doing so and his willing and 

enthusiastic participation in the execution proves his

involvement in the planning.”

On November 13, 2019, the public defender filed a reply 

on Grandberry’s behalf. Grandberry argued SB 1437 is 

constitutional. He then noted he did not shoot Hawkins or Moore 

and argued, in cursory fashion, that under Banks and Clark
6

“it is not clear . . . [he] was a ‘major participant’ who acted with 

a ‘reckless indifference to human life.’ ”

On January 28, 2020, the trial court issued a memorandum 

of decision denying Grandberry’s petition. Citing court of appeal 

cases decided after the parties had filed their pleadings, the court 

stated SB 1437 was constitutional. The court then recited the 

facts set forth in the probation report. Citing Clark and In re 

Loza (2017) 10 Cal.App.5th 38, 52, the court listed the “factors 

to consider in determining whether a perpetrator acted with 

reckless indifference to human life.” The court concluded,

“Here, the facts as established in the plea 

transcript placed Petitioner in a situation 

where he was armed with a firearm while 

raping and forcing Hawkins, the eventual 

murder victim, to orally copulate him in 

the back of a car. This took place while his 

co-defendants, Appleberry and Brookins, 

robbed and shot Moore, and raped and 

eventually shot and killed Hawkins. . . . 

Petitioner, for his part, admitted to being 

armed while being part of a ‘situation where 

Coleen Hawkins was shot and killed, where 

Azell Moore was shot but not killed and where, 

in fact [he] raped and orally copulated Coleen 

Hawkins.’ . . . [¶] Review of the record as 

established in the probation report makes 

Petitioner’s involvement even more clear. 

Petitioner was one of the three armed men 

who robbed Moore at gunpoint and forced 

him into the trunk of his own car. Petitioner 

was physically present and armed during the 

lengthy crime. Petitioner had opportunities 
7

to discontinue his involvement in the offense 

when they stopped the car and got Moore out 

of the trunk, robbed him of his belongings and 

placed him back in the trunk, and again when 

they took Moore out a second time and shot 

him in the head, leaving him for dead. If, for 

some reason, Petitioner was not already aware 

of that which his co-defendants were capable, 

at that point he was on notice that his 

co-defendants were prepared to kill the victims. 

Petitioner, himself armed, could have used his 

weapon to stop his co-defendants from carrying 

the crime any further; he did not. Petitioner 

could have rendered aid to the remaining 

victim; he did not. At any point, he could have 

determined it had been taken too far and used 

his own weapon in defense of the victims in 

an effort to stop the crime; he did not. Rather, 

Petitioner made no effort to minimize the risk 

of violence. Instead, by his own admission, he 

sat in the car and raped and forced Hawkins to 

orally copulate him during her final moments. 

[¶] Petitioner’s acts of robbing Moore at 

gunpoint and raping and forcibly orally 

copulating the female victim, clearly show that 

Petitioner acted with a reckless indifference 

to human life and was a major participant in 

the underlying felonies. (§ 189, subd. (e)(3).) 

Petitioner’s actions also illustrate that he, with 

the intent to kill, aided and abetted the actual 

killer in the commission of murder in the first 

degree. (§ 189, subd. (e)(2).) As Petitioner 
8

still would have been convicted of first degree 

murder under the amended law (§ 1170.95, 

subd. (a)(3)), Petitioner is ineligible for relief 

pursuant to section 1170.95.”

DISCUSSION

On appeal, Grandberry—noting “there is no dispute 

that [he] was not the actual killer”—concedes he “was a ‘major 

participant’ in the underlying felonies.” So, he says, his appeal 

“focuses on the ‘reckless indifference to human life’ element.” 

Grandberry discusses the Banks and Clark factors. Agreeing 

he “and his two cohorts were armed,” Grandberry argues 

“the evidence shows simply that the participants intended 

to rob the victims and sexually assault Hawkins.” Grandberry 

acknowledges he and his co-defendants “held the victims for one 

and one-half hours or more.” But, he continues, as to Hawkins 

“there is no evidence as to what occurred other than the fact 

that she was sexually assaulted and later killed.” Grandberry 

argues, “The record is silent as to the actual facts of appellant’s 

participation other than he participated in the sexual abuse of 

the victim. There is no evidence as to what if anything his actual 

participation in the murder entailed or if he was even present 

when the actual killing took place.”

The Attorney General agrees with Grandberry that remand 

is appropriate. The Attorney General states, “Although the facts 

overwhelmingly support the trial court’s conclusion, the court 

may not actually weigh the facts without issuing an order 

to show cause and holding a section 1170.95, subdivision (d), 
9

hearing.” Citing People v. Drayton (2020) 47 Cal.App.5th 965, 

982,5 the Attorney General notes that, “while the trial court’s 

characterization of the facts was correct, there is no indication 

in the record that appellant was ineligible for relief as a matter 

of law. Therefore, the trial court should have issued an order 

to show cause and held an evidentiary hearing under section 

1170.95, subdivision (d), to weigh the evidence and decide 

whether relief should be granted. The matter should be 

remanded for this proceeding to take place.”

DISPOSITION

As the parties essentially stipulate to a reversal and 

remand, we reverse the trial court’s order denying Grandberry’s 

petition for resentencing and remand the case for the trial court 

to issue an order to show cause and to proceed to an evidentiary 

hearing under section 1170.95, subdivision (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P.J. LAVIN, J.

5 Drayton was decided April 17, 2020, nearly three months 

after the trial court issued its memorandum of decision. 

Accordingly, the trial court did not have the benefit of the 

Drayton court’s guidance when it denied Grandberry’s petition.