Filed 10/4/22 P. v. Sudduth CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CEPHUS EARL SUDDUTH,

Defendant and Appellant.

 B316825

 

 (Los Angeles County

 Super. Ct. No. BA110927)

APPEAL from an order of the Superior Court of 

Los Angeles County. Lisa B. Lench, Judge. Affirmed.

Eric R. Larson, 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, Amanda V. Lopez and Kathy S. Pomerantz,

Deputy Attorneys General, for Plaintiff and Respondent.

______________________________
2

In 1996, defendant and appellant Cephus Earl Sudduth 

was convicted by a jury of first degree murder (Pen. Code, § 187, 

subd. (a)),

1 finding true the robbery-murder and kidnapping 

murder special circumstance allegations (§ 190.2, subds. 

(a)(17)(A) & (B)). It also convicted him of second degree robbery 

(§ 209, subd. (b)), kidnapping for robbery (§ 209, subd. (b)), 

kidnapping for ransom (§ 209, subd. (a)), attempted first degree 

robbery (§§ 664/211), and first degree robbery (§ 211). The jury 

also found true that the victim of the kidnapping for ransom 

suffered bodily harm and death or was intentionally confined in a 

manner that exposed her to a likelihood of death. (§ 209, subd. 

(a).) As for five of the counts, the jury found true a principal 

armed with a firearm enhancement (§ 12022, subd. (a)(1)) and a 

personal use of a firearm enhancement (§ 12022.5, subd. (a)). As 

for three of the counts, the jury found true a personal use of a 

deadly weapon enhancement (§ 12022, subd. (b)). He was 

sentenced to life in state prison without the possibility of parole.

Sudduth appealed, and on January 21, 1999, we directed 

that Sudduth’s sentence on the kidnapping for ransom charge be 

stayed, and affirmed the judgment. (People v. Cloud (Jan 21, 

1999, B109271) [nonpub. opn.], at p. 34.)

In August 2020, Sudduth filed a petition for resentencing 

pursuant to former section 1170.95.2 Over the People’s 

opposition, the trial court found that Sudduth had established a 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 Effective June 30, 2022, section 1170.95 was renumbered 

section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
3

prima facie case for relief, issued an order to show cause, and 

held an evidentiary hearing pursuant to former section 1170.95, 

subdivision (d).

After the evidentiary hearing, at which no party introduced 

new evidence, the trial court denied Sudduth’s petition. Sudduth

timely filed a notice of appeal. Relying principally upon People v. 

Clements (2022) 75 Cal.App.5th 276, he argues that the trial 

court’s order must be reversed because the trial court erred in 

relying upon the recitation of facts in our prior appellate decision.

We affirm.

FACTUAL BACKGROUND

“On the evening of February 21, 1995, Robert Davis [Davis] 

drove to the Hawthorne home of ‘Damont’ to discuss the purchase 

of a ‘boom box.’ [Sudduth, Herman St. Amie (St. Amie), Kenyon 

Pitts (Pitts), Ronald Cains (Cains), Marcell Cloud (Cloud)

(collectively, St. Amie, Pitts, Cains, and Cloud are referred to as 

Sudduth’s codefendants], Wadrick Bouligny [Bouligny] and 

others were present in the area near Damont’s home. Davis 

obtained the ‘boom box’ from Damont and left the area to test it. 

When he returned later in the evening to purchase the item 

[Sudduth, his codefendants,] and Bouligny were still in the area.

“After paying Damont, Davis approached the yard where 

Sudduth, Cains, Cloud and St. Amie stood. Pitts and Bouligny 

were in Pitts’s Chevrolet which was parked nearby. Sudduth

pulled out a knife or screwdriver, placed it against Davis’s 

abdomen and ordered him to empty his pockets. After obtaining 

$300 from Davis, Sudduth repeatedly demanded more money. 

Cloud held Davis as a pillowcase was placed over his head. Then 

he was beaten by several people, receiving blows to his head and 
4

abdomen until he agreed to give his assailants anything they 

wanted.

“Cains and St. Amie dragged Davis, whose head was still 

covered by the pillowcase, across the street and placed him in the 

back seat of his Datsun. St. Amie and Sudduth also entered the 

car. Cains and Cloud entered Pitts’s Chevrolet, where Bouligny 

was already seated, and told Pitts to follow the Datsun. When 

Pitts asked why, Cloud stated they were following the Datsun so 

that ‘he [Davis] could get his money.’” (People v. Cloud, supra, 

B109271, at pp. 3–4.)

The two cars proceeded to a house where Davis once lived. 

“St. Amie parked the Datsun in the alley behind the house while 

Pitts parked the Chevrolet nearby. Cloud and Cains left the 

Chevrolet and joined Sudduth, St. Amie and Davis in the alley.” 

(People v. Cloud, supra, B109271, at p. 4.) When the assailants 

learned that Davis did not have money at this location, Davis

indicated that his girlfriend lived in Inglewood and that they 

could go to her house and see if she had any money. (Id. at p. 5.) 

“The pillowcase was again placed over Davis’s head, he was 

placed in the front seat of the Datsun and the two cars proceeded 

to” Sonja Spencer’s (Spencer) house, where she “lived with her 

four children, three of whom were fathered by Davis.” (Ibid.)

“Davis, Sudduth and St. Amie approached Spencer’s 

residence while Cains and Cloud stood in the driveway and Pitts

remained in the Chevrolet.” (People v. Cloud, supra, B109271, at 

p. 5.) While Spencer’s daughter was getting Spencer, Sudduth 

and Davis searched for money in Spencer’s bedroom. When 

Spencer saw what was happening, Sudduth forced her onto her 

knees with her hands behind her head and ordered her to be 

quiet. “At Sudduth’s direction, Cloud obtained a knife from the 
5

kitchen and handed it to him. Sudduth held the knife to 

Spencer’s throat.” (Ibid.) “Cains stood guard at the door to the 

back bedroom to prevent any of Spencer’s children from escaping 

through the window.” (Ibid.)

“As the search continued, Davis was also forced down onto 

the living room floor next to Spencer. Davis was kicked and hit, 

and fell.” (People v. Cloud, supra, B109271, at p. 6.) Spencer and 

Davis were repeatedly threatened. (Ibid.)

“Davis then suggested they go to his mother’s Lancaster 

home where he claimed there were a couple of thousand dollars.” 

(People v. Cloud, supra, B109271, at p. 6.) Before leaving 

Spencer’s residence, Sudduth asked Davis at gunpoint whether 

the children were his. When Davis stated they were, Sudduth 

ordered him to get seven-month-old Jainah, intending to take her 

with them. “Spencer, who was extremely frightened, got the 

baby, wrapped her in a blanket, prepared a bottle for her and 

gave her to Davis. The men told Spencer they would kill Davis 

and the baby if they did not get money. They also told her that if 

she called the police they would return to the house and kill her 

and the other children.” (People v. Cloud, supra, B109271, at 

p. 6.)

“Outside of the residence, Davis and the baby, Sudduth and 

St. Amie entered the Datsun, while Cloud and Cains joined Pitts 

and Bouligny in the Chevrolet. The two cars proceeded to a 

nearby gas station where Pitts purchased gasoline for the 

Chevrolet. Sudduth and Cloud stated they were going to 

Lancaster to get money and that they were keeping the baby as 

security until they got it.” (People v. Cloud, supra, B109271, at 

p. 6.)
6

“The two cars then proceeded to Lancaster where they 

stopped behind a bowling alley. Everyone except Pitts and 

Bouligny got out of the cars and discussed what they would do 

when they reached the home of Davis’s mother. They agreed that 

some of them would enter the home while others remained 

outside and that the baby, Jainah, would be kept in the Chevrolet 

as security against anyone calling the police. Cloud stated the 

baby would be returned when [Sudduth and defendants] got the 

money.” (People v. Cloud, supra, B109271, at p. 6.) 

“The baby was placed unrestrained on the back seat of the 

Chevrolet and the cars proceeded to the home of Davis’s mother.” 

(People v. Cloud, supra, B109271, at p. 6.) Davis’s sister saw the 

men approaching the home and called 911; as he entered the 

home, Sudduth ordered her to get off the telephone. (Id. at p. 7.)

“At a little after midnight, Los Angeles County Sheriff’s 

units responded to [the] emergency call. Deputies Bower and 

Roth drove past [the] house in an unmarked vehicle and saw the 

Datsun parked in front. They also saw the Chevrolet parked 

nearby with several Black males inside. Deputy Bower noted 

that some of the men in the Chevrolet ducked as the police car 

passed.

“The unmarked unit joined marked patrol units . . . and 

Deputy Bower related her observations to her fellow deputies. 

Meanwhile, Cloud had ordered Pitts to follow the unmarked unit. 

As they passed [the] deputies’ location, the occupants of the 

Chevrolet stared at the officers in surprise. Pitts panicked and 

turned into the opposite lane of traffic, causing the Chevrolet to 

hit the center divider and stop.” (People v. Cloud, supra, 

B109271, at p. 7.) 
7

“Pulling in behind the Chevrolet, the officers ordered the 

occupants to raise their hands and the driver to get out of the car. 

Pitts emerged from the car and walked back toward the officers 

as Cloud and St. Amie ordered him to get back in and drive. 

Suddenly, Pitts turned and jumped back in the driver’s seat. He 

drove over the center divider into a traffic lane as Cloud and 

St. Amie yelled from the back seat, ‘“Drive. Drive. Drive.”’ The 

Chevrolet sped off with the baby lying unsecured on the seat 

between Cloud and St. Amie.” (People v. Cloud, supra, B109271, 

at p. 8.)

Sudduth and Cains, were still in Davis’s mother’s home 

when they heard officers order their companions to “‘freeze.’” 

(People v. Cloud, supra, B109271, at p. 8.) Sudduth and Cains 

ran out the front door. (Ibid.)

“Meanwhile, the occupants of the Chevrolet engaged the 

officers in a high speed chase, reaching speeds of 70 to 80 miles 

per hour on city streets, through stop signs and traffic lights until 

they left Lancaster, when their speed increased to 100 to 120 

miles per hour. When they turned the headlights off, the police 

units backed off as the area was very dark with no artificial 

lighting. The Chevrolet continued, weaving from side to side of 

the road with its headlights on only intermittently until it hit a 

dip in the road, went airborne for a long distance and crashed.” 

(People v. Cloud, supra, B109271, at p. 8.) Janiah “died as a 

result of the traumatic internal injuries to her chest, abdomen 

and head which were sustained in the crash.” (Ibid.)
8

PROCEDURAL BACKGROUND

I. Former Section 1170.95 Petition

On August 31, 2020, Sudduth filed a petition to be

resentenced pursuant to former section 1170.95.3 He averred 

that because he had been convicted of murder under either a 

felony murder theory or the natural and probable consequences 

doctrine, he was entitled to resentencing relief.

II. The People’s Opposition

The People opposed Sudduth’s petition. The People argued, 

inter alia, that the special circumstance findings rendered 

Sudduth ineligible for relief and that Sudduth would still be 

convicted of first degree murder under current law because he 

was a major participant in the underlying crimes of robbery and 

kidnapping who acted with reckless indifference to human life.

III. Hearing on Sudduth’s Petition and Trial Court Order

On June 18, 2021, the trial court held a hearing to 

determine whether to issue an order to show cause. After 

entertaining oral argument, it determined that Sudduth had 

made a prima facie case for relief and issued the order to show 

cause.

At the evidentiary hearing on November 18, 2021, no party 

introduced new evidence. Rather, counsel offered argument as to 

whether the petition for resentencing should be granted.

3 St. Amie, Pitts, Cains, and Cloud separately filed petitions

for resentencing pursuant to former section 1170.95. In October 

2020, the trial court denied their petitions. They appealed, and 

we affirmed the trial court’s order denying their petitions for 

resentencing. (People v. St. Amie (Mar. 10, 2022, B308633) 

[nonpub. opn.], at p. 2.)
9

After taking the matter under submission, the trial court 

issued a written order denying Sudduth’s petition. In so ruling, 

the trial court noted that no new evidence was presented at the 

evidentiary hearing and that the facts set forth in our prior 

opinion “have not been disputed for purposes of the instant 

petitions.” It then summarized the facts from People v. Cloud

and discussed Sudduth’s particular role in the underlying felonies

leading up to the murder.

DISCUSSION

I. Relevant law

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (Sen. Bill 1437) was enacted 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).) To accomplish this, 

Sen. Bill 1437 amended sections 188 and 189. (Stats. 2018, 

ch. 1015, §§ 2-3.) As amended, section 188 provides: “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).) As added by 

Sen. Bill 1437, section 189, subdivision (e), provides: “A 

participant in the perpetration or attempted perpetration of a 

felony listed in subdivision (a) in which a death occurs is liable 

for murder only if one of the following is proven: [¶] (1) The 

person was the actual killer. [¶] (2) The person was not the 

actual killer, but, with the intent to kill, aided, abetted,
10

counseled, commanded, induced, solicited, requested, or assisted 

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

[¶] (3) The person was a major participant in the underlying 

felony and acted with reckless indifference to human life.” (See 

People v. Ramirez (2019) 41 Cal.App.5th 923, 928.)

Sen. Bill 1437 also added former section 1170.95, now 

section 1172.6, which provides a mechanism whereby people “who 

believe they were convicted of murder for an act that no longer 

qualifies as murder following the crime’s redefinition in 2019[] 

may seek vacatur of their murder conviction and resentencing by 

filing a petition in the trial court.” (People v. Drayton (2020) 

47 Cal.App.5th 965, 973, overruled in part on other grounds in 

People v. Lewis (2021) 11 Cal.5th 952, 963.)

In order to obtain resentencing relief, the petitioner must 

file a facially sufficient section 1172.6 petition. (§ 1172.6, subds. 

(a)(1)-(3), (b)(1)(A).) If a petitioner does so, then the trial court 

proceeds to section 1172.6, subdivision (c), to assess whether the 

petitioner has made a prima facia showing for relief, thereby 

meriting an evidentiary hearing. (People v. Lewis, supra, 

11 Cal.5th at p. 957.) When making this determination, “the trial 

court should assume all facts stated in the [former] 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 . . . . [I]f 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 . . . is limited to readily 

ascertainable facts from the record (such as the crime of 
11

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 life 

in the commission of the crime).” (People v. Drayton, supra, at 

p. 980; see also People v. Lewis, supra, 11 Cal.5th at pp. 970–

971.) In other words, a defendant is ineligible for relief only 

where the record conclusively shows that the jury actually 

relied—and the defendant’s murder conviction actually rests—

upon a theory of liability that is unaffected by section 1172.6.

If the trial court determines that the petitioner has made a 

prima facie showing of entitlement to relief, it must issue an 

order to show cause and hold an evidentiary hearing. (§ 1172.6, 

subd. (c).) At the evidentiary hearing, the parties may rely upon 

evidence in the record of conviction or new evidence to 

demonstrate whether the petitioner is eligible for resentencing. 

(§ 1176.2, subd. (d)(3).) As is relevant to this case, section 1172.6, 

subdivision (d)(3), also provides that the trial court may “consider 

the procedural history of the case recited in any prior appellate 

opinion.” The prosecution bears the burden of proving, “beyond a 

reasonable doubt, that the petitioner is ineligible for 

resentencing.” (§ 1172.6, subd. (d)(3).) If the prosecution cannot 

meet its burden, and the petitioner prevails, he is entitled to 

vacatur of the murder conviction and resentencing as set forth in 

section 1172.6, subdivision (e).

II. The trial court properly denied Sudduth’s petition for 

resentencing

The trial court properly denied Sudduth’s petition for 

resentencing because, after the evidentiary hearing, the trial 

court acted as an independent factfinder and determined, beyond 
12

a reasonable doubt, that he was guilty of murder under current 

law.4 (People v. Duchine (2021) 60 Cal.App.5th 798, 813–814.)

In so doing, the trial court did not limit itself to the factual 

summary set forth in People v. Cloud, supra, B109271.5 Rather, 

as noted in People v. St. Amie, supra, B308633, at page 8, prior to 

ruling on Sudduth’s codefendants’ petitions for resentencing, the 

trial court expressly noted that it was “‘very familiar with the 

facts’” of the case and that it had “‘spent an inordinate amount of 

time on this case and dissecting each and every participant’s role 

and conduct.’” (People v. St. Amie, supra, B308633, at p. 8.) This 

comment refutes Sudduth’s assertion that the trial court solely

relied upon our prior appellate opinion when it denied his

petition for resentencing. Furthermore, to the extent the trial 

court relied upon facts set forth in People v. Cloud, supra, 

B109271, it did so only after expressly pointing out that 

(1) neither party presented new evidence at the evidentiary 

hearing, and (2) “[t]he facts, as taken from the Court of Appeal’s 

opinion, have not been disputed for purposes of the instant 

petition.” And, Sudduth did not object. It follows that any 

4 In reaching this conclusion, we do not adopt the People’s 

argument that the jury’s true finding on the special circumstance 

(§ 190.2, subd. (a)(17)) precluded Sudduth from making a prima

facie case for relief under Sen. Bill 1437. (See People v. Strong

(2022) 13 Cal.5th 698, 721.)

5 Thus, the holding in People v. Clements, supra, 

75 Cal.App.5th at page 292 that “the Legislature has decided 

trial judges should not rely on the factual summaries contained 

in prior appellate decisions when a [former] section 1170.95 

petition reaches the stage of a full-fledged evidentiary hearing” 

does not compel reversal in this case.
13

challenge to them now has been forfeited. (People v. Smith (2001) 

24 Cal.4th 849, 852 [“As a general rule, only ‘claims properly 

raised and preserved by the parties are reviewable on appeal’”].)

DISPOSITION

The order denying Sudduth’s former section 1170.95 

petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

HOFFSTADT