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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b ). This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CEPHUS EAR L SUDDUTH

,

De fendant and Appellant. B 3 16825

(Los Angeles County Super. Ct. No. B A 110927 )

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 Appe a l, for Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters , Chief Assistant At torney General, Susan Sullivan Pithey , Assistant Attorney General, Amanda V. Lopez and Kathy S. Pomerantz

, Deputy Attorneys General, for Plaint iff and R espon d ent.

______________________________2 In 1996 , defendant and appellant Cephus Earl Sudduth

w as conv icted by a jury of first degree murder (Pen. Code, § 187
, subd. (a) )

, 1 finding true the robbery

- murder and kidnapping murder special circumstan ce allega tion s ( § 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 fir st degree robbe ry ( § 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 c oun ts, th e jury foun d 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 enhanceme nt ( § 120 22, su bd. ( b)). He was sentenced to life in state prison without the possibility of parole

. Sudduth appealed, and on January 21, 1999, we directed that Sudd u th’s sentence on the kidnapping for ransom charge be stayed, and affirmed the judgment. ( Peop le v

. Clou d (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 h ad e stablished a

1 All further statutor y 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 fac ie case f

or rel ief

, 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. Su dduth
tim ely fi led a notice of appeal

. Relying principally upon People v.
Clements (2022) 75 C al.App.5th 276, h e argues that the trial court’s order must be reversed b ecau se the trial court erred in relying upon the recitation of facts in our prior appell ate decis ion.
W e affirm

. FACTUAL BACKGROUND “On the evening of February 21, 1995, Robert Davis [Davis] drove to the Hawthorne home of ‘Damont’ to discuss th e pu rchase of a ‘boom box.’ [ Sudduth , Herman St. Amie (St. Amie), Kenyon Pitts (Pitts), Ronald Cain s (Cains) , Marc ell Cloud (Cloud) (collective ly, St. Amie, Pitts, Cains, and Cloud are referred to as Sudduth’s codefendants ], Wadrick Bouligny [Bouligny] an d

ot hers 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. “Af ter paying Damont, Davis approached the yard where
Sudduth , Cains, Cloud and St. Amie stood. Pitts and Bouli gny

we re in Pitts’s Chevrolet which was parked nearby. Sudduth pulled out a knife or screwdriver, placed it against Davis’s
abdomen and ordered hi m to empty his pockets. After obtaining $300 from Davis, Sudduth repeatedly demanded more money. C loud held Davis as a pillowcase was placed o ver his head. Then he was beaten by several people, receiving blows to his head and4

abdomen until he agreed to give his assailants anything they wanted. “Cains and St. Amie dragged Davis, whose head was still

co vered by the pi llowcase, across the street a nd placed him in the
back seat of his Datsun. St. Amie and Sudduth also entered the car. Cains and Cloud enter ed P itts’s Chevrolet, where Bouligny was already seated, and told Pitts to follow the Datsun. When
Pitts ask ed why , Cloud stated they were foll owing the Datsun so that ‘he [Davis] could get his money.’” ( People v. Cloud

, supra , B 109271
, at pp. 3

– 4 .)
The two cars proceeded to a house where Davis once lived. “St. Amie parked the Datsun in the alley behi nd the ho use wh ile Pitts parked the Chevrole t nearby. Cloud and Cains left the Chevrolet and joined Sudduth, St. Amie and Davis in the alley.” ( People v. Clo ud

, supra , B 109271 , at p. 4 .) When the assailants learned that Davis did not have money at this location, Davis indicated that his girlfrie nd lived in Inglewood and that they could go to her house and see if she had any money. ( Id . at p. 5.) “The pil low case was again placed over Davis’s head, he was placed in the front seat of the Datsun and the tw o cars pr oceede d to” Sonja Spencer’s (Spencer) house, where she “lived with her four children, three of whom were fathered by Davis.” ( Ibid .) “Davis, Suddu th and St. Amie approached Spencer’s residence while Cains and Cloud stood in the driveway and Pitts
remained in th e Chevrolet.” ( People v. Cloud

, supra , B109271, at

p. 5.) While Spencer’s daughter was getting Spencer, Sudduth
and Da vis searched for mone y i n Spencer’s bedroom. When Spencer saw what was happening, Sudduth forced her onto her
knees with her hand s behi nd her head and ordered her to be quiet. “At Sudduth’s direction, Cloud obtained a knife from the5

kitchen and handed it to him. Sudduth hel d t he knife to Spencer’s throat.” ( Ibid .) “Cains stood guard at the door to the back bedroom to pr event any of Sp encer’s children from escaping through the window.” ( Ibid .) “As the search continued, Davis was also forced down onto

t he living room floor nex t to Spencer. Davis was kicked and hit, and fell.” (

People v. Cloud

, supra , B109271, at p. 6.) Spencer and
Da vis were repeatedly threatened. ( Ibid .) “Davis then suggested they go to his mother’s Lancaster
home where he claimed t here were a couple of th ousand 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, Sudd u th ordered him to get seven

- month

- ol d Jainah, intending to t ake her with them. “ Spencer, who was extremely frightened, got the baby, wrapped her in a blank et, prepa red 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. Clo ud

, supra , B109271, at

p. 6.) “Outside of the residence, Davis and the baby, Sudduth and St. Amie entered the Datsun, whil e Cloud and Cains j oined Pitts and Bouligny in the Chevrolet. The two cars proceeded to a nearby gas station where Pit ts purcha sed ga soline for the Chevrolet. Sudduth and Cloud stated they were going to Lancaster to get money and that they were keeping t he baby as security unti l they got it.” ( People v. Cloud

, supra , B109271, at

p. 6.)6 “The two cars then proceeded to La ncaster w here t hey stopped behind a bowling alley. Everyone except Pitts and Bouligny got out of the cars and discussed what they would do when they reache d the home of Davis’s mother. They agreed that
some of them would enter the home while others remai ned outsi de and that the baby, Jainah, would be kept in the Chevrolet as security against anyone calling the police. Cloud stated the
ba by would be returne d whe n [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, Sudd uth order ed her to get off the telephone. ( Id . at p. 7.) “At a little after midnight, Los Angeles County Sheriff’s units responded to [t he] emergency call. Dep uties Bower and Roth drove past [the] house in an unmarked vehicle and saw the Datsun parked in front. They a lso saw the Chevrolet parked nearby with several Black males inside. Deputy Bower noted that some of the men in the Chevr olet ducked as the polic e car passed. “The unmarked unit joined marked patrol units

. . . and Deputy Bower related her observati ons to her fellow deputies. Meanwhile, Cloud had ordered Pitts to follow the unmarked unit. As they passed [the] deputies’ loc ation, the occupant s of the Chevrolet stared at the officers in surprise. Pitts panicked and turned into the opposite lane of t raffic , ca u sing the Chevrolet to hit the center divider and stop.” ( People v. Cloud

, supra , B109271, at p. 7.)7 “Pulling in be hind the Chevrolet, the officers ordered the occupants to raise their hands and the driver to get out of the car.
Pitt s 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 t urned and jumped ba ck in the driver’s seat. He drove over the center divider into a traffic lane as Cloud and
St. Amie yelled f

rom th e back seat, ‘“Drive. Drive. Drive.”’ The Chevrolet sped off with the baby lying unsecured on the seat
between Cloud an d St. Amie.” ( Peop le v. Cloud

, supra , B109271, at p. 8.) Sudduth and Cains, were still in Davis’s mother’s home
when t hey heard offic ers order their companions to “‘freeze.’” ( People v. Cloud

, supra , B109271, at p. 8.) Sudduth and Cains
ran out the front door. ( Ibid .) “M eanwh ile, the occupants of the Chevrolet engaged the officers in a high speed chase, reac h ing speeds of 70 to 80 mi les per hour on city streets, through stop signs and traffic lights until they left Lancaster, when their speed increa sed to 100 to 120 miles per hour. When they turned the headlights off, the police units backed off as the area was very da rk with n o arti ficial lighting. The Chevrolet continued, weaving from side to side of the road with its headlights on only intermitt ently until it hit a
di p 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 BACKG ROUND
I. Former S ection 1170.95 Petition
O n August 31, 20 20
, Sudduth filed a petition to be

re sentenc ed pursu ant to former section 1170.95. 3 He averred
that because he had been convicted of murder under either a felony murder theory or the n atura l and probable consequences doctrine, he was entitled to resentencing relief.
I I

. The People’s Opposit ion
The People opposed Sudduth’s petition. The People argued, inter alia, that the special circumstance findings rendered Sudduth inelig ible for relief and that Sudduth would still be convicted of first degree murder under current law because he

was a ma

jor parti cipant in the underlying crimes of robbery and kidnapping who acted with reckless indifference to human life.
I II

. Hear ing on Sudduth’s Petition and Trial Court Order
On Ju ne 18 , 202 1 , the trial court held a hearing to determine whether to issue an orde r to sh ow cause. After entertaining oral argument, it determined that Sudduth had made a prima facie ca se for relief and issued the order to show

cause. At the evidentiary hearing on November 18, 2021

, no party introduce d new evidence. Rather, c ounsel of fered argument as to whether the petition for resentencing sh ould b e granted.

3 St. Amie, Pitts , Ca ins, a nd Cloud separately filed petitions fo r resentencing pursuant to former section 1170.95 . In October 202 0, the trial court denied their petitions. They appealed, and we affirmed the trial court’s order denying their petitions for resentenci ng. (

Peo ple v. St. Amie (Mar. 10, 2022, B308633) [no npub. opn.], at p. 2.)9 After taking the matter under submission , the trial court issued a writte n order denying Suddu th’s petition. In so ruling,
the trial court noted that no new evidence w as presen ted at the evidentiary hearing and that t he facts set forth in our prior opinion “have not been disputed for purposes of the instant petitions.” It the n summarized the facts from People v. Cloud
and discussed Sudduth’s particular role in the unde rlying fe lonies leading up to the m urder.
DISCUSSION
I. Relevant law Effective January 1, 2019, Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (S en. B i ll 1437) was enacted to “amend the felony murder rule and the natural and probable consequences doctrine,

a s it rela tes to murder, to en sure 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 .” (Stat s. 201 8, ch. 1 015, § 1, subd. (f).) To accom plish this, S en. B ill 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 convict ed of

mur der, a princip al in a crime shall act with ma lice aforethought.
M alice shall not be imputed to a person based solely on his or her participation in a crime.” ( § 188, subd. (a)(3).) As added by
S en. B ill 1437, section 189, subdivision (e), provi des: “A partic ipant in the perpetration or attempted perpetration of a
fel ony 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 w as not th e
actu al kille r, 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 underlyin g felo ny and a cted with reckless indiffere nce to human life.” (See People v. Ramirez (2019) 41 Cal.App.5th 923, 928.) S en. B ill 1437 also added former section 1170.95, now section 1172.6, which provides a mechanism whereby people “who
believe the y were co nvicte d of mur der for an act that no longe r 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.A pp.5th 96 5, 973 , overru led 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 117 2

. 6 petition. (§ 117 2

. 6 , subds. (a)(1)

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

proce eds to section 117 2

. 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 ma king t his dete rmination, “the trial

court should assume all fa cts 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 fact ual asser tions that are untrue as a matter of
law

. . . . [I]f the rec ord ‘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 aut hority to make determinations without cond ucting an evidentiar y hearing .

. . is limited to readily ascertainable facts from the record (such as the crime of11

conviction), rather than factfinding involving the weighing of
evidence or the exercise o f discret ion (s uch as d etermining whether the petit ioner showed reckles s 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 p p

. 970

– 971 .) In other words, a def endant is ineli gible fo r relief only where the record conclusively show s that the jury actu ally relied

— and the defendant’s murder conviction actually rests

— upon a theory of liability that is unaffected by section 117 2

. 6

. If the trial court determines that the petit ioner has made a prima facie showing of entitlement to relief, it must issue an

or der to show cause and hold an evidentiary hearing. (§ 117 2

. 6
, subd. (c).) At the evidentiary hearing, the parties may rely upon
evidence in the record of convictio n or new eviden ce to de monstrate whether the petitioner is eligible for resentencing. ( § 117 6

. 2 , subd. (d)(3).) As is relevant to this case, section 117 2

. 6
, subdivision (d)(3), also provides that the trial court may “consider the procedural history of th e case re cited in any p rior appellate opinion.” The prosecution bears the burden of prov ing, “beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” ( § 117 2

. 6 , subd. (d)(3).) If the prosecution cannot meet its burden, and the pe titioner prevai ls, he i s entitled to
vacatur of the murder conviction a nd resentencing as set forth in
section 117 2

. 6 , subdivision (e).
II. The trial court properly denied Sudduth’s petition for resentencing The trial court properly denied Sudduth’s petit ion for

r esente ncing be cause, after the evidentiary hearing, the trial
court acted as an independent factfinder and determined, beyond12

a reasonable doubt, that he was guilty of murder under current
law. 4 ( People v. Duchine (2021) 60 Cal.App.5th 798, 813

– 8 14.)
In s o doi n g, the trial court did not limit itself to the factual

summary s et forth in People v. Cloud

, supra , B109271. 5 Rather,

a s noted in People v. St. Amie

, supra , B 308633 , at page 8 , prior to ruling on Sudduth’s codefendants’ petitions for resent encing, t he

tr i al court expressly noted that it was “ ‘ very fam iliar 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 , B 308633
, at p. 8 .) Th is comment refutes Sudduth’s assertion t hat the tri al 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

, sup r a , B 109271 , it did so only after expressly poin ting out th at (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 i n stant

pe titio n .” And, Sudduth did not object. It f ollows that any

4 In reaching this conclusion, we do not adopt the People’s argument t hat the jury’s true finding on the special circumstance (§ 190.2, subd. (a)(17)) precluded Sudduth from makin g a p rima facie case for relief under Sen. Bill 1437. (See People v. Strong ( 202 2) 13 Cal.5 th 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 fa ctual sum maries contained in prior appellate decisions when a [former] section 1170.95 pet ition 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 app eal’” ] .) DISPOS ITION The order denying Sudduth’s form er section 1170.95 petition i s affirmed

. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

_____________________, J. ASHMANN

- GERST

We concur:

________________________, P. J. LUI

________ _____ ____ ______ _, J. HOFFSTADT