Filed 9/28/21 P. v. Harris CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JULIUS D. HARRIS,

Defendant and Appellant.

B308782

Los Angeles County

Super. Ct. No. TA133670

APPEAL from an order of the Superior Court of Los

Angeles County, Kelvin D. Filer, Judge. Reversed and remanded 

with directions.

Kathy R. Moreno, 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, Idan Ivri and J. Michael Lehmann, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

In 2014, defendant Julius D. Harris was convicted of first 

degree murder with gang and gun enhancements after a fight at 

a party spiraled out of control. He appeals from the summary 

denial of his petition for recall and resentencing under Penal 

Code section 1170.95. On appeal, the People agree with 

defendant that the trial court engaged in improper fact-finding 

when it found that he had the specific intent to kill and acted as a 

major participant in the underlying felony and with reckless 

indifference to human life. We agree. We therefore reverse and 

remand for further proceedings.

BACKGROUND1

By information dated August 28, 2014, defendant and 

codefendant Michael Dunn were charged with one count of 

murder (Pen. Code,2 § 187, subd. (a); count 1). The information 

also alleged that the crime was committed for the benefit of a 

criminal street gang (§ 186.22, subd. (b)(1)(C)) and that each 

defendant personally used and discharged a firearm, causing 

great bodily injury and death (§ 12022.53, subds. (b)–(d)). The 

information also alleged Dunn had suffered various prior 

convictions.3

1 Because the People concede reversal is required in this case, we do 

not address the facts underlying the charges.

2 All undesignated statutory references are to the Penal Code.

3 The information also charged codefendant Maliek Dwayne Grissett 

with attempted murder (§ 664/187, subd. (a); count 2). Grissett 

ultimately pled no contest to one count of assault by means likely to 

cause great bodily injury (§ 245, subd. (a)(1)). Neither Grissett nor 

Dunn is a party to this appeal.
3

Defendant was convicted of first degree murder; Dunn was 

convicted of second degree murder.4 The jury found the gang 

allegation true as to both defendants and found true the 

allegation that each defendant personally and intentionally 

discharged a firearm—but found not true the allegation that each 

defendant had thereby caused great bodily injury or death. The 

court sentenced defendant to an aggregate term of 45 years to 

life. A different panel of this court affirmed by unpublished 

opinion but remanded to allow the lower court to exercise its 

discretion to strike the gun enhancement under newly-enacted 

Senate Bill No. 620 (2017–2018 Reg. Sess.). (People v. Harris

(Apr. 26, 2018, B266099) [nonpub. opn.].)

In July 2020, defendant filed a petition for recall and 

resentencing under section 1170.95.5 He did not request the 

appointment of counsel. Attached to the petition was a notarized 

affidavit from Dunn stating that Dunn was the killer and that he

had acted without defendant’s assistance or encouragement. In 

September 2020, the court summarily denied the petition without 

receiving briefing from the prosecution or defendant. 

The court’s order states:

The court has received and reviewed a petition 

for ... re-sentencing pursuant to Penal Code 

section 1170.95. The petition is summarily denied 

4 The jury was instructed on theories of both malice aforethought and 

felony murder.

5 Defendant also moved for a youth offender hearing under Assembly 

Bill No. 1308 (2017–2018 Reg. Sess.) and moved to strike the firearm 

enhancement under Senate Bill No. 620 (2017–2018 Reg. Sess.). He 

does not challenge the denial of those motions on appeal.
4

because the petition[er] is not entitled to relief as 

a matter of law for the following reason: The 

petitioner was convicted of murder and the court 

file reflects that he was one of the actual shooters.

The appellate opinion affirming the petitioner’s 

conviction and sentence reflect[s] that petitioner 

was one of the actual shooters.

Specifically, the evidence a[t] trial established that 

this case reflected a classic “gang confrontation” 

which resulted in a shooting between gang 

members. The shooting followed a series of verbal 

dispute[s] and physical altercation[s.] Petitioner 

was an instigator in the initial fight. The evidence 

o[f] petitioner’s specific intent was overwhelming

e.g. petitioner left after the initial fight and 

returned with a gun. Petitioner was convicted of 

first degree murder and the [jury] found “true” 

the allegation that he personally and 

intentionally discharged a firearm.

Moreover, although it appears the jury could not 

determine[ ] which of the actual shooter[s] caused 

the victim’s death, it is clear that the petitioner 

fired his weapon with the intent to kill and that he 

was a major participant in the shooting and acted 

with reckless indifference to human life.

[¶] ... [¶]

For the foregoing indicated reasons, the petition 

for recall and re-sentencing ... [is] denied.
5

(Italics added.)

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends that the trial court improperly weighed 

the evidence at the prima facie stage of proceedings. The People 

properly concede the point, and we agree.

1. S.B. 1437

Senate Bill No. 1437 (S.B. 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); People v. Lewis (2021) 

11 Cal.5th 952, 959 (Lewis).) It accomplished this by amending 

section 188, subdivision (a)(3), to require that all principals to 

murder must act with express or implied malice to be convicted of 

that crime, unless they are convicted of felony murder under 

section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) For felony 

murder convictions under section 189, subdivision (e), S.B. 1437 

requires that the defendant be the actual killer, an aider and 

abettor to the murder who acted with intent to kill, or a major 

participant in the underlying felony who acted with reckless 

indifference to human life. (Stats. 2018, ch. 1015, § 3.)

In addition to changing the law of murder prospectively, 

S.B. 1437 gave people who had been convicted under one of the 

now-invalid theories of murder the opportunity to petition for 

resentencing under newly-enacted section 1170.95. (Stats. 2018, 

ch. 1015, § 4.) Section 1170.95, subdivision (a)(3), describes who 
6

may petition for resentencing under the statute. Subdivision (b) 

explains what information the petition must contain, where the 

petitioner must file it, who the petitioner must serve, and what 

the court should do if it’s incomplete. Subdivision (c)—the section 

at issue here—describes the process the court uses to determine 

whether the petitioner is entitled to an evidentiary hearing: 

Appoint counsel, if requested; wait for the prosecutor’s required 

response and the petitioner’s optional reply; if the petitioner 

makes a prima facie showing that he is entitled to relief, issue an 

order to show cause. (Lewis, supra, 11 Cal.5th at p. 966.)

“While the trial court may look at the record of conviction 

after the appointment of counsel to determine whether a 

petitioner has made a prima facie case for section 1170.95 relief, 

the prima facie inquiry under subdivision (c) is limited.” (Lewis, 

supra, 11 Cal.5th at p. 971.) The court may deny a petition at this 

stage only if the petitioner is ineligible for relief as a matter of 

law. A petitioner is ineligible for relief as matter of law if the 

record of conviction shows that he could not have been convicted 

under any theory of liability affected by S.B. 1437—such as 

where malice aforethought was the only theory presented to the 

jury. “In reviewing any part of the record of conviction at this 

preliminary juncture, a trial court should not engage in 

‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ [Citation.] ... [T]he prima facie bar was intentionally 

and correctly set very low.’ ” (Lewis, at p. 972.)

If the court issues an order to show cause after its prima 

facie review, subdivisions (d)–(g) describe the procedures for 

holding an evidentiary hearing, the type of evidence that may be 

admitted, the burden of proof, and the requirements for 

resentencing an eligible petitioner.
7

2. The court conducted improper fact-finding.

The People concede: “At trial, the theories of liability 

offered to the jury that could have supported appellant’s 

conviction included both premeditation and felony murder. 

[Citation.] The use of a felony murder theory presents the 

possibility that appellant may be eligible for relief. The trial 

court’s denial of appellant’s petition was predicated on 

consideration of the facts of the crime and finding that he could 

nevertheless be convicted of murder under a currently valid 

theory. Although that is the correct question, and the facts 

strongly support the court’s finding, the court may not actually 

weigh the facts without issuing an order to show cause and 

holding a section 1170.95, subdivision (d)(3) hearing.” (Footnote 

omitted.)

As the People note, because the jury was instructed on 

felony murder, defendant “could have been convicted without a 

finding that he acted with actual malice, or that he was the 

actual killer, or that he was a major participant in the felony who 

acted with reckless indifference to life.” As to whether defendant 

was the actual killer, as the trial court acknowledged, the jury 

found true the allegation that defendant discharged a firearm in 

the commission of the offense but found not true the allegation 

that he caused death. As such, “it appears the jury could not 

determine[ ] which of the actual shooter[s] caused the victim’s 

death.” As to malice, the People concede that “the use of a felony 

murder jury instruction indicates that the jury could have 

convicted appellant of first degree murder even if the victim was 

killed accidentally during the commission of an underlying felony 

in which appellant was an aider and abettor.” Finally, the jury 

was not asked to consider whether defendant was a major 
8

participant who acted with reckless indifference, and the felonymurder instruction allowed it to convict without reaching the 

issue.

We agree with defendant and the People that the court 

here engaged in fact-finding—and did so without the benefit of 

the required briefing from the People and optional response from 

defendant—and adopt the People’s suggested remedy, to which 

defendant agrees: “Because the trial court prematurely denied 

the petition, the appropriate remedy is to remand the case with 

orders to proceed according to section 1170.95, subdivision (c). In 

other words, the trial court should appoint counsel, if requested, 

and allow the parties to brief the issue of appellant’s eligibility as 

a matter of law without engaging in factfinding. [Citations.] 

Importantly, the parties may be able to obtain the full set of jury 

instructions which may shed light on the nature of the conviction. 

However, after briefing is complete, if the court finds that 

appellant has made a prima facie showing for relief, then it must 

issue an order to show cause and proceed with a hearing where 

the parties may present evidence and the court acts as the trier of 

fact. (§ 1170.95, subds. (c)–(d).)”
9

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

reversed and the matter is remanded for further proceedings 

consistent with the views expressed in this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.