Filed 10/20/21 P. v. Mitchell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
RICKY MARSDEN MITCHELL, Defendant and Appellant. F081153 (Super. Ct. No. SC052002A)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.
Mark Alan Hart , under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-

* Before Hill, P. J., Poochigian, J. and Detjen, J.2

. INTRODUCTION
In 1993 , petitioner Ricky Marsden Mitchell entered a plea of no contest to the
murder of Verlin Mitchell 1 (Pen. Code, 2 § 187 , subd. (a) ), and admitted the special circumstance of murder during the commission or attempted commission of a burglary (§ 190.2, former subd. (a)(17 ) (VII) )

. 3 For this offense, he was sentenced to a term of life without the possibility of parole. In 2019, petition er filed a petition for resentencing pursuant to section 1170.95. The court summarily denied the petition without stating its reasons. On appeal, petitioner asserts he established a prima facie claim for resentencing relief, and the court therefore er red in denying the petition without issuing an order to show cause and holding an evidentiary hearing. We conclude the court did not err in summarily denying the petition without issuing an order to show cause or holding an evidentiary hearing because the record establishes petitioner is ineligible for resentencing as a matter of law. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY The facts underlying the offenses are not relevant to our determination, and we therefore summarize them only briefly. 4

1 Although petitioner and the decedent share the same last name, they do not appear to be related. To avoid confusion, we refer to Verlin by his first name. No disrespect is intended.
2 Undesignated statutory references are to the Penal Code

. 3 Petitioner was originally charged with additional offenses, as described below.
4 We deny petitioner’s November 18, 2020 request for judicial notice of the record in his prior appeal, People v. Mitchell , F020913. (See People v. Sanders (2003) 31 Cal.4th 318, 323, fn. 1 [declining to take judicial notice of documents that were not before the trial court]; see also People v. Young (2005) 34 Cal.4th 1149, 1171, fn. 3 [judicial notice cannot be taken of any matter that is irrelevant].) Our factual summary is derived from records contained in the record on appeal in the instant case, specifically a summary of police reports contained in the probation3

.

On October 5, 1992, Verlin was found lying face down, bound, and dead on his bed from multiple gunshot wounds to the head and a broken neck caused by either a blow to the head with an object or by being “stomped on.” The residence appeared to have
be en ransacked and both his vehicles were missing. Petitioner, Mike G., Charles O., and Larry F. 5 were stopped that afternoon in New Mexico in one of Verlin’s vehicles and
arrested. Two firearms were found in the vehicle. Each of the individuals made
inc riminating statements. Relevant here, petitioner told police that Mike planned the burglary and murder, hit Verlin on the head and neck with an ax, and then shot Verlin. Charles told police that petitioner and Mike were both armed, and Mike shot Verlin t wice after being urged to do so by petitioner. Mike told police that petitioner was armed, directed the others to restrain Verlin, and told Mike he had to shoot Verlin or petitioner would kill Mike’s parents. Larry’s statements were generally consistent with the others, although he was unsure who killed the victim. On November 13, 1992, the Kern County District Attorney charged petitioner with premeditated murder (§ 187, subd. (a); count 1), with the special circumstance that the
murder was committed d uring the commission or attempted commission of a burglary (§ 190.2, former subd. (a)(17) (VII) ); two counts of residential burglary ( former § 460.1;
counts 2 & 5); and two counts of vehicle theft ( Veh. Code, § 10851, subd. (a); counts 3
& 4). As to count 1, the People also alleged petitioner personally used a firearm (§ 12022.5, subd. (a)), and a principal was armed with a firearm (§ 12022, subd. (a)(1)). On September 29, 1993, petitioner entered a plea of no contest to count 1, and admitted the burglary special circumstance. The parties stipulated that petitioner was not the shooter in the murder. The remaining counts and allegations were dismissed.

officer’s report. The parties previously stipulated that the police reports provided part of the factual basis for the plea.
5 Mike, Charles, and Larry were minors at the time of the offense. Charles and Larry are brothers.4

.

On November 29, 1993, the court sentenced petitioner on count 1 to a term of life without the possibility of parole. On February 7, 2019, petitioner, in propria persona , filed a petition for resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a complaint, information, or indictment was filed against him that allowed him to be prosecuted under a theory of felony murder or murder under t he natural and probable consequences doctrine; he pled guilty or no contest to first or second degree murder; and he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. He further averred that he was not the actual killer, did not act with an intent to kill, and was not a major participant in the underlying felony or did not act with reckless indifference to human life in the course of
the crime. The court appointed coun sel to represent petitioner. On March 5, 2019, the People filed an opposition to the petition and a motion to dismiss the petition, both arguing section 1170.95 is unconstitutional

. 6 On March 29, 2019, the People filed an opposition on the merits to pe titioner’s petition, arguing that the facts, as testified to at the preliminary hearing, demonstrated petitioner was a major participant in the crime and acted with reckless indifference to human life. On May 15, 2019, petitioner’s counsel was relieved due to a conflict of interest and new counsel was appointed. On September 19, 2019, the People filed a motion to dismiss the petition arguing that the facts, as testified to at the preliminary hearing, demonstrated petitioner was a major participant in the crime and acted with reckless indifference to human life, and additionally aided and abetted in the murder with the intent to kill. The People also

6 The motion was fully briefed and eventually denied by the court.5

.

argued petitioner’s admission of the burglary

- murder special circumstance constituted an
admission that his conviction did not fall within the provisions of section 1170.95. On April 14, 2020, petitioner filed a reply, arguing that the record did not rebut his assertion that he is entitled to relief and the court could not resolve whether petitioner

was a major participant who acted with reckless indifference to human life without resolving factual questions at an evidentiary hearing. On April 17, 2020, the People filed a reply to petitioner’s reply, arguing once again that the special circumstance a dmission rendered petitioner ineligible for relief. On May 11, 2020, the court denied the petition in a minute order without providing a statement of reasons. This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) and Section 1170.95 Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) “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).) The bill a ccomplished this task by adding three separate provisions to the Penal Code. ( People v. Gentile (2020) 10 Cal.5th 830, 842 ( Gentile ).) Firs t, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a) (3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile , at
p p. 842

- 843.) Second, to amend the felony

- murder rule, the bill added section 189, subdivision (e):

“ A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the6

.

follo wing 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, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission o f murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2 .” 7 (§ 189, subd. (e); accord, Gentile , at p. 842.)
Fi nally, the bill “ added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above. ” 8 ( Gentile , at p. 843.)

“ Section 1170.95 lays out a process for a person convicted of felony murder or murder under a natural and probable consequences theory to seek vacatur of his or her conviction and resentencing. ” ( Gentile , supra , 10 Cal.5th at p. 853.) First, “ an offender must file a petition in the sentencing court averring that: ‘ (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and p robable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murde r[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019. ’ (§ 1170.95, subd [] . (a)(1)

- (3); see also § 1170.95 , subd. (b)(1)(A).) Additionally, the petition shall state ‘ [w]hether the petitioner requests the appointment of counsel. ’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), ‘ the court may deny the petition without prejudice to the filing of

7 Additionally , section 189 was amended to al low for felony

- murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672 , review granted Feb. 24, 2021, S266336 .)
8 The Legislature recently passed, and the Governor signed, a bill amending section 1170.95. (Sen. Bill No. 775 (2021

- 2022 Reg. Sess.).) The amendments are not yet effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our analysis. We quote from the version of section 1170.95 prese ntly in effect.7

.

another petition

. ’ (§ 1170.95, subd. (b)(2).) ” ( People v. Lewis (2021) 11 Cal.5th 952,
959

- 960 ( Lewis ) .) Where the petition complies with the requirements of section 1170.95, subdivision (b)(1) , counsel must be appointed, if requested. The prosecutor must file a respon se and the petitioner may file a reply. The trial court must then review the petition to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); Lewis , supra , 11 Cal.5th at pp. 961

- 963, 967. ) In making this determination, the court may rely on the record of conviction. ( Lewis , at pp. 970

- 971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court “should not engage in ‘factfinding involving the weighi ng of evidence or the exercise of discretion.’ ” ( Id

. at pp. 971

- 972.)
If the court determines the petitioner has met his or her prima facie burden , “ the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘ prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. ’ (§ 1170. 95,
subd. (d)(3).) ‘ The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens. ’ ( Ibid

. )” ( Gentile , supra , 10 Cal.5th at p. 853.) To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. ( Lewis , supra , 11 Cal.5th at pp. 972

- 974 ; see People v. Watson (1956) 46 Cal.2d 818, 836.)
II. The Petition was Properly Denied Petitioner contends he set forth a prima facie claim for relief and the trial court erred in denying his petition without issuing an order to show cause. We conclude the8

.

petition was properly denied at the prima facie stage because petitioner’s admission of the special circumstance establishes petitioner is ineligible for resentencing as a matter of
law. To be eligible for relief pursuant to section 1170.95, petitioner must not have been the actual killer, must not have acted with the intent to kill, an d must not have been a major participant in the underlying felony who acted with reckless indifference to human
life. ( §§ 189, subd. (e), 1170.95, subd. (a)(3) ; see Gentile , supra , 10 Cal.5th at p. 842 .) Here, petitioner admitted a burglary

- murder specia l circumstance pursuant to section 190.2, subdivision (a)(17). In so doing, petitioner admitted he acted “with reckless indifference to human life and as a major p articipant” in aiding or abetting the
commission of the underlying felony . (§ 190.2, subd. (d); People v. Gutierrez

- Salazar (2019) 38 Cal.App.5th 411, 419.) In o ther words, “[t] he language of the special circumstance tracks the language of Senate Bill [No.] 1437 and the new felony

- murder

statutes. ” ( Gut ierrez

- Salazar , at p. 419.) By admitting this special circumstance, petitioner admitted the facts necessary to sustain a felony

- murder conviction under the amended law. Petitioner’s admission on the burglary

- murder special circumstance
establishes that h e is ineligible for resentencing as a matter of law. Nonetheless, petitioner argues the special circumstance admission, standing alone, is insufficient to render him ineligible for resentencing as a matter of law. In support, he
relies on People v. Banks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63
Cal.4th 522 ( Clark ), both decided after his conviction was final. “ Banks and Clark ‘clarified “what it means for an aiding and abetting defendant to be a ‘major participant’
in a crime who acted with a ‘reckless indifference to human life. ’ ” ’ [Citation.] Banks identified certain factors to consider in determining whether a defendant was a major participant; Clark identified factors to guide the determination of whether the defendant
acted wit h reckless indifference to human life.” ( People v. Gomez (2020) 52 Cal.App.5th 1, 13, fn. 5 , review granted Oct. 14, 2020, S264033 ( Gomez ) .) Courts of Appeal are split9

.

on the question of whether a special circumstance finding entered prior to Banks and
Clark renders a petitioner ineligible for section 1170.95 resentencing relief as a matter of law ( s ee People v. Jones (2020) 56 Cal.App.5th 474, 478

- 479 [collecting cases] , review granted Jan. 27, 2021, S265854 ( Jones ) ) , and our Supreme Court has grant ed review to decide the issue ( People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606). Courts which have held that a pre

- Banks and Clark felony

- murder special

circumstance finding bars section 1170.95 resentencin g relief have reasoned that Banks
and Clark merely clarified the law as it always was. ( Jones , supra , 56 Cal.App.5th at
pp. 482, 484 , review granted ; accord, People v. Nunez (2020) 57 Cal.App.5th 78, 92, review granted Jan. 13, 2021, S265918 ; People v. Al lison ( 2020) 55 Cal.App.5th 449, 458.) These courts further note that our Supreme Court does not require juries to be
instructed on the Banks and Clark clarifications. “ Rather, while CALCRIM No. 703 now
includes optional language drawn from Banks and Clark regarding the factors a jury may consider , ‘ [t]he bench notes to the instruction state that Banks “ stopped short of holding that the court has a sua sponte duty to instruct on those factors, ” and Clark “ did not hold that the court has a sua sponte du ty to instruct on those factors. ” ’ ” ( Nunez , at p p . 92

- 93 ; accord, Jones , at p. 484; Allison , at pp. 458

- 459.) Thus, these courts found “no basis to conclude as a general matter that a pre

- Banks and Clark jury was instructed differently than a post

- Bank

s and Clark jury, or resolved different factual issues, answered different questions, or applied different standards.” ( Nunez , at p. 94

. ) These courts have also held that an attack on a special circumstance finding in a section 1170.95 proceeding effect ively constitutes a collateral attack on the judgment. ( People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020, S264284; Gomez , supra , 52 Cal.App.5th at p. 16 , review granted .) According to these courts, a petitioner who wishes to argue the special circumstance finding is invalid under current law must first seek to invalidate that finding through a petition for writ of habeas10

.

corpus before seeking resentencing pursuant to sect ion 1170.95. ( Galvan , at p. 1142; Gomez , at p. 17 ; Jones , supra , 56 Cal.App.5th at p. 485 , review granted. ) These courts reason that a contrary interpretation “ would read into section 1170.95 a new procedure allowing petitioners to ignore a special circu mstance finding

— no matter how well supported in the record

— as well as the recognized method of challenging it. Such petitioners would be allowed to relitigate a prior jury finding at an evidentiary hearing where the prosecution bears the burden of proving the truth of the finding, beyond a reasonable doubt, a second time.” ( Jones , at p. 485.) On the other hand, courts that have found a special circumstance finding insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark “construed section 190.2, subdivision (d) in a significantly different, and narrower manner than courts had previously construed the statute.” ( People v. Torres (2020) 46 Cal.App.5th 1168, 117 9, review granted June 24, 2020, S262011, abrogated on another ground by Lewis , supra , 11 Cal.5th at pp. 962

- 963; accord, People v. Harris (2021) 60 Cal.App.5th 939, 958, review granted Apr. 28, 2021, S267802 .) Thus, these courts surmised that a petitioner with a pre

- Banks and Clark special circumstance finding may have been convicted based on “ conduct that is not prohibited by section 190.2 as currently understood .” ( Torres , at p. 1180; accord, Harris , at p. 9 58; People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954 ; People v.
Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the extent the jury’s finding on a felony

- murder special circumstance is leg ally insufficient
under Banks and Clark , it cannot refute a prima facie showing of entitlement to resentencing relief . ( People v. Secrease (2021) 63 Cal.App.5th 231, 256.) Accordingly , in considering whether a petitioner is entitled to relief pursuant to section 1170.95, the trial court must first determine whether “the evidence presented at trial was sufficient to support the felony

- murder special

- circumstance finding under Banks and Clark. ” ( Secrease , at p. 264.)11

.

A panel of this court has recentl y resolved to follow the line of authority holding that a special circumstance finding precludes relief as a matter of law

. ( People v.
Simmons (2021) 65 Cal.App.5th 739, 748

- 749, review granted Sep t . 1, 2021, S270048.) We agree. Banks and Clark did not state a new rule of law. Rather, they relied on the United States Supreme Court’s decisions in Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137 to cl arify principles that had long been in existence at the time petitioner was convicted. ( See In re Miller (2017) 14 Cal.App.5th 960, 978; accord, People v. Allison , supra , 55 Cal.App.5th at p. 458; Gomez , supra , 52 Cal.App.5th at p. 13, fn. 5 , review grant ed .) Enmund prohibited felony

- murder liability for a defendant that “ did not commit the homicide, was not present when the killing took place, and did not participate in a plot or scheme to murder , ” and explained that, to be liable for felony murder, the aider and abettor must himself “kill, attempt to kill, or intend that a killing take place or that lethal force will be employed .” ( Enmund , at pp. 795, 797.) Tison held that, “major participation in the felony committed, combined with
reckless indifferen ce to human life, is sufficient to satisfy the Enmund culpability requirement.” ( Tison , at pp. 151, 158.) As Banks noted, this language from Tison was later codified by the California electorate in section 190.2, subdivision (d). ( Banks , supra , 61 Cal.4 th at p. 800.) To the extent Banks and Clark illuminated factors a fact finder might consider in determining whether a defendant was a major contributor who acted with reckless indifference to human life, they drew those factors from Edmund and
Tison. (S ee Banks , at pp. 801, 803; see also Clark , supra , 63 Cal.4th at pp. 615, 618

- 623.) These principles existed when petitioner was convicted. There is no basis to conclude petitioner’s admission involved different standards than those described in
Banks and Clark

. Petitioner is ineligible for resentencing as a matter of law, and the court was not required to issue an order to show cause or hold an evidentiary hearing. The petition was properly denied. ( Lewis , supra , 11 Cal.5th at pp. 970

- 971.)12

. DISPOSITION
The order is affirmed.