Filed 5/13/22 P. v. Lauer CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMIE SAM LAUER,

Defendant and Appellant.

 B307421

 (Los Angeles County

 Super. Ct No. A148449)

APPEAL from a postjudgment order of the Superior Court 

of the County of Los Angeles, Renee Korn, Judge. Reversed and 

remanded.

Eric R. Larson, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Matthew Rodriguez, Acting 

Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Susan Sullivan Pithey, Senior Assistant Attorney 

General, Idan Ivri and Wyatt E. Bloomfield, Deputy Attorneys

General, for Plaintiff and Respondent.
2

I. INTRODUCTION

A jury found defendant Jamie Lauer guilty of, among other 

crimes, murder and attempted murder, and the trial court 

sentenced him to life without the possibility of parole. Those 

convictions were upheld on direct appeal and in a subsequent 

habeas proceeding.

Defendant appeals from the trial court’s denial of his 

postjudgment petition for resentencing under Penal Code section 

1170.95.

1 We reverse and remand the matter for further 

proceedings consistent with this opinion.

II. FACTUAL BACKGROUND2

Defendant and codefendants John Butterfield, Jr., Timothy 

Walder, and Larry Boone were convicted of crimes that “arose out 

of an evening-long crime spree on the night of May 22–23, 1981. 

[Defendants] were guests at the apartment of Kathleen 

Williamson and Cassandra Craft. About 10 p.m., Boone 

announced that he knew how to make some money and would 

show everyone how. Boone and [defendants] left the apartment 

and proceeded to the hotel room of [attempted murder victim]

Robert Kimberly, an acquaintance of Butterfield. Kimberly 

1 All further statutory references are to the Penal Code.

2 The facts are taken from the unpublished opinion in the 

postjudgment writ proceeding in In re Lauer, et al. (Jan. 24, 1989, 

B011500, B014634, B018379) [nonpub. opn.] at pages 2–5 

(Lauer II).
3

invited everyone in for a beer. When the beer ran out, the group 

proceeded to a liquor store to buy more. After Kimberly 

purchased the beer, Boone drove to an unlighted area and 

announced to Kimberly that he was being robbed.

“After knocking out one of Kimberly’s teeth, Boone 

instructed Butterfield to ‘drive to the cemetery.’ Kimberly 

pleaded with all four to let him go, promising to get them more 

money and not to tell anyone what had happened. Walder was 

heard to say, ‘He knows us. We’re going to have to kill him.’

“Near the cemetery, everyone got out of the car and 

Kimberly was relieved of his wallet. He attempted to escape by 

running down the road but the four managed to overtake him, 

beat him, and stab him. (Altogether, Kimberly received about 

eight blows to the head and eighteen stab wounds in his back.)

He feigned unconsciousness and heard Walder say, ‘That’s it, he’s 

had it. He’s dead. Let’s go.’

“After the four departed, Kimberly managed to walk for 

about two hours until he was found by a passing motorist and 

taken to the hospital. He recovered from his wounds and 

testified at [defendants’] trial.

“After leaving Kimberly for dead, [defendants] and Boone 

returned to Williamson’s apartment with the beer and a wad of 

bills. They remained only a short time before leaving again.

“They eventually went to the home of [murder victim] Ray 

Martin, another acquaintance of Butterfield (who had previously 

traded his motorcycle to Martin’s roommate in exchange for a 

car). Martin’s roommate, Paul Fuller, returned home at about 

2:30 a.m. to find the motorcycle lying on its side with the 

headlight still on, but dimming. Inside his apartment, he found 

the battered body of Martin, with blood and matted hair 
4

splattered on the wall. The coroner’s investigator testified at 

[defendants’] trial that Martin had one stab wound in the chest, 

seven stab wounds in the upper right quadrant of the back, a 

deep laceration above and ‘into the right eye,’ and another deep 

laceration on the back of the skull, with a skull fracture. This 

was apparently caused by a hammer, which investigators later 

found in a vacant lot, covered with blood.

“After leaving Martin’s apartment, [defendants] returned to 

Williamson’s apartment, where Williamson noticed that Boone 

had blood on his pants and Walder had blood on his knife and 

hands. Later, when Williamson and Butterfield were in bed 

together, Butterfield made two references to having been at the 

scene of the crime: ‘I saw my Sporty there [the motorcycle] and I 

wanted to burn it to the ground,’ and ‘I think that guy is dead.’

“The evidence at trial established that [defendants] had 

sold tools and guns owned by Martin to a ‘fence’ for $100. 

Although Martin had been paid in cash on the day of his murder, 

his pockets had been turned inside out and all of the cash was 

missing.” (Lauer II, supra, at pp. 2–5.)

III. PROCEDURAL BACKGROUND

Based on the two incidents on May 22 and 23, 1981, 

defendant and codefendants Butterfield, Walder, and Boone were

convicted of the robbery and murder of Martin and the 

kidnapping, robbery, and attempted murder of Kimberly. (In re 

Lauer (1986) 228 Cal.Rptr. 794, 795, review granted Oct. 30, 1986 

(Crim. 25360) (Lauer I).) The jury also found true a special 

circumstance allegation that the murder was committed during 

the course of a robbery. (Id. at p. 795.) All four defendants were 
5

sentenced to life imprisonment without the possibility of parole. 

(Ibid.) The convictions were affirmed on appeal in People v. 

Boone, et al. (Crim. No. 42811).

3 (Lauer I, supra, 228 Cal.Rptr. at 

p. 795.)

Defendant, Butterfield, and Walder filed separate petitions 

for writs of habeas corpus, contending that the special 

circumstance finding should be set aside under Carlos v. Superior 

Court (1983) 35 Cal.3d 131 (Carlos) (overruled, in part, in People 

v. Anderson (1987) 43 Cal.3d 1104, 1115 (Anderson)) because the 

jury was not instructed that proof of intent to kill or aid in the 

killing was essential to a finding of murder with special 

circumstances. (Lauer I, supra, 228 Cal.Rptr. at p. 794, fn. 

omitted.) On July 31, 1986, a prior panel of this division issued a 

published opinion granting the habeas petitions under Carlos

and setting aside the special circumstance findings and the life 

without the possibility of parole sentences. (Lauer I, supra, 228 

Cal.Rptr. at p. 797.) The Supreme Court, however, granted 

review as to each matter and remanded to the appellate court for 

reconsideration under Anderson, supra, 43 Cal.3d 1104 

(superseded by statute as stated in People v. Odom (2016) 244 

Cal.App.4th 237, 251) and People v. Olde (1988) 45 Cal.3d 386

(Olde) (overruled on other grounds as stated in People v. Prieto

(2003) 30 Cal.4th 226, 256).

4 (Lauer II, supra, at p. 2.)

3 The unpublished opinion in the consolidated direct appeals

from the judgments of conviction is not in our record, and the 

parties agree that it is unavailable.

4 Anderson, supra, 43 Cal.3d at pages 1128 through 1129 and 

Olde, supra, 45 Cal.3d at pages 413 through 414 held that error 
6

On remand, the appellate court issued an unpublished 

opinion, Lauer II, which reconsidered the habeas petitions under 

Chapman, supra, 386 U.S. 18. (Lauer II, supra, at pp. 2, 8–9.) 

The court observed that the evidence at trial “placed all four 

defendants at the scene of Martin’s murder. The murder was 

committed in a manner which strongly suggested that it was a 

group effort. Unfortunately, the evidence did not reveal which 

members of the group participated in the actual killing.” (Id. at 

p. 7.) The court then concluded that the trial court’s error in 

instructing the jury was harmless because “[f]irst, [defendants] 

attempted unsuccessfully to present a diminished capacity 

defense, indicating their recognition that the issue of their state 

of mind at the time of the crimes was of some importance. 

Second, the nature of the crimes charged was such that ‘no 

rational jury could find’ that [defendants] committed the crimes 

charged but did so without intending to kill.” (Id. at p. 8.) 

Because “[t]he parties recognized that intent was an issue, and 

the record not only establishes the necessary intent as a matter 

of law, but shows the contrary evidence not worthy of 

consideration[,]” the court denied the habeas petitions. (Id. at 

pp. 8–9.)

On January 9, 2019, defendant filed a petition for 

resentencing under section 1170.95. The prosecution filed an 

initial opposition in June 2019 which attached a copy of Lauer II,

and defendant, with the assistance of appointed counsel, filed a 

which implicates federal constitutional rights, including 

instructional error, must be reviewed under the beyond-areasonable-doubt harmless error standard in Chapman v. 

California (1967) 386 U.S. 18 (Chapman).
7

reply. Following further briefing by both parties, the trial court 

held a hearing on August 6, 2020, and denied the petition on the 

grounds that (1) defendant failed to make a prima facie showing 

of eligibility for relief because the evidence established that he 

was a direct aider and abettor in the murder and (2) under People 

v. Galvan (2020) 52 Cal.App.5th 1134, review granted 

October 14, 2020, S264284 (Galvan), the special circumstance 

finding barred him from resentencing relief unless and until he 

first obtained habeas relief from that finding.

The next day, the trial court issued a minute order 

confirming its denial of the petition, finding that “[g]iven the 

events surrounding the attempted murder of Kimberly, it defies 

credulity that [defendant] went with the same three accomplices 

to Martin’s apartment a short time later without full knowledge 

that they were going to murder Martin, who was also an 

acquaintance and could identify participants if not murdered. As 

the court of appeal[ ] stated [in Lauer II], ‘no rational jury could 

find’ a lack of intent to kill by [defendant] and his accomplices 

when they went to Martin’s apartment to rob him.” The court 

also cited Galvan, supra, 52 Cal.App.5th 1134 and concluded that 

because the jury had found the special circumstance allegation to 

be true, defendant was ineligible as a matter of law to have his 

murder sentence vacated under section 1170.95.

Defendant appealed from the order denying his section 

1170.95 petition and on August 24, 2021, we affirmed the order,

in part, and reversed and remanded, in part. On September 29, 

2021, defendant filed a petition for review in our Supreme Court.

On October 25, 2021, the Governor signed Senate Bill 

No. 775, which amended section 1170.95 to permit resentencing 

of certain persons convicted of attempted murder under a natural 
8

and probable consequences theory. (§ 1170.95, subd. (a); see Sen. 

Bill No. 775 (2021–2022 Reg. Sess.), as amended October 5, 2021, 

p. 3; Stats. 2021, ch. 551, §§ 1–2.) The Supreme Court then 

transferred the matter back to us with directions to vacate our 

decision and reconsider the cause in light of Senate Bill No. 775. 

We vacated our opinion and defendant and the Attorney General 

then submitted additional supplemental briefs.

IV. DISCUSSION

A. Section 1170.95

Section 1170.95, as amended by Senate Bill No. 775,

“creates a procedure for convicted murderers [and attempted 

murderers] who could not be convicted under the law as amended 

to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 

952, 957 (Lewis).) Where a petitioner files a section 1170.95 

petition that contains all of the statutorily required information 

and requests counsel, the court must appoint counsel and order 

briefing. (Id. at p. 966.)

When briefing has been completed, “the court shall hold a 

hearing to determine whether the petitioner has made a prima 

facie case for relief. If the petitioner makes a prima facie 

showing that the petitioner is entitled to relief, the court shall 

issue an order to show cause.” (§ 1170.95, subd. (c).) Within 60 

days of issuance of the order to show cause, the trial court shall 

hold a hearing “to determine whether the petitioner is entitled to 

relief.” (§ 1170.95, subd. (d)(1) & (3).) “[T]he burden of proof 

shall be on the prosecution to prove, beyond a reasonable doubt, 

that the petitioner is guilty of murder or attempted murder under 
9

California law as amended by the changes to Section 188 or 189 

made effective January 1, 2019.” (§ 1170.95, subd. (d)(3).) The 

trial court acts as the finder of fact when determining whether 

the prosecution has met its burden beyond a reasonable doubt. 

(See Ibid.; People v. Gentile (2020) 10 Cal.5th 830, 855 [“section 

1170.95 requires the superior court to determine on an 

individualized basis, after considering any new or additional 

evidence offered by the parties, whether the defendant is entitled 

to relief”].)

B. Murder Conviction

Defendant contends, among other things, that (1) the trial 

court erred by weighing the evidence at the prima facie inquiry 

stage of the resentencing proceeding; and (2) the harmless error 

finding in Lauer II based on the prior record of conviction should 

not preclude sentencing relief because section 1170.95, 

subdivision (d)(3) permits both defendants and the prosecution to 

introduce new or additional evidence on the issues of whether 

defendant acted with the requisite intent to kill or was a major 

participant who acted with reckless indifference to human life. 

The Attorney General counters that the trial court’s denial of the 

petition as to defendant’s murder conviction can be upheld under 

two different legal theories not articulated by the court, namely, 

the doctrines of law of the case and collateral estoppel.

We disagree with the Attorney General’s contention. In our 

view, giving preclusive effect to the appellate opinion in Lauer II 

at this preliminary stage would be inconsistent with our Supreme 

Court’s opinion in Lewis, supra, 11 Cal.5th 952 that the bar at 

the prima facie stage is intentionally low and appellate opinions, 
10

although probative on a particular issue, do not necessarily 

“‘supply all [the] answers.’” (Id. at p. 972; see also § 1170.95, 

subd. (d)(3) [“The court may also consider the procedural history 

of the case recited in any prior appellate opinion”], italics added.)5

In the Lauer II habeas proceeding, the Supreme Court 

directed the Court of Appeal to determine whether the trial 

court’s failure to instruct the jury that proof of an intent to kill 

was essential to a special circumstance finding constituted 

prejudicial error under Chapman, supra, 386 U.S. 18. On 

remand, the Court of Appeal in Lauer II determined that the 

instructional error was harmless because no rational jury could 

have found that defendant committed the charged crimes, “but 

did so without intending to kill.” This conclusion does not 

demonstrate, as a matter of law, that defendant cannot meet his 

prima facie burden to show that he could not be convicted of 

murder following the amendments to sections 188 and 189, i.e., 

that he did not act with the intent to kill and was not a major 

participant in the robbery who acted with reckless indifference to 

human life. (See, e.g. People v. Jurado (2006) 38 Cal.4th 72, 94; 

People v. Berg (2019) 34 Cal.App.5th 856, 875, fn. 20.) As noted,

at the section 1170.95, subdivision (d)(3) hearing, the parties will 

be permitted to introduce new evidence and arguments for the 

trial court’s consideration. (§ 1170.95, subd. (d)(3); People v. 

Smith (2020) 49 Cal.App.5th 85, 95, review granted July 22, 

2020, S262835 (Smith).) Thus, unlike Lauer II, in which the 

appellate court’s review was limited to the record of conviction 

5 We note that the trial court did not have the benefit of the 

amended statute or guidance provided by Lewis, supra, 11 

Cal.5th 952.
11

and any rational inferences to be drawn therefrom, the trial court 

in the section 1170.95, subdivision (d)(3) hearing is not 

necessarily so limited. We therefore agree with defendant that 

the court erred by weighing the evidence and engaging in fact 

finding prior to issuing an order to show cause and holding a 

hearing at which the parties would be permitted to submit 

additional evidence and arguments on whether defendant was 

entitled to resentencing on his murder conviction. (See Lewis, 

supra, 11 Cal.5th at pp. 971–972; Smith, supra, 49 Cal.App.5th 

at p. 95.)

We next consider defendant’s contention that the trial court 

erred in finding that the jury’s felony murder special 

circumstances finding, made before People v. Banks (2015) 61 

Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 were 

decided, prevented defendant from making a prima facie showing 

that he was entitled to relief. The Courts of Appeal are in 

disagreement regarding this issue, which is currently pending 

before the Supreme Court. (People v. Strong (Dec. 18, 2020, 

C091162) [nonpub. opn.], review granted Mar. 10, 2021, 

S266606.) In the absence of a decision by the Supreme Court, we 

see no reason to depart from our prior holding that the special 

circumstances finding does not prevent defendant from making a 

prima facie showing that he is entitled to relief. (People v. York 

(2020) 54 Cal.App.5th 250, 257–263, abrogated on another 

ground in Lewis, supra, 11 Cal. 5th at p. 952.)

C. Sentence on Attempted Murder

Defendant contends, the Attorney General concedes, and 

we agree that under Senate Bill No. 775, defendant is entitled to 
12

a remand for further proceedings on his attempted murder 

conviction. We therefore will remand accordingly.

V. DISPOSITION

We reverse the trial court’s order denying defendant’s 

section 1170.95 petition and remand with directions to issue an 

order to show cause and hold a hearing pursuant to section 

1170.95, subdivision (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.