Filed 1/3/23 P. v. Nowden CA4/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. TERRANCE LAMONT NOWDEN,
Defendant and Appellant. D075767

(Super. Ct. No. SCD143117)

APPEAL from an order of the Superior Court of San Diego County, Frederic L. Link, Judge. Reversed and remanded. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta , Attorney s General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland , Assistant Attorney s General , Lynne McGinnis , Alan L. Amann, and
A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Responden t.2 INTRODUCTION Defendant Terrance Lamont Nowden filed a petition under Penal Code, 1 section 117 2

. 6 (formerly section 1170.95 ) 2 requesting his first degree felony

- murder conviction be vacated and he be resentenced. After appointing counsel but before briefing occurred , the trial court issued an order denying the petition , stating the jury had found special circumstances that made Nowden ineligible for resentencing. On appeal, Nowden argue d that in light of new standards for determining whe ther a defendant has acted as a major participant with reckless indifference to human life detailed in People v. Banks (201 5 ) 61 Cal.4th 788 ( Banks ) and People v. Clark (201 6 ) 63 Cal.4th
522 ( Clark ) , the court erred by denying relief without allowing him t he opportunity to file a brief. In an unpublished opinion, we explained that the trial court’s summary denial of the petition was improper because it considered only the language of the verdict , and we rem and ed the matter for reconsideration

. The People submitted a petition for review to the Supreme Court,
which granted the request. After reaching its decisions in People v. Strong (2022) 13 Cal.5th 698 ( Strong ) and People v. Lewis (2021) 11 Cal.5th 952 ( Lewis ), t he Supreme Court transferred the ma tter back to us with directions to vacate our previous opinion and reconsider the cause. We have complied with the California Supreme Court’s instructions and considered Nowden’s claims, taking into consideration Strong and Lewis

. In his supplemental br ief (see Cal. Rules of Court, rule 8.200(b)(1)) , Nowden contends he has already met his prima facie burden and requests remand

1 Further section references are to the Penal Code.

2 Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10) renumbered section 1170.95 to 1172.6, effective June 30, 2022.3

with instructions to order a hearing pursuant to section 1172.6, subdivision (d). The People concede that the order summarily de nying the petition for resentencing based on the existence of a felony

- murder special

circumstance finding should be reversed and the matter remanded for further proceedings. We agree that it was error to conclude Nowden failed to meet his prima facie b urden based solely on the special circumstances finding. Accordingly, we remand the matter to the superior court for further proceedings in accordance with section 1172.6, subdivision (d)

.

BACKGROUND AND PROCEDURAL FACTS A jury convicted Nowden of first degree murder (§ 187, subd. (a)), residential burglary of an inhabited dwelling in the first degree (§§ 459, 460), two counts of attempted first degree robbery, perpetrated in an inhabited dwelling (§§ 664, 211, 213, subd. (b), 212.5, subd. (a)), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found as special circumstances that the murder was committed during the commission of burglary in the first or second degree (§ 190.2, subd. (a)(17)(G) ) and during the commission of attempted robbery (§ 190, subd. (a)(17)(A)). Nowden was sentenced to life without the possibility of parole plus four years. The facts of the underlying conviction can be found in our unpublished opinion People v. Nowden (Dec. 31, 2001, D036964) ( Nowden ), in which this court affirmed the judgment. On January 18, 2019, Nowden filed a petition for resentencing under section 117 2

. 6 , declaring he could not now be convicted of first or second degree murder because he was not the actual killer, did not have intent to kill, and was not a major participant in the felony or did not act with a reckless indifference to human life.4

On February 22, 2019, the People, through the District Attorney, filed a motion to deny the petitio n , wherein they e x plained that Nowden was found guilty of one count of first degree murder, one count of residential burglary, two counts of attempted robbery and one count of assault by means likely to produce great bodily injury , and the jury found true the special circumstance allegation that the murder was committed in the cour se of an attempted robbery and a burglary, each in violation of section 190.2 , subdivision (a)(17). On March 12, 2019, at Nowden’s request, the court appointed a public defender to represent him

. On March 18, 2019, the court denied Nowden’s section 117 2.6 petition. The court stated that Nowden had not made a prima facie showing of entitlement to relief because he was “found guilty by a jury of one count of
first

- degree murder, one count of residential burglary, two counts of attempted robbery, and one count of assault by means likely to produce great bodily injury. The jury found true special circumstances allegations that the murder was committed during the cour se of an attem pted robbery, in violation of section 190.2, subdivision (a)(17)

. As such, petitioner is ineligible for relief.” Nowden timely appealed

. DISCUSSION Effective January 1, 2019, Senate Bill No. 1437 (Senate Bill 1437) narrowed liability for murder under the felony

- murder rule and eliminated
the natural and probable consequences doctrines. (§§ 188, subd. (a)(3) & 189, subd. (e); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147 ( Anthony ).) Senate Bill 1437 addressed aspects of felony murder and t he natural and probable consequences doctrine, “redefin[ing] ‘malice’ in section 188. Now, to be convicted of murder, a principal must act with malice5

aforethought; malice can no long er ‘be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)” ( In re R.G. (2019) 35 Cal.App.5th 141, 144.) Senate Bill 1437 also amended section 189 by adding subdivision (e), which states that a participant in t he target felony who did not actually commit a killing is nonetheless liable for murder if he or she aided, abetted, or assisted the actual killer in first degree murder or was a major participant in the target crime and acted with reckless indifference to human life. (§ 189, subd. (e)(2)

- (3).) The result is that Senate Bill 1437 “ensure[s] that murder liability is not imposed on a person who is not the actual killer, did not act with intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” ( Anthony , supra , 32 Cal.App.5th at p. 1147.) When a trial court reviews a petition for resentencing, the court first determines if the petitioner has shown a prima facie case for relief under the

sta tute. ( Lewis , supra , 11 Cal.5th at p. 971.) The court accepts the allegations as true and evaluates whether the petitioner would be entitled to relief if he or she prove d the allegations. ( Ibid. ) The court may review the record of conviction, including any prior appellate opinion, to determine if the petitioner’s allegations are rebutted by the record ( i d. at p. 972) , but the court may not engage in factfinding and weighing credibility at the prima facie stage of petition review. ( Lewis , supra , 11 Cal.5th 952, citing People v. Drayton (2020) 47 Cal.App.5th 965, 979

- 980.) The court may deny the petition if the person is ineligible as a matter of law. ( Drayton , at pp. 980

- 981

. ) Alleging the conviction was based on grounds now made impermissible
under Senate Bill 1437 will show a prima facie case for relief. Absent anything to change the showing, the court should issue an order to show6

cause ( OSC ) and conduct an appropriate evidentiary hearing. ( Lewis , supra , 11 Cal.5th at pp. 971

- 972.) At this stage of the proceeding, the prosecution has the burden of proving “beyond a reasonable doubt[ ] that the petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3); People v. Martinez (2019) 31 Cal.App.5th 719, 723

- 724.)
An after

- the fact court review of findings made before Banks and Clark does not account for how the law has evolved because prior findings “made to a beyond

- a
- reasonable

- doubt degree of certainty,” were made “under outdated legal standards.” ( Strong , supra , 13 Cal.5th at p. 720.) “Section 1172.6 offers resentencing for petition er s who have not been determined beyond a reasonable doubt to have the degree of culpability now required for a murder, attempted murder, or manslaughter conviction. Neither a jury’s pre
- Banks
and Clark findings nor a court’s later sufficiency of the evidence review
amounts to the determination section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise adequate prima facie showing and deny issuance of an order to show cause.” ( Ibid. ) Thus, a true finding on a felony

- murder special circumstance that pre

- dates Banks and Clark does not render the defend ant categorically ineligible for relief under
section 1172.6. ( Strong , at pp. 710

- 719.) Nowden contends his conviction is based on a theory that is no longer valid in light of Banks and Clark

. In those cases, our Supreme Court “clarified ‘what it means for an aiding and abetting defendant to be a “major participant” who acted with a “reckless indifference to human life.” ’ ” ( In re Taylor (2019) 34 Cal.App.5th 543, 546.) In Banks , the court addressed both prongs and identified certain factors to consider in determining whether a defendant was a major participant ( Banks , supra , 61 Cal.4th at p. 803); Clark7

identified factors to determine whether the defendant acted with reckless indifference to human life ( Clark , supra , 63 Cal. 4 th at pp. 61 9

- 623).
Nowden was neither the killer nor was he convicted of a crime requiring proof of express malice. T he jury’s special circumstances findings rendered in 2000 indicate the jury concluded Nowden was a major participant in the crime who acted with re ckless indifference to human life in the victim’s death, but th o se jury findings , the sole basis on which the trial court based its opinion, do not preclude Nowden from showing that he could not be convicted now of first or second degree murder under amend ed
section 189. Further, t he trial court’s order summarily denying Nowden’s petition under section 1172.6 indicates it relied exclusively on the jury’s special circumstances findings and offered no alternative reason for finding Nowden ineligible for resentencing as a matter of law.
Becaus e we cannot say as a matter of law that Nowden’s actions make
him in eligible for relief under section 1172.6 , there is a possibility that Nowden was punished for conduct no longer prohibited by section 190.2. Accordingly , the trial court erred in summarily denying the petition based on the pre

- Banks and Clark special circ umstances verdict finding. DISPOSITION The trial court’s order denying Nowden’s resentencing petition is
reversed and the matter is remanded to the superior court with directions to8

issue an OSC and conduct an evidentiary hearing

. We express no opinion

a bout the outcome of such hearing.

HUFFMAN, Acting P. J.

WE CONCUR:

DATO, J.

BUCHANAN, J.