California Cases July 07, 2020: People v. Matthews

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA347305)

APPEAL from an order of the Superior Court of Los Angeles County. Renée F. Korn, Judge. Reversed and remanded with directions.

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

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Lovie Troy Matthews (Matthews) was convicted of first-degree murder (count 1: Pen. Code § 187, subd. (a)), attempted second-degree robbery (count 2: §§ 664, 211, 212.5), and second-degree commercial burglary (count 3: § 459, 460) for his role as a getaway driver in an attempted robbery of a marijuana dispensary that resulted in a homicide. As a special circumstance, the jury found that the murder was committed during the commission or attempted commission of a robbery (§§ 190.2, subd. (a)(17), 211, 212.5), and that Matthews aided and abetted the murder, or otherwise facilitated it, with reckless indifference to human life and as a major participant within the meaning of section 190.2, subdivision (d). Regarding counts 2 and 3, the jury found gang and firearm allegations to be true. (§§ 186.22, subd. (b)(1), former 12022.53, subds. (d), (e).) On September 16, 2011, Matthews was sentenced to serve life without the possibility of parole under section 190.2, subdivision (a) based on the special circumstance finding. He appealed his conviction and challenged his sentence, arguing that the special circumstance finding was not supported by sufficient evidence.

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The Court of Appeal rejected his challenge and affirmed the sentence.

In People v . Banks (2015) 61 Cal.4th 788, 794 ( Banks ), our Supreme Court held that the evidence was insufficient to support the special circumstance finding under section 190.2, subdivision (d). The court therefore concluded Matthews could not be sentenced to life without the possibility of parole under section 190.2, subdivision (a). Subsequently, the trial court sentenced Matthews to 80 years to life in prison, calculated as 25 years to life for first degree murder, doubled under the "Three Strikes" law for 50 years, plus 25 consecutive years for the firearm enhancement, plus 5 consecutive years for a serious felony prior conviction (§ 667, subd. (a)(1)). Under section 654, the trial court imposed but stayed 16-month sentences on both counts 2 and 3.

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) amended sections 188 and 189 and added section 1170.95 of the Penal Code, "significantly modifying the law relating to accomplice liability for murder." ( People v . Lopez (2019) 38 Cal.App.5th 1087, 1098-1099.) The purpose was 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. ( Id . at p. 1099.) Under section 1170.95, an accomplice previously convicted of murder under a felony-murder theory can petition to have the conviction vacated if he or she would not have been convicted under the current law because he or she did not act with intent to kill and was not a major participant in the underlying felony who acted with reckless indifference to human life.

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Relying on the determination in Banks that there was insufficient evidence to support the special circumstance finding under section 190.2, subdivision (d), Matthews filed a petition under section 1170.95 to vacate his murder conviction and be resentenced for the crime of attempted second degree robbery, and to obtain appropriate credits for time served. The trial court determined that SB 1437 and section 1170.95 are unconstitutional, and it denied the petition on that basis. On appeal, Matthews argues, and the People agree, that SB 1437 and section 1170.95 are constitutional and his petition should have been granted.

We reverse the denial of appellant's petition, remand the matter to the trial court with directions to grant the petition, vacate his first-degree murder conviction, and resentence him on the remaining counts. ( People v . Ramirez (2019) 41 Cal.App.5th 923, 933.)

Matthews "acted as the getaway driver for an armed robbery in which Leon Banks and others participated. In the course of escaping, Leon Banks shot one of the robbery victims. A jury found Matthews guilty of first-degree murder under a felony-murder theory[.]" ( Banks , supra , 61 Cal.4th at p. 794.) Our Supreme Court later determined that Matthews was not a major participant, and that he neither had the intent to kill nor acted with reckless indifference to human life. ( Id . at pp. 805-811.)

In 2019, he filed a petition for resentencing under section 1170.95. The People opposed the petition on the following grounds: (1) SB 1437 impermissibly amends Proposition 7

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and Proposition 115; (2) section 1170.95, as enacted by SB 1437, violates article I, section 28(a)(6) and article I, section

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29 of the California Constitution by depriving victims of their right to finality in their criminal cases and the People of the right to due process; and (3) section 1170.95, as enacted by SB 1437, violates the separation of powers doctrine established by the California Constitution by modifying final judgments and thereby infringing upon the judiciary's power to dispose of criminal charges and the Governor's power to issue pardons and commutations. In its memorandum of decision denying the petition, the trial court concluded that SB 1437 and section 1170.95 are unconstitutional for the reasons argued by the People.

This appeal followed.

Whether a statute is constitutional is subject to de novo review. ( Stennett v . Miller (2019) 34 Cal.App.5th 284, 290.)

As both Matthews and the People argue, SB 1437 and section 1170.95 are not unconstitutional. Specifically, they do not amend Propositions 7 and 115, and they do not violate Marsy's Law, the separation of powers doctrine, or the People's right to due process. ( Bucio , supra , 48 Cal.App.5th at pp. 308-314; People v . Solis (2020) 46 Cal.App.5th 762, 769, 775-784; People v . Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275; People v . Lamoureux (2019) 42 Cal.App.5th 241, 247.) We agree with the parties that the trial court should have granted Matthews's section 1170.95 petition. Based on Banks , Matthews did not have intent to kill, nor was he a major participant in the attempted robbery who acted with reckless indifference toward human life.

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Rather, he was "no more than a getaway driver[.]" ( Banks , supra , 61 Cal.4th at pp. 805-808.)

Per Banks , the jury could have inferred that Matthews dropped his confederates—Leon Banks, David Gardiner (Gardiner), and Brandon Daniels (Daniels)—near the marijuana dispensary and then waited three blocks away for approximately 45 minutes. After Leon Banks shot a security guard and called Matthews, Matthews drove to the dispensary and picked up Gardiner and Daniels. ( Banks , supra , 61 Cal.4th at pp. 795, 805.) The court noted that there was no evidence that Matthews had any role in planning the robbery or procuring weapons; though they were gang members, there was no evidence that Matthews, Gardiner and Daniels "had themselves previously committed murder, attempted murder, or any other violent crime" ( id . at pp. 796, 805); Leon Banks was not a gang member ( id . at p. 796); the crime was an armed robbery; without more, participation in armed robbery does not "'carry a grave risk of death'" ( id . at p. 805); during the robbery and murder, "Matthews was absent from the scene, sitting in a car and waiting" ( ibid .); and there "was no evidence he saw or heard the shooting, that he could have seen or heard the shooting, or that he had any immediate role in instigating it or could have prevented it." ( Ibid .) Based on these observations, the court concluded that Matthews did not qualify as a major participant. ( Id . at pp. 806-807.) Next, the court concluded there was no evidence of reckless indifference to human life because "nothing at trial supported the conclusion beyond a reasonable doubt that Matthews knew his own actions would involve a grave risk of death. There was no evidence Matthews intended to kill or . . . knowingly conspired with accomplices known to have killed before. Instead, . . . Banks's

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killing of [the security guard] was apparently a spontaneous response to armed resistance[.]" ( Id . at p. 807.)

As a matter of law established by Banks , Matthews did not have the intent to kill, and he was not a major participant in the attempted robbery who acted with reckless indifference to human life. He is the precise type of candidate for relief the Legislature envisioned when it passed SB 1437.

The order denying Matthews's section 1170.95 petition is reversed. On remand, the trial court is directed to grant the petition, vacate Matthews's first-degree murder conviction, and resentence him on the remaining counts.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS .

/s/ _________, Acting P. J.
ASHMANN-GERST

We concur:

/s/ _________, J.
CHAVEZ

/s/ _________, J.
HOFFSTADT