California Cases August 18, 2020: People v. Clarke

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA008556)

APPEAL from orders of the Superior Court of the County of Los Angeles, Pat Connolly, Judge. Reversed and remanded with instructions.

Juvenile Innocence & Fair Sentencing Clinic, Loyola Law School; Marisa Sacks, Christopher Hawthorne, and Susan Harbert for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and David W.

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Williams, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Clyde Clifford Clarke appeals from the trial court's order denying his petition under Penal Code section 1170.95 for resentencing on his felony murder conviction. Defendant contends the court erred by concluding that Senate Bill No. 1437 (Senate Bill 1437) and section 1170.95 were unconstitutional. The Attorney General concedes, and we agree, that the court erred. We therefore reverse and vacate the order.

A. Defendant's Conviction

In 1991, a jury found defendant guilty of first degree murder (§ 187, subd. (a)), second degree robbery (§ 211), and second degree attempted robbery (§§ 664/211). The jury also found that a principal personally used a firearm (§ 12022, subd. (a)(1)), and that the murder was committed during a robbery (§ 190.2, subd. (a)(17)).

Defendant was sentenced to a term of 26 years to life in state prison.

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On March 4, 1993, a panel of this Division of the Court of Appeal affirmed the conviction and described defendant's participation in the murder, in part, as follows: At around 1:30 a.m., Stanley E. Rollins, his girlfriend, Edna Washington, and James Walker drove to Nickerson Gardens, where Washington knew of an "after hours place" that would sell beer after hours.

"Upon arriving at Nickerson Gardens, Rollins parked in the parking lot, where there was a group of four to six young men, including [codefendant Ryan] Spencer and [defendant]. . . . Leaving Walker in the car, Rollins and [] Washington went to the apartment and purchased the beer.

"While they were returning to the car, [defendant] approached and asked [] Washington for a dollar to buy beer. She declined, and he persisted, asking her for some beer. [] Washington refused . . . . [Defendant] then asked Rollins for some beer. [] Washington told Rollins not to give [defendant] any beer because he was a minor. [Codefendant] Spencer and the rest of the group of young men were a couple of feet behind [] Washington and Rollins. During this interlude, [] Washington told Rollins to keep walking, not to stop.

"When they returned to the car, Walker was standing on the passenger side with his arm leaning on the top of the car and watching their return. Rollins went to the driver's side; [] Washington went to the front passenger side. Before they could get into the car, [codefendant] Spencer and a few others walked up to them. [Defendant] asked Walker for some wine, but []

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Washington advised Walker not to give it to him because he was a minor. [Defendant] then walked to the driver's side of the car.

"As [codefendant] Spencer approached the car, he pulled a ski mask over his face and produced a semi-automatic gun; he pointed it at Walker, and said, 'This is a jack [robbery], don't nobody move.' [Codefendant] Spencer ordered them all to 'Start taking everything out of your pockets.' Whereupon, [defendant] approached Rollins and began touching Rollins' pockets. Rollins explained that they had spent their last $5 on the beer. All three were ordered to lie on the ground. [Defendant] was standing over Rollins. [Codefendant] Spencer was on the other side of the car with Walker and [] Washington; he faced Walker with his gun pointed at him. While Rollins was on the ground, he heard motions, someone saying, 'Hey, he's trying to run,' and a gunshot.

"When [codefendant] Spencer demanded the money, [] Washington responded that she had no money. He then turned to Walker, who took a last drink from the bottle and set it down in the back seat. Walker then gave [codefendant] Spencer the money from his pocket. [Codefendant] Spencer put the money in his coat and turned and walked away. As [codefendant] Spencer turned, Walker grabbed his right arm and twisted it behind [codefendant] Spencer's back. They 'tussled' over the gun; [codefendant] Spencer broke free; Walker let go and threw both arms up; [codefendant] Spencer extended his right arm and shot Walker. [Codefendant] Spencer was approximately five feet from Walker when he shot at him."

Walker died as a result of his gunshot wound. ( People v . Spencer and Clark (Mar. 4, 1993, B063876 [nonpub. opn.].)

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B. Section 1170 . 95 Petition

On January 18, 2019, defendant filed a petition for resentencing under newly enacted section 1170.95. Using a preprinted form, defendant checked boxes that indicated he had been convicted at trial of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine and could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Defendant's retained counsel then submitted a brief in support of the petition, which included declarations from Rollins and Washington. Rollins declared that defendant had gotten down on the ground with him after someone said, "'This is a jack.'" He further stated that defendant had not turned his pockets inside out. Washington declared that after the shots were fired, everyone fled the scene except for Rollins, defendant, and Washington. She added that she had previously told detectives and the prosecutor that defendant did not commit the robbery.

On June 3, 2019, the District Attorney filed an opposition to the petition, arguing that section 1170.95 was unconstitutional because it impermissibly amended two California voter initiatives (Propositions 7 and 115), infringed on the Governor's pardon and commutation power, and violated the rights of victims and the People to due process. The District Attorney did not discuss any of the facts underlying defendant's petition.

On June 12, 2019, defendant filed a reply.

On June 17, 2019, the trial court conducted a hearing on defendant's petition. During that hearing, defense counsel and the prosecutor made arguments about the constitutionality of

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Senate Bill 1437. The prosecutor then stated that he "submit[ted] on the moving papers" and confirmed that he did not "have anything further to add." The prosecutor did not seek to cross-examine defendant's witnesses or present any new evidence.

The court inquired of the prosecutor, "just so the record is very clear, the People, as to [section] 1170[.95] and Senate Bill 1437, have [you] conceded as to the facts of the case; is that correct?"

The prosecutor responded, "That's correct, Your Honor."

In ruling on defendant's petition, the trial court stated that "if the court . . . believe[d] that Senate Bill 1437 as well as [section] 1170.95 were constitutional, the court would find that it does apply and the court would grant the requested relief. [¶] The fact of the matter is that [defendant] was convicted based on the felony murder rule."

The court concluded, however, that Senate Bill 1437 was unconstitutional because it improperly amended sections 188 and 189, which were enacted by Propositions 7 and 115 and thus could not be amended unless through a two-thirds vote of the people.

A. Senate Bill 1437's Amendments to Sections 188 and 189 and Addition of Section 1170 . 95

"[Senate Bill 1437], effective January 1, 2019, amended the felony-murder rule and eliminated the natural and probable

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consequences doctrine as it relates to murder. Senate Bill 1437 also permits, through new [] section 1170.95, an individual

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convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437's changes to the definition of the crime." ( People v . Verdugo (2020) 44 Cal.App.5th 320, 323, original fn. omitted ( Verdugo ).)

Defendant's petition included all the information required by section 1170.95, subdivision (b)(1). Section 1170.95, subdivision (c) "prescribes a two-step process for the court to determine if an order to show cause should issue: 'The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent petitioner. The prosecutor shall file and serve a response . . . and the petitioner may file and serve a reply . . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."' ( Verdugo , supra , 44 Cal.App.5th at p. 327.)

"Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) If the prosecutor

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does not stipulate to vacating the conviction and resentencing the petitioner (§ 1170.95, subd. (d)(2)), the People have the opportunity to present new and additional evidence at the hearing to demonstrate the petitioner is not entitled to resentencing. (§ 1170.95, subd. (d)(3).) The petitioner also has the opportunity to present new or additional evidence in support of the resentencing request. [Citation.]" ( Verdugo , supra , 44 Cal.App.5th at p. 327.)

B. Constitutionality

On appeal, defendant contends that the trial court erred in concluding that Senate Bill 1437's amendments to the felony murder rule and its elimination of the natural and probable consequences doctrine as it relates to murder are unconstitutional. Defendant argues that Senate Bill 1437 does not improperly amend either Proposition 7 or 115.

The Attorney General concedes that the trial court erred in finding Senate Bill 1437 and section 1170.95 unconstitutional because Senate Bill 1437 does not improperly amend Propositions 7 and 115. We agree with the parties and our sister courts that Senate Bill 1437 did not directly modify or amend the statutory changes effected by Proposition 7 and 115. ( People v . Solis (2020) 46 Cal.App.5th 762, 780-781; People v . Superior Court ( Gooden ) (2019) 42 Cal.App.5th 270, 286; Lamoureux , supra , 42 Cal.App.5th at p. 251.) We thus do not address the issue further here.

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The order denying defendant's petition for resentencing is vacated. The matter is remanded for further proceedings consistent with this opinion, which may include an order resentencing defendant if the court determines the prosecution has conceded his entitlement to relief without need to issue an order to show cause and hold an evidentiary hearing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.