California Cases December 28, 2023: People v. Player

Case Description

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NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County, No. A900447 Hector M. Guzman, Judge. Reversed and remanded.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Lindsay Bond, Deputy Attorneys General, for Plaintiff and Respondent.

BENDIX, J.

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Defendant Lavell Tyrone Player appeals from the denial of his petition for resentencing under Penal Code former section 1170.95, now renumbered section 1172.6. We conclude substantial evidence does not support the resentencing court's finding that defendant directly aided and abetted the murder of which he was convicted. Accordingly, we reverse the order denying defendant's petition. Because the prosecution offered alternative theories of guilt the resentencing court did not address in its denial order, we remand for consideration of those alternative theories.

FACTUAL BACKGROUND

We summarize the witness testimony from defendant's trial relevant to the issues on appeal.

1. Carolyn Spence's testimony

Around 3:00 a.m. on December 19, 1981, Toney Lewis and Spence drove in Lewis's van to a Denny's restaurant. Lewis was driving and Spence was in the front passenger seat. They pulled into the Denny's parking lot.

As they were getting out of the van, two men approached. One came up to Spence's door and demanded her purse. He was not armed as far as Spence could see.

The second man stood by the driver's side of the van. He was holding a gun. He demanded Lewis's wallet and leather coat. Lewis said he did not have a wallet and would not turn over his coat.

The man who had taken Spence's purse went over to the driver's side and told the gunman to take the van. The gunman

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pushed Lewis back and snatched the gold chains from Lewis's neck. The gunman said, "That's all right, mother-fucker. You are going to die, anyway."

The gunman pulled the key from the van's ignition. Lewis told the gunman not to take his van. The gunman then shot Lewis, who died from the wound.

At trial, Spence initially identified defendant as the gunman. On cross-examination, however, she acknowledged that in a prior photographic lineup, and in two in-person lineups, she had identified defendant's brother Marcus as the gunman. She also acknowledged on cross-examination that at the preliminary hearing, at which both defendant and Marcus were present, she first identified defendant as the gunman, but upon seeing Marcus, identified him as the gunman and said she was mistaken when she identified defendant.

After acknowledging at trial these prior identifications of Marcus as the gunman, Spence stated that Marcus was the gunman and recanted her identification of defendant.

Spence also testified that as a police sergeant was driving her home after one of the lineups in which she had identified Marcus, she told the sergeant one of the other people in the lineup looked like someone she had seen before. The sergeant asked if the person she recognized was present when Lewis was shot, and Spence said she did not think so. She later learned the person she recognized was defendant.

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2. Walter Fonteno's testimony

Fonteno, who admitted participating in the robbery of Lewis and Spence, testified in exchange for a plea arrangement in which he would serve five years in prison.

In the late hours of December 18, 1981, Fonteno was at the apartment of Andre Davis along with defendant and Marcus. Marcus said, "Let's go make some money. Want to go make some money?" Fonteno and defendant both said yes. Someone, possibly defendant, asked whether they had a gun to use. Marcus said yes.

The four men went outside and Marcus retrieved a gun from his car. Defendant asked if the gun worked. Marcus said it did, and fired it into a dirt field.

Defendant, Marcus, and Fonteno drove in Marcus's car to a gas station near the Denny's. Marcus said, "Let's go down there by Denny's, go down there; people got some bank down there." Defendant asked Marcus for the gun and Marcus gave it to him.

The men saw a brown van pull into the Denny's parking lot. Marcus said, "Get them." Defendant climbed over the fence separating the gas station from the Denny's parking lot and said, "Come on." Marcus told Fonteno to go with defendant, stating, "If you all aren't going to rob them, forget it. I'm going home." Fonteno then climbed over the fence after defendant.

Defendant told Fonteno to go to the passenger side of the van. Fonteno opened the passenger door and saw a woman. He

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told her to give him her purse, which she did. Fonteno walked to the back of the van and looked through the purse, taking some change he found inside. He then walked over to the driver's side of the van where defendant was standing.

Defendant, who had the gun in his hand, was speaking to the driver. Marcus, still standing by the fence, shouted, "Take the van." Defendant told the driver to get out of the vehicle. The driver said no and reached for the dashboard or glove compartment. Fonteno told defendant to forget the van. Defendant told the driver to stop moving but he did not stop.

Defendant then shot the driver. Fonteno asked why he had done that, and defendant said the driver was reaching for a gun. Defendant and Fonteno ran away, eventually meeting up with Marcus back at Davis's apartment. Fonteno saw that defendant had a gold chain in his hand.

Months later, defendant told Fonteno that if the case went too far, he would tell the authorities he shot Lewis, so that Fonteno and Marcus could go free.

Asked whether prior to the robbery there were any discussions about killing anyone, Fonteno said no, and that he did not think anyone would be killed. The shooting surprised him.

3. Annette Aldridge's testimony

Aldridge was Marcus's girlfriend and mother of his children. Sometime after Lewis's death, defendant told her Marcus was not involved in a murder. On another occasion, defendant said that everyone knew that "he did it." Defendant said he wanted to find Spence's address so he could scare her and let her know the wrong person (presumably Marcus) was in jail.

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Aldredge told the police that defendant had told her, "I am the one that killed the guy behind Denny's."

4. Tylon Player's testimony

Tylon is defendant's and Marcus's sister. When Marcus was arrested, defendant said he had to do something about it, because Marcus was not the one who committed the murder. He said he would scare "the girl" so she would not be a witness against Marcus. Defendant said he knew who committed the murder, but did not say who. He said he was the only one who knew what happened, and Marcus was not the killer.

PROCEDURAL HISTORY

A. Conviction and Direct Appeal

The People charged defendant with Lewis's murder, and alleged the special circumstance that the murder was committed during the commission of a robbery or attempted robbery. The People further charged defendant with the robbery of Spence and attempted robbery of Lewis. On all counts, the People alleged defendant personally used a firearm and that a principal was armed with a firearm.

Defendant was tried in 1982. The jury was instructed, inter alia, on aiding and abetting, murder, and felony murder under then current law. The jury further was instructed that to find the robbery special circumstance true, it must find "the murder was committed while the defendant was engaged in the commission or attempted commission of a robbery," "the murder was committed in order to carry out or advance the commission of the crime of [r]obbery or to facilitate the escape therefrom or to avoid detection," and "the defendant personally committed the

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murder." Echoing the last element, the instruction added that if the jury found that "someone other than the defendant . . . personally killed the victim, . . . you must find the special circumstance not true."

The jury convicted defendant of murder, robbery, and attempted robbery, and found true the allegation that a principal was armed with a firearm. The jury found not true the robbery special circumstance and allegation of personal use of a firearm. The trial court sentenced defendant to 26 years to life.

On direct appeal, we held the murder verdict was supported by substantial evidence. "[W]e find sufficient evidence of [Player]'s knowledge of the unlawful purpose of the act proposed by Marcus, namely to commit a robbery, and his consent to participate as evidenced by his affirmative response to Marcus' suggestion to go make some money. [¶] [Player was] obviously aware that one of [the assailants] was armed with a weapon which had been test fired." ( People v. Player (May 22, 1984, 2d. Crim. No. 43957) [nonpub. opn.] at p. 10 ( Player I ).) "[Player's] intentional presence in a situation in which he was part of a planned armed robbery, where one of the assailants told the victim 'you're going to die, anyway,' coupled with his knowledge that the threat could be carried out with an operable weapon, shows his knowledge of the intent and purpose of killing the victim Lewis." ( Id. at pp. 11-12.) "[T]he inescapable conclusion is that the jury decided that [Player] was present, participated in the robbery and the shooting and therefore [is] guilty of murder, at least as an aider or abettor." ( Id. at p. 15.)

We acknowledged the jury had received an aider and abettor instruction held erroneous under People v. Beeman (1984) 35 Cal.3d 547. Specifically, the jury had been instructed an aider

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and abettor must have knowledge of the perpetrator's unlawful purpose, but had not been additionally instructed that the aider and abettor must also act with the intent or purpose of committing, encouraging, or facilitating the commission of the offense. Because defendant had not put his intent at issue at trial, however, and therefore "there was no conflicting evidence presented as to appellant's intent," we held any instructional error was harmless. ( Player I , supra , 2d Crim. No. 43957 at pp. 15-16.)

We further held the trial court properly denied motions to suppress Fonteno's extrajudicial statements and trial testimony. Because the verdict did not specify the degree of murder, however, we deemed the crime to be second degree. On remand, defendant was resentenced to 16 years to life.

B. Resentencing Petition and Appeal

On December 31, 2018, defendant filed a petition for resentencing pursuant to former section 1170.95, claiming that he was convicted of murder based on a felony murder theory. The People filed an opposition supported by our opinion on direct appeal, the preliminary hearing, trial transcripts, and the jury instructions.

The resentencing court held a hearing on whether defendant made a prima facie showing that he fell within the provisions of former section 1170.95. The prosecutor argued, in part, that Player I concluded defendant was an aider and abettor. The court agreed and quoted Player I 's conclusion that Player had knowledge of the intent to kill the victim. The court then stated that it was "very clear from the facts as outlined not just in the trial transcripts but in the Court of Appeal's opinion" that "there's more than ample evidence here to . . . find he was the

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aider and abettor at the very least with a stated purpose and intent to kill."

Defendant appealed and we reversed. ( People v. Player (June 25, 2021, B303259) [nonpub. opn.] ( Player II ).) We disagreed with the resentencing court's reading of Player I : "We did not conclude [in Player I ] that Player had the specific intent to kill. Rather, our holding suggests that the facts supported a verdict based on application of the felony-murder rule or the natural and probable consequences doctrine." ( Player II , at p. 9.) We further held that because the jury had received an erroneous instruction under Beeman , "we cannot rely on the instructions to conclude the jury found Player guilty under a valid theory of direct aider and abettor liability. Thus, nothing in the record of conviction indicates that Player was necessarily convicted of murder based on a theory that he was the actual shooter, harbored the intent to kill, or was a major participant in the robbery and acted with reckless indifference to human life." ( Id. at pp. 9-10.)

We continued, "In arriving at its conclusion that our opinion and the trial transcripts showed that Player was convicted as a direct aider and abettor, the resentencing court necessarily engaged in factfinding at the prima facie stage, which it was not authorized to do." ( Player II , supra , B303259, at p. 10.) We remanded for the resentencing court to issue an order to show cause and hold an evidentiary hearing.

C. Proceedings on Remand

On remand, the parties submitted additional briefing to the resentencing court. The prosecutor argued defendant was guilty either as the actual killer, a direct aider and abettor, or under a

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felony murder theory as a major participant in the robbery who acted with reckless indifference to life.

Following a hearing at which the parties presented argument but no additional evidence, the resentencing court issued a written order denying the resentencing petition. At the outset, the court stated it had "reviewed the petition, court file, the Court of Appeal[ ] decisions on the case both on direct ( Player I ) and subsequent appeal ( Player II ), the attorneys' briefs and oral arguments ...." The court quoted extensively from the factual summary and legal discussion in Player I , culminating with Player I 's statement that the evidence" [']show[ed defendant's] knowledge of the intent and purpose of killing the victim, Lewis[']" (boldface &italics omitted), and" '[t]he inescapable conclusion is that the jury decided that Player was present, participated in the robbery and the shooting and therefore [is] guilty of murder, at least as an aider or abettor.'" The resentencing court then stated, "Based on the record of conviction, Petitioner is clearly guilty of murder as an aider and abettor. The court finds beyond a reasonable doubt that Petitioner is not entitled to have his murder conviction vacated under section 1170.95(d)(3)."

Defendant timely appealed.

DISCUSSION

"Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015) amended sections 188 and 189 of the Penal Code to 'eliminate[ ] natural and probable consequences liability for murder as it applies to aiding and abetting, and [to] limit[ ] the scope of the felony-murder rule.' [Citation.]" ( People v. Lee (2023) 95 Cal.App.5th 1164, 1173.) The bill also added former section 1170.95, now numbered

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section 1172.6, "which creates a procedure for convicted 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 ).) "If a petitioner makes a prima facie showing of relief under section 1172.6-that is, a showing that the petitioner was convicted of murder, attempted murder, or manslaughter under a theory no longer valid under the amended Penal Code- the resentencing court must issue an order to show cause for an evidentiary hearing. [Citations.] At that hearing, the prosecution must prove beyond a reasonable doubt that the petitioner remains guilty of murder or attempted murder despite the amendments to sections 188 and 189." ( Lee , at p. 1174; see § 1172.6, subds. (c), (d)(3).)

Here, the resentencing court denied defendant's petition upon finding the prosecution had proved beyond a reasonable doubt that defendant directly aided and abetted the murder, a theory of culpability still valid after Senate Bill No. 1437. (See People v. Williams (2022) 86 Cal.App.5th 1244, 1252.) We review a resentencing court's denial order following an evidentiary hearing for substantial evidence. (See People v. Vargas (2022) 84 Cal.App.5th 943, 951.) Under that standard, we conclude substantial evidence does not support the resentencing court's finding.

As an initial matter, we do not address evidence that defendant was the actual killer because the resentencing court did not rely on that theory to conclude defendant remained guilty of murder despite the amendments to sections 188 and 189. The question before us is whether, assuming someone else killed Lewis, substantial evidence supports a finding that defendant aided and abetted that killing, which was the basis of the court's denial of defendant's petition.

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"For a defendant to be liable as a direct aider and abettor, 'the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission. [Citation.] . . .' [Citation.]" ( In re Lopez (2023) 14 Cal.5th 562, 579 ( Lopez ).)

The evidence in the record does not support these elements. There was no evidence that Fonteno, Marcus, or defendant planned to kill someone when they discussed and prepared for the robbery. The evidence showed defendant wanted to make sure the gun they used actually worked, but being prepared to use a weapon is not the same as intending to kill someone with that weapon. Spence offered no testimony that the second, unarmed robber said or did anything that would indicate an intent to encourage or facilitate the shooting. At most, the second robber told the gunman to take Lewis's van, which might establish an intent to aid and abet a robbery, but not a killing. The fact that the second robber arguably had knowledge of the gunman's intent, given that the gunman told Lewis he was going to die, is not in and of itself sufficient to prove aiding and abetting absent evidence that the second robber not only knew of, but also shared that intent. (See Lopez , supra , 14 Cal.5th at p. 579.) Here, there was no such evidence.

The Attorney General's argument to the contrary consists of summarizing the same evidence set forth in our Factual Background, ante , including the evidence that defendant was the actual shooter, and then arguing, "Ample evidence supports the trial court's conclusion that appellant aided and abetted the express malice murder." For the reasons given above, we disagree.

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To the extent the resentencing court read Player I to hold the record contains substantial evidence that defendant aided and abetted the murder, that reading is inconsistent with Player II , our opinion reversing the previous denial of defendant's resentencing petition. As we stated in Player II , "We did not conclude [in Player I ] that [defendant] had the specific intent to kill. Rather, our holding suggests that the facts supported a verdict based on application of the felony-murder rule or the natural and probable consequences doctrine." ( Player II , supra , B303259, at p. 9.)

Because the lack of substantial evidence requires reversal of the denial order, we do not reach defendant's additional arguments that the resentencing court imposed culpability under a theory not presented to the jury or that the resentencing court improperly relied on the factual summary in Player I in making its findings.

Although substantial evidence does not support the theory of guilt upon which the resentencing court relied, the prosecution offered additional theories for which the resentencing court did not make factual findings or otherwise address in its denial order, namely that defendant was guilty under a felony murder theory either as the actual killer or a major participant in the robbery acting with reckless indifference to human life. At our request, the parties filed supplemental briefing addressing the proper disposition when the resentencing court's stated theory of guilt is unsupported by substantial evidence, but other potentially viable theories offered by the prosecution remain.

We acknowledge the general rule that when a conviction is reversed for insufficient evidence, retrial is barred under constitutional principles of double jeopardy.

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( Burks v. U.S. (1978) 437 U.S. 1, 18; see People v. Seel (2004) 34 Cal.4th 535, 544.) The right against double jeopardy, however, does not apply in resentencing proceedings under section 1172.6. ( People v. Mitchell (2022) 81 Cal.App.5th 575, 589.) There therefore is no constitutional impediment to remanding for the resentencing court to consider murder theories it did not previously address.

Defendant argues the jury's findings preclude the prosecution from pursuing the alternative theories of murder advanced by the prosecution. Specifically, defendant argues the jury's not-true finding on the firearm use allegation precludes a finding that he was the actual killer, and that the jury's not-true finding on the robbery special circumstance precludes a finding that he was a major participant who acted with reckless indifference to life.

At least one theory of guilt-major participant with reckless indifference-is not precluded by the jury's findings. At the time of defendant's conviction in 1982, the robbery special circumstance did not contain as elements that the defendant be a major participant acting with reckless indifference-those elements were added by voter proposition in 1990. (See People v. Banks (2015) 61 Cal.4th 788, 794.) Thus, the jury's not-true finding on the robbery special circumstance does not indicate the jury found defendant was not a major participant nor acted with reckless indifference, questions the jury was not asked to decide. (See People v. Curiel (2023) 15 Cal.5th 433, 451 [issue preclusion applies only to issues" 'actually litigated'" and" 'necessarily decided in the former proceeding' "].)

Defendant argues the evidence was insufficient to prove he was a major participant acting with reckless indifference. Defendant devotes a single paragraph to this argument in which

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he cites case law but does not discuss the particular facts of this case or how that case law applies to those facts. This is inadequate to demonstrate an absence of substantial evidence to support a finding of major participation and reckless indifference. Defendant is not precluded, however, from reasserting this argument in a future appeal should the resentencing court on remand deny his petition.

In his supplemental brief, defendant contends that second degree felony murder no longer exists under California law, and therefore all felony murder convictions must be in the first degree. (See In re White (2019) 34 Cal.App.5th 933, 937, fn. 2.) Because defendant was convicted of second degree murder, he argues the resentencing court is precluded from convicting him under a felony murder theory, which necessarily would elevate his crime to first degree.

This same argument was rejected in People v. Hernandez (2021) 60 Cal.App.5th 94. In that case, as in this one, the jury convicted the defendant of felony murder without specifying the degree, and the reviewing court on direct appeal thus reduced his conviction to second degree murder. ( Id. at pp. 101-102.) On appeal from the denial of the defendant's resentencing petition under former section 1170.95, our colleagues in Division Seven held the holding on direct appeal did not preclude the resentencing court from proceeding under a first degree felony murder theory. The court explained, "an inmate's petition under [former] section 1170.95 'express[es] the hypothetical situation' of 'what would happen today if he or she were tried under the new provisions of the Penal Code?' [Citation.] Once a petitioner establishes a prima facie case of eligibility, the prosecutor must prove under amended sections 188 and 189 the petitioner is

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ineligible for resentencing 'under current law.' [Citations.] And if prosecuted today, under current law, Hernandez could be convicted of first degree murder under section 189, subdivision (f). [Citation.] What this court decided [on direct appeal], and whether that decision is law of the case, is not relevant to the analysis." ( Hernandez , at p. 110.) We find Hernandez persuasive, and follow it here.

Defendant argues People v. Barboza (2021) 68 Cal.App.5th 955 compels a different result, but that case is distinguishable. In Barboza , the jury found the defendant guilty of first degree murder with a street gang special circumstance, but the trial court reduced the conviction to second degree murder and struck the special circumstance. ( Id. at p. 960.) The resentencing court later denied the defendant's former section 1170.95 petition at the prima facie stage based on the jury's original first degree murder and special circumstance findings, which the resentencing court found indicated a finding of intent to kill. ( Barboza , at pp. 958, 962.) The Court of Appeal reversed, holding it was improper to deny the resentencing petition by relying on jury findings the court in the defendant's original trial had rejected. ( Id. at p. 963.) "Reducing the degree of a crime and striking a special circumstance means that in the eyes of the law, the original findings never existed. Once a jury's finding is stricken, it is stricken. And once a conviction is reduced, and that decision is final, it is reduced for all purposes." ( Id. at p. 965.) The court directed the resentencing court to issue an order to show cause. ( Id. at p. 966.)

In contrast to Barboza , our decision in Player I to reduce defendant's murder conviction from first to second degree was not a rejection of the jury's factual findings, but merely a

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consequence of the trial court not asking the jury to specify the degree of guilt. The reduction in degree does not indicate a rejection of a felony murder theory and therefore does not preclude the resentencing court from considering that theory.

Defendant argues the resentencing court, by finding him guilty as a direct aider and abettor, implicitly rejected the alternative theories of felony murder as an actual killer or major participant acting with reckless disregard for life. We see no such indication in the record. Nothing requires the resentencing court to evaluate all proposed theories of guilt when it believes one is dispositive, and therefore we cannot conclude the resentencing court's choice of one theory in this case reflects a rejection of the other theories.

Because the prosecution presented a potentially viable theory of guilt the resentencing court has not yet addressed, we remand for further proceedings. We express no opinion on how the resentencing court ultimately should rule on this petition, nor do we reach defendant's argument that the jury's findings preclude a finding that he was the actual killer.

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DISPOSITION

The order is reversed, and the matter remanded for further proceedings consistent with this opinion.

We concur: ROTHSCHILD, P. J. WEINGART, J.