People v. Caldwell CA2/5

Filed 2/11/21 P. v. Caldwell CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B299017

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA001856) v.

CORNELIUS CALDWELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Reversed and remanded. James Koester, 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, Senior Assistant Attorney General, Kristen J. Inberg and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

Penal Code section 1170.95 (section 1170.95) permits resentencing defendants convicted of felony murder or natural and probable consequences murder, but not defendants who (with malice aforethought) are a murder victim’s “actual killer.” (People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410.) We consider whether the trial court correctly concluded defendant Cornelius Caldwell (defendant) was ineligible for section 1170.95 relief because he is an actual killer. In 1989, the Los Angeles County District Attorney charged defendant with “willfully, unlawfully, and with malice aforethought murder[ing] Jane Doe, aka Charlisa Carlyn Clark, a human being.” The information further alleged defendant “personally used a deadly and dangerous weapon[ ], to wit, [a] strangulation rope . . . .” According to testimony at defendant’s preliminary hearing, defendant’s then-girlfriend was found strangled to death by a dumpster and defendant told an acquaintance (who saw the dead body before it was moved to the dumpster area) that “things just got out of hand” and he needed to find a place to hide the body. Defendant pled no contest to second degree murder. There is no indication defendant admitted the personal use of a deadly or dangerous weapon allegation. When prompted by the trial court during the plea colloquy, defendant’s attorney stipulated there was a factual basis for the plea, but there was no elaboration as to what that factual basis was. In June 1990, the trial court sentenced defendant to 15 years to life in prison. Nearly 20 years later, defendant filed a section 1170.95 petition to vacate his murder conviction. Defendant completed a form petition by hand, checking boxes to request appointment of