California Court of Appeal Oct 21, 2022 No. E072770AUnpublished
Filed 10/21/22 P. v. Walton CA4/2 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072770
v. (Super.Ct.No. INF039223)
DEMETRIUS CLAYTON WALTON, OPINION ON TRANSFER
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorney
General, A. Natasha Cortina, Meredith S. White, Lynne G. McGinnis and Alan L.
Amann, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant, Demetrius Clayton Walton, filed a petition for
resentencing pursuant to former Penal Code section 1170.95,1 which the court denied.
On appeal, defendant contended the court committed structural error in denying his
petition without allowing him the opportunity to file a reply brief. By opinion dated
November 2, 2020, we affirmed, holding that the jury’s felony-murder special-
circumstance finding against defendant rendered the court’s failure to allow him to file a
reply harmless.
On September 28, 2022, the California Supreme Court transferred the matter back
to us with directions to vacate our decision and reconsider the cause in light of People v.
Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952
(Lewis). On September 29, 2022, we ordered our decision vacated and set a briefing
schedule.
Defendant argues that (1) the court violated his constitutional right to due process
by summarily denying his petition without affording him an opportunity to file a reply to
the People’s response; and (2) that under Strong, the jury’s true finding on the felony-
murder special-circumstance allegation rendered prior to the decisions in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) does
not preclude him from making a prima facie case for relief.
1 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise indicated.
2
The People concede that due to the decision in Strong, the court’s error in denying
defendant the opportunity to file a reply brief can no longer be deemed harmless. Thus,
the People agree the matter must be remanded for further proceedings. We reverse and
remand the matter for reconsideration.
I. PROCEDURAL BACKGROUND 2
On September 11, 2002, “a jury convicted [defendant] of (1) first degree murder
with robbery and burglary felony-murder special circumstance[s], (2) first degree robbery
and (3) first degree burglary. The jury found a principal was armed in the commission of
the offenses.” (Owens et al., supra, E033148, fn. omitted.)
The court sentenced defendant to one year plus life without the possibility of
parole. (Owens et al., supra, E033148.) Defendant appealed; this court affirmed. (Ibid.)
On January 7, 2019, defendant filed a petition for resentencing pursuant to former
section 1170.95. On February 21, the People filed an application to file opposition to the
petition in excess of the page limitation. The court granted the application and filed the
People’s response that day. The People argued in their response that former
section 1170.95 was unconstitutional on several bases. The People additionally argued
defendant was ineligible for relief under former section 1170.95 because the jury found
true, as a requisite finding of the special circumstances, that he was a major participant in
2 On July 15, 2019, we granted defendant’s request for judicial notice filed June 26, 2019, and took judicial notice of our nonpublished opinion in People v. Owens et al. (Apr. 12, 2005, E033148) [nonpub. opn.] (Owens et al.). We exclude a recitation of the facts here as irrelevant to the issues raised on appeal.
3
the murder and acted with reckless indifference to human life. On March 11, the court
sent notice of a status conference setting to the People and the public defender’s office.
On March 15, 2019, the court held a hearing on the petition. Defense counsel
noted that defendant’s reply brief was “due March 21, by my calculation. I would ask for
April 19th.”3 The court noted: “In this particular matter, the jury was instructed on aider
and abettor liability. The jury was also instructed on [the] felony-murder rule. The jury
was further instructed pursuant to CALJIC 8.80.1.” The court observed that the jury
found both the burglary-murder and robbery-murder special circumstances true against
defendant. The court then summarily denied the petition.
II. DISCUSSION
Defendant argues that (1) the court violated his constitutional right to due process
by summarily denying his petition without affording him an opportunity to file a reply to
the response;4 and (2) that under Strong, the jury’s true finding on the felony-murder
3Counsel for defendant informed the court, “As a matter of serendipity, I was [defendant’s] appellate counsel.”
4 To the extent the People suggested in their original brief that defendant forfeited the issue since his “counsel did not ask for time to file a reply or make any argument at the hearing,” we disagree. Defense counsel expressly noted that his reply was not due until six days later. We interpret counsel’s next statement, “I would ask for April 19th,” as a request for an extension to file the reply or, at the very least, a request to continue the hearing beyond the date for filing the reply. Counsel again stated, “We would ask for April 19th, your Honor.” We regard defense counsel’s statements as a preemptive objection to any summary denial. Thereafter, the court did not offer defense counsel any opportunity to respond to the court’s stated reasons for the summary denial, which was based upon the argument made in the People’s opposition. (People v. Sperling (2017) 12 Cal.App.5th 1094, 1101-1102 [parties do not forfeit an issue if the court below failed to give them any meaningful opportunity to object].) Thus, defendant has not forfeited the issue.
4
special-circumstance allegation rendered prior to the decisions in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) does not
preclude him from making a prima facie case for relief. We agree.
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the
felony-murder rule to effectuate the Legislature’s declared intent ‘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.’” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Senate Bill
1437 also created a special procedural mechanism for those convicted under the former
law to seek retroactive relief under the law as amended. [Citations.] Under newly
enacted section 1172.6, the process begins with the filing of a petition containing a
declaration that all requirements for eligibility are met [citations], including that ‘[t]he
petitioner could not presently be convicted of murder or attempted murder because of
changes to . . . Section 188 or 189 made effective January 1, 2019,’ the effective date of
Senate Bill 1437 [citation].” (Id. at p. 708, fn. omitted.)
“When the trial court receives a petition containing the necessary declaration and
other required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record
in the case establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.) “As a general matter, a
trial court should afford both parties the opportunity to brief the question of a petitioner’s
eligibility for relief and may extend the briefing deadlines ‘for good cause’ as necessary
5
to ensure that such an opportunity is meaningful.” (Lewis, supra, 11 Cal.5th at p. 966,
fn. 4.)
“While the trial court may look at the record of conviction after the appointment of
counsel to determine whether a petitioner has made a prima facie case for . . . relief, the
prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas
corpus proceedings, ‘“the court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to show
cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’” (People v. Lewis
(2021) 11 Cal.5th 952, 971 (Lewis).)5 “In reviewing any part of the record of conviction
at this preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “[T]he ‘prima facie
bar was intentionally and correctly set very low.’” (Ibid.)
Where a defendant’s “case was tried before both Banks and Clark, . . . special
circumstance findings do not preclude him from making out a prima facie case for
resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s]
in concluding otherwise.” (Ibid.)
5 The Legislature amended former section 1170.95 effective January 1, 2022. (Stats. 2021, ch. 551, § 2.) “The amendment . . . codifies certain holdings in Lewis . . . .” (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2, review granted Mar. 23, 2022, S273159.)
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If, instead, a defendant has made a prima facie showing of entitlement to relief,
“‘the court shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.)
Once the court determines that a defendant has made a prima facie showing, “the court
must [then] hold an evidentiary hearing at which the prosecution bears the burden of
proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted
murder’ under state law as amended by Senate Bill 1437. [Citation.] ‘A finding that
there is substantial evidence to support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and enhancements attached to the
conviction, shall be vacated and the petitioner shall be resentenced on the remaining
charges.’” (Id. at p. 709.) “Senate Bill 1437 relief is unavailable if the defendant was
either the actual killer, acted with the intent to kill, or ‘was a major participant in the
underlying felony and acted with reckless indifference to human life . . . .’” (Id. at
p. 710.)
Here, the jury rendered the special murder circumstance findings long before both
Banks and Clark were decided. Thus, with respect to those findings, “no judge or jury
has ever found the currently required degree of culpability . . . .” (Strong, supra,
13 Cal.5th at p. 718, italics added.) Contrary to our initial determination, the special
murder circumstance findings rendered by the jury against defendant do not, alone,
render him per se ineligible for relief. Therefore, the court below erred in denying
defendant’s petition on that basis. Thus, the matter must be remanded for a new prima
7
facie hearing prior to which defendant should be given the opportunity, if he so elects, to
file a reply to any response filed by the People.
III. DISPOSITION
The order dismissing defendant’s petition is reversed. The matter is remanded
with directions to hold a new prima facie hearing. We express no opinion on whether
defendant is entitled to relief following the hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
FIELDS J.
MENETREZ J.
8
AI Brief
AI-generated · verify before citing
Holding. The court held that a felony-murder special-circumstance finding made prior to the decisions in People v. Banks and People v. Clark does not preclude a defendant from establishing a prima facie case for resentencing under Penal Code section 1172.6. Consequently, the trial court erred by summarily denying the petition without allowing the defendant an opportunity to file a reply brief.
Issues
Did the trial court violate the defendant's due process rights by denying his resentencing petition without allowing him to file a reply brief?
Does a pre-Banks/Clark felony-murder special-circumstance finding preclude a defendant from establishing a prima facie case for relief under Penal Code section 1172.6?
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“Where a defendant’s “case was tried before both Banks and Clark, . . . special circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6.””
“the special murder circumstance findings rendered by the jury against defendant do not, alone, render him per se ineligible for relief.”