California Court of Appeal Nov 29, 2022 No. E072762AUnpublished
Filed 11/29/22 P. v. Philips 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E072762
v. (Super.Ct.No. RIF079858)
BARBARA LYNN PHILLIPS, OPINION ON TRANSFER
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Raymond Mark DiGuiseppe and David M. McKinney, 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, Assistant Attorney General, Michael P.
Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant, Barbara Lynn Phillips, filed a petition for resentencing
pursuant to Penal Code former section 1170.95,1 which the court denied. On appeal,
defendant contended the court erred in denying her petition based on the jury’s true
finding on a felony-murder special-circumstance allegation. By opinion filed May 26,
2020, we affirmed.
On October 19, 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.
Lewis (2021) 11 Cal.5th 952 (Lewis) and People v. Strong (2022) 13 Cal.5th 698
(Strong). On October 20, 2022, we ordered our decision vacated and set a briefing
schedule.
Defendant argues that pursuant to Strong, the court erred in determining that 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) made her ineligible for relief. Defendant maintains she
made the requisite prima facie showing and the matter should be remanded for an order
to show cause (OSC) hearing. The People concede the matter should be remanded for the
issuance of an OSC and an evidentiary hearing. We reverse and remand the matter for
reconsideration.
1 All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) 2
I. PROCEDURAL BACKGROUND 2
A jury found defendant guilty of first degree murder. (§ 187, subd. (a), count 1.)
The jury also returned true findings on the special-circumstance allegations that the
murder was committed while engaged in the commission of a kidnapping (§ 190.2,
subd. (a)(17)(B)) and that the murder was intentional and involved the infliction of
torture (§ 190.2, subd. (a)(18)). The jury further found true the allegation that defendant
personally used a firearm in the commission of the murder. (§§ 12022.5, subd. (a),
1192.7, subd. (c)(8).) The court sentenced defendant to life without the possibility of
parole, plus four years on the personal firearm use enhancement. (People v. Phillips,
supra, E026884.)
Defendant appealed. On May 8, 2001, this court affirmed defendant’s
convictions. (People v. Phillips, supra, E026884.)
On January 7, 2019, defendant filed a petition for resentencing under former
section 1170.95 in the superior court and requested the court to appoint counsel to assist
her. The People filed a response arguing, in pertinent part, that defendant’s petition
2 On October 17, 2019, we reserved ruling on defendant’s October 11, 2019, request that we take judicial notice of the clerk’s transcript of the written jury instructions given at trial and the reporter’s transcript of the oral instructions given and the closing arguments. We deny the request as unnecessary to our resolution of the issues on appeal. (Evid. Code, §§ 452, subd. (d), 459.) On November 21, 2019, we reserved ruling on the People’s November 12, 2019, request that we take judicial notice of our prior opinion in People v. Phillips (May 8, 2001, E026884) [nonpub opn.] (Phillips), from defendant’s appeal from the judgment. We grant the request. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We exclude a recitation of the facts here as irrelevant to the issues raised on appeal. 3
should be summarily denied because the jury’s finding on the torture-murder allegation
established she had the intent to kill, which meant that she could not make a prima facie
showing for relief under former section 1170.95. On March 25, 2019, the public
defender filed a reply to the People’s response.
The court held a hearing on the petition on April 19, 2019. The deputy public
defender represented defendant and requested a 90-day stay. The prosecutor stated,
“It—torture murder, kidnap, special circumstance, LWOP[]. There were CALJICs given
that required intent to kill.” The court said it was inclined to summarily deny the
petition; defense counsel objected. The court denied the petition.
Defendant appealed. We affirmed holding that an error in the instructions on the
torture-murder allegation was harmless because the evidence clearly showed defendant
acted with intent to kill.
II. DISCUSSION
Defendant argues the court erred in denying her petition, and the matter should be
remanded for an OSC hearing. The People agree. We remand the matter for a new prima
facie hearing.
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of”
theories under which malice is imputed to a person based on that person’s participation in
a crime “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
4
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
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
5
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.’” (Lewis, supra,
11 Cal.5th at p. 971.) “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.)
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
6
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.)
“[E]ffective January 1, 2022, the Legislature limited use of prior appellate
opinions, allowing trial judges to ‘consider the procedural history of the case recited.’
[Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should
not rely on the factual summaries contained in prior appellate decisions when a [former]
section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing.” (People
v. Clements (2022) 75 Cal.App.5th 276, 292; accord People v. Flores (2022)
76 Cal.App.5th 974, 988 [“[T]he factual summary in an appellate opinion is not evidence
that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for
resentencing.”].)
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.) Thus, the finding did not, alone, render defendant per
se ineligible for relief. Therefore, the court below erred in denying defendant’s petition
on that basis.
7
However, we also determined, in reliance on this court’s prior opinion, that any
error was harmless because the evidence was sufficient to support a finding that
defendant acted with intent to kill. Thus, we effectively reduced the evidentiary burden
to the sufficiency of the evidence, from beyond a reasonable doubt, and erroneously
relied exclusively upon the facts contained in this court’s prior opinion. Therefore, the
matter must be remanded for a new prima facie hearing. If the court finds defendant has
made a prima facie showing, the court shall issue an OSC and schedule an evidentiary
hearing prior to making any factual findings.
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 pre-Banks and Clark felony-murder special-circumstance finding 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 based on the record of conviction without conducting the required prima facie analysis.
Issues
Whether a pre-Banks and Clark felony-murder special-circumstance finding renders a defendant ineligible for section 1172.6 relief as a matter of law.
Whether the trial court erred in summarily denying the resentencing petition without issuing an order to show cause.
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 finding did not, alone, render defendant per se ineligible for relief. Therefore, the court below erred in denying defendant’s petition on that basis.”