People v. Polk CA6

Filed 3/8/23 P. v. Polk CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047953, H048089 (Monterey County Plaintiff and Respondent, Super. Ct. No. CR16712)

v.

LESTER LAMOUNT POLK,

Defendant and Appellant.

Defendant Lester Lamount Polk appeals from a 2019 trial court order denying a petition to vacate his 1993 murder conviction and be resentenced under former Penal Code section 1170.95 (hereafter petition).1 In this appeal, Polk contends that the trial court erred in denying his petition at the prima facie stage without issuing an order to show cause. The Attorney General agrees with Polk that this matter should be remanded for the issuance of an order to show cause.

1 Unspecified statutory references are to the Penal Code. Effective January 1, 2022, the Legislature amended section 1170.95 in several respects. (See Stats. 2021, ch. 551, §§ 1, 2; see also People v. Birdsall (2022) 77 Cal.App.5th 859, 865.) The Legislature later renumbered section 1170.95 as section 1172.6, with no change to the text of the statute (Stats. 2022, ch. 58, § 10, eff. June 30, 2022). In this opinion we refer to the current version of any relevant provisions now codified in section 1172.6.

For the reasons explained below, we reverse the trial court’s order and remand with directions to issue an order to show cause and conduct further proceedings under section 1172.6. I. FACTS AND PROCEDURAL BACKGROUND2 In mid-June of 1991, Polk and three men (Patrick Richardson, Eugene Ballance, and John Drayton) assembled to commit a robbery. Polk, Richardson, and Drayton were armed. The four men entered the home of Cheryl and Jim Ward and their teenage daughter, R. A violent incident ensued. “Both [Polk] and Richardson repeatedly demanded money and threatened to kill Mr. Ward if the Wards did not disclose the location of their safe. Every time Mr. Ward answered a question, Richardson hit him in the face with a handgun. The Wards did not have a safe.” (Polk, supra, H011133, at p. 2.) Polk told R. to take off her clothes. He grabbed her breast and put a shotgun in her mouth. He said he was going to blow her head off and wanted to know where the safe was. He also “stuck the shotgun in R.’s vagina.” (Polk, at p. 3.) After the men found an envelope containing a large amount of cash, Polk “screamed at Mr. Ward ‘you are a fucking liar.’ He said ‘We’re going to fuck your wife and daughter and we’re going to make you watch.’ [Polk] turned back toward R. and Mr. Ward tried to stand up. Within five to ten seconds of one another, two shots were fired. A struggle ensued with Richardson, [Polk,] and Mr. Ward during which [Polk]’s shotgun discharged. Polk moved to the bathroom area and fell down. Richardson continued to struggle with Mr. Ward and the pistol fired. The bullet struck Mr. Ward in the back, severing his spinal cord. He bled to death within a few minutes.” (Polk, supra, 2 The appellate record includes a copy of this court’s opinion in Polk’s direct appeal from his 1993 conviction (People v. Polk (July 26, 1994, H011133) [nonpub. opn.] (Polk).) We rely on that opinion, as well as documents from the underlying prosecution that are included in the appellate record, when stating the facts and procedural background of this case. Although the appellate record includes the reporter’s transcript from Polk’s preliminary hearing, the record does not contain any reporter’s transcript from Polk’s subsequent trial. 2