Opinion
B296181
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. NORMAN LOUIS CONDIFF, Defendant and Appellant.
Mark S. Givens, 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, Assistant Attorney General, Amanda Lopez and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA051505) APPEAL from an order of the Superior Court of Los Angeles County. Teri Schwartz, Judge. Affirmed. Mark S. Givens, 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, Assistant Attorney General, Amanda Lopez and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2005, Norman Louis Condiff was convicted of first degree murder, attempted murder, and other crimes committed to dissuade a witness from testifying against him in court. In 2019, Condiff filed a petition pursuant to Senate Bill No. 1437, which amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, § 1(f).) A petitioner may seek to have his murder conviction vacated and be resentenced on any remaining counts under Penal Code section 1170.95, if he had been convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine. The trial court summarily denied Condiff's petition.
All further statutory citations refer to the Penal Code unless otherwise specified.
On appeal, Condiff asserts the trial court erred in denying his petition without first appointing counsel or giving the parties the opportunity to file briefing on the petition as required by section 1170.95. We are persuaded by three recently published opinions—People v. Lewis (2020) 43 Cal.App.5th 1128 (Lewis), People v. Cornelius (2020) 44 Cal.App.5th 54 (Cornelius), and People v. Verdugo (2020) 44 Cal.App.5th 320 (Verdugo)—that Condiff's arguments lack merit. Each of these cases affirmed summary denial of a section 1170.95 petition without the appointment of counsel where, as here, the record clearly indicated the petitioner was ineligible for relief as a matter of law. We also determine the Sixth Amendment and due process concerns do not require the appointment of counsel at this early stage of the petition. We affirm the order denying relief.
PROCEDURAL BACKGROUND
The facts of the underlying crime are taken from our unpublished opinion, People v. Condiff (Aug. 28, 2007, B186654) [nonpub. opn.].
Condiff, Tyrone Baker, and Robert Fielder were members of Blood-affiliated street gangs. Condiff had been arrested for selling marijuana to Jessica R. and faced a 25-years-to-life sentence due to his prior strikes. He believed she had "snitched" on him and sought to either dissuade her from testifying against him in court or kill her to prevent her from doing so.
On November 12, 2002, Condiff and Baker knocked on the door of Jessica's apartment, asked if Jessica was home, and identified themselves as Jessica's friends in order to conceal their true motive to kill Jessica. When her uncle said she was not home, they announced their intent to return and left.
Condiff needed to get to Jessica that night, because his preliminary hearing was the next day. He decided to modify his ruse to lure Jessica out into the open by staying behind in the car while Fielder, Jessica's friend, went with Baker to her apartment. He formed a backup plan to kill one or more of Jessica's relatives if Jessica was not there. To effectuate his plan, Condiff instructed Baker to make sure Fielder had a gun. Baker retrieved guns from the backseat, pulled Fielder out of the car, and gave him a gun. Baker and Fielder came upon Jessica's uncle sitting in the apartment patio area. When the uncle again said Jessica was not home, the two pulled out concealed guns, and Baker shot the uncle. The grandmother came outside, and the two dragged her to the carport area where Fielder shot her.
Condiff was convicted by a jury of first degree murder (§ 187, subd. (a); count 1); willful, deliberate and premeditated attempted murder (§§ 187, subd. (a), 664; count 2); conspiracy to commit murder (§ 182, subd. (a)(1); count 3); dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 4); and conspiracy to dissuade a witness by force or threat (§ 136.1, subd. (c)(2); count 5). As to count 1, the jury found true the special circumstance allegation that the murder was committed while lying in wait (§ 190.2, subd. (a)(15)) and in furtherance of criminal street gang activities (§ 190.2, subd. (a)(22)). As to all counts, the jury found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that during their commission a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (d) & (e)(1)). The trial court found Condiff had suffered two strikes under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Condiff was sentenced to life without the possibility of parole (LWOP) for count 1, which was tripled under the Three Strikes law, plus 25 years for the firearm enhancement. As to count 2, the trial court imposed a sentence of 25 years to life as a third strike, plus 25 years to life for the firearm enhancement. As to counts 3 through 5, the trial court imposed the same sentence as count 2, but ordered the sentence on count 4 to run concurrently with count 1 and stayed the sentences on counts 3 and 5 under section 654.
On appeal, Condiff conceded his first degree murder conviction could be sustained based on the evidence of premeditation and deliberation. However, he argued there was insufficient evidence to support the lying-in-wait and gang special circumstance findings. He also argued the trial court committed reversible error by failing sua sponte to instruct on implied malice second degree murder, a lesser included offense. Finally, he argued the trial court committed sentencing errors and erred in imposing a parole revocation fine along with other fines and fees. We modified the sentence by striking two of the LWOP penalties and the parole revocation fine, but otherwise affirmed the judgment.
Six days after it became effective on January 1, 2019, Condiff filed a petition for resentencing under section 1170.95. In his petition, Condiff asserted he was entitled to relief because he was convicted of first degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine, neither of which could serve as a basis for a murder conviction under the new law.
The trial court summarily denied his petition without prejudice on January 18, 2019, finding Condiff failed to show entitlement to relief as a matter of law because his murder conviction was not based on the felony murder rule or the natural and probable consequences doctrine. Instead, "[t]he record reflects the jury found petitioner aided and abetted the murder of the victim in count 1 of the information, with the intent to kill." Among other things, the jury found Condiff had the intent to kill when it found true the lying-in-wait special circumstance. The jury separately found overt acts demonstrating an intent to kill when it found Condiff guilty of conspiracy to commit murder. The trial court additionally relied on our unpublished opinion in which we noted that Condiff conceded his first degree murder conviction could be sustained based on evidence of premeditation and deliberation. We further found substantial evidence to support the gang and lying-in-wait special circumstances, both requiring an intent to kill.
Condiff timely appealed.
DISCUSSION
I. Senate Bill No. 1437
The Legislature passed Senate Bill No. 1437 in 2018 to "amend the felony murder rule and the natural and probable consequences doctrine, . . . 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." (Stats. 2018, ch. 1015, § 1(f).) Senate Bill No. 1437 amended section 188 to require that a principal "shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." Section 189 was also amended to limit liability for felony murder if (1) the "person was the actual killer"; (2) the person was an aider or abettor in the commission of murder in the first degree; or (3) the "person was a major participant in the underlying felony and acted with reckless indifference to human life." (§§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)
Senate Bill No. 1437 added section 1170.95, which sets forth the procedure by which a "person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . ." (§ 1170.95, subd. (a).) To file the petition, all three of the following conditions must be met: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial . . . [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection 188 or 189." (Id., subd. (a)(1)-(3).) The petition shall include a declaration stating that "he or she is eligible for relief under this section" based on the three requirements of subdivision (a). (§ 1170.95, subd. (b)(1)(A).)
If the petition contains all of the required information, section 1170.95, subdivision (c), discussed more fully below, describes the procedure by which the court may determine whether a petitioner has made a prima facie case for relief and issue an order to show cause. Once an order to show cause is issued, a hearing is held to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).)
II. Section 1170.95 Provides For Summary Denial
Condiff asserts the trial court erred when it summarily denied his petition without appointing counsel or allowing the parties to brief the matter, as required under section 1170.95. We disagree.
"When we interpret statutes, giving effect to legislative purpose is the touchstone of our mission." (People v. Valencia (2017) 3 Cal.5th 347, 409.) We must take "the language . . . as it was passed into law, and [we] must, if possible without doing violence to the language and spirit of the law, interpret it so as to harmonize and give effect to all its provisions." (People v. Garcia (1999) 21 Cal.4th 1, 14.)
Section 1170.95, subdivision (c), states: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
Condiff reads section 1170.95, subdivision (c), to set forth only one prima facie determination, which occurs after appointment of counsel and briefing by the parties. Condiff concedes there is a "pro forma preliminary step" to ascertain the petition is facially sufficient under subdivision (b). "However, this is merely a cursory review to see that all of the required information is present in the petition, not a determination of whether a prima facie case has been made or an evaluation of the merits of the petition."
The People contend section 1170.95, subdivision (c), expressly requires two prima facie determinations, taking into account the references to it in the first and last sentences. The People argue Condiff's interpretation would render the first sentence of subdivision (c) superfluous. Thus, the People contend an initial prima facie review decides whether the petitioner falls within the provisions of section 1170.95, which includes a determination of whether the petitioner is ineligible for relief as a matter of law. This occurs before appointment of counsel and briefing. A second prima facie determination occurs after appointment of counsel and briefing.
Verdugo, supra, 44 Cal.App.5th at page 320, Lewis, supra, 43 Cal.App.5th at page 1128, and Cornelius, supra, 44 Cal.App.5th at page 54 read section 1170.95, subdivision (c) as the People do. We are persuaded by these cases and adopt their reasoning.
In Verdugo, the appellant, like Condiff, claimed the trial court's role in conducting the initial review of the petition is simply to determine whether the petition is facially sufficient. The Verdugo court noted section 1170.95, subdivision (c), expressly contains two prima facie determinations, a prebriefing one and a postbriefing one. It concluded the initial prebriefing prima facie review involves something more than determining whether the petition is facially sufficient, however. (Verdugo, supra, 44 Cal.App.5th at p. 329.) Rather, "[t]he court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Ibid.)
In making this determination, the trial court is not limited to the four corners of the petition. The Verdugo court observed, "Although subdivision (c) does not define the process by which the court is to make this threshold determination, subdivisions (a) and (b) of section 1170.95 provide a clear indication of the Legislature's intent. . . . [S]ubdivision (b)(2) directs the court in considering the facial sufficiency of the petition to access readily ascertainable information. The same material that may be evaluated under subdivision (b)(2)—that is, documents in the court file or otherwise part of the record of conviction that are readily ascertainable—should similarly be available to the court in connection with the first prima facie determination required by subdivision (c)." (Verdugo, supra, 44 Cal.App.5th at p. 329.)
As the trial court did in this case, the trial court in Verdugo found the petitioner was not entitled to relief as a matter of law, and summarily denied the petition because " 'the appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was convicted as a direct aider and abettor, with malice aforethought, and not on a theory of felony murder of any degree or a theory of natural and probable consequences.' " (Verdugo, supra, 44 Cal.App.5th at p. 325.) The Verdugo court held it was proper for the trial court to consider the unpublished opinion affirming the petitioner's convictions to find him ineligible for relief under section 1170.95. (Verdugo, at p. 333.) Lewis and Cornelius likewise affirmed a trial court's summary denial of a section 1170.95 petition without the appointment of counsel and briefing. (Cornelius, supra, 44 Cal.App.5th at p. 58; Lewis, supra, 43 Cal.App.5th at p. 1138.)
We are persuaded by Verdugo, Lewis, and Cornelius to affirm the trial court's summary denial of Condiff's section 1170.95 petition. The record clearly shows Condiff is ineligible for relief as a matter of law because Condiff was not convicted of felony murder or murder under a theory of natural and probable consequences. Instead, the jury found he acted with intent to kill in a direct aider and abettor capacity. The jury found true the lying-in-wait and gang special-circumstance allegations, both of which require intent to kill. (§ 190.2, subd. (a)(15), (22).) Further, Condiff conceded in the previous appeal that his murder conviction could be sustained based on the evidence of premeditation and deliberation. (People v. Jurado (2006) 38 Cal.4th 72, 123 [premeditated and deliberated murder necessarily included finding defendant had specific intent to kill].) He does not now repudiate that concession.
We are not convinced by Condiff's assertion that other parts of the record which are not currently before this court, such as the jury instructions or closing arguments, may indicate the prosecution argued felony murder or murder under a theory of natural and probable consequences to the jury. Even if the jury was so instructed, those instructions do not override its true findings as to the enhancement allegations that require intent to kill. Based on this record, Condiff was ineligible for relief under section 1170.95 as a matter of law and the trial court did not err by summarily denying his petition.
III. Condiff Was Not Entitled to Appointment of Counsel at the Initial Prima Facie Determination
We also rely on the correct analysis in Verdugo, Lewis, and Cornelius to reject Condiff's argument he was entitled to the appointment of counsel under section 1170.95 at the initial prima facie determination. All three courts held subdivision (c) of section 1170.95 does not require appointment of counsel prior to the trial court's initial prima facie review. (Verdugo, supra, 44 Cal.App.5th at p. 332; Lewis, supra, 43 Cal.App.5th at p. 1140; Cornelius, supra, 44 Cal.App.5th at p. 58.) The Lewis court explained, " 'It would be a gross misuse of judicial resources to require the issuance of an order to show cause or even appointment of counsel based solely on the allegations of the petition, which frequently are erroneous, when even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief. For example, if the petition contains sufficient summary allegations that would entitle the petitioner to relief, but a review of the court file shows the petitioner was convicted of murder without instruction or argument based on the felony murder rule or [the natural and probable consequences doctrine], . . . it would be entirely appropriate to summarily deny the petition based on petitioner's failure to establish even a prima facie basis of eligibility for resentencing.' " (Lewis, supra, at p. 1138, quoting Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2019) ¶ 23:51(H)(1), pp. 23-150 to 23-151.)
Neither are we persuaded by Condiff's argument that the Sixth Amendment required the appointment of counsel at this stage of the proceedings. In Dillon v. U.S. (2010) 560 U.S. 817 (Dillon), the high court held the Sixth Amendment was not implicated when an incarcerated defendant moved for a sentence modification pursuant to amendments to the federal statutory sentencing guidelines. The court concluded that a statutory motion requesting a reduction in sentence based on intervening amendments to the federal sentencing guidelines did "not authorize a sentencing or resentencing proceeding. Instead, it provides for the 'modif[ication of] a term of imprisonment' by giving courts the power to 'reduce' an otherwise final sentence in circumstances specified by the [Sentencing] Commission." (Id. at p. 825.) A district court, in ruling on such a motion, "does not impose a new sentence in the usual sense." (Id. at p. 827.) The court explained, "We are aware of no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent [Sentencing] Guidelines amendments. Rather, § 3582(c)(2) represents a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines. [¶] Viewed that way, proceedings under § 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt." (Id. at pp. 828-829.)
Adopting Dillon's reasoning, the court in People v. Anthony (2019) 32 Cal.App.5th 1102 (Anthony), determined petitioners under Senate Bill No. 1437 were not entitled to a jury trial, explaining, "the retroactive relief they are afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis. Rather, the Legislature's changes constituted an act of lenity that does not implicate defendants' Sixth Amendment rights." (Anthony, at pp 1156-1157.) California courts have similarly relied on Dillon to find Sixth Amendment protections are not implicated when petitioners seek sentence modifications under Proposition 36 and Proposition 47. (People v. Perez (2018) 4 Cal.5th 1055, 1063-1064 [retroactive application of the benefits from Prop. 36 are a legislative act of lenity that does not implicate Sixth Amendment rights]; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304 [same]; People v. Bradford (2014) 227 Cal.App.4th 1322, 1336 [same]; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 451-452 [no Sixth Amendment right to jury trial to establish eligibility for resentencing under Prop. 47].)
"Proposition 36 . . . effected a change in the sentencing law [of California] so that a defendant convicted of a nonviolent drug possession offense is generally sentenced to probation, instead of state prison or county jail, with the condition of completion of a drug treatment program." (In re DeLong (2001) 93 Cal.App.4th 562, 566.)
Proposition 47 reclassified certain drug and theftrelated offenses that were felonies or "wobblers" as misdemeanors, and provided a resentencing process for individuals who would have been entitled to lesser punishment if their offenses had been committed after its enactment. (People v. Rouse (2016) 245 Cal.App.4th 292, 294 (Rouse).)
Though Dillon, Anthony, and the cases cited above do not specifically address the right to counsel, the Sixth Amendment analysis found in these cases nevertheless informs our decision. We are persuaded that if section 1170.95 petitioners do not enjoy a Sixth Amendment right to a jury trial under Anthony, then they also have no Sixth Amendment right to counsel either.
This conclusion comports with the rule that a defendant's "right to appointed counsel extends to the first appeal of right, and no further[,]" including postconviction collateral attacks. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555.) Federal courts have consistently ruled that an incarcerated defendant has no constitutional right to counsel with respect to statutory postconviction motions seeking a reduction in sentence. (See, e.g., U.S. v. Webb (11th Cir. 2009) 565 F.3d 789, 794-795 [motion pursuant to 18 U.S.C. § 3582 seeking reduction in sentence based on post-sentencing amendments to federal sentencing guidelines]; U.S. v. Reddick (2d Cir. 1995) 53 F.3d 462, 465 [same]; U.S. v. Taylor (4th Cir. 2005) 414 F.3d 528, 530 [motion to reduce a final sentence pursuant to Fed. Rules Crim. Proc., rule 35(b)]; U.S. v. Palomo (5th Cir. 1996) 80 F.3d 138, 142-143 [same].)
Condiff argues the initial prima facie determination under section 1170.95, subdivision (c), is a "critical stage in the criminal process" such that he has a constitutional right to counsel, relying on our opinion in Rouse, supra, 245 Cal.App.4th at p. 297. Rouse addressed whether a petitioner is entitled to counsel at resentencing after a determination of eligibility has already been made. It distinguishes itself from cases, like this one, where eligibility has not yet been determined.
In Rouse, the trial court found the petitioner was entitled to resentencing under Proposition 47. After making that determination, the court vacated the petitioner's original sentence in its entirety and resentenced him, including on the non-Proposition 47 counts. The Rouse court determined this was a "critical stage" of a criminal prosecution to which the Sixth Amendment right to counsel attaches because the petitioner's entire sentencing package would be restructured and the trial court would exercise its sentencing discretion, despite the requirement no additional punishment may be imposed. (Rouse, supra, 245 Cal.App.4th at p. 300.) Thus, it was akin to a plenary sentencing hearing at which the petitioner's substantial rights were in jeopardy without the assistance of counsel. (Id. at p. 298.)
The court explained, "A defendant is entitled under state and federal law to the assistance of counsel when a sentence is vacated on appeal and remanded for a new sentencing hearing. ' " '[W]hen a criminal sentence is vacated because one of the convictions has been reversed, it becomes void in its entirety; the sentence—including any enhancements—has 'been wholly nullified and the slate wiped clean.' " [Citation.] Consequently, when a sentence is vacated and remanded for re-sentencing, the district court has the discretion to "reconstruct the sentence." [Citation.] . . . Therefore, [the defendant's] presence and his counsel's presence [are] a necessity, not a "luxury." [Citation.]' " (Rouse, supra, 245 Cal.App.4th at p. 297.)
In reaching this conclusion, Rouse was careful to distinguish its procedural posture from other Proposition 47 cases which found the Sixth Amendment right to a jury did not attach. Rouse cautioned, "Whether the right to counsel attaches at an earlier stage of the petition, including the eligibility phase, was not before us and we therefore express no opinion on that issue." (Rouse, supra, 245 Cal.App.4th at p. 301.) We conclude the initial prima facie determination under section 1170.95, subdivision (c), is not a critical stage of a criminal prosecution. Instead, Dillon and its progeny support a conclusion that the Sixth Amendment right to counsel is not implicated at this initial stage.
We also reject Condiff's assertion that due process requires the appointment of counsel at the initial prima facie determination. Condiff cites several cases to argue procedural due process requires an incarcerated defendant be afforded the right to counsel in certain circumstances where the Sixth Amendment does not apply. Each of those cases is distinguishable by its procedural posture. (Rouse, supra, 245 Cal.App.4th 292 [distinguished above], Martinez v. Court of Appeal of California (2000) 528 U.S. 152, 155 [direct appeal]; People v. Scott (1998) 64 Cal.App.4th 550, 553 [direct appeal].) Condiff provides no meaningful analysis as to how those authorities apply to his claim. He has thus failed to meet his burden on appeal to demonstrate error. (People v. Smith (2015) 61 Cal.4th 18, 39.) Moreover, as discussed above, section 1170.95, subdivision (c), does not provide for the appointment of counsel at the initial prima facie determination and Condiff did not attain a liberty interest in receiving the assistance of counsel at this early stage. Condiff's substantive due process rights were thus not violated. (See Hewitt v. Helms (1983) 459 U.S. 460, 466.)
DISPOSITION
The order summarily denying the section 1170.95 petition is affirmed.
BIGELOW, P. J. WE CONCUR:
STRATTON, J.
WILEY, J.