Opinion
E079324
12-07-2023
THE PEOPLE, Plaintiff and Respondent, v. KEVIN COX, Defendant and Appellant.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann and Christine Y. Friedman, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. SWF026784. John D. Molloy, Judge. Reversed.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann and Christine Y. Friedman, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant Kevin Cox appeals from the trial court's order denying his petition for resentencing under Penal Code section 1170.95 (now section 1172.6 ). For the reasons set forth post, we reverse the court's order and remand the case for further proceedings.
All further statutory references are to the Penal Code unless otherwise indicated.
While this appeal was pending, the Legislature amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 in this opinion, even though 1170.95 was the operative designation at the time of the underlying proceedings.
FACTUAL AND PROCEDURAL HISTORY
The factual and procedural history in this appeal refers to this court's unpublished opinions in People v. Cox (Sept. 14, 2015, E059481) [nonpub. opn.] (Cox I), and People v. Cox (Nov. 25, 2019, E072528) [nonpub. opn.] (Cox II).
A. PROCEDURAL HISTORY
On June 5, 2013, "[a] jury found defendant [] guilty of two counts of premeditated and deliberate murder. (Pen. Code, § 187, subd. (a), counts 1 &2.) As to both counts, the jury found true the special circumstances allegations that, in this proceeding, defendant was convicted of multiple murders (§ 190.2, subd. (a)(3)), and the murders were committed while he was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and a burglary (§ 190.2, subd. (a)(17)(G)). The jury chose not to impose the death penalty and set the penalty at life without the possibility of parole. A trial court therefore sentenced defendant to life without the possibility of parole." (Cox II, supra, *1, fns. omitted.)
After defendant appealed, this court affirmed the judgment in an unpublished opinion on September 14, 2015. (Cox I, supra, *66.)
"On January 2, 2019, defendant filed a petition for resentencing, pursuant to section [1172.6], alleging that he could not now be convicted of first degree murder because of changes made to section 189, effective January 1, 2019. The court summarily denied the petition because the jury found the special circumstances allegations true and specifically found that defendant acted with the intent to kill. Thus, he was not eligible for relief under section [1172.6.]" (Cox II, *1-*2.)
After defendant appealed the denial of his petition, on November 25, 2019, this court affirmed the denial of the section 1172.6 petition. (CoxII, supra, *3.)
On April 5, 2022, defendant filed another section 1172.6 petition for resentencing. The trial court summarily denied the petition on June 3, 2022. Thereafter, defendant filed his timely notice of appeal on July 6, 2022.
B. FACTUAL HISTORY
"In October 2008, defendant . . . and three of his fellow United States Marines, Tyrone Miller, Emrys John and Kesaun Sykes, went to a home belonging to United States Marine Corps Sergeant Janek Pietrzak and his wife, Quiana Jenkins-Pietrzak. Janek and Quiana were both tied up with duct tape. Quiana's clothes were removed and she was sexually assaulted with a vibrator. Janek was beaten. They were then shot in the head several times. Defendant and his cohorts stole jewelry and other items from the home. They attempted to set the entire house on fire but were unsuccessful. [¶] Defendant was found guilty of the first degree murders of Janek and Quiana, and several circumstances. Defendant received a sentence of life without the possibility of parole." (Cox I, supra, *2, fns. omitted.)
DISCUSSION
A. THE TRIAL COURT ERRED IN SUMMARILY DENYING DEFENDANT'S SECTION 1172.6 PETITION
On appeal, defendant contends that "the petition should not have been summarily denied based on the 2013 felony murder special circumstances findings." The People, in their respondent's brief, agree with defendant. For the reasons set forth post, we reverse the trial court's denial of defendant's petition and remand the matter for the trial court to issue an order to show cause and hold an evidentiary hearing.
1. LEGAL BACKGROUND
"Effective January 1, 2019, the Legislature restricted the scope of the felony murder rule. (Stats. 2018, ch. 1015, § 3.) Specifically, it amended section 189, concerning the degrees of murder, so as to provide that the felony murder rule (§ 189, subd. (a)) applies to a person only if:
'(1) The person was the actual killer.
'(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
'(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life.'" (People v. Vance (2023) 94 Cal.App.5th 706, 711712, fn. omitted (Vance).)
"At the same time, the Legislature also enacted section 1172. (Stats. 2018, ch. 1015, § 4), which provides: 'A person convicted of felony murder . . . may file a petition . . . to have the petitioner's murder . . . conviction vacated' if '[t]he petitioner could not presently be convicted of murder' as a result of the amendment of section 189.)" (Vance, supra, 94 Cal.App.5th at p. 712.)
"If a petition under section 1172.6 is facially sufficient, the trial court must hold a hearing to determine whether the petition states a prima facie claim for relief." (Vance, supra, 94 Cal.App.5th at p. 712.) "If the petition does state a prima facie claim for relief, the trial court must hold an evidentiary hearing. At the evidentiary hearing, the prosecution has the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder even under current law. [Citation.] If the prosecution fails to meet this burden, the trial court must grant the petition and vacate the murder conviction." (Ibid.)
When a trial court denies a section 1172.6" 'petition at the first stage of prima facie review,'" the denial" 'is appropriate only if the record of conviction demonstrates that "the petitioner is ineligible for relief as a matter of law." [Citations.] This is a purely legal conclusion, which we review de novo.'" (People v. Evrin (2021) 72 Cal.App.5th 90, 101.)
2. DEFENDANT MADE A PRIMA FACIE SHOWING
In defendant's section 1172.6 petition, he argued that he was convicted of first degree murder under the felony-murder rule, and that he could not now be convicted of first degree felony murder under amended section 189 because he was not the actual killer, he did not aid and abet the actual killer, with an intent to kill; and he "was not a major participant in the felony of act with reckless indifference to human life." The People agree and state that "[n]othing in the record of conviction conclusively refutes [defendant's] allegations."
At the trial in 2013, the jury was instructed that defendant was being prosecuted for first degree murder under two theories-deliberate and premeditated murder and the felony-murder rule. Additionally, the jury was instructed on aiding and abetting, and uncharged conspiracy. Moreover, the felony-murder jury instruction stated that a "person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent." (Italics added.) Also, the jury was instructed that the individual jurors did not need to agree on the same theory to find defendant guilty of murder. The prosecutor's theory of the case was that codefendant Emrys John was the actual killer who pulled the trigger, not defendant nor the other codefendants.
The jury's guilty verdicts in counts 1 and 2, first degree murder, failed to specify under which theory the verdicts were based.
At the hearing on defendant's petition on June 3, 2022, the trial court denied defendant's petition. The court stated: "At this time, it is denied with prejudice. The defendant was not only found guilty of . . . Counts 1 and 2, but the special circumstances were also found true, and those special circumstances would require either a finding of specific intent or that he was a substantial participant acting with a reckless disregard for the safety or the lives of others. So it is denied." Hence, the trial court relied on the jury's felony-murder special circumstances findings to deny defendant's section 1172.6 petition.
However, two months after the trial court's order, on August 8, 2022, the California Supreme Court decided People v. Strong (2022) 13 Cal.5th 698. In Strong, the court held that true findings on felony-murder special circumstances made before its decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.5th 522 do not preclude a petitioner from making a prima facie showing of eligibility under section 1172.6. (Strong, at p. 703.)
In this case, it is undisputed that the felony-murder special circumstance true findings were made prior to both Banks and Clark. Therefore, defendant is not precluded from making a prima facie showing because of the findings made by the jury in 2013.
Based on the above, the trial court erred in denying defendant's petition.
DISPOSITION
The order denying defendant's petition is reversed. The matter is remanded for further proceedings pursuant to section 1172.6, subdivisions (c) and (d).
We concur: RAMIREZ P. J. McKINSTER J.