Opinion
D082717
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. THOMAS DARTHART, Defendant and Appellant.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Robert A. Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Junichi P. Semitsu, Seth M. Friedman, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County, Super. Ct. No. FBA009502, Steven A. Mapes, Judge.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert A. Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Junichi P. Semitsu, Seth M. Friedman, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
O'ROURKE, J.
Thomas Darthart appeals an order denying his petition for resentencing under former Penal Code section 1170.95 (now section 1172.6) based on changes to the felony murder rule and the natural and probable consequences doctrine (Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019) (Senate Bill 1437)). He contends the trial court erroneously denied his petition at the prima facie stage because the record, especially the jury instructions, did not establish that he was ineligible for resentencing relief as a matter of law. The People concede the error. We accept the People's concession, reverse the order, and remand with directions as set forth below.
Undesignated statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (See Stats. 2022, ch. 58, § 10 (Assem. Bill No. 200).) We refer to the statute throughout as section 1172.6.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, Darthart and his girlfriend, Moy Ellis, tortured and abused T.F., Darthart's three-year-old son with a different woman, over a course of days. The toddler was deceased for hours before Darthart contacted paramedics. When paramedics arrived, Darthart told them T.F. was still breathing. However, the paramedics noticed T.F. was injured, lacked a pulse, showed signs of lividity, and had no heart rhythm; therefore, they pronounced him dead.
Darthart and Ellis were tried jointly for murder (§ 187, subd. (a), count 1); assault on a child causing death (§ 273ab, count 2); torture (§ 206, count 3); and child abuse (§ 273a, subd. (a), count 4). The prosecution tried the case under the theory that Darthart and Ellis committed first degree murder by felony murder torture. The court instructed the jury on torture felony murder (CALCRIM Nos. 540A and 540B), general principles of aiding and abetting (CALCRIM Nos. 400 and 401), the natural and probable consequences doctrine (CALCRIM No. 402), felony murder accomplice special circumstances (CALCRIM No. 703), and murder with torture special circumstances (CALCRIM No. 733). The court also provided the jury with a special instruction that direct perpetrators and aiders and abettors are equally guilty, and the jurors need not unanimously agree whether a defendant is one or the other (titled "Special Instruction #1").
In December 2023, we granted Darthart's request for judicial notice of the complete jury instructions and verdict forms in People v. Darthart et al., case No. D057950. (See Evid. Code, §§ 452, 459.)
The jury convicted Darthart on all four counts. It also found true allegations of torture-murder special circumstance (§ 190.2, subd. (a)(18)) and, with regard to the child abuse conviction, that defendants willfully caused and permitted the infliction of injury and harm resulting in death (§ 12022.95).
The court sentenced Darthart to life without the possibility of parole on the murder count and stayed the sentence on the other counts under section 654. On direct appeal, we affirmed the judgment. (People v. Darthart et al. (Feb. 28, 2012, D057950) [nonpub. opn.].)
In March 2022, Darthart filed a petition to vacate his murder conviction and for resentencing under section 1172.6. The People opposed. The court appointed counsel for Darthart, and his counsel filed a brief in support of his petition. After considering the parties' briefing, the court determined Darthart was not entitled to relief because of the felony murder special circumstance true finding and the allegations that were sustained by the jury. It therefore concluded Darthart failed to state a prima facie case for relief and denied the petition.
Darthart timely appealed.
DISCUSSION
After our 2012 opinion in the underlying case, the California Supreme Court decided People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), in which the court set out guidance on factors that must be considered by a jury in a felony-murder special-circumstance case. Banks identified the relevant considerations in determining as to whether a defendant was a major participant in the underlying felony. (People v. Strong (2022) 13 Cal.5th 698, 705, 721 (Strong); see Banks, at pp. 797-804.) Thereafter, in Clark, the court clarified the relevant considerations for determining whether a defendant acted with reckless indifference to human life. (Strong, at pp. 707, 721; see Clark, at pp. 611-623.)
The Legislature approved Senate Bill 1437, which went into effect January 1, 2019. (People v. Flores (2022) 76 Cal.App.5th 974, 984.) Senate Bill 1437 amended section 189 to limit liability under a felony-murder theory. (Strong, supra, 13 Cal.5th at p. 708.) Under the amended statute, "[d]efendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life.'" (Ibid.)
Senate Bill 1437 also eliminated liability for murder under the natural and probable consequences doctrine by amending section 188. (People v. Curiel (2023) 15 Cal.5th 433, 449, 462 (Curiel).) Amended section 188 provides that when the felony-murder rule does not apply, a principal in the crime of murder can only be convicted if he or she acted "with malice aforethought," and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); Curiel, at p. 449.)
Further, Senate Bill 1437 created a procedural mechanism in section 1172.6 for those convicted under the former law to petition the trial court for retroactive relief under the amended law. (§ 1172.6, subd. (a); Strong, supra, 13 Cal.5th at p. 708.) A defendant starts the process by filing a petition containing a declaration that he or she meets all requirements for eligibility, including that he or she could not presently be convicted of murder or attempted murder because of the changes to section 188 or 189. (§ 1172.6, subds. (a) &(b); Strong, at p. 708.) When the trial court receives a petition with the necessary information, it must determine whether the defendant has made a prima facie case for relief. (§ 1172.6, subd. (c); Strong, at p. 709.) If a defendant makes such a showing, then the court shall issue an order to show cause and hold an evidentiary hearing within 60 days of that order. (§ 1172.6, subds. (c) &(d); Strong, at p. 709.) If, instead, "the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, at p. 708.)
In Strong, supra, 13 Cal.5th 698, the California Supreme Court held that given the clarifications in the law, jury special circumstance findings issued before Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 "do not preclude [a defendant] from making out a prima facie case for resentencing under section 1172.6." (Strong, at p. 721.) This is because a jury special circumstance finding that predates these seminal cases "does not establish that the petitioner is in a class of defendants who would still be viewed as liable for murder under the current understanding of the major participant and reckless indifference requirements." (Strong, at pp. 717-718.) Accordingly, such a finding does not warrant summary denial of a section 1172.6 petition. (See id. at p. 720.) Rather, the matter must proceed to an evidentiary hearing. (See ibid.)
"We independently review a trial court's determination on whether a petitioner has made a prima facie showing." (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
Here, the court instructed the jury with general principles of aiding and abetting and the natural and probable consequences doctrine. Under these instructions, the jury was not required to determine Darthart was the actual perpetrator to find him guilty of murder. Instead, the jury could find Darthart guilty of murder if it found he was guilty of torture as an aider and abettor, and the murder was a natural and probable consequence of the torture. Because the Legislature eliminated liability for murder under the natural and probable consequences doctrine, Darthart could not now be found guilty under that theory. (See Curiel, supra, 15 Cal.5th at p. 462.) Yet, that was the theory the court expressly provided, and there is no way to know if that was the theory the jury accepted.
In addition, the court provided the jury with a felony murder accomplice special circumstances instruction that did not require the jury to find an intent to kill. Rather, the instruction allowed the jury to find this special circumstance true if it found Darthart was a major participant in the crime and acted with reckless indifference to human life. Any major participant or reckless indifference finding predated Banks and Clark. As Darthart contends, and the People properly concede, under Strong, a true finding on a felony-murder special-circumstance allegation that predates Banks and Clark does not categorically render Darthart ineligible for resentencing under section 1172.6. (Strong, supra, 13 Cal.5th at p. 721.)
We therefore vacate the court's order and remand the matter for further proceedings. We express no opinion on whether Darthart is entitled to relief.
DISPOSITION
The order is reversed, and the matter is remanded with directions to issue an order to show cause under section 1172.6, subdivision (c), and to hold a hearing on Darthart's petition for resentencing under subdivision (d) of that section.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.