Opinion
E081425
04-16-2024
THE PEOPLE, Plaintiff and Respondent, v. CYDRICK DAVIS, Defendant and Appellant.
Aaron J. Schechter under appointment by the Court of Appeal; The Law Offices of Ralph E. Harrison II, and Ralph Harrison II, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. SCR42887, Michael A. Smith, Judge. Affirmed.
Aaron J. Schechter under appointment by the Court of Appeal; The Law Offices of Ralph E. Harrison II, and Ralph Harrison II, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON Acting P. J.
I. INTRODUCTION
Defendant and appellant Cydrick Davis appeals the trial court's order denying his Penal Code section 1172.6 (formerly section 1170.95) petition to recall his first degree murder (§ 187, subd. (a)) conviction and for resentencing. On appeal, defendant contends the trial court erred in failing to hold an evidentiary hearing in accordance with this court's order and section 1172.6, subdivision (d) because no evidence was admitted at that hearing. For the reasons explained, we affirm the trial court's order denying defendant's section 1172.6 petition.
Unless otherwise specified, all future statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10), without substantive changes to the statute's content. We hereafter cite to section 1172.6 for ease of reference.
II. FACTUAL AND PROCEDURAL BACKGROUND
At 1:00 a.m. in April 1985, defendant and another man (codefendant Eric Caldwell) robbed and fatally shot an off-duty San Bernardino County sheriff's deputy. (People v. Davis (May 19, 2022, E077300) [nonpub. opn.] (Davis II).) The San Bernardino County District Attorney charged defendant with first degree murder (§ 187, subd. (a)) and robbery (§ 211). They also alleged defendant participated in both crimes as a principal knowing another principal was armed with a firearm (§ 12022, subd. (a)). (Davis II, supra, E077300.)
We took judicial notice of the records from defendant's second appeal before this court in case No. E077300.
Defendant and his codefendant were tried separately. Defendant's jury found him guilty on both counts and found the firearm allegations true. "The codefendant was tried separately and convicted of personally shooting the deputy." (People v. Davis (Oct. 14, 1988, E003604) [nonpub. opn.] (Davis I).) Defendant was sentenced to a total term of 31 years to life in state prison. This court affirmed the judgment in 1988 in a nonpublished opinion, case No. E003604. (See Davis I, supra, E003604.)
In January 2019, defendant, without the assistance of counsel, filed a petition to recall his murder conviction and for resentencing under then-newly enacted former section 1170.95. After counsel was appointed for defendant, in June 2021, defendant's appointed counsel filed a supplemental petition for resentencing. The prosecution filed an informal response to the petition, then a formal, supplemental opposition. (Davis II, supra, E077300.)
On June 17, 2021, the trial court summarily denied defendant's petition on the ground it failed to state a prima facie case for relief. Defendant subsequently appealed.
On May 19, 2022, in a nonpublished opinion, we found that the trial court erred in summarily denying the petition, and reversed and remanded to the trial court "with instructions to issue an order to show cause and hold an evidentiary hearing under section 1170.95, subdivision (d)." (Davis II, supra, E077300.)
On February 17, 2023, the trial court held a hearing on the remittitur and set a date for an order to show cause (OSC) hearing.
On March 23, 2023, the People filed an opposition to defendant's petition for resentencing under section 1172.6 with supporting exhibits. The opposition noted that a "DVD with Reporter's Transcripts Filed/Lodged Herein" and included a copy of the 1988 nonpublished opinion from defendant's direct appeal. (Davis I, supra, E003604.) The opposition requested the trial court to take judicial notice of the trial transcript and noted "a scanned copy of the transcript in searchable PDF format is attached hereto as Exhibit 3."
In its opposition, the People argued that the record showed defendant was a major participant who acted with reckless indifference to human life during the robbery of the off-duty sheriff's deputy that resulted in murder of that deputy. The People further asserted the evidence showed that defendant and his codefendant "conferred and decided to kill" the deputy after beating the deputy into submission and taking the deputy's wallet and handgun, and thus defendant is guilty under two currently valid theories - either under the felony murder rule or as a direct aider and abettor. The People noted that at defendant's trial "the only material issue was identity" as he claimed he was not involved in the robbery-murder since he was in Las Vegas for his brother's funeral, a defense rejected by the jury. The People further pointed out that at defendant's parole hearing in 2015, defendant admitted that he was struggling with the deputy over the deputy's handgun. The People's opposition further noted all of the witnesses that had testified at defendant's trial and their relevant testimonies.
A transcript of defendant's 2015 parole hearing was also attached to the People's opposition motion. During that hearing, defendant admitted to struggling with the deputy over the deputy's gun and that he and his codefendant had planned to rob the deputy but had not planned to hurt or kill the deputy. Defendant acknowledged that he was aware his codefendant had a gun prior to the robbery and stated that he was convicted of aiding and abetting the murder.
The OSC hearing was held on April 14, 2023. At that time, the court found that defendant had made a prima facie showing for relief. The court noted that it had the compact disc containing the trial transcripts and continued the hearing to review those transcripts.
The continued OSC hearing was held on May 15, 2023. Following extensive argument by defendant's appointed counsel and the prosecutor, the trial court denied the petition. The court found, beyond a reasonable doubt, that defendant was a major participant in the underlying robbery who acted with reckless disregard for human life.
Specifically, the trial court stated "this is the OSC hearing regarding resentencing. [¶] And in that regard, the trial transcripts were provided to the Court. Court has reviewed those transcripts."
The court explained its findings as follows:
"All right. So in looking at this, first of all, with regard to the first prong, whether or not Mr. Davis was a major participant in the robbery, I think the evidence clearly shows he was a major participant in the underlying robbery. As pointed out, he approached the victim's vehicle with [codefendant] Mr. Caldwell. Immediately after Mr. Caldwell confronted the victims with a firearm from the passenger side, Mr. Davis opened the door and confronted the victim from the driver's side, demanding the driver's wallet, while Mr. Caldwell demanded money from Ms. Rodriguez [the passenger]. Clearly, Mr. Davis was a major participant in the robbery.
"The second prong that the People need to establish is that it's clear that Mr. Caldwell was the one with the firearm, and Mr. Caldwell is the one who actually shot the victim. So the burden is on the People to prove that Mr. Davis was acting with, at least, reckless disregard for human life. And the cases make clear that participation in a robbery, even knowing that one of the participants in the robbery was armed with a firearm and intended to utilize the firearm in committing the robbery, without more, is not sufficient to establish that person was acting with reckless disregard to human life, more needs to be shown.
"Some of the examples that can be shown is if this is the person who supplied the gun or said or did anything to encourage the shooting or had knowledge of the violent propensity of the person with the gun so that they would know not only does the person have the gun, but there's a high likelihood that the person would actually use the gun. As pointed out, we don't have any of that in this case.
"So if this were a situation where they approached the vehicle, there's an attempted robbery, there's a struggle, or resistance, and Caldwell shoots the victim without more, I think the cases indicate that that would be insufficient to find that Mr. Davis was acting with reckless disregard to human life. We do have an additional factor here, however. Here, after Mr. Davis confronts . . . the driver, Mr. Sanchez, Mr. Sanchez reaches for a gun -- his gun on the floorboard.
"Mr. Davis then engages Mr. Sanchez in a struggle over the gun. During the course of that struggle, Mr. Caldwell enters the truck from the passenger side and striking Mr. Sanchez with the his gun. During the course of the struggle, Mr. Sanchez is ultimately forced out of the vehicle onto the pavement. And Mr. Caldwell and Mr. Davis were successful in getting -- preventing Mr. Sanchez from gaining control of his gun, and, actually, they obtained control of his gun. And then, there's the comment, Nah, just waste him, or Nah, let's just waste him.
The deputy's passenger testified that while hiding behind her car, she heard one of the two defendants say, "'Naw, man, just waste him'" or "'Naw, man, let's just waste him.'" Thereafter, she heard about six gunshots and saw defendant and his codefendant flee the scene.
"It's important that the witness, Ms. Rodriguez, indicated she did not hear any conversation prior to that statement. In other words, she does say that that statement was a response to another statement that one of the two made. So I think the combination of Mr. Davis engaging in a fight or struggle over the victim's gun, gaining control of that, and then a statement, We are going to waste him, I think that combination of facts demonstrates beyond a reasonable doubt that Mr. Davis was acting with reckless disregard for human life at the time that he elected to fight Mr. Sanchez for control of the gun, along with Mr. Caldwell hitting Mr. Sanchez with a gun.
"At that point, his actions elevated to the point of demonstrating that he was acting with reckless disregard for human life because at that point when there's a fight over control of the gun and Mr. Sanchez is being hit with a gun, it's clear that there is an extremely high likelihood that is going to end with Mr. Sanchez being shot and that's exactly what happened. So for all of those reasons, the Court finds beyond a reasonable doubt that Mr. Davis was a major participant in the underlying robbery, and that once he decided to fight with the victim over control of the victim's gun, while Mr. Caldwell also joined in that fight, at that point, he was demonstrating reckless disregard for human life. [¶] So for those reasons, the defendant's petition for resentencing is denied." Defendant timely appealed.
III. DISCUSSION
Defendant contends that the trial court's denial of his section 1172.6 petition should be reversed and the matter remanded because the court did not actually hold an evidentiary hearing in accordance with section 1172.6, subdivision (d), as ordered by this court, as no evidence was admitted at that hearing. The People respond that defendant forfeited this claim on appeal because he failed to object to the hearing on procedural grounds. Alternatively, the People assert that, if his claim is preserved, the trial court properly held a hearing in accordance with section 1172.6, subdivision (d)(3), based on trial transcripts that were provided to the court but not expressly admitted into evidence, because the court is presumed to have followed the law.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder 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. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).) The Legislature "significantly narrowed the scope of the felony-murder rule" in Senate Bill No. 1437. (People v. Strong (2022) 13 Cal.5th 698, 703 (Strong).) "It also created a path to relief for defendants who had previously been convicted of murder on a felony-murder theory but who could not have been convicted under the new law. Resentencing is available under the new law if the defendant neither killed nor intended to kill and was not 'a major participant in the underlying felony [who] acted with reckless indifference to human life, as described in subdivision (d) of section 190.2' (Pen. Code, § 189, subd. (e)(3); see id., § 1172.6; Stats. 2018, ch. 1015, §§ 3-4; Stats. 2022, ch. 58, § 10)." (Strong, supra, 13 Cal.5th at p. 703; see People v. Curiel (2023) 15 Cal.5th 433, 440, 448-449.)
Senate Bill No. 1437 also added what is now section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10; see § 1172.6, subd. (a); People v. Lewis, supra, 11 Cal.5th at p. 959; Strong, supra, 13 Cal.5th at p. 708.) Section 1172.6 provides a mechanism by which a person convicted of murder under the former law may be resentenced if he or she could no longer be convicted of murder because of the changes to section 188. (Strong, supra, at p. 708; see generally People v. Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis, supra, at pp. 959-960.) Once a petitioner establishes a prima facie case for relief and the superior court issues an order to show cause, the matter proceeds to an evidentiary hearing at which it is the prosecution's burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. (Strong, supra, at pp. 708-709; People v. Vargas (2022) 84 Cal.App.5th 943, 951.) If the superior court finds beyond a reasonable doubt that the petitioner is guilty of murder notwithstanding the amendments to sections 188 and 189, the petitioner is ineligible for relief under section 1172.6. (Strong, supra, at pp. 708-709; People v. Vargas, supra, at p. 951.)
In Senate Bill No. 775, the Legislature amended the statute, effective January 1, 2022, to clarify, among others, what evidence is admissible at the evidentiary hearing. (Stats. 2021, ch. 551, § 2.) The Evidence Code governs the admission of evidence at the hearing, "except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3).) Courts have held that, "by allowing consideration of '"the procedural history"' in a prior appellate opinion, the Legislature intended to prohibit consideration of 'the factual summar[y]' in a prior appellate opinion." (People v. Vance (2023) 94 Cal.App.5th 706, 713 (Vance), citing People v. Clements (2022) 75 Cal.App.5th 276, 292.)
At the evidentiary hearing stage under section 1172.6, subdivision (d), the trial court must act as an independent factfinder to determine whether the defendant is guilty of murder beyond a reasonable doubt under current law. (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123; § 1172.6, subd. (d)(3).) The plain language of subdivision (d) allows the trial court to consider evidence and testimony admitted at a prior trial, so long as it would still "be admissible under current law." (People v. Cody (2023) 92 Cal.App.5th 87, 104.) Subject to the parties' right to submit additional evidence, this procedure allows "trial judges to decide the critical factual questions based-at least in some cases-on a cold record." (People v. Clements, supra, 75 Cal.App.5th at p. 297.) The court's role is not to decide whether substantial evidence supports a murder conviction-it is to act as the factfinder by resolving factual disputes and adjudicating the petitioner's guilt beyond a reasonable doubt under current law. (See Strong, supra, 13 Cal.5th at p. 720 ["a court determination that substantial evidence supports a homicide conviction is not a basis for denying resentencing after an evidentiary hearing"]; § 1172.6, subd. (d) ["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."].) In the absence of evidence of the contrary, we ordinarily presume that the trial court knew and applied the correct statutory and case law. (People v. Thomas (2011) 52 Cal.4th 336, 361.)
Defendant here is not arguing there was insufficient evidence to support the trial court's finding he was a major participant who acted with reckless indifference to human life or that the court erred in relying on the facts contained in Davis I, supra, E003604. In addition, defendant's complaint on appeal is not that the trial court failed to consider the trial transcripts that were scanned into a disc the prosecutor had submitted before denying his section 1172.6 petition, but rather that the court erred in failing to admit the disc or trial transcripts into evidence. But defendant did not object to the court's failure to admit the disc containing the trial transcripts or other documents attached to the People's opposition into evidence.
Our recent opinion in Vance, supra, 94 Cal.App.5th 706, is instructive. There, "[a]t the evidentiary hearing, the prosecution requested judicial notice of the record in the underlying case. The trial court did not expressly rule on the request; however, it said it was relying solely on the facts as stated in [the] opinion in the direct appeal." (Id. at p. 711.) The court denied the petition for resentencing, finding the petitioner was the actual killer or a major participant in the underlying burglary and acted with reckless indifference to human life. (Ibid.)
The petitioner appealed and we affirmed the trial court's denial of the petition for resentencing. We cited the "general rule" that "if inadmissible evidence is admitted without objection, it is substantial evidence; the failure to object forfeits its admissibility." (Vance, supra, 94 Cal.App.5th at p. 713, citing Evid. Code, § 353, subd. (a).) We explained, "Our research has not revealed any legislative history explaining why the Legislature chose to make such an opinion inadmissible as evidence of the factual background of the case. Presumably, however, it was because the record itself is better evidence.... [¶] [There] are good reasons to make an appellate opinion inadmissible. However, they are not good reasons to preclude the trier of fact from considering an appellate opinion under any circumstances. For example, a petitioner who feels that an appellate opinion is accurate and complete may well prefer to offer it to the trial court, in lieu of the entire record, for convenience. Presumably that is why defense counsel did not object here." (Vance, supra, at pp. 713-714.)
We concluded the petitioner had forfeited any objection to the court's consideration of the opinion on direct appeal. (Vance, supra, 94 Cal.App.5th at p. 714.) We also applied a harmless error analysis (see People v. Watson (1956) 46 Cal.2d 818, 836), noting petitioner could not "show that, if the opinion had been excluded, he would have enjoyed a more favorable result." (Vance, supra, at p. 714.) We observed, "Presumably, in that event, the trial court would have considered the record of conviction; the prosecution had done everything it could to get it to take judicial notice of the record. [The petitioner had] never claimed that [the appellate] opinion misrepresented or omitted any material part of the record." (Ibid.)
The California Supreme Court denied review in Vance on October 25, 2023 (S281865).
Here, the People provided evidence for the OSC hearing by including the scanned trial transcripts in its opposition, Exhibit 3, for the trial court to review and requested the court take judicial notice of the trial transcripts. The People also provided the trial court with the Davis I, supra, E003604 unpublished opinion, as well as a transcript from defendant's 2015 parole hearing. In addition, in its opposition, the People included the factual background verbatim from Davis I, supra, E003604, as well as relevant trial testimony from the numerous witnesses with citations to the trial transcript.
At the April 14, 2023, OSC hearing, the court stated it had received the transcripts provided by the People and then continued the matter to review those trial transcripts. At the continued hearing on May 15, 2023, the trial court, before denying the petition, asserted it had reviewed those trial transcripts. Although the People attached the trial transcripts, the prior unpublished opinion from defendant's direct appeal and the transcript of the 2015 parole hearing to their opposition, they never expressly moved to have those items admitted into evidence and the court never expressly admitted those items into evidence. However, the People asked the trial court to take judicial notice of the trial transcripts, and defense counsel never objected and both parties argued as if the trial transcripts had been admitted into evidence. Indeed, defense counsel even stated after an in-chambers conference that defendant wished to proceed with the hearing because he was "satisfied with the verdict forms and the jury instructions," which presumably were in the trial transcripts. Defense counsel never claimed that he did not have a copy of the trial transcripts or access to the trial transcripts.
Because defense counsel failed to object on the basis that the hearing was procedurally improper, i.e., failure to admit the trial transcripts into evidence, defendant has forfeited his claim on appeal. Moreover, on appeal, defendant has not identified anything in the trial court's summary of the facts when it made its ruling denying the petition for resentencing-or of anything in the statement of facts in Davis I, supra, E003604-that is inaccurate.
Furthermore, even if the claim is preserved, it lacks merit. The People requested the trial court take judicial notice of the trial transcripts, and the trial court did hold an evidentiary hearing in accordance with section 1172.6, subdivision (d)(3) as ordered by this court in Davis II, supra, E077300. As previously noted, in the absence of evidence of the contrary, we presume that the trial court knew and applied the correct statutory and case law. (People v. Thomas, supra, 52 Cal.4th at p. 361.) In fact, it is well established that when the parties and the court consider a document as being in evidence, the fact no formal offer in evidence was made will not exclude it from consideration as part of the record on appeal. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 742-743.)
Even assuming the trial court erred in failing to follow the procedural requirements of section 1172.6, subdivision (d) by not admitting the trial transcripts into evidence, defendant has failed to demonstrate prejudice. Because section 1172.6 is solely a creature of state law providing retroactive ameliorative relief for those whose convictions are already final, a trial court's error in admitting the trial transcripts into evidence at the evidentiary hearing is a state law error subject to the Watson standard of prejudice. (Vance, supra, 94 Cal.App.5th at pp. 716-717; People v. Watson, supra, 46 Cal.2d at p. 836.) Under this standard, defendant "has the burden of showing that it is reasonably probable that, in the absence of the error, he . . . would have enjoyed a more favorable outcome." (Vance, supra, at p. 710.)
Defendant has not met his burden of showing prejudice under the Watson standard. He has not claimed the factual findings made by the trial court were erroneous or inaccurate. He has not asserted that he did not have access to the trial transcripts and has not supplied us with either the trial transcripts submitted to the court for the evidentiary hearing or a proper statement of facts based on the trial evidence, "which we would need if we were going to consider prejudice." (Vance, supra, 94 Cal.App.5th at p. 717.) We cannot find a reasonable probability of a different result in this case, despite the court's failure to expressly admit the trial transcripts into evidence at the evidentiary hearing.
We reject defendant's claim in his reply brief that this court should reverse the trial court's order denying his section 1172.6 petition for resentencing because "the trial court and the People know that a complete copy of the entire trial transcript does not exist which is the reason the trial court failed to hold an evidentiary hearing and admit actual evidence in accordance with this court's mandate and section 1172.6, subdivision (d)." The record belies this contention. We also reject defendant's claim in his reply brief that "it is obvious" the trial court "refuses to comply" with this court's order "based on the fact that the [t]rial [c]ourt denied [his] [p]etition the first time, and after this [c]ourt's order, [d]enied [his] petition a second time." There is no indication in the record to support this assertion.
To the extent defendant is claiming that this procedure violates his constitutional rights to due process, we reject this argument as well. Defendant was already convicted of first degree murder by a jury. "The Legislature, in an act of grace and mercy, has provided the section 1172.6 proceeding, which reduces guilt and punishment on terms that the Legislature is entitled to prescribe." (Vance, supra, 94 Cal.App.5th at p. 716.) "Under these circumstances, most of the federal constitutional protections that attend a criminal conviction do not apply." (Ibid.) "Because the authorization of retroactive relief . . . was an act of lenity, the Legislature was free to condition the availability of such relief on the convicted person prevailing at an evidentiary hearing conducted pursuant to the nonjury procedure set forth in section [1172.6]." (People v. James (2021) 63 Cal.App.5th 604, 606, 610-611 [rejecting Sixth and Fourteenth Amendment challenges to the statutory procedure].) Defendant has identified no constitutional infirmity.
IV. DISPOSITION
The trial court's order denying defendant's section 1172.6 petition for resentencing is affirmed.
We concur: FIELDS J., RAPHAEL J.