Opinion
B329781
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. KACEY GERARD EPHRIAM, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. SA002348, Kathryn A. Solorzano, Judge. Dismissed.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
In 1995, following a trial, a jury found Kacey Gerard Ephriam guilty of willful, deliberate, and premeditated murder and found true the kidnapping-felony-murder special circumstance. In finding the special circumstance true, the jury found true that Ephriam "was the actual killer or, with the intent that [the victim] be killed, was a co-conspirator with, or aided and abetted the actual killer." Ephriam appealed, and we affirmed. (People v. Ephriam (June 18, 1997, B093742) [nonpub. opn.] (Ephriam I).) In January 2019 Ephriam filed a petition for resentencing pursuant to Penal Code former section 1170.95 (now section 1172.6), which the superior court summarily denied. Ephriam again appealed, and we affirmed on the ground that the record of conviction showed Ephraim aided and abetted the commission of murder with the intent to kill. (People v. Ephriam (Feb. 8, 2021, B301996) [nonpub. opn.] (Ephriam II).)
Further statutory references are to the Penal Code. Section 1170.95 was renumbered as section 1172.6, without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.)
In June 2022 Ephriam filed a petition for writ of habeas corpus, challenging the special circumstance finding. The superior court deemed his habeas corpus petition as a petition for resentencing under section 1172.6 and summarily denied it. The court erred in construing Ephraim's habeas corpus petition as a section 1172.6 petition. Because a denial of a habeas corpus petition is not an appealable order, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Killing
In November 1989 Ephriam's brother Kerry lived in an apartment building owned by John Long. Kerry owed back rent, and Long had threatened to evict him. Ephriam told his cousin Michael Valentine that he wanted his help to kill Long so Kerry could live in the apartment rent free. Ephriam explained he could not do the job himself because Long would recognize him. Ephriam gave Valentine a long-barrel .38-caliber revolver and told Valentine to hold it for him. Valentine told his friend Glenn Ray Calhoun, whom he had met in prison, that Valentine was planning a "jack move" (a plan to commit a robbery) of a man he believed would be carrying more than $5,000 in cash.
We provide a recitation of the facts as stated in Ephriam II, supra, B301996, only as background.
On the morning of November 8, 1989 Ephriam and Valentine, taking the revolver with him, drove to Kerry's apartment in an Oldsmobile owned by Ephriam's mother. At 1:00 p.m. Long told his wife he was going to the apartment building to collect rent from Kerry, and he left in his Mercedes-Benz. That afternoon Calhoun and Valentine went to Valentine's apartment, and Valentine asked his girlfriend for the keys to their car. When she began arguing, Valentine told her not to argue with him "because he got a man out here in the trunk of the car." Calhoun returned to the alley, where he saw Ephriam wearing gloves standing by the Oldsmobile with its engine running. A Mercedes-Benz was parked on the other side of the alley. When Calhoun asked Valentine how they got a man into the trunk of a car, Valentine responded he "beat the fucking hell out of him."
Ephriam later told Valentine, "[L]et's go and handle this." Valentine told Ephriam to "take [Long] up in the mountains and smoke him, pour gas on him and set his ass on fire." Valentine gave Ephriam the .38-caliber revolver, and Ephriam left. Ephraim later returned to Valentine's apartment. Valentine's sister-in-law Bridgette Sykes, who lived next door, overheard Ephraim say to his brother on the telephone, "[T]hat's all right, we going to go on and do it. We fixing to do it."
Around 6:50 p.m. Clinton Harris was driving and saw a fire on a blocked-off street west of Los Angeles International Airport. Harris approached the fire and parked behind a car with a man inside. Another man was walking around the fire. When Harris realized a man was on fire, he radioed the police and used his fire extinguisher to douse the fire. The parked car in front of Harris's car drove off. Police and paramedics arrived on the scene. Through fingerprint analysis, the body was identified as Long's. An autopsy showed Long had been beaten with fists or a blunt instrument, his hands and feet had been bound, and he had been gagged with duct tape. Long had suffered from asphyxiation, was shot at close range, and had been set on fire.
The next day Sykes overheard Ephriam say that he and Valentine had tied up a landlord, they "kidnapped the man away from the apartment," and Ephriam put the man in the trunk of his mother's car. Ephriam boasted that he had shot and set the man on fire and "Kerry ain't got to worry about paying no rent for about another six or seven months." When later asked about the Mercedes-Benz, Ephriam responded, "If it ain't [got] no fingerprints, how they gonna find out....I had on gloves....I always wear gloves when I do something."
B. The Verdicts, Sentencing, and Ephriam I
The jury found Ephriam guilty of first degree murder, simple kidnapping, and second degree burglary, and it found true the kidnapping-felony-murder special circumstance. In its special circumstance finding, the jury found true Ephriam "was the actual killer or, with the intent that John Long be killed, was a co-conspirator with, or aided and abetted the actual killer." The jury found the robbery special-circumstance allegation not true. On the special findings verdict form the jury answered "yes" that "the killing was wil[l]ful, deliberate and premeditated," but it answered "no" to the questions whether "the killing occurred in the perpetration of a kidnapping" and "the killing occurred in the perpetration of a robbery." The jury found as to all counts a principal was armed with a firearm during the commission of the crimes, but it found not true that Ephriam personally used a firearm.
The trial court sentenced Ephriam for special circumstance murder to a life term without the possibility of parole, plus one year for the principal armed enhancement. The court imposed and stayed an aggregate 11-year term on the kidnapping and robbery counts.
Ephriam appealed, and we affirmed. (Ephriam I, supra, B093742.)
C. Ephriam II
On January 8, 2019 Ephriam, representing himself, filed a form petition for resentencing seeking to vacate his murder conviction and to be resentenced in accordance with recent statutory changes relating to accomplice liability for murder. The superior court appointed an attorney for Ephraim. Following briefing from the parties, the court summarily denied Ephraim's petition for resentencing, finding Ephriam was not eligible for relief. Ephriam appealed, and we affirmed. (Ephriam II, supra, B301996.)
Judge Mark E. Windham.
We rejected Ephriam's contention "the trial court erred in relying on the kidnapping-felony-murder special-circumstance finding to summarily deny his petition for resentencing because it was inconsistent with the jury's special finding 'specifically reject[ing] the allegation of special circumstances.'" (Ephriam II, supra, B301996.) We explained, "[T]he jury verdicts were not inconsistent in light of the order in which the jury was instructed to approach the guilty verdict, special circumstance findings, and special findings. As discussed, the jury was instructed first to decide whether Ephriam was guilty of murder, and if so, to determine whether it was first degree murder; then if it found the murder was first degree, to make a finding whether the robbery and kidnapping special circumstance allegations were true." (Ibid.)
We continued, "Consistent with these instructions, the jury found Ephriam guilty of first degree murder, and it found the kidnapping-felony-murder special-circumstance allegation true, finding Ephriam 'was the actual killer or, with the intent that John Long be killed' was a coconspirator or aider and abettor. The jury was instructed further that if it found Ephriam guilty of first degree murder, it had to return a special finding whether it based its first degree finding on premeditation, felony kidnapping, or felony robbery. The jury responded in the special findings verdict form that it based its first degree murder finding on a unanimous finding '[t]hat the killing was wil[l]ful, deliberate and premeditated.' The fact the jury explained it based its first degree murder finding on the premeditation theory did not mean the jury could not have based its finding on an alternative theory-felony murder-but it did not. As we concluded in Ephriam I in rejecting Ephriam's argument the verdict forms were inconsistent, 'We do not find in the jury's response to the special questions that it intended to undo its kidnap-murder special circumstance finding nor that it viewed its special finding as inconsistent with its kidnap-murder special circumstance finding. The jury, as permitted by the instructions, simply discontinued further deliberations when it answered affirmatively on one of the available bases for a first degree murder determination.' (Ephriam I, supra, B093742.) Further, '[t]he jury's true finding on the kidnap-murder special circumstance was not impaired because the special questions were not intended nor structured to test the application of the felony murder doctrine.' (Ibid.)" (Ephriam II, supra, B301996.)
D. Ephriam's Petition for Writ of Habeas Corpus
On June 16, 2022 Ephriam, representing himself, filed a petition for writ of habeas corpus. He argued there was insufficient evidence to support the jury's kidnapping-felonymurder special-circumstance finding because he was neither a major participant nor acted with reckless indifference to human life under the factors established by People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. Ephriam maintained the jury found he was not the actual killer and was not present, and the prosecution never proved he had an intent to kill. Ephriam requested "the ultimate disposition of this habeas proceeding must be an order reversing [his] special circumstance finding and order a conditional reduction to 25 to life." Ephriam submitted a March 9, 2012 declaration from his brother Kerry, in which Kerry asserted that he was subpoenaed by the prosecution to testify in Ephriam's 1995 trial, but the trial court did not allow him to testify. Kerry denied Ephriam was present or "had anything to do with the crime committed." Ephriam also filed an undated letter from Valentine's mother, Ouida, in which she claimed she was coerced by a detective and the prosecutor to give false testimony at trial.
E. The Superior Court's Ruling
At a hearing on August 4, 2022, the superior courtappointed an attorney to represent Ephriam. At the hearing the court indicated it had reviewed the habeas petition on August 1 and, "[a]t that time the court determined that essentially the arguments are posited under [section] 1170.95, at least the principles of 1170.95. So in the interest of time, I'm not going to follow the standard habeas proceedings. I'd rather just proceed with this as an 1170.95 petition." The court continued, "[I]t's presumptuous on a certain level because there may be something in this case, if you look at it from a habeas perspective, which indicates that the evidence was insufficient in light of the law today under Banks and Scoggins and the further clarification of what it means to be a major participant or to act with reckless indifference." The court added, "I don't know enough about this case to know whether there really is-firstly, I haven't gone through it enough to determine if there are meritless claims here that can be weeded out by the appeal decision. I have no idea at this stage and I don't know how much you know at this stage either. But I think that in terms of timing that it's much more expeditious to just proceed with the 1170.95. [¶] At some stage if you inform the court that that's not what you want to do and you want to go through the habeas process, then this court will do that too."
Judge Kathryn A. Solorzano.
In re Scoggins (2020) 9 Cal.5th 667.
At the continued hearing on November 1, 2022, the prosecutor informed the superior court that Ephriam had previously filed a section 1170.95 petition and was appointed counsel; the court denied the petition at the prima facie review stage; and the ruling was affirmed on appeal. The prosecutor added, "[Ephraim] actually did not file another 1172.6 petition. He actually filed a habeas petition on June 16, 2022. And the court, I'm assuming you weren't aware that the 1170.95 petition was denied, but the court deemed the habeas petition an 1170.95 on August 1, 2022." The court responded, "Yeah. I've done that in many cases. There's no reason to resort to habeas petition if in fact the person's entitled to review under 1170.95."
At a hearing on April 6, 2023 the superior court denied Ephriam's petition, finding Ephriam had not made a prima facie showing he was eligible for relief under section 1172.6 because the jury convicted him "under the theory that it was an intentional killing that was willful, deliberate, and premeditated." Ephriam asked for clarification, stating "I actually put in the habeas corpus . . . to have the special circumstances to be dismissed." Ephriam added, "However, the court said it will initially become the 1172.6, and I said, okay, yes, but I want to consolidate the case-the petition because I had one before that, the actual it was 1170.95." Ephriam later told the court, "[Y]ou're not really focused on special circumstances, you're not looking at that. You only see the first degree, and that was my point for filing the habeas to get the special circumstances off." The court explained the jury had "an option to say that they unanimously were basing your first murder degree conviction on felony murder, but they said no, no, and no." The court added, "I don't think that there's anything inconsistent about the special circumstance finding with the deliberate, premeditated, and willful finding of the jurors."
Ephriam timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842843, 847-848; see People v. Reyes (2023) 14 Cal.5th 981, 984.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule as set forth in section 189, subdivision (e). (Reyes, at p. 986; Gentile, at pp. 842-843.) Section 189, subdivision (e), now requires the People to prove specific facts relating to the defendant's individual culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); although not the actual killer, the defendant, with the intent to kill, assisted in the commission of murder in the first degree (§ 189, subd. (e)(2)); or the defendant was a major participant in an underlying felony listed in section 189, subdivision (a), and acted with reckless indifference to human life as described in section 190.2, subdivision (d) (the felony-murder special-circumstance provision) (§ 189, subd. (e)(3)). (See Strong, at p. 708.)
Senate Bill 1437 also provided a procedure in former section 1170.95, now codified in section 1172.6, for an individual convicted of felony murder or murder under the natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if the individual could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)
If the section 1172.6 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief based on the requirements of subdivision (a), the sentencing court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1172.6, subdivision (b)(3). Further, upon the filing of a facially sufficient petition, the court must determine whether the petitioner has made a prima facie showing of entitlement to relief. (See § 1172.6, subd. (c).) Where a petitioner makes the requisite prima facie showing the petitioner falls within the provisions of section 1172.6 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) &(d)(1).)
B. Denial of Ephriam's Habeas Corpus Petition Is Not Appealable
It is undisputed that on June 16, 2022 Ephriam filed a petition for writ of habeas corpus in the trial court challenging the sufficiency of the evidence to support the jury's special circumstance finding. Ephriam did not challenge his first degree murder conviction, reference section 1172.6 (or section 1170.95 or Senate Bill 1437), or declare that he "could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) Section 1172.6 sets forth the requirements for a petitioner to obtain resentencing relief under Senate Bill 1437, including filing a declaration that states the petition has met the requirements of section 1172.6, subdivision (a). (See § 1172.6, subd. (b)(1)(A) ["The petition shall include all of the following: [¶] . . . A declaration by the petitioner that the petitioner is eligible for relief under this section, based on all the requirements of subdivision (a)."].) Because Ephriam's habeas corpus petition did not meet any of the requirements of a section 1172.6 petition, the superior court erred in construing the habeas corpus petition as a section 1172.6 petition. (In re Cobbs (2019) 41 Cal.App.5th 1073, 1081 ["Since this habeas corpus action is not a resentencing petition under section [1172.6], Senate Bill 1437 is inapplicable ...."].)
Ephriam properly brought a habeas corpus petition, and not a section 1172.6 petition, because he challenged the sufficiency of the evidence to support the jury's kidnapping-felony-murder special-circumstance finding. (People v. Palacios (2024) 101 Cal.App.5th 942, 954 [section 1172.6 "resentencing hearings are not the proper forum to litigate issues that could have been raised at trial"]; People v. Farfan (2021) 71 Cal.App.5th 942, 947 ["The mere filing of a section 1170.95 petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings. To the contrary, '[n]othing in the language of section 1170.95 suggests it was intended to provide redress for allegedly erroneous prior factfinding.'"]; People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 "does not permit a petitioner to establish eligibility on the basis of alleged trial error"].)
As Ephriam concedes, the superior court's denial of a habeas corpus petition is not an appealable order. (Robinson v. Lewis (2020) 9 Cal.5th 883, 895 ["[I]n noncapital cases, if the superior court denies a petition for a writ of habeas corpus, the petitioner has no statutory right to appeal. Instead, the petitioner must file a new, original petition, generally in the Court of Appeal."]; accord, In re Dohner (2022) 79 Cal.App.5th 590, 594.)
Although we have discretion "to deem an appeal from a denial of a petition for writ of habeas to be an original habeas petition in this court" (In re Dohner, supra, 79 Cal.App.5th at p. 594), Ephriam does not request we do so. Instead, Ephriam contends we should consider his appeal from the superior court's denial of resentencing relief under section 1172.6 even though he filed a habeas corpus petition. We recognize "'[t]he label given a petition, action or other or other pleading is not determinative; rather, the true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading.'" (People v. Picklesimer (2010) 48 Cal.4th 330, 340; see ibid. ["Assuming the pleading that has been filed meets or can be amended to meet the prerequisites for a petition for writ of mandate, a court in its discretion may treat a motion or a petition for a different writ as a mislabeled petition for writ of mandate."]; Cox v. Superior Court (2016) 1 Cal.App.5th 855, 858 ["A court has authority to treat one type of writ petition as another type when it is procedurally appropriate to do so."].) However, Ephriam did not allege in his petition that his first degree murder conviction was based on felony murder or murder under the natural and probable consequences theory. Nor did he seek resentencing under section 1172.6. At the April 6, 2023 hearing, Ephriam stated that he had filed a habeas corpus petition to "dismiss" the special-circumstance finding and that he had filed an earlier section 1170.95 petition. Because Ephriam did not seek to initiate a section 1172.6 proceeding when he filed his petition for writ of habeas corpus, there is no basis for us to consider whether he made a prima facie showing that he falls within the provisions of section 1172.6 and is entitled to resentencing relief.
DISPOSITION
The appeal is dismissed.
We concur: SEGAL, Acting P. J., STONE, J.