Opinion
E075868
08-25-2021
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP RYAN FRANKE, Defendant and Appellant.
Phillip Ryan Franke, in propria persona; and Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI1002158 Eric M. Nakata, Judge. Reversed.
Phillip Ryan Franke, in propria persona; and Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, Acting P. J.
Defendant and appellant Phillip Ryan Franke appeals from a postjudgment order denying his Penal Code section 1170.95 petition to vacate his first degree murder conviction, and obtain resentencing under the procedures established by Senate Bill No. 1437. He argues (1) the record of conviction does not show he is ineligible for relief as a matter of law; (2) it is impossible to determine from this court's prior opinion whether the jury relied on an impermissible theory of guilt to convict him of murder without engaging in factfinding at the prima facie stage; (3) the trial court inappropriately relied on the factual summary from this court's prior opinion to deny relief because the factual summary was necessarily skewed in the prosecution's favor; (4) the jury's true finding on the firearm enhancement allegation under section 12022, subdivision (a)(1), did not render him ineligible for relief as a matter of law; and (5) because the record of conviction does not demonstrate he was ineligible for relief as a matter of law, reversal and remand is required with directions. The People agree with defendant's contentions.
All future statutory references are to the Penal Code unless otherwise stated.
We agree that the record of conviction does not demonstrate, as a matter of law, that the jury convicted defendant under a theory of murder that remains valid after the enactment of Senate Bill No. 1437. Accordingly, we find the trial court erred in summarily denying defendant's section 1170.95 petition, reverse the order, and remand the matter with directions to the trial court to issue an order to show cause and hold an evidentiary hearing pursuant to section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL HISTORY
The factual background is taken from this court's nonpublished opinion in defendant's prior appeal, case No. E053756, which is part of the record on appeal in this case. (People v. Franke (July 25, 2012, E053756) [nonpub. opn.], footnotes omitted (Franke I).)
A. FACTUAL BACKGROUND
Victim Sandi Duncan (nicknamed “Sweet P”) was a student at Barstow Community College. On September 20, 2009, around 10:30 a.m., she cashed a financial aid check for $458.37. She went home, showered, changed, then went out again. When she did not come home that night, one of her roommates was worried; he phoned her and texted her, but she did not respond.
The next day, September 21, 2009, between 5:30 and 6:00 p.m., a man looking for firewood found Duncan's body. It was out in the desert, in a dry creek bed about 100 yards from his house in Apple Valley.
The body was lying face up. There were two ligature marks on Duncan's neck, mostly on the left and front. In addition, Duncan had been shot once in the chest and once in the abdomen. Both bullets had exited through her back. The bullets were found under her body, indicating that she had been shot where she lay.
Two empty bullet casings were found within two feet of the body. A third, unfired bullet was also found. All three casings were marked “.380 auto.”
In the opinion of an expert forensic pathologist, the strangulation occurred first, followed by the shooting. Duncan was still alive when she was shot; the gunshot wounds were the cause of death. The two gunshot wounds were inflicted one right after the other-“bang, bang.” The time of death was at least eight hours and perhaps as much as 24 hours before the body was found.
There was a fresh set of tire tracks in the area. These indicated that a vehicle had made a three-point U-turn. There were also six shoe prints. One shoe print was right next to the body; five were farther away, next to some tire tracks. The shoe prints displayed two distinct sole patterns.
There were no drag marks. Moreover, none of the shoe prints matched Duncan's shoes. Investigators concluded that Duncan had been “picked up and placed” where she was found.
About a week later, on September 28, 2009, a police officer assigned to observe one Melvin Satcher spotted Satcher riding as passenger in a car that defendant was driving. The car had a cracked taillight. The officer performed a traffic stop.
Defendant consented to a search of the car. Under the front passenger seat, the officer found a distinctive beaded purse later identified as Duncan's. It was turned inside out. Defendant said it belonged to his mother.
In the trunk, the officer found fireworks that appeared to have been altered. He arrested defendant for possession of illegal fireworks.
Defendant's tires matched tire tracks found at the scene. For example, one of his tires was the same size and the same width and had the same tread design as one of the tracks. However, the tracks did not have enough detail to support a determination that they had been made by defendant's tires (rather than by tires of the same make and model).
Shoes that Satcher was wearing matched the shoe print found near Duncan's body. The shoes that defendant was wearing, however, did not match any of the shoe prints found at the scene; neither did a second pair in defendant's car. The police searched defendant's home but did not find any additional shoes.
The police interviewed defendant on the day of his arrest and again the next day. The interviews were audiotaped, and the tapes were played for the jury.
Defendant said he lived in Las Vegas. He also said he and Satcher were friends. They had met while incarcerated together in the military.
At first, defendant denied even being in California on the date of the shooting. When the police told him they could prove that he was in Barstow, however, he changed his story; he admitted being in Barstow but claimed he left town in the morning. He specifically said he did not lend his car to anybody. He then changed his story again; he claimed a friend of Satcher paid him $100 to borrow his car.
Defendant then changed his story again. He said that, at Satcher's request, he agreed to drive four people to Los Angeles: Satcher, the victim, and two men he did not know. The victim said she wanted to go to Los Angeles to go shopping.
It was afternoon. One of the other two men said he needed to use the bathroom, so defendant got off the freeway. The man told him to pull into a “little cut.” Defendant pulled in, made a three-point turn, and stopped. The other four got out, but only three got back in. They told him, “[D]on't worry about it, just go, ” so he did.
The police told defendant they knew he was lying, because the victim had not left any footprints. Defendant then changed his story yet again. He said that the victim was sitting in the front passenger seat; Satcher and the other two men were sitting in the rear. After they pulled off and stopped, one of the other two men started to strangle the victim, using a white cloth. The victim “tried to fight.” Defendant got out of the car and walked around it.
After a while, all three other men got out. Satcher just “st[ood] around looking” while one of the other two men opened the front passenger door and pulled the victim out. Simultaneously, defendant got back in the car. He moved the car forward, about to leave, but he decided he “wasn't gonna leave [Satcher]....” He then heard two shots. The other three men got back in the car, and defendant drove away.
When the interview resumed the next day, at first, defendant stuck to this story. However, he did say it was Satcher who told him where to drive and where to stop. The police repeatedly said they knew he was lying because there were only two sets of shoe prints. Defendant then changed his story one final time. He said the other two men never got out of the car. Each of the two strangled the victim; whenever one of them got tired, they “switched off.” Satcher warned them not to let go. It was Satcher who opened the car door and pulled the victim out.
Defendant admitted seeing Satcher shoot the victim. Satcher stood over her and fired two shots downward-“like pow, pow.” A third round jammed, so Satcher removed the magazine, took out the bullet, wiped it, and put it back in the chamber. Satcher later told defendant that he shot the victim in the chest and in the stomach.
When asked why they did it, defendant said, “[S]he was supposed to have some check... that she cashed and... they were trying to get her money....” Sometime before the shooting, Satcher had told defendant that “she gets checks every other week.” However, the victim had less money than they expected-only about $200. They gave defendant $40 for gas, then split the rest between them.
When asked if his DNA would be on the murder weapon, defendant said it might be, because a few days earlier, Satcher had been looking at a.38-caliber semiautomatic, and defendant had touched it.
Although defendant's and Satcher's homes were searched, the murder weapon was never found.
Defendant's statement included many details that the police had not told him and had not made public, including the fact that the victim had been strangled and shot twice, in the chest and abdomen; the fact that the bullets were.38-caliber; and the fact that the vehicle had made a three-point turn. According to the pathologist, the fact that there were two separate ligature marks was consistent “with someone struggling and the ligature slipping[.]” The fact that there was no mark on the back of Duncan's neck was consistent with her being in the front seat of a car and being strangled by someone in the back seat.
B. PROCEDURAL HISTORY
On February 25, 2011, a jury convicted defendant of first degree murder (§ 187, subd. (a)) and second degree robbery (§ 211). As to the murder count, the jury found true the allegation that a principal was armed with a firearm (§ 12022, subd. (a)(1)). Defendant was sentenced to 26 years to life.
Satcher was tried separately and also convicted of first degree murder and second degree robbery. In connection with each count, an armed principal enhancement was found true. (See People v. Satcher (July 24, 2012, E052777) [nonpub. opn.].)
On July 25, 2012, we affirmed the convictions and instructed the trial court to correct the abstract of judgment.
After the Legislature enacted and the Governor signed Senate Bill No. 1437, effective January 1, 2019, defendant in propria persona filed a petition for resentencing pursuant to section 1170.95. Following extensive briefing, the trial court struck defendant's petition for resentencing, finding Senate Bill No. 1437 unconstitutional, without reaching the merits of defendant's petition, and denied defendant's petition.
On June 24, 2020, this court concluded Senate Bill No. 1437 is constitutional, reversed the trial court's order striking defendant's section 1170.95 petition, and remanded the case to the trial court with directions for it to consider the merits of defendant's petition. (People v. Franke (June 24, 2020, E072727 [nonpub. opn.].)
On September 9, 2020, the trial court summarily denied defendant's section 1170.95 petition and issued a memorandum of decision. The court found defendant was not entitled to relief as a matter of law because “[p]etitioner was prosecuted under both a felony murder and premeditated deliberate theories of murder. Petitioner was convicted as charged and the Court of Appeal opinion (not published) clearly indicate[s] facts that show petitioner's conviction was based on direct aiding and abetting principles.” The court thus concluded defendant failed to make a prima facie case for relief.
DISCUSSION
Defendant contends that the trial court erred in denying his section 1170.95 petition because the record of conviction does not show he is ineligible for relief as a matter of law. Specifically, he argues it is not possible to determine from this court's prior opinion or the record of conviction whether the jury relied on an impermissible theory of guilt to convict him of murder without engaging in impermissible factfinding at the prima facie stage. The People agree.
A. SENATE BILL NO. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019, restricted the application of the felony-murder rule and the natural and probable consequences doctrine, as applied to murder, by amending sections 188 and 189. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248-249.) The Legislature enacted Senate Bill No. 1437 “after determining that there was further ‘need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.' ” (People v. Gentile (2020) 10 Ca1.5th 830, 838-839.)
With regard to felony murder, prior to the enactment of Senate Bill No. 1437, “a defendant could be convicted of murder ‘ “ ‘when the defendant or an accomplice kill[ed] someone during the commission, or attempted commission, of an inherently dangerous felony...' ”' [Citation.]... ‘[F]elony-murder liability d[id] not require an intent to kill, or even implied malice, but merely an intent to commit the underlying felony.' [Citation.]” (People v. Lee (2020) 49 Cal.App.5th 254, 261, fn. omitted (Lee), review granted July 15, 2020, S262459.) Senate Bill No. 1437 added section 189, subdivision (e), to now provide that “[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (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, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Liability for murder under the natural and probable consequences doctrine was also eliminated by Senate Bill No. 1437. (Lee, supra, 49 Cal.App.5th at p. 262; People v. Offley (2020) 48 Cal.App.5th 588, 595 (Offley).) Natural and probable consequences and direct aiding and abetting were two forms of aider and abettor liability. (People v. Chiu (2014) 59 Cal.4th 155, 158; People v. Chavez (2018) 22 Cal.App.5th 663, 682-683.) Under the natural and probable consequences doctrine, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder, could be convicted of not only the target crime but also of the resulting murder, irrespective of whether he or she harbored malice aforethought. (Lee, at p. 261; People v. Duke (2020) 55 Cal.App.5th 113, 120, review granted Jan. 13, 2021, S265309.) But Senate Bill No. 1437 amended section 188 to now provide that “[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2; Lee, at p. 262.)
The criminal liability of direct aiders and abettors, however, did not change under Senate Bill No. 1437. (Offley, supra, 48 Cal.App.5th at pp. 595-596.) Such persons who by act or advice aid, promote, encourage or instigate the commission of murder, with knowledge of the direct perpetrator's criminal purpose and with intent to commit, encourage, or facilitate the commission of murder, remain criminally liable for murder. (Ibid.)
Senate Bill No. 1437 also added section 1170.95, “which permits an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if he or she could not have been convicted of first or second degree murder because of Senate Bill [No.] 1437's changes to sections 188 and 189.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), review granted Mar. 18, 2020, S260493.)
“Under section 1170.95, subdivision (a), ‘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 when all of the following conditions apply: [¶] (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 or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' ” (People v. Nguyen (2020) 53 Cal.App.5th 1154, 1164.)
Under section 1170.95, subdivision (b), a petitioner initiates the process of seeking resentencing by filing a petition in the sentencing court that is facially sufficient, containing certain basic information and a declaration from the petitioner that he or she is eligible for relief. (People v. Cooper (2020) 54 Cal.App.5th 106, 114, review granted Nov. 10, 2020, S264684.) The court then determines whether the petitioner has made a prima facie showing that he or she qualify for relief. (§ 1170.95, subd. (c).)
Recently, our Supreme Court in People v. Lewis (July 26, 2021) 11 Cal.5th 952 (Lewis) clarified that if a petitioner files a facially sufficient petition, the trial court shall appoint counsel, if requested, and determine whether the petitioner has made a prima facie case for relief under section 1170.95, subdivision (c). (Lewis, at pp. 961-962.) In making this decision, the court should accept the petitioner's allegations as true and “should not make credibility determinations or engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.' ” (Id. at p. 974.) The court may, however, consider the record of the petitioner's conviction and, “ ‘if the record, including the court's own documents, “contain[s] facts refuting the allegations made in the petition, ” then “the court is justified in making a credibility determination adverse to the petitioner.”' ” (Id. at p. 971; see Verdugo, supra, 44 Cal.App.5th at p. 333-336; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080-1081, 1086 (Bascomb); People v. Law (2020) 48 Cal.App.5th 811, 820-821 (Law), review granted July 8, 2020, S262490.)
Whether a petitioner has made the requisite prima facie showing is a predominantly legal question. We thus review the trial court's ruling de novo. (People v. Drayton (2020) 47 Cal.App.5th 965, 981 (Drayton), abrogated on another ground as stated in Lewis, supra, 11 Cal.5th at p. 963.)
“If, accepting the facts asserted in the petition as true, the petitioner would be entitled to relief because he or she has met the requirements of section 1170.95[, subdivision (a)], then the trial court should issue an order to show cause. [Citation.] Once the trial court issues the order to show cause under section 1170.95[, subdivision (c)], it must then conduct a hearing pursuant to the procedures and burden of proof set out in section 1170.95, [subdivision (d), ] unless the parties waive the hearing or the petitioner's entitlement to relief is established as a matter of law by the record. [Citation.] Notably, following the issuance of an order to show cause, the burden of proof will shift to the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Drayton, supra, 47 Cal.App.5th at pp. 980-981.) Both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).)
B. ANALYSIS
Defendant's petition contained the information required in section 1170.95, subdivision (b)(1). And the trial court properly considered the record of conviction and this court's prior opinion from defendant's direct appeal to determine whether defendant had made a prima facie showing that he falls within the provisions of section 1170.95. (Lewis, supra, 11 Cal.5th at pp. 970-971; Bascomb, supra, 55 Cal.App.5th at pp. 1080-1081, 1086; Law, supra, 48 Cal.App.5th at pp. 820-821; Lee, supra, 49 Cal.App.5th at pp. 262-263; Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) We conclude, however, based upon an examination of the record of conviction, that the trial court should not have summarily denied defendant's petition.
As relevant here, the record of conviction showed that the People charged defendant with first degree murder and alleged that in the commission of that crime, a principal was armed with a firearm. The information specifically alleged that “On or about September 20, 2009, in the above named judicial district, the crime of MURDER, in violation of PENAL CODE SECTION 187[, subdivision](a), a felony, was committed by Phillip Ryan Franke and Melvin Lee Satcher, who did unlawfully, and with malice aforethought murder Sandi Lee Duncan, a human being.” The jury found defendant guilty of first degree murder as charged in the information. In the prior opinion from defendant's direct appeal, this court noted that “[t]he People asked the jury to find defendant guilty of first degree murder under a premeditation and deliberation theory or, alternatively, on a felony-murder theory.” On direct appeal, this court analyzed defendant's claims of instructional errors and correction of the abstract of judgment. However, as the parties note, the theory of liability in which the jury found defendant guilty of first degree murder cannot be surmised from the prior opinion or the record of conviction.
With regard to the firearm enhancement, the trial court likely informed the jury that they must determine whether a principal in the murder was armed with a firearm at the time of the commission of the crime. The firearm enhancement instruction presumably did not require the jury to make any findings regarding defendant's mental state. The jury convicted defendant of first degree murder and found the firearm enhancement allegation true. But the verdicts did not indicate whether the jury relied on the direct aiding and abetting or the felony-murder rule. The opinion in defendant's prior appeal did not determine the legal basis of defendant's first degree murder conviction.
The record on appeal does not contain the jury instructions.
On this record, we cannot conclude as a matter of law that the jury convicted defendant only on a direct aiding and abetting theory and not under the felony-murder rule. As a result, we cannot say that defendant does not fall within the provisions of section 1170.95 as a matter of law. (See Offley, supra, 48 Cal.App.5th at pp. 598-599; Drayton, supra, 47 Cal.App.5th at p. 981.)
The People agree that, “at the prima facie stage, ” defendant made “a prima facie showing of eligibility for relief to entitle him to a hearing.” We also agree and note a trial court should not engage in factfinding in the second stage of its section 1170.95 prima facie review. (People v. Smith (2020) 49 Cal.App.5th 85, 92, 94, review granted July 22, 2020, S262835; see Drayton, supra, 47 Cal.App.5th at pp. 980, 982.)
Based on the foregoing, we reverse the trial court's order summarily denying defendant's section 1170.95 petition, and remand the matter with directions to the trial court to issue an order to show cause and hold an evidentiary hearing pursuant to section 1170.95, subdivision (d).
DISPOSITION
The order denying defendant's section 1170.95 petition for resentencing is reversed and the matter is remanded with directions to conduct further proceedings under section 1170.95.
We concur: SLOUGH J.RAPHAEL J.