Filed 9/14/20 P. v. Hallman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073456
v. (Super.Ct.No. FWV01095)
EDWARD EDDIE HALLMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bridgid M.
McCann, Judge. Reversed and remanded with directions.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G.
McGinnis, and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
In 1993, defendant and appellant Edward Eddie Hallman, who was then a minor,
along with his two adult coparticipants, attempted to rob a jewelry store. During the
robbery, one of defendant’s coparticipants shot and killed the store’s owner. A jury
convicted defendant of first degree murder (Pen. Code,1 § 187, subd. (a)) and five other
felonies. He was sentenced to a determinate term of four years eight months and an
indeterminate term of 26 years to life in prison.
In 2018, the Legislature passed and the Governor signed into law Senate Bill
No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea
requirements for the offense of murder and restricted the circumstances under which a
person can be liable for murder under the felony-murder rule or the natural and probable
consequences doctrine. (Stats. 2018, ch. 1015, § 4.) Senate Bill 1437 also established a
procedure permitting certain qualifying persons who were previously convicted of felony
murder or murder under the natural and probable consequences doctrine to petition the
courts that sentenced them to vacate their murder convictions and obtain resentencing on
any remaining counts. (Ibid.; see § 1170.95)
In 2019, defendant filed a petition for resentencing under section 1170.95.
Without reaching the merits of the petition, the trial court granted the People’s motion to
strike defendant’s petition for resentencing, finding Senate Bill 1437 unconstitutional.
1 All future statutory references are to the Penal Code unless otherwise stated.
2 Defendant appeals from the order granting the People’s motion to strike his petition to
vacate his murder conviction and obtain resentencing under the procedures established by
Senate Bill 1437. Defendant argues the trial court erred in finding Senate Bill 1437
unconstitutional. The People agree and also assert that because the record establishes
defendant is entitled to relief, the matter should be remanded with directions to grant the
petition, vacate defendant’s murder conviction, and resentence him on the remaining
counts. We agree. We therefore reverse the trial court’s order and remand the matter for
further proceedings.
II
FACTUAL AND PROCEDURAL BACKGROUND2
On May 11, 1993, the defendant met with 24-year-old George Wiley and 21-year-
old Marvin Foster at Foster’s home in Los Angeles for the purpose of making plans for
the robbery of Diamond Expressions Jewelry Store in Upland. Foster and defendant
smoked some PCP before leaving for Upland.
On May 11, 1993, Donna Smith, an employee, and Victor Angona, the owner of
Diamond Expressions Jewelry Store, were in the office area of the store around
10:00 a.m. A two-way mirror separates the display area from the office area. There is
also a back room containing a safe.
2 The factual background is taken from this court’s nonpublished opinion in defendant’s prior appeal, case No. E014974, which is part of the record on appeal. (People v. Hallman (Jan. 19, 1996, E014974) [nonpub. opn.].)
3 Wiley entered the store dressed as a postal worker. (Neither he, Foster, nor
defendant were postal employees.) Angona, who was on the phone, handed it to Smith
and said he would help the customer. Within about 30 seconds of Wiley’s entry into the
store, Foster entered. Foster was holding a handgun. Smith told the person she was
talking to on the phone, “It’s going down, call 911.” She dove under a desk and hit the
alarm button. She then heard voices and gunshots. Angona staggered into the office and
said, “I am dead, you’ve killed me.” Angona died from a gunshot wound to the chest.
The defendant entered after the shots were fired carrying pillowcases. He saw the
mortally wounded Angona on the floor.
Then Smith was jerked from beneath the desk, a gun was placed to her head, and
someone asked where the safe was. At that time, she observed two sets of feet and legs.
She was dragged to where the safe was. It was open and empty as the merchandise had
already been placed in the display cases. At that time, she saw three sets of feet and legs.
Her head was held down as someone tried to place handcuffs on her. Suddenly, they
stopped and ran out. She ran to the front of the store and observed a Bronco or Blazer-
type vehicle driving away.
Shortly after the attempted robbery, Joe Candias was driving on San Antonio, in
the vicinity of the jewelry store, when he noticed a gold Blazer two or three cars ahead of
him. It abruptly pulled over cutting off a vehicle. He observed the three occupants of the
Blazer run to a silver-gray Cadillac and drive off. His “conscience was bothering” him as
to what was happening, so he turned his car around and drove back toward the area of the
4 car switch. As he did so he observed a police car “flying over the railroad tracks. . . .”
He told the officers what he saw. Shortly thereafter, Candias was taken to where a
Cadillac was stopped. There he identified the vehicle and the three occupants.
When the Cadillac was stopped by the police, Foster was driving. Defendant was
in the right front seat, and Wiley was in the right rear seat. A postal worker’s jacket and
hat were found in the car along with two .38-caliber handguns. One of the guns had a
spent cartridge. The other had three spent rounds. Defendant had a folded pillowcase in
his pocket. A pair of handcuffs was in the trunk of the car.
Three pair of handcuffs and two more pillowcases were found at the scene of the
crime. A .22-caliber handgun, belonging to Angona, was found on the floor of the office.
Expert testimony established that this gun was malfunctioning. It would not fire and only
clicked when the trigger was pulled.
Maria Rocha, an employee at a bakery next door to the jewelry store, identified
Foster and defendant as two people she saw running from the store after she heard
gunshots. Smith identified Wiley as the first person who entered the store and Foster as
the second person to enter the store. She could not identify defendant.
After his arrest defendant was interviewed and told the detective that he had come
from Los Angeles to commit a robbery, but he was not armed with a gun. He admitted
that he knew the Blazer was stolen and was being used in the crime.
Foster also agreed to an interview. He told the detective that Wiley recruited him
the day before the robbery attempt and told him that there would “be a ‘lick’ tomorrow
5 morning in Ontario.” He expected the job to get him $3,000 to $5,000. Wiley provided
him with the gun Foster carried into the attempted robbery. He told the detective that all
three had contemplated doing the robbery stating, “We all in this.” He drove the Blazer,
which he picked up at Wiley’s house, to Upland. Defendant rode with him while Wiley
drove the Cadillac. The Cadillac was parked around the corner from the store, and then
they all rode to the jewelry store in the Blazer.
Foster told the detective that Wiley entered the store first dressed as a postal
worker. Thirty seconds after Wiley entered, Foster and defendant entered the store, and
Foster had “his gun down.” Defendant was not personally armed.
As soon as they entered the store, the murder victim, Angona, “drew heat.” Foster
stated that he did not fire at him but did point his gun at Angona who pointed his gun
back at Foster and told him not to shoot because if he did, he would shoot Wiley. Foster
stated that Wiley, who took a gun into the store, “[b]eat [Angona] to the draw or
whatever. So I put my gun down, but then I heard POW.” The only one who fired any
shots was Wiley according to Foster.
Later, while Wiley and Foster were in their holding cells, they engaged in
a conversation that was tape recorded. Foster told Wiley, “You shouldn’t have shot
him . . . .” Wiley responded, “It was self-defense, man.” Foster responded, “No, not
when you’re doing no robbery. . . .” Wiley replied, “Well, it might be manslaughter,
man.”
6 While being transported from the police department to the jail, Wiley told Foster,
“We really messed up, we’re going to get the gas chamber or the electric chair. Which
do you want?” Foster responded that he did not like the electric chair and expressed a
preference for the gas chamber. Foster, displaying an unsettling, sophisticated
knowledge of the Penal Code, then asked Wiley, “Are they going to charge us with 211
or just the 187?” He received no reply.
Foster was the only defendant to testify at trial. In a radical departure from what
he told the detective following his arrest, he told the jury that, in effect, Wiley was an
innocent agent in the attempted robbery, and Wiley had not been told there was going to
be a robbery at the store. Wiley, then, was not a knowing participant in a burglary or the
attempted robbery.3 Foster testified that he committed the crime at the behest of a person
named “Keevin” to whom he owed money and whom he feared. He owed Keevin $2,500
for cocaine, and if he did not pay it, Foster or a member of his family would die. Keevin
suggested a robbery in order to repay the debt. Keevin suggested that Foster contact
Wiley to act as a “decoy to buy [Foster] some time.”
Foster testified that he contacted Wiley and told Wiley that Wiley was to
participate in a drug deal, picking up a package from a jewelry store. The night before
the attempted robbery Foster again met with Keevin who provided the Blazer,
pillowcases, a gun, handcuffs, and directions. Foster knew that the Blazer was stolen
because the steering column was ripped open. Foster claimed to have recruited defendant
3 The prosecution relied only on the first degree felony-murder rule.
7 to participate in the planned robbery on the day of the crime. Foster specifically told
defendant not to tell Wiley about the robbery.
After Angona was shot only defendant and Foster went to the back room area
where the safe was located after they pulled Smith out from the desk. They left Wiley in
the office area.
On February 18, 1994, a jury convicted defendant of first degree murder (Pen.
Code, § 187; count 1); burglary (Pen. Code, § 459; count 2); two counts of attempted
robbery (Pen. Code, §§ 664/211; counts 3 & 4); false imprisonment by violence (Pen.
Code, § 236; count 5); and unlawfully taking or driving a vehicle without the owner’s
consent (Veh. Code, § 10851, subd. (a); count 6). The jury also found true defendant was
armed with a firearm in the commission of counts 2 through 5. The jury found not true
the special circumstance allegation that the murder occurred during the commission of
burglary and attempted robbery.
On July 11, 1994, the trial court sentenced defendant to a determinate term of
four years eight months, to be followed by an indeterminate term of 26 years to life in
prison.(CT 50-51}
On January 19, 1996, this court affirmed the lower court’s judgment in its entirety.
On January 1, 2019, Senate Bill 1437 became effective (2017-2018 Reg. Sess.),
which amended the felony-murder rule and the natural and probable consequences
doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate
Bill 1437 also added section 1170.95, which allows those “convicted of felony murder or
8 murder under a natural and probable consequences theory . . . [to] 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 . . . .” (§ 1170.95, subd. (a).)
On January 28, 2019, defendant in propria persona filed a petition for resentencing
pursuant to section 1170.95, requesting that his murder conviction be vacated based on
changes to sections 188 and 189, as amended by Senate Bill 1437, and asking to be
resentenced.
On March 26, 2019, the People filed a motion to strike defendant’s petition based
on the unconstitutionality of Senate Bill 1437 and resulting statutes.
On June 28, 2019, the trial court heard oral argument on defendant’s petition for
resentencing. The trial court granted the People’s motion to strike defendant’s petition,
finding Senate Bill 1437 unconstitutional.
On August 15, 2019, defendant filed a notice of appeal from the trial court’s order
granting the People’s motion to strike his section 1170.95 petition for resentencing.
III
DISCUSSION
Defendant contends that the trial court incorrectly concluded Senate Bill 1437 is
unconstitutional. He also asserts that because the record establishes he was not the actual
killer, did not act with an intent to kill, and was not a major participant in the offense who
acted with a reckless indifference to human life, we must vacate his conviction and
remand the matter to the lower court with directions to grant his section 1170.95 petition.
9 The People aptly agree that Senate Bill 1437 is constitutional. The People also
concede we should remand the matter to the trial court with instructions to grant
defendant relief under Senate Bill 1437.
A. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019, “limit[ed] accomplice
liability under the natural and probable consequences doctrine and the felony-murder
rule.” (People v. Cruz (2020) 46 Cal.App.5th 740, 755 (Cruz); People v. Lamoureux
(2019) 42 Cal.App.5th 241, 246 (Lamoureux); People v. Munoz (2019) 39 Cal.App.5th
738, 749, review granted Nov. 26, 2019, S258234.) Prior to Senate Bill 1437’s
enactment, under the felony-murder rule “a defendant who intended to commit a
specified felony could be convicted of murder for a killing during the felony, or
attempted felony, without further examination of his or her mental state.” (Lamoureux, at
pp. 247-248; People v. Chun (2009) 45 Cal.4th 1172, 1182 (Chun).) “‘The felony-
murder rule impute[d] the requisite malice for a murder conviction to those who
commit[ted] a homicide during the perpetration of a felony inherently dangerous to
human life.’” (Chun, at p. 1184; Lamoureux, at p. 248.)
Similarly, under the natural and probable consequences doctrine, a defendant was
“liable for murder if he or she aided and abetted the commission of a criminal act (a
target offense), and a principal in the target offense committed murder (a nontarget
offense) that, even if unintended, was a natural and probable consequence of the target
offense.” (Lamoureux, supra, 42 Cal.App.5th at p. 248; People v. Chiu (2014) 59 Cal.4th
10 155, 161-162.) “‘[B]ecause the nontarget offense [was] unintended, the mens rea of the
aider and abettor with respect to that offense [was] irrelevant and culpability [was]
imposed simply because a reasonable person could have foreseen the commission of the
nontarget crime.’” (People v. Flores (2016) 2 Cal.App.5th 855, 867.)
Senate Bill 1437 was enacted to “amend the felony murder rule and 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) “Senate Bill No. 1437
achieves these goals by amending section 188 to require that a principal act with express
or implied malice and by amending section 189 to state that a person can only be liable
for felony murder if (1) the ‘person was the actual killer’; (2) the person was an aider or
abettor in the commission of murder in the first degree; or (3) the ‘person was a major
participant in the underl[y]ing felony and acted with reckless indifference to human
life.’” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57 (Cornelius), review granted
Mar. 18, 2020, S260410;4 People v. Tarkington (2020) 49 Cal.App.5th 892, 896
(Tarkington), review granted Aug. 12, 2020, S263219; People v. Verdugo (2020) 44
Cal.App.5th 320, 325-326, review granted Mar. 18, 2020, S260493 (Verdugo).)
4 Under California Rules of Court, rule 8.1115, we may rely on cases pending before the Supreme Court as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
11 Senate Bill 1437 also added section 1170.95, which permits persons convicted of
murder under a felony murder or natural and probable consequences theory to petition in
the sentencing court for vacation of their convictions and resentencing. Section 1170.95
provides in pertinent part: “A person convicted of felony murder or murder under a
natural and probable consequences theory” may file a petition “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.”
(§ 1170.95, subd. (a).)
B. Constitutionality of Senate Bill 1437
Subsequent to the trial court’s ruling in this matter, numerous appellate courts
have rejected challenges to Senate Bill 1437’s constitutionality, and the parties agree it is
constitutional. (See People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275,
286 [Senate Bill 1437 did not unconstitutionally amend Propositions 7 or 115, because it
neither added to, nor took away from, those initiatives]; Lamoureux, supra, 42
Cal.App.5th at pp. 246, 251-252, 256-257, 264-266 [Senate Bill 1437 did not improperly
amend Propositions 7 or 115 or the Victims’ Bill of Rights Act of 2008 (Marsy’s Law),
12 and does not violate separation of powers principles by usurping the executive’s
clemency power or impairing the judiciary’s core functions]; People v. Solis (2020) 46
Cal.App.5th 762, 769, 779-780; Cruz, supra, 46 Cal.App.5th at p. 747; People v. Bucio
(2020) 48 Cal.App.5th 300, 306-307, 310-314; People v. Smith (2020) 49 Cal.App.5th
85, 91-92; People v. Prado (2020) 49 Cal.App.5th 480, 483, 491-492; People v. Johns
(2020) 50 Cal.App.5th 46, 54-55.) We agree with the reasoning of these authorities. As
the parties are also in agreement, it is unnecessary for us to further address the issue here.
The trial court erred by granting the People’s motion to strike defendant’s petition on the
ground that Senate Bill 1437 is unconstitutional.
C. Relief Under Section 1170.95 as a Matter of Law
Defendant contends that because the jury found he did not act with reckless
indifference to human life and was not a major participant in the murder or the actual
killer, we must vacate his murder conviction and remand the matter with directions to
grant him relief under section 1170.95.
Evaluation of a section 1170.95 petition requires a multistep process: an initial
review to determine the petition’s facial sufficiency; “a prebriefing, ‘first prima facie
review’ to preliminarily determine whether the petitioner is statutorily eligible for relief
as a matter of law; and a second, postbriefing prima facie review to determine whether
the petitioner has made a prima facie case that he or she is entitled to relief.”
(Tarkington, supra, 49 Cal.App.5th at p. 897; Verdugo, supra, 44 Cal.App.5th at pp. 327-
13 330; People v. Torres (2020) 46 Cal.App.5th 1168, 1177-1178 (Torres), review granted
June 24, 2020, S262011; People v. Drayton (2020) 47 Cal.App.5th 965, 975-976.)
When conducting the first prima facie review, “the court must determine, based
upon its review of readily ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e.,
whether he [or she] was convicted of [a qualifying crime,] based on a charging document
that permitted the prosecution to proceed under the natural and probable consequences
doctrine or a felony-murder theory.” (Tarkington, supra, 49 Cal.App.5th at pp. 898-899;
Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) If it is clear from the record of
conviction that the petitioner cannot establish eligibility as a matter of law, the trial court
may deny the petition without appointing counsel. (Tarkington, at p. 898; Torres, supra,
46 Cal.App.5th at p. 1178; Verdugo, at pp. 330, 332-333; People v. Lewis (2020) 43
Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598; Cornelius, supra,
44 Cal.App.5th at p. 58.) If, however, the petitioner’s eligibility is not established as a
matter of law, the court must appoint counsel and permit briefing to determine whether
the petitioner has made a prima facie showing he or she is entitled to relief. (Verdugo, at
p. 330; Tarkington, at p. 898.) If the petitioner is found eligible for relief, the murder
conviction must be vacated and the petitioner resentenced “on any remaining counts in
the same manner as if the petitioner had not been [sic] previously been sentenced,
provided that the new sentence, if any, is not greater than the initial sentence.”
(§ 1170.95, subd. (d)(1).)
14 The People concede, and we agree, that under Senate Bill 1437 defendant is
entitled to relief on his murder conviction. The limited record before us shows that
defendant was convicted of a qualifying crime, first degree murder. There is no dispute
that he was an aider and abettor of the attempted robbery and not the actual killer. It also
appears that the prosecution could have proceeded under a felony-murder theory or the
natural and probable consequences doctrine. The murder was committed in the course of
an attempted robbery. Therefore, as far as the record shows, the prosecution could have
advanced the theory that the killing was a natural and probable consequence of that target
offense or could have relied upon the felony-murder rule because the murder occurred
during commission of the attempted robbery. (See § 189, subd. (a).)
In addition, under section 1170.95, subdivision (d)(2), defendant is eligible for
relief as a matter of law. That provision provides that, “[i]f there was a prior finding by a
court or jury that the petitioner did not act with reckless indifference to human life or was
not a major participant in the felony, the court shall vacate the petitioner’s conviction and
resentence the petitioner.” (§ 1170.95, subd. (d)(2).)
The penalty for first degree special circumstances murder under section 190.2,
subdivision (a), is either death or life without the possibility of parole. One of the
enumerated special circumstances is that the murder was carried out while the defendant
was engaged in, or was an accomplice in, the commission of a felony, including robbery.
(§ 190.2, subd. (a)(17)(A).) Where the defendant was not the actual killer, but an aider
and abettor, section 190.2 requires a further showing that the defendant was “a major
15 participant” in the crime and acted “with reckless indifference to human life.” (§ 190.2,
subd. (d).) If the defendant was not the actual killer, but an aider and abettor,
section 190.2 also permits a special circumstances finding if the evidence shows the
defendant’s “intent to kill.” (§ 190.2, subd. (c).)
Here, the jury found not true the special circumstance allegation that the murder
occurred during the commission of burglary and attempted robbery. Because the jury
found, in rejecting the special circumstance allegation, that defendant was not a major
participant who acted with reckless indifference to human life, defendant is entitled to
relief under Senate Bill 1437. (People v. Ramirez (2019) 41 Cal.App.5th 923, 932
(Ramirez) [section 1170.95, subdivision (d)(2), “impos[es] a mandatory duty on the court
to vacate defendant’s sentence and resentence him whenever there is a prior finding of
this court that the defendant was not a major participant in the underlying felony and did
not act with reckless indifference to human life”]; see People v. Banks (2015) 61 Cal.4th
788, 794-803 [Supreme Court clarified what “major participant” and “reckless
indifference” to human life mean for purposes of special circumstances allegations under
section 190.2, subdivision (d)]; People v. Clark (2016) 63 Cal.4th 522, 618-622 [same].)
In sum, Senate Bill 1437 is constitutional. Additionally, defendant made the
requisite prima facie showing he was entitled to relief on the murder conviction in his
declaration in support of his petition. (See § 1170.95, subds. (b)(1), (c); Ramirez, supra,
41 Cal.App.5th at p. 929.) Moreover, the People acknowledge that because defendant’s
jury “necessarily” determined he did not act with reckless indifference to human life, his
16 murder conviction must be vacated under section 1170.95, subdivision (d)(2). (See
§ 1170.95, subd. (d)(2); Ramirez, at p. 932.) Because Senate Bill 1437 is constitutional
and section 1170.95, subdivision (d)(2), required the trial court to vacate defendant’s
murder conviction and resentence him on the remaining counts, we direct the court to do
so on remand. (See Ramirez, at p. 933 [appellate court remanded matter to trial court
with directions to vacate the defendant’s section 1170.95 petition, vacate his murder
conviction, and resentence him on the remaining counts, where it was “beyond dispute”
the defendant was not shown to have been a major participant in the underlying felony, or
to have acted with reckless indifference to human life].)
IV
DISPOSITION
The trial court’s order granting the People’s motion to strike defendant’s
section 1170.95 petition to vacate his murder conviction is reversed. The matter is
remanded with directions for the court to grant the petition as to the murder conviction,
vacate that conviction, and resentence defendant on the remaining counts.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J. We concur:
RAPHAEL J.
MENETREZ J.