Filed 6/24/21 P. v. Riley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075100
v. (Super.Ct.No. RCR19436)
JACK DEWAYNE RILEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi,
Judge. Reversed and remanded with directions.
Alan S. Yockelson, 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, Meredith S. White and Robin
Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
Defendant and appellant Jack Dewayne Riley appeals from a postjudgment order
denying his Penal Code1 section 1170.95 petition to vacate his second degree murder
conviction and obtain resentencing under the procedures established by Senate Bill
No. 1437 (Senate Bill 1437). Defendant argues the trial court erred in finding him
ineligible for relief as a matter of law because the court misconstrued his record of
conviction in finding he was not convicted under the natural and probable consequences
doctrine or under the felony-murder theory. The People agree the record shows
defendant could have been convicted of murder under the natural and probable
consequences doctrine, and therefore the matter must be remanded to the trial court for it
to issue an order to show cause and conduct an evidentiary hearing to determine whether
relief should be granted.
Having thoroughly reviewed the record, we reverse the trial court’s order because
the record of conviction does not show as a matter of law that defendant is not entitled to
resentencing. We thus remand the case to the trial court to issue an order to show cause
and conduct an evidentiary hearing.
1 All future statutory references are to the Penal Code unless otherwise stated.
2 II
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background2
On the night of June 11, 1991, Carol Romine was working as a prostitute. Scott
Hayden, riding a motorcycle, approached Romine; Romine agreed to a sexual act in
exchange for $40. Romine and Hayden retired to Romine’s motel room, where Hayden
gave Romine the $40 and they engaged in the agreed-upon sexual act.
Hayden afterward produced a pistol from his duffel bag, held the gun to Romine’s
head, and demanded his money back. Romine gave Hayden the $40.
Michael Rowe, Romine’s boyfriend, was in another room of the motel and
happened to observe Hayden holding the gun to Romine’s head. Rowe, with the aid of a
friend, accosted Hayden as Hayden was leaving Romine’s room. Rowe put his hand in
Hayden’s back and told him to “freeze.” Hayden dropped his duffel bag and put his
hands in the air. Romine came out of her room, yelling that she had been robbed; Rowe
told someone to call the police. Hayden said he was not waiting for the police. Rowe
retrieved the $40 from Hayden’s pocket as Hayden mounted his motorcycle and left. In a
loud, angry voice, Hayden vowed to return. Fearing Hayden, Rowe and Romine moved
to a different motel room, in possession of the $40 and Hayden’s duffel bag. Hayden’s
gun was inside the duffel bag.
2 The factual background is taken verbatim from this court’s partially published opinion in defendant’s direct appeal, case No. E011269, which is part of the record on appeal in this case. (People v. Riley (1993) 20 Cal.App.4th 1808, 1810-1812.)
3 Hayden returned about 30 to 45 minutes later, riding as a passenger with defendant
in defendant’s truck. Defendant drove slowly around the motel parking lot. The victim,
David Woods, was in the parking lot with some other motel residents. Defendant stopped
the truck and Hayden fired two gunshots out the driver’s window. Woods fell down.
After a few seconds’ pause, several more shots were fired toward Woods. Witnesses
observed defendant’s truck drive slowly in the parking lot, exit, make a U-turn, and drive
once more slowly past the motel. Woods was struck by a bullet that entered the shoulder
area and exited his chest. He died in the motel parking lot.
The next day, defendant gave a gun to Lewis Rivenbark, defendant’s business
partner, for safekeeping. Defendant bragged that the gun had been used in a killing.
When police later recovered the gun, they determined that the gun was used to fire a
bullet found at the scene of the killing.
When defendant was arrested, he gave a videotaped statement to police. At first,
defendant denied knowing about or being present at the shooting at the motel. Defendant
claimed to have been at home all evening. When police told defendant that defendant’s
girlfriend failed to confirm his alibi, defendant changed his story.
Defendant told police he had come home very drunk. Hayden came to defendant’s
house and told him he had been robbed after patronizing a prostitute. Hayden’s bag and
gun were taken. Defendant suggested that they go in his truck to the motel, to try to get
Hayden’s possessions back. Defendant gave Hayden a .357 pistol and a speed loader.
4 Defendant drove Hayden back to the motel in defendant’s truck. Hayden saw a
Black man and told defendant the man had been involved in the robbery. Hayden leaned
across defendant and yelled, “Hey, Ni[ ]r,” out the window. Hayden, still leaning across
defendant’s body, rapidly fired several shots out of the driver’s side window. Defendant
said he did not realize Hayden was going to shoot anyone and he drove quickly away
after Hayden fired the shots. Defendant did not know for sure if Hayden’s shots had
struck anyone. Defendant told police he had thrown the pistol away in the bottom of a
lake.
Defendant testified in his own behalf at trial. He claimed he had been drinking all
afternoon on the day of the shooting. That night, Hayden came to defendant’s house,
saying he had been robbed by three Black men. Defendant asked Hayden if he wanted to
go back to the motel; Hayden said he did not want to go on his motorcycle because it
would be recognized. He asked defendant to drive him to the motel, and defendant
agreed. Defendant also lent Hayden a loaded revolver, and a speed loader with five more
bullets.
On the way back to the motel, Hayden for the first time told defendant about the
circumstances of the robbery; i.e., that Hayden had first held his gun to the prostitute’s
head. Defendant knew that Hayden had boasted before that he had once shot someone
who robbed him. Defendant testified that, when they arrived at the motel, defendant told
Hayden he would not get out of the truck and that they should go home and call the
police. Defendant claimed that he did not know Hayden was going to shoot anyone, and
5 he was surprised when Hayden started firing out of the driver’s window. Defendant
drove immediately away. Defendant told his girlfriend to say that defendant had not left
the house that evening.
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Filed 6/24/21 P. v. Riley 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, E075100
v. (Super.Ct.No. RCR19436)
JACK DEWAYNE RILEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi,
Judge. Reversed and remanded with directions.
Alan S. Yockelson, 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, Meredith S. White and Robin
Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
Defendant and appellant Jack Dewayne Riley appeals from a postjudgment order
denying his Penal Code1 section 1170.95 petition to vacate his second degree murder
conviction and obtain resentencing under the procedures established by Senate Bill
No. 1437 (Senate Bill 1437). Defendant argues the trial court erred in finding him
ineligible for relief as a matter of law because the court misconstrued his record of
conviction in finding he was not convicted under the natural and probable consequences
doctrine or under the felony-murder theory. The People agree the record shows
defendant could have been convicted of murder under the natural and probable
consequences doctrine, and therefore the matter must be remanded to the trial court for it
to issue an order to show cause and conduct an evidentiary hearing to determine whether
relief should be granted.
Having thoroughly reviewed the record, we reverse the trial court’s order because
the record of conviction does not show as a matter of law that defendant is not entitled to
resentencing. We thus remand the case to the trial court to issue an order to show cause
and conduct an evidentiary hearing.
1 All future statutory references are to the Penal Code unless otherwise stated.
2 II
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background2
On the night of June 11, 1991, Carol Romine was working as a prostitute. Scott
Hayden, riding a motorcycle, approached Romine; Romine agreed to a sexual act in
exchange for $40. Romine and Hayden retired to Romine’s motel room, where Hayden
gave Romine the $40 and they engaged in the agreed-upon sexual act.
Hayden afterward produced a pistol from his duffel bag, held the gun to Romine’s
head, and demanded his money back. Romine gave Hayden the $40.
Michael Rowe, Romine’s boyfriend, was in another room of the motel and
happened to observe Hayden holding the gun to Romine’s head. Rowe, with the aid of a
friend, accosted Hayden as Hayden was leaving Romine’s room. Rowe put his hand in
Hayden’s back and told him to “freeze.” Hayden dropped his duffel bag and put his
hands in the air. Romine came out of her room, yelling that she had been robbed; Rowe
told someone to call the police. Hayden said he was not waiting for the police. Rowe
retrieved the $40 from Hayden’s pocket as Hayden mounted his motorcycle and left. In a
loud, angry voice, Hayden vowed to return. Fearing Hayden, Rowe and Romine moved
to a different motel room, in possession of the $40 and Hayden’s duffel bag. Hayden’s
gun was inside the duffel bag.
2 The factual background is taken verbatim from this court’s partially published opinion in defendant’s direct appeal, case No. E011269, which is part of the record on appeal in this case. (People v. Riley (1993) 20 Cal.App.4th 1808, 1810-1812.)
3 Hayden returned about 30 to 45 minutes later, riding as a passenger with defendant
in defendant’s truck. Defendant drove slowly around the motel parking lot. The victim,
David Woods, was in the parking lot with some other motel residents. Defendant stopped
the truck and Hayden fired two gunshots out the driver’s window. Woods fell down.
After a few seconds’ pause, several more shots were fired toward Woods. Witnesses
observed defendant’s truck drive slowly in the parking lot, exit, make a U-turn, and drive
once more slowly past the motel. Woods was struck by a bullet that entered the shoulder
area and exited his chest. He died in the motel parking lot.
The next day, defendant gave a gun to Lewis Rivenbark, defendant’s business
partner, for safekeeping. Defendant bragged that the gun had been used in a killing.
When police later recovered the gun, they determined that the gun was used to fire a
bullet found at the scene of the killing.
When defendant was arrested, he gave a videotaped statement to police. At first,
defendant denied knowing about or being present at the shooting at the motel. Defendant
claimed to have been at home all evening. When police told defendant that defendant’s
girlfriend failed to confirm his alibi, defendant changed his story.
Defendant told police he had come home very drunk. Hayden came to defendant’s
house and told him he had been robbed after patronizing a prostitute. Hayden’s bag and
gun were taken. Defendant suggested that they go in his truck to the motel, to try to get
Hayden’s possessions back. Defendant gave Hayden a .357 pistol and a speed loader.
4 Defendant drove Hayden back to the motel in defendant’s truck. Hayden saw a
Black man and told defendant the man had been involved in the robbery. Hayden leaned
across defendant and yelled, “Hey, Ni[ ]r,” out the window. Hayden, still leaning across
defendant’s body, rapidly fired several shots out of the driver’s side window. Defendant
said he did not realize Hayden was going to shoot anyone and he drove quickly away
after Hayden fired the shots. Defendant did not know for sure if Hayden’s shots had
struck anyone. Defendant told police he had thrown the pistol away in the bottom of a
lake.
Defendant testified in his own behalf at trial. He claimed he had been drinking all
afternoon on the day of the shooting. That night, Hayden came to defendant’s house,
saying he had been robbed by three Black men. Defendant asked Hayden if he wanted to
go back to the motel; Hayden said he did not want to go on his motorcycle because it
would be recognized. He asked defendant to drive him to the motel, and defendant
agreed. Defendant also lent Hayden a loaded revolver, and a speed loader with five more
bullets.
On the way back to the motel, Hayden for the first time told defendant about the
circumstances of the robbery; i.e., that Hayden had first held his gun to the prostitute’s
head. Defendant knew that Hayden had boasted before that he had once shot someone
who robbed him. Defendant testified that, when they arrived at the motel, defendant told
Hayden he would not get out of the truck and that they should go home and call the
police. Defendant claimed that he did not know Hayden was going to shoot anyone, and
5 he was surprised when Hayden started firing out of the driver’s window. Defendant
drove immediately away. Defendant told his girlfriend to say that defendant had not left
the house that evening. The next day, defendant gave the gun to Rivenbark; Rivenbark
was supposed to throw the gun in a lake. When defendant later learned that Rivenbark
had not disposed of the gun, defendant’s lawyer contacted police and told them where
they could find the gun.
A witness who was present at the motel testified that he saw Hayden, in the
passenger seat, fire the shots at Woods. Defendant was leaning back while Hayden was
shooting.
In rebuttal, a police officer testified that defendant told him that, when Hayden
came to defendant’s house on the night of the shooting, Hayden was very angry about
having been robbed.
B. Procedural Background
In August 1991, defendant, together with Hayden, was charged in count 1 with the
murder of David Woods (§ 187, subd. (a)). Count 1 also alleged that a principal to the
offense was armed with a firearm under section 12022, subdivision (a)(1). Count 2
alleged that defendant was an accessory after the fact with respect to the murder (§ 32),
and count 3 charged both defendant and Hayden with shooting at an inhabited dwelling
(§246), and alleged both that defendant had personally used a firearm, and that a principal
was armed with a firearm in the commission of the offense (§§ 1203.06, subd. (a)(1),
12022.5, 12022, subd. (a)(1)).
6 Defendant’s jury trial was severed from Hayden’s. In March 1992, the jury found
defendant not guilty of first degree murder as charged in count 1, and was unable to reach
a verdict on second degree murder. The jury found defendant guilty as to count 2 and
acquitted him of the charge of shooting at an inhabited dwelling in count 3. The trial
court declared a mistrial as to count 1, and the murder count was retried. At the second
trial, in May 1992, a new jury found defendant guilty of second degree murder and found
true the allegation that a principal was armed with a firearm in the commission of the
offense. The trial court sentenced defendant to a term of 15 years to life, plus one year
for the firearm enhancement.
Defendant subsequently appealed, arguing, in pertinent part, the trial court erred in
instructing the jury on liability under the natural and probable consequences doctrine
pursuant to CALJIC No. 3.02. On December 16, 1993, we affirmed the convictions.
On April 4, 2019, defendant in propria persona filed a petition for resentencing
pursuant to section 1170.95. He claimed that he was entitled to resentencing because he
was convicted of murder under the natural and probable consequences doctrine or felony-
murder rule and could not now be convicted of second degree murder based on changes
to sections 188 and 189 as amended by Senate Bill 1437.
The People initially opposed the petition solely on constitutional grounds, and
defendant, through appointed counsel, replied to those arguments. Thereafter, the People
filed a response to defendant’s petition on the merits. Relying on the facts from this
court’s opinion from defendant’s direct appeal, the People argued that those facts
7 established defendant was a major participant who acted with reckless indifference to
human life.
Following further briefing and oral argument by the parties, on March 11, 2020,
the trial court denied defendant’s petition and issued a written order. The court explained
that defendant “was determined to be a ‘principal in the murder’ of the victim as
evidenced by the jury instructions, facts contained in the sentencing report, the abstract of
judgment, verdict forms, and particularly the facts set forth in” this court’s partially
published decision. The court also clarified that “there is no suggestion or indication in
the court file, record of conviction, or preliminary hearing transcript that Petitioner was
involved in the commission of a ‘target crime’ [or underlying felony] for which the
murder of Woods would have been reasonably foreseeable. Accordingly, he was not
convicted under the natural and probable consequences doctrine. By contrast, as
reflected in the Court of Appeal opinion, Petitioner was a principal in Woods’ murder by
virtue of his involvement and participation during the events in question. His actions and
conduct in concert with those of Hayden make Petitioner directly culpable and
responsible for the murder of Woods.”
The court further observed, “[i]n the instant case, the court did not instruct with
CALJIC 3.02, which would have been required had a murder conviction under the natural
and probable consequences doctrine been sought by the prosecution or contemplated by
the court. Moreover, no instruction or verdict form exists as to any other offense relating
to the murder count, which also would have been necessary to support a murder
8 conviction under the natural and probable consequences doctrine.” To further support its
findings, the court also noted that the jury was instructed with CALJIC 17.15 (Defendant
Armed in Commission of Crime) and the jury found true a principal was armed in the
commission of the murder. The court concluded defendant had failed to establish a prima
facie showing of entitlement to relief under section 1170.95 because he was “neither
convicted under the felony murder rule nor the natural and probable consequences
doctrine.” Defendant timely appealed.
III
DISCUSSION
Defendant argues the trial court erred in concluding he had not made a prima facie
showing of eligibility for relief because the court misconstrued the record of conviction
in finding he was not convicted under the natural and probable consequences doctrine
and, therefore, the court erred in denying his petition without issuing an order to show
cause and holding an evidentiary hearing on his murder conviction. The People concede
the error and agree that the denial should be reversed and remanded with directions to
issue an order to show cause and conduct a hearing. As we explain, we agree with the
parties.
Prior to the enactment of Senate Bill 1437, a defendant who aided and abetted a
crime that resulted in a victim’s death could be convicted under the natural and probable
consequences theory even if the defendant did not act with malice. (People v. Offley
(2020) 48 Cal.App.5th 588, 595 (Offley).) “The natural and probable consequences
9 doctrine provides that ‘ “[a] person who knowingly aids and abets criminal conduct is
guilty of not only the intended crime [target offense] but also of any other crime the
perpetrator actually commits [nontarget offense] that is a natural and probable
consequence of the intended crime . . . .” [Citation.]’ [Citation.] The doctrine
‘ “imposes vicarious liability for any offense committed by the direct perpetrator that is a
natural and probable consequence of the target offense . . . .” [Citation.]’ ” (People v.
Duke (2020) 55 Cal.App.5th 113, 120, review granted Jan. 13, 2021, S265309.)
The Legislature enacted Senate Bill 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 Cal.5th 830, 838-839.)
Senate Bill 1437 changed the law on murder as it relates to the felony-murder rule and
the natural and probable consequences doctrine. (People v. Martinez (2019) 31
Cal.App.5th 719, 722.) Senate Bill 1437 also added section 1170.95, which allows
defendants convicted of murder based on the natural and probable consequences doctrine
or felony-murder rule to petition for resentencing. (People v. Martinez, at pp. 722-723.)
Senate Bill 1437 did not alter the viability of a murder conviction based on direct aiding
and abetting liability. “One who directly aids and abets another who commits murder is
thus liable for murder under the new law just as he or she was liable under the old law.”
(Offley, supra, 48 Cal.App.5th at p. 596.)
“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
10 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 qualifies for relief. (§ 1170.95, subd. (c).) If the
petitioner makes a prima facie showing that he or she is eligible for and entitled to relief
under the statute, then the trial court “shall issue an order to show cause.” (§ 1170.95,
subds. (b) & (c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327-329, review granted
Mar. 18, 2020, S260493 (Verdugo).)
11 “ ‘A prima facie showing is one that is sufficient to support the position of the
party in question.’ ” (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted
Mar. 18, 2020, S260598.) When conducting a prima facie review, the court’s “role . . . is
simply to decide whether the petitioner is ineligible for relief as a matter of law, making
all factual inferences in favor of the petitioner.” (Verdugo, supra, 44 Cal.App.5th at
p. 329, italics added.) 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.)
Here, the record affirmatively demonstrated that defendant was charged with
murder, that the jury was instructed on second degree murder and the natural and
probable consequences doctrine, and that the jury returned verdicts of second degree
murder as to defendant. In light of that record, the trial court could not determine at the
initial stage of the process—as a matter of law and without resort to factfinding—that the
jury did not base its second degree murder finding on the natural and probable
consequences doctrine. (Verdugo, supra, 44 Cal.App.5th at p. 329.) Because the record
showed that defendant could have been convicted under a theory of murder that was no
longer viable under the revisions to sections 188 and 189, the court erred in denying the
petition at this stage in the proceedings. Accordingly, the order denying the petition must
be reversed and the matter remanded with directions to issue an order to show cause and
hold a hearing under section 1170.95, subdivision (d).
12 IV
DISPOSITION
The order denying defendant’s petition for resentencing under section 1170.95 is
reversed and the matter is remanded with directions to hold further proceedings on the
petition. Upon remand, the trial court shall issue an order to show cause and conduct a
hearing in accordance with section 1170.95, subdivision (d).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J. We concur:
SLOUGH J.
FIELDS J.