Filed 10/14/20 P. v. Thompson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E072819
v. (Super.Ct.No. RCR11884)
JEFFREY LEROY THOMPSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.
Sally Patrone Brajevich, 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, Steve Oetting and Daniel J.
Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
In 1987, after a jury trial, defendant and appellant Jeffrey Leroy Thompson was
convicted of first degree felony murder and robbery. (Pen. Code, §§ 189, 211).1 In 2019,
defendant filed a petition for resentencing pursuant to newly enacted section 1170.95,
which the trial court denied without prejudice. Defendant appealed.
On appeal, defendant argues that his petition was improperly denied because he
made a prima facie showing for relief under section 1170.95, the court erred in failing to
provide counsel prior to hearing the petition, the court erred by holding a hearing without
defendant present, and the court erred by failing to allow defendant to file a reply brief.
Defendant also argues that the abstract of judgment must be amended to correct an error.
We reverse the trial court’s denial of defendant’s petition and remand with directions to
appoint counsel and permit briefing on whether defendant has made a prima facie
showing for entitlement to relief. We also order that the trial court amend the abstract of
judgment to correct the asserted error.
II. FACTUAL AND PROCEDURAL BACKGROUND2
Thompson had been employed at a Texaco gas station in Upland for several
months. Five days before the crimes, he was suspended from employment. A few days
later, he appeared at the station while the victim and another attendant were on duty.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The Factual and Procedural Background is taken from this court’s nonpublished 1989 opinion affirming defendant’s judgment of conviction. (People v. Thompson (Sept. 12, 1989, E004443) [nonpubl. opn.].)
2 Thompson appeared to be angry about the suspension and he put his fist through a
window in the service bay area. He threatened to break the manager’s nose and either
rob or “rip-off” the station. He instructed the victim to tell the manager that a ladder had
fallen and that was how the window got broken. The manager, however, discovered the
truth and fired Thompson. Thompson then called the other attendant and “thanked” him
for “squealing” on him. While at the station, Thompson had also registered his anger
with the victim for telling a female acquaintance of Thompson’s that Thompson had been
suspended. Shortly after being fired, Thompson returned to the station and once again
expressed his anger over his termination. He threatened to “kick [the manager’s] ass.”
During the evening before the crimes, Thompson, Barclay, and Crutcher were
together at a pizza parlor. They told friends there that they intended to go to Kentucky
and Florida. Thompson and Barclay handled a switchblade knife which Thompson had
had the previous week. Crutcher displayed a gun he had taken from his mother at the
condo they shared. All three were very short of money. Barclay was angry because of a
fight he had been in with his cousin.
At one point, Thompson and Barclay said they were going to the Texaco station
for cigarettes. Thompson later appeared at the station where he filled his tank and
purchased soft drinks and cigarettes. Crutcher went to the condo, packed his belongings
into the back of his pickup truck and returned to the pizza parlor parking lot. The other
two also put their belongings into Crutcher’s truck. After the parlor closed, all three
stood outside in the lot talking with Tawna Maxwell and a male acquaintance. Barclay
3 pointed the gun Crutcher had had earlier at Maxwell saying “Stick ‘em up.” She saw the
switchblade knife inside the truck.
The three later departed in Crutcher’s truck as Maxwell and the male friend
followed in their cars. They arrived at the station where the victim was on duty. While
the victim was busy at the pumps, Barclay and Crutcher helped themselves to the
cigarettes kept inside the station. When they saw a passing police officer, the three left
the station in the truck.
Around 2:00 a.m., a limousine driver who frequented the station pulled in and was
waited on by Thompson, whom he recognized from previous visits. Approximately one
hour later, another customer drove into the station. A man she later identified as
Thompson told her that the attendant had taken a break and was not there. After noticing
that a television in the station office had been turned up full volume, she left.
Approximately 15 minutes later, another customer entered the station. When no
one came to wait on him, he entered the station’s office. He noticed drawers had been
opened. Fearing something was wrong, he went to another station across the street and
asked the attendant there to call the police. A little more than an hour passed when
another customer came into the station and was unable to locate the attendant. After
waiting some time, still another customer arrived and the latter found the victim’s body in
the back room. The victim had been beaten with the leg of a chair and possibly with
another object, had been stabbed with a knife which was consistent with the switchblade
the defendants had the night before, and had been garroted with a wire which had been
4 turned with a ballpoint pen. His hands had been tied with a piece of cloth and he had
been gagged. Shoe prints in blood on and near the victim’s body were consistent with the
soles of shoes worn by Barclay and found in Crutcher’s truck when they were later
arrested. Shoe prints in oil near the gas pumps were consistent with Thompson’s shoes.
Money, cigarettes, and keys were missing from the station, yet no fingerprints were left at
the scene.
Several days later, the defendants were apprehended by authorities in Texas.
Blood found on the jeans and shoes Barclay was wearing did not match him or the other
two defendants, but did match the victim’s, along with .67 percent of the population. So
too did blood discovered on shoes found in the truck and on the switchblade knife which
Crutcher had on him at the time of the arrest. Leather gloves found in the truck bore
human blood which could have been Crutcher’s or the victim’s (along with 51 percent of
the population) but it could not have been Barclay’s or Thompson’s. Packs of cigarettes
and a gun were also found in the truck.
After his arrest, Crutcher admitted to his mother that he had stolen items from her
home the night before the crime. He said he later pawned them because he needed the
money.
A jury convicted defendant of first degree felony murder and robbery. The trial
court sentenced defendant to an indeterminate term of 25 years to life in state prison for
the first degree murder, and five years state prison for the robbery. The trial court stayed
the five-year term pursuant to section 654.
5 Defendant appealed his judgment, and in 1989 this Court affirmed defendant’s
conviction.
In 2019, defendant filed a petition for resentencing pursuant to newly enacted
section 1170.95. The People filed a motion to strike defendant’s petition as
unconstitutional and provided an informal response alleging that defendant “failed to set
forth a prima facie case for relief.” On March 21, 2019, the trial court held a hearing on
defendant’s petition. Defense counsel appeared on behalf of defendant, but defendant
was not present. Defense counsel apparently received the case only the day before. The
court formally appointed defendant counsel. The court then denied defendant’s petition
without prejudice, stating “that it fails to set forth anything but a bald statement that he
was not a major participa[nt].” The court also stated that “if you read the appellate
decision . . . even the appellate court has said he was a major participant, and it wouldn’t
have happened except for him.” The trial court then advised defense counsel that it was
“appointing you to review it and decide whether or not you want to file an additional
appeal.”
Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court improperly denied defendant’s petition for
resentencing because the petition stated a prima facie case and that a review on the merits
would have revealed that he was entitled to relief. Defendant also argues that he was
denied certain procedural rights, including that the appointment of counsel came too late
6 to allow adequate representation, that he had a right to be personally present at the
hearing, and that he was not permitted to file a reply brief. The People argue that the trial
court’s order and the alleged procedural errors were at most harmless error.3
Defendant also argues that the abstract of judgment must be amended, because it
incorrectly shows that the five-year prior prison term for defendant’s robbery conviction
was imposed rather than stayed pursuant to section 654. The People agree.
A. Defendant’s Petition Made Prima Facie Case for Eligibility Under
Section 1170.95
1. History of Senate Bill 1437
Senate Bill 1437 “which became effective on January 1, 2019, addresses certain
aspects of California law regarding felony murder and the natural and probable
consequences doctrine by amending Penal Code sections 188 and 189, as well as by
adding Penal Code section 1170.95, which provides a procedure by which those
convicted of murder can seek retroactive relief if the changes in law would affect their
previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722-
723 (Martinez).)
3 The People also argue that the trial court’s denial of defendant’s petition was not appealable because it was “without prejudice.” However, our colleagues in the Fifth District recently concluded that “an order denying a petition for recall of sentence and resentencing pursuant to Penal Code section 1170.95 . . . is appealable pursuant to section 1237, subdivision (b), as an order after judgment affecting the substantial rights of the defendant.” (People v. Larios (2019) 42 Cal.App.5th 956, 961, review granted Feb. 26, 2020, S259983.) We agree with the court in Larios that the denial of defendant’s petition is appealable and review it accordingly.
7 Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted
a crime, the natural and probable consequence of which was murder or attempted murder,
could be convicted of not only the target crime but also of the resulting murder or
attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019)
35 Cal.App.5th 141, 144 (R.G.).) “This was true irrespective of whether the defendant
harbored malice aforethought. Liability was imposed ‘ “for the criminal harms [the
defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’
[Citation.]” (R.G., at p. 144.)
Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of
murder, a principal must act with malice aforethought; malice can no longer ‘be imputed
to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)”
(R.G., supra, 35 Cal.App.5th at p. 144.) “Senate Bill 1437 also amended section 189,
which defines first and second degree murder, by, among other things, adding
subdivision (e). Under that subdivision, a participant in enumerated crimes is liable
under the felony-murder doctrine only if he or she was the actual killer; or, with the intent
to kill, aided and abetted the actual killer in commission of first degree murder; or was a
major participant in the underlying felony and acted with reckless indifference to human
life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749.)
Senate Bill 1437 also added section 1170.95, which states that “[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
8 murder conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95,
subd. (a).) An offender may file a section 1170.95 petition if he or she was prosecuted
under a felony murder or natural and probable consequences theory, but under amended
sections 188 or 189, could not have been convicted of first or second degree murder.
(§ 1170.95, subd. (a).)
2. Process for Review of a Petition Under Section 1170.95
The trial court’s review of a petition under section 1170.95 occurs in several
phases. A petitioner must meet the standards of each before proceeding to an evidentiary
hearing on the full merits of the petition. First, the trial court determines whether the
petition is complete as defined in subdivision (b)—that is, whether it contains the
minimum necessary components the statute requires of a petition. If the petition is
facially adequate, the trial court next determines whether “the petitioner has made a
prima facie showing that the petitioner falls within the provisions of this section.”
(§ 1170.95, subd. (c).) If so, the trial court appoints counsel (if requested by the
petitioner), and may extend the briefing schedule set by the statute.4 The statutory
4 When petitioner is entitled to have counsel appointed is currently under review by our Supreme Court. (People v. Verdugo (2020) 44 Cal.App.5th 320 (Verdugo), review granted Mar. 18, 2020, S260493; People v. Lewis (2020) 43 Cal.App.5th 1128 (Lewis), review granted Mar. 18, 2020, S260598; People v. Cornelius (2020) 44 Cal.App.5th 54 (Cornelius), review granted Mar. 18, 2020, S260410.) However, pending further guidance from our Supreme Court, we agree with Verdugo, Cornelius, and Lewis and conclude that counsel need not be appointed until after a trial court concludes that the petitioner has made a prima facie showing that he or she falls within the provisions of the statute. (Verdugo, at pp. 332-333; Lewis, at p. 1140; Cornelius, at p. 58.) We also agree with Lewis and Verdugo’s broader conclusion that 1170.95 is laid out in chronological order, and that events under it proceed in the order they are enumerated in the statute. (Lewis, at p. 1140; Verdugo, at p. 332.)
9 deadlines require that the People file any opposition to the petition up to 60 days after the
petition was served, and the defendant may serve any reply up to 30 days after the
People’s opposition is served. (§ 1170.95, subd. (c).) After briefing, the court
determines whether the petitioner has stated a prima facie case that he or she is entitled to
relief. If so, the court must issue an order to show cause and hold a hearing to determine
whether to re-sentence the petitioner. (§ 1170.95, subds. (c)-(d).)
Section 1170.95, subdivision (c), thus requires the trial court to make two prima
facie assessments. “The first is whether the petitioner has made a prima facie showing of
eligibility for relief. A petitioner is eligible for relief if he or she makes a prima facie
showing of the three criteria listed in section 1170.95(a)—namely he or she (1) was
charged with murder ‘under a theory of felony murder or murder under the natural and
probable consequences doctrine,’ (2) was convicted of first or second degree murder, and
(3) can no longer be convicted of first or second degree murder ‘because of changes to
Section 188 or 189 made effective January 1, 2019.’ ” (People v. Drayton (2020) 47
Cal.App.5th 965, 975-976 (Drayton), italics omitted.) “If the trial court determines a
petitioner has made a prima facie showing of eligibility for relief, the court proceeds to
the ‘second’ inquiry into the prima facie showing under section 1170.95(c). [Citation.]
In this second step, the trial [court] considers whether the petitioner has made a prima
facie showing of entitlement to (rather than eligibility for) relief.” (Id. at p. 976, italics
omitted.) Only after these first two prima facie review phases are complete, and the court
10 is satisfied that the petition is meritorious under these standards, does it then issue an
order to show cause and hold a hearing on the petition’s merits.
3. Defendant Stated a Prima Facie Case for Eligibility
Because the trial court in this case denied defendant’s petition before ordering
briefing, and arguably before appointing counsel, the record indicates that the trial court
denied the petition on the basis that defendant did not meet the first prima facie showing
of eligibility for relief. Had the trial court concluded that defendant made a prima facie
showing of eligibility for relief, it would have been required to provide defendant with
time to file formal briefing at a minimum. This did not happen. Thus, we review
whether the trial court erred in implicitly finding that defendant failed to state a prima
facie case that he fell within the provisions of the section.
The appropriate standard for review of the denial of a petition under
section 1170.95 is addressed in Drayton, supra, 47 Cal.App.5th at pp. 980-981. As that
case notes, “[a]ppellate review of petitions in similar context, such as Proposition 47,
typically involves multiple standards of review.” (Ibid.) In Proposition 47 cases, we
review the trial court’s decision under a mixed question of law and fact standard. Thus,
“ ‘[w]here an appeal involves the interpretation of a statute . . . , the issue on appeal is a
legal one, which we review de novo. Where the trial court applies disputed facts to such
a statute, we review the factual findings for substantial evidence and the application of
those facts to the statute de novo. [Citation.] “ ‘[A]n order is presumed correct; all
intendments are indulged in to support it on matters as to which the record is silent, and
11 error must be affirmatively shown.’ ” [Citation.] In addition, we must “ ‘view the record
in the light most favorable to the trial court’s ruling.’ ” ’ ” (People v. Sledge (2017) 7
Cal.App.5th 1089, 1095-1096 (Sledge).)
Here, the trial court never acted as a factfinder. It simply reviewed the petition
and record of conviction to determine whether petitioner made a prima facie showing of
eligibility for relief. Therefore, we review the trial court’s determination that defendant
failed to make a prima facie showing of eligibility for relief de novo.
Next, we turn to what kind of review section 1170.95 requires. The statute does
not set out a precise standard for reviewing whether a petition states a prima facie case
that the petitioner falls within the provisions of the statute. However, given that this
review is statutorily distinct from the facial sufficiency required under section 1170.95,
subdivision (b), and the more substantive prima facie analysis under subdivision (c), we
can conclude that the relevant standard is somewhere between those two.
We conclude that reviewing a petition to determine whether it states a prima facie
case for statutory eligibility is analogous to a preliminary review of statutory eligibility
for resentencing under Propositions 36 and 47.5 Under both these types of review, the
petitioner must first “establish his or her initial eligibility for relief,” after which the
5 This was the conclusion our Second District colleagues reached in Verdugo, supra, 44 Cal.App.5th at p. 329. This case is currently under review by our Supreme Court, though the relevant analysis is not under review. (See People v. Lewis, S260598, Supreme Ct. Mins., Mar. 18, 2020 [requesting briefing and argument only on whether superior courts can “consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief” under section 1170.95 and when the right to appointed counsel arises under the same].)
12 prosecution gets the opportunity to show that the petitioner is ineligible for relief.
(Sledge, supra, 7 Cal.App.5th at p. 1094.) In both cases, an evidentiary hearing is not
necessary to resolve the question of eligibility for relief, but “ ‘[a]n evidentiary hearing is
required if . . . there is a reasonable likelihood that the petitioner may be entitled to relief
and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ ”
(Id. at p. 1095, quoting California Rules of Court, rule 4.551(f).)
This procedure is very similar to the statutory procedure set out in
section 1170.95. All three require a trial court to preliminarily determine whether the
petition sets out a prima facie case of eligibility for relief, an opportunity for the parties to
dispute eligibility, and the opportunity for an evidentiary hearing if the court determines
that the petitioner has established a prima facie case that he or she is both eligible for and
entitled to relief.
When performing the preliminary review for statutory eligibility under
Propositions 36 and 47—and, analogously, under section 1170.95—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.’ ” (People v. Torres (2020)
46 Cal.App.5th 1168, 1178 (Torres).) Thus, our review must be whether the trial court
erred in finding that defendant was not eligible for relief as a matter of law because he
was a major participant in the underlying felony.
In many cases, where a defendant is petitioning the court under section 1170.95,
there has been a prior true finding on a special circumstances allegation that defendant
13 was a major participant and acted with reckless indifference to human life. (See, e.g.
People v. Smith (2020) 49 Cal.App.5th 85.) As our colleagues in the Second District
recently recognized, even such a true finding is not enough, on its own, to allow a trial
court to conclude a petitioner is not entitled to relief under section 1170.95 where the
finding occurred prior to our Supreme Court’s recent clarification of what those terms
mean. In Torres, supra, 46 Cal.App.5th at p. 1178 the trial court denied a petition under
section 1170.95 because “the existence of the jury’s 2001 robbery murder special
circumstance findings alone established that Torres 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’ [citation], as a matter of law, thereby barring him from
relief.” The court in Torres disagreed with the trial court’s holding. It found that
“[a]lthough the jury’s special circumstances findings rendered in 2001 indicate that the
jury concluded Torres was a ‘major participant’ who acted with ‘reckless indifference to
human life’ in the murders . . . , those jury findings alone do not preclude Torres from
showing today that he could not be convicted of first or second degree murder as
redefined by Senate Bill 1437.” (Torres, at p. 1179.) This conclusion is based upon the
fact that our Supreme Court has since narrowed the definition of what it means to be a
major participant or to act with reckless indifference to human life. (See People v. Banks
(2015) 61 Cal.4th 788; People v. Clark (2016) 63 Cal.4th 522; Torres, at p. 1179.)
Defendant has an even stronger argument for error here. In contrast to Torres, the
record in this case does not show that the jury made any findings regarding special
14 circumstances against defendant. This means that there is nothing establishing that
defendant was a major participant as a matter of law at the time of his conviction, let
alone under the law as it exists now. It is true our review of defendant’s case on appeal
found that “if it weren’t for [defendant], this robbery and resulting murder never would
have occurred,” that “[defendant] was the only one of the three that had a motive to
victimize this particular gas station and individual[,] . . . was aware his companions were
armed,” and “[h]is acting as the station’s attendant allowed them the time and freedom
they needed to complete the crimes.” However, while this makes clear defendant has an
uphill battle arguing he was not a major participant, it is not legally conclusive and does
not mean defendant is ineligible for relief under section 1170.95 as a matter of law.
Accordingly, we conclude the trial court erred when it denied defendant’s petition
for failing to state a prima facie case he falls within the provisions of section 1170.95.6
Reviewing de novo, we find defendant met the three criteria necessary to establish a
prima facie case for eligibility under section 1170.95; that is, his petition alleges he was
charged with murder under a vicarious liability theory, he was convicted of first or
second degree murder, and he can no longer be convicted of first or second degree
murder. Taking these allegations as true, there is nothing in the record to establish that
defendant is not eligible for relief as a matter of law. Accordingly, we remand to the trial
court with directions to proceed to the second prima facie review phase, which requires
6Because we conclude that the trial court erred by denying defendant’s petition, we do not address defendant’s arguments regarding procedural error.
15 the trial court to appoint defense counsel and permit briefing from both parties and then
determine whether or not defendant is entitled to relief.
B. The Abstract of Judgment Must Be Amended
Next, defendant argues that the abstract of judgment incorrectly records that
defendant’s robbery conviction was for first degree, rather than second. He also points
out that the trial court stayed the sentence for his second degree robbery conviction, but
the abstracts of judgment from 1990 and 1991 say the sentence was for first degree
robbery. The People agree these errors should be corrected. We agree with the parties.
Defendant was charged and convicted of robbery, without a degree specified.
When the degree of the robbery is not specified, the crime is second degree robbery.
(People v. Anderson (1975) 50 Cal.App.3d 325, 327; § 1157.) The court imposed but
stayed a five-year term pursuant to section 654. However, amended abstracts of
judgment from 1990 and 1991 indicate that defendant was convicted of first degree
robbery, and is to serve the five-year term consecutively. That is incorrect.
Therefore, we exercise our independent authority and order the trial court to
correct the abstract of judgment to reflect that defendant’s robbery conviction was for
second degree robbery, and that the sentence was imposed but stayed.
IV. DISPOSITION
The order denying defendant’s petition to vacate his murder conviction and for
resentencing is reversed. The matter is remanded to the superior court with directions to
appoint defendant counsel, permit the People to file any opposition to defendant’s
16 petition within 60 days of the trial court’s order, and permit defendant to file any reply to
the People’s opposition within 30 days after service of the People’s opposition. The trial
court must then consider whether defendant has made a prima facie case for entitlement
to relief. We also direct the trial court to correct the abstract of judgment to reflect that
defendant’s robbery conviction was for second degree robbery, and that the sentence was
imposed but stayed. The court is further ordered to forward a certified copy of the
corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
MILLER Acting P. J.
RAPHAEL J.