Filed 11/29/22 P. v. Philips CA4/2 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E072762

v. (Super.Ct.No. RIF079858)

BARBARA LYNN PHILLIPS, OPINION ON TRANSFER

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed and remanded with directions.

Raymond Mark DiGuiseppe and David M. McKinney, under appointment by the

Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P.

Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant, Barbara Lynn Phillips, filed a petition for resentencing

pursuant to Penal Code former section 1170.95,1 which the court denied. On appeal,

defendant contended the court erred in denying her petition based on the jury’s true

finding on a felony-murder special-circumstance allegation. By opinion filed May 26,

2020, we affirmed.

On October 19, 2022, the California Supreme Court transferred the matter back to

us with directions to vacate our decision and reconsider the cause in light of People v.

Lewis (2021) 11 Cal.5th 952 (Lewis) and People v. Strong (2022) 13 Cal.5th 698

(Strong). On October 20, 2022, we ordered our decision vacated and set a briefing

schedule.

Defendant argues that pursuant to Strong, the court erred in determining that the

jury’s true finding on the felony-murder special-circumstance allegation rendered prior to

the decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark

(2016) 63 Cal.4th 522 (Clark) made her ineligible for relief. Defendant maintains she

made the requisite prima facie showing and the matter should be remanded for an order

to show cause (OSC) hearing. The People concede the matter should be remanded for the

issuance of an OSC and an evidentiary hearing. We reverse and remand the matter for

reconsideration.

1 All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) 2

I. PROCEDURAL BACKGROUND 2

A jury found defendant guilty of first degree murder. (§ 187, subd. (a), count 1.)

The jury also returned true findings on the special-circumstance allegations that the

murder was committed while engaged in the commission of a kidnapping (§ 190.2,

subd. (a)(17)(B)) and that the murder was intentional and involved the infliction of

torture (§ 190.2, subd. (a)(18)). The jury further found true the allegation that defendant

personally used a firearm in the commission of the murder. (§§ 12022.5, subd. (a),

1192.7, subd. (c)(8).) The court sentenced defendant to life without the possibility of

parole, plus four years on the personal firearm use enhancement. (People v. Phillips,

supra, E026884.)

Defendant appealed. On May 8, 2001, this court affirmed defendant’s

convictions. (People v. Phillips, supra, E026884.)

On January 7, 2019, defendant filed a petition for resentencing under former

section 1170.95 in the superior court and requested the court to appoint counsel to assist

her. The People filed a response arguing, in pertinent part, that defendant’s petition

2 On October 17, 2019, we reserved ruling on defendant’s October 11, 2019, request that we take judicial notice of the clerk’s transcript of the written jury instructions given at trial and the reporter’s transcript of the oral instructions given and the closing arguments. We deny the request as unnecessary to our resolution of the issues on appeal. (Evid. Code, §§ 452, subd. (d), 459.) On November 21, 2019, we reserved ruling on the People’s November 12, 2019, request that we take judicial notice of our prior opinion in People v. Phillips (May 8, 2001, E026884) [nonpub opn.] (Phillips), from defendant’s appeal from the judgment. We grant the request. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We exclude a recitation of the facts here as irrelevant to the issues raised on appeal. 3 should be summarily denied because the jury’s finding on the torture-murder allegation

established she had the intent to kill, which meant that she could not make a prima facie

showing for relief under former section 1170.95. On March 25, 2019, the public

defender filed a reply to the People’s response.

The court held a hearing on the petition on April 19, 2019. The deputy public

defender represented defendant and requested a 90-day stay. The prosecutor stated,

“It—torture murder, kidnap, special circumstance, LWOP[]. There were CALJICs given

that required intent to kill.” The court said it was inclined to summarily deny the

petition; defense counsel objected. The court denied the petition.

Defendant appealed. We affirmed holding that an error in the instructions on the

torture-murder allegation was harmless because the evidence clearly showed defendant

acted with intent to kill.

II. DISCUSSION

Defendant argues the court erred in denying her petition, and the matter should be

remanded for an OSC hearing. The People agree. We remand the matter for a new prima

facie hearing.

“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of”

theories under which malice is imputed to a person based on that person’s participation in

a crime “to effectuate the Legislature’s declared intent ‘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

4 to human life.’” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Senate Bill 1437 also

created a special procedural mechanism for those convicted under the former law to seek

retroactive relief under the law as amended. [Citations.] Under newly enacted section

1172.6, the process begins with the filing of a petition containing a declaration that all

requirements for eligibility are met [citations], including that ‘[t]he petitioner could not

presently be convicted of murder or attempted murder because of changes to . . . Section

188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill 1437

[citation].” (Id. at p. 708, fn. omitted.)

“When the trial court receives a petition containing the necessary declaration and

other required information, the court must evaluate the petition ‘to determine whether the

petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record

in the case establish conclusively that the defendant is ineligible for relief, the trial court

may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.) “As a general matter, a

trial court should afford both parties the opportunity to brief the question of a petitioner’s

eligibility for relief and may extend the briefing deadlines ‘for good cause’ as necessary

to ensure that such an opportunity is meaningful.” (Lewis, supra, 11 Cal.5th at p. 966,

fn. 4.)

“While the trial court may look at the record of conviction after the appointment of

counsel to determine whether a petitioner has made a prima facie case for . . . relief, the

prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas

corpus proceedings, ‘“the court takes petitioner’s factual allegations as true and makes a

5 preliminary assessment regarding whether the petitioner would be entitled to relief if his

or her factual allegations were proved. If so, the court must issue an order to show

cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on

credibility grounds without first conducting an evidentiary hearing.’” (Lewis, supra,

11 Cal.5th at p. 971.) “In reviewing any part of the record of conviction at this

preliminary juncture, a trial court should not engage in ‘factfinding involving the

weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “[T]he ‘prima facie

bar was intentionally and correctly set very low.’” (Ibid.)

Where a defendant’s “case was tried before both Banks and Clark, . . . special

circumstance findings do not preclude him from making out a prima facie case for

resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s]

in concluding otherwise.” (Ibid.)

If, instead, a defendant has made a prima facie showing of entitlement to relief,

“‘the court shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.)

Once the court determines that a defendant has made a prima facie showing, “the court

must [then] hold an evidentiary hearing at which the prosecution bears the burden of

proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted

murder’ under state law as amended by Senate Bill 1437. [Citation.] ‘A finding that

there is substantial evidence to support a conviction for murder, attempted murder, or

manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is

ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of

6 proof, the prior conviction, and any allegations and enhancements attached to the

conviction, shall be vacated and the petitioner shall be resentenced on the remaining

charges.’” (Id. at p. 709.) “Senate Bill 1437 relief is unavailable if the defendant was

either the actual killer, acted with the intent to kill, or ‘was a major participant in the

underlying felony and acted with reckless indifference to human life . . . .’” (Id. at

p. 710.)

“[E]ffective January 1, 2022, the Legislature limited use of prior appellate

opinions, allowing trial judges to ‘consider the procedural history of the case recited.’

[Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should

not rely on the factual summaries contained in prior appellate decisions when a [former]

section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing.” (People

v. Clements (2022) 75 Cal.App.5th 276, 292; accord People v. Flores (2022)

76 Cal.App.5th 974, 988 [“[T]he factual summary in an appellate opinion is not evidence

that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for

resentencing.”].)

Here, the jury rendered the special-murder circumstance findings long before both

Banks and Clark were decided. Thus, with respect to those findings, “no judge or jury

has ever found the currently required degree of culpability . . . .” (Strong, supra,

13 Cal.5th at p. 718, italics added.) Thus, the finding did not, alone, render defendant per

se ineligible for relief. Therefore, the court below erred in denying defendant’s petition

on that basis.

7 However, we also determined, in reliance on this court’s prior opinion, that any

error was harmless because the evidence was sufficient to support a finding that

defendant acted with intent to kill. Thus, we effectively reduced the evidentiary burden

to the sufficiency of the evidence, from beyond a reasonable doubt, and erroneously

relied exclusively upon the facts contained in this court’s prior opinion. Therefore, the

matter must be remanded for a new prima facie hearing. If the court finds defendant has

made a prima facie showing, the court shall issue an OSC and schedule an evidentiary

hearing prior to making any factual findings.

III. DISPOSITION

The order dismissing defendant’s petition is reversed. The matter is remanded

with directions to hold a new prima facie hearing. We express no opinion on whether

defendant is entitled to relief following the hearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J.

We concur:

FIELDS

J.

MENETREZ

J.

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