People v. Lee CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD150605
- Trial judge
- Joan P. Weber
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Judith L. Haller, Judith D. McConnell
Analysis
The trial court summarily denied defendant's petition for resentencing under Penal Code section 1170.95, finding he was ineligible for relief because he was the actual killer. The Court of Appeal affirmed the denial, concluding that as a direct participant in the murder, defendant was statutorily ineligible for relief.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“In denying defendant’s petition, the court found he was the actual killer, and as such, was ineligible for relief under the statute.” | de novo | correct | agree with court The appellate court applied de novo review to the legal question of statutory eligibility. It correctly determined that under the plain language of Penal Code section 1170.95, a person who is the actual killer is ineligible for relief. The record established that the defendant was the driver who crashed the vehicle, making him the actual killer. Therefore, the trial court's summary denial was legally correct. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for independent review of the record by the appellate court when appointed counsel finds no arguable issues on appeal.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed appellate counsel to file a brief identifying any arguable issues, or to seek leave to withdraw and request independent review if none exist.
- relied: People v. Gomez (2020) 52 Cal.App.5th 1 — Interprets the procedural requirements of Penal Code section 1170.95 and confirms that a direct participant or actual killer in a murder is ineligible for relief under the statute.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for independent review. It accurately applies the statutory text of section 1170.95 to the established facts that the defendant was the actual killer, which is a dispositive bar to relief.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court summarily denied Tommy Lee's Penal Code section 1170.95 petition, finding he was the actual killer in a 2000 high-speed police pursuit crash and therefore ineligible for resentencing on his 2007 second degree murder reconviction. On a Wende/Anders brief with no supplemental brief from defendant, the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of section 1170.95 resentencing petition at the prima facie stage on the ground that defendant was the actual killer and thus ineligible for relief“In denying defendant’s petition, the court found he was the actual killer, and as such, was ineligible for relief under the statute.” | unclear | correct | agree with court The result is correct. Defendant's first murder conviction was reversed because evading an officer cannot support second degree felony murder, so his 2007 reconviction for second degree murder necessarily rested on implied malice as the driver who caused the fatal crash. Senate Bill 1437 (as in effect in 2021) relieved only those convicted under felony murder or natural and probable consequences theories and left actual-killer and implied-malice liability untouched (see amended § 189, subd. (e)(1)), so the record of conviction establishes ineligibility as a matter of law without factfinding. The court's shorthand that a 'direct participant' is ineligible is not the statutory language, and Gomez (a special-circumstance major-participant case then under Supreme Court review) is a loose fit, but these imprecisions do not change the outcome. The opinion does not state a standard of review; independent Wende review was conducted. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel who finds no arguable issues may file a brief requesting the court independently review the record for arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Federal constitutional framework for appointed counsel's no-merit brief and appellate court review of the record.
- relied: People v. Gomez (2020) 52 Cal.App.5th 1 — Describes the purpose of Senate Bill 1437 and section 1170.95 procedure; cited for the proposition that a petitioner whose record of conviction shows he could still be convicted under the amended murder statutes is ineligible for relief at the prima facie stage.
The appellate opinion: sound with gaps — The affirmance is correct because an actual killer reconvicted of second degree murder on an implied malice theory (after felony murder was rejected) was outside the reach of Senate Bill 1437, and the record of conviction shows this without weighing evidence. The opinion is thin, however: it uses the non-statutory term 'direct participant,' relies on Gomez (a special-circumstance case then under Supreme Court review) rather than explaining the implied-malice basis of the reconviction, does not address whether Wende review applies to postconviction appeals (People v. Serrano, People v. Cole), and does not directly answer counsel's questions about sufficiency of malice or pending Supreme Court cases.
Opinion
Filed 4/19/21 P. v. Lee CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077960
Plaintiff and Respondent, v. (Super. Ct. No. SCD150605)
TOMMY LEE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. In 2007, defendant Tommy Lee was convicted of second degree murder. On July 2, 2019, defendant filed a petition for resentencing under Penal Code1 section 1170.95. On July 13, 2020, the court summarily denied the petition and defendant appealed. Unable to identify any arguable issues, 1 All further statutory references are to the Penal Code. appellate counsel has sought independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND2 On January 30, 2000, defendant was driving a stolen vehicle when San Diego County Sheriff’s deputies began a pursuit at speeds of 70 to 90 miles per hour. About seven miles from the point where the chase began, defendant crashed into another car. A passenger in that other car was ejected and later died. Defendant admitted he was fleeing from the deputies and indicated he had ingested methamphetamine before driving. He also told arresting officers he had intentionally run through red lights during the pursuit. On May 3, 2000, defendant was charged inter alia with murder in violation of section 187, subdivision (a). The information also alleged one strike prior (robbery) pursuant to sections 667, subdivisions (b)–(i), 1170.12, and 668. Defendant was convicted of second degree murder and other related charges. He was sentenced to 30-years-to-life imprisonment plus an additional determinant term of six years four months. On December 1, 2005, defendant’s murder conviction was reversed on the ground that fleeing from an officer with reckless disregard for others cannot form a basis for second degree felony murder. On January 22, 2007, he was reconvicted of second degree murder. On resentencing, the trial court struck the strike prior and reduced his indeterminant term to 15-years-to- life. The court also found sufficient evidence to sustain the jury finding of attempted murder. Defendant’s convictions were affirmed on appeal.
2 The facts recited here are taken from the Court of Appeal decision in People v. Lee (Apr. 17, 2009, D052388) [nonpub. opn.]. 2 As noted, defendant in July 2019 filed a petition for relief under section 1170.95 that the court summarily denied in July 2020. In denying defendant’s petition, the court found he was the actual killer, and as such, was ineligible for relief under the statute. Defendant appeals from the court’s denial of his 1170.95 petition. DISCUSSION As noted, appellate counsel has filed a brief under Wende and Anders stating he has read and thoroughly reviewed the record, and has found no specific grounds for reversal or modification. He asks the court to independently review the record and determine whether defendant is entitled to relief. He also asks the court focus on whether 1) a prime facie case for relief under section 1170.95 was demonstrated; 2) a finding he was a direct cause of death precludes relief under section 1170.95; 3) there is sufficient evidence of malice; and 4) cases currently before our high court provide a basis for relief under section 1170.95. Although he was advised he could do so, defendant has not filed a supplemental brief on his own behalf. “In 2018, ‘the Governor signed Senate Bill No. 1437 . . . in order 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 also added . . . section 1170.95, which created a [petition] procedure whereby a person whose felony murder conviction was final, but who could not have been convicted under the amended statutes, 3 could petition to have the conviction vacated.’ [Citation.]” (People v. Gomez (2020) 52 Cal.App.5th 1, 11–12 (Gomez).) Under section 1170.95, subdivision (c) a trial court presented with a facially valid petition must determine if the petition sets forth a prima facie case for relief. If it does, the court must then hold a hearing at which the prosecutor bears the burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. If the prosecutor fails to meet this burden, the court must vacate the murder conviction and resentence the defendant on any remaining counts. (§ 1170.95, subds. (c) & (d).) Here, the record shows defendant was a direct participant in the second degree murder, as he was driving the stolen car that crashed into another car, killing one of its occupants. Under section 1170.95, a direct participant in a murder is ineligible for relief under the statute. (See Gomez, supra, 52 Cal.App.5th at pp. 14–15.) Following our independent review, we conclude there are no other arguable issues that would result in modification or reversal in this case. Defendant has been represented by competent counsel on appeal.
4 DISPOSITION The order denying defendant relief under section 1170.95 is affirmed.
BENKE, J. WE CONCUR:
McCONNELL, P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12