Opinion
A167193
04-25-2024
THE PEOPLE, Plaintiff and Respondent, v. JERRY FERNANDES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 19109)
CASTRO, J. [*]
In 1976, a jury convicted defendant Jerry Fernandes of the first degree murder of Cordon Wilbur Hansen with special circumstances. In July 2022, Fernandes petitioned for resentencing under Penal Code section 1170.95- now renumbered as section 1172.6 (Stats. 2022, ch. 58, § 10)-alleging that he was entitled to resentencing because he could no longer be convicted of murder based on the statutory changes enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which altered liability for murder under theories of felony murder and natural and probable consequences. The trial court summarily denied the petition, concluding that Fernandes had failed to make a prima facie showing of his entitlement to relief.
All statutory references are to the Penal Code unless otherwise specified.
On appeal, Fernandes contends that the summary denial of his resentencing petition must be reversed because the jury instructions given in the case allowed the jury to convict him on a theory that he aided and abetted a felony murder without finding that he personally killed or intended to kill the victim. We disagree and affirm.
I.
PROCEDURAL BACKGROUND
A. The Murder Prosecution
By information filed March 10, 1976, Fernandes was charged with the murder of Cordon Wilber Hansen (§ 187; count one); robbery of Hansen (§ 211; count two); kidnap of Hansen for the purpose of committing robbery (§ 209; count three); and possession of a firearm by a felon (§ 12021; count four). Counts one through three alleged personal use of a firearm by Fernandes. (§ 12022.5.) Count one further alleged as special circumstances that the murder was "willful, deliberate and premeditated" and was "personally committed" by Fernandes during commission of the kidnapping and the robbery. (See now § 190.2, subd. (a)(17)(A) &(B).) Count two alleged that Fernandes intentionally inflicted great bodily injury on Hansen in the commission of the robbery. Finally, the information alleged that Fernandes had a prior felony conviction for burglary under section 459.
The January 1976 complaint in this matter had also charged James Kenneth Watson as a codefendant in the commission of these crimes, alleging that the premeditated murder of Hansen was "personally committed by both defendants."
B. Jury Instructions, Verdict and Sentencing
1. Jury Instructions
Before deliberations, the jury was instructed that murder requires malice aforethought and that malice can either be express or implied. The jury was further instructed that "[t]he intent by which an act is done is shown by the circumstances attending the act, the manner in which it is done, the means used, and the soundness of mind and discretion of the person committing the act." The court also instructed that circumstantial evidence may only be used to prove a defendant's intent where it is consistent with the required mental state and cannot be reconciled with any other rational conclusion. And where the evidence of intent is susceptible to two reasonable interpretations, the jury must adopt the interpretation which points to the absence of the required intent.
The jury was additionally instructed that malice is "express" where there is a manifest intention to unlawfully kill a human being, and "implied" when either (1) "the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness"; or (2) "when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life."
The court then instructed the jury on two types of first degree murder: (1) willful, deliberate, and premeditated murder; and (2) felony murder-i.e., "[t]he unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of or attempt to commit the crime of robbery" with the specific intent to commit such crime. A defendant may be an aider and abettor to first degree felony murder where the victim was killed "by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of robbery," and the defendant either "directly and actively" committed the act constituting the crime or, "with knowledge of the unlawful purpose of the perpetrator of the crime," aided, abetted, advised, or encouraged its commission. More generally, a defendant "aids and abets in the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, [he or she] aids, promotes, encourages or instigates by act or advice the commission of such crime." Such an aider and abettor is equally guilty as the perpetrator of the crime and is considered a principal in the offense. However, a conviction cannot be based on the testimony of an accomplice, which should be viewed with distrust, unless "it is corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense."
With respect to the robbery charge (count two), the trial court instructed the jury that, if it found count two to be true, it was required to additionally determine whether Fernandes "intentionally inflicted great bodily injury" on the victim. In other words, it was the jury's duty to determine whether or not Fernandes, "with a specific intent to inflict such injury, did inflict great bodily harm" on Hansen. Great bodily injury is "significant or substantial" bodily injury which is more than trivial or insignificant injury or moderate harm. Finally, the term" 'used a firearm' includes not only an intentional discharge thereof but also the use thereof as an object with which to hit or strike or display in a menacing manner."
2. Verdict and Sentence of Death
At the conclusion of the trial, the jury convicted Fernandes of the first degree murder of Hansen, finding that he used a firearm in the commission of the offense. The jury also convicted Fernandes of first degree robbery (count two), concluding that Fernandes used a firearm and inflicted great bodily injury on Hansen in the commission of the robbery. Fernandes was also convicted of kidnapping for robbery (count three), with the jury finding true that Fernandes used a firearm and that Hansen suffered great bodily injury in connection with that crime. Finally, the jury convicted Fernandes of possession of a firearm by a felon, finding that Fernandes previously had been convicted of felony burglary.
Several days later, the trial court denied a defense motion to discharge the guilt-phase jury and select another jury to try the special circumstances. The parties then stipulated that the evidence received during the previous trial could be considered by the existing jury-along with any additional evidence presented-at the special circumstances trial. After evidence and argument, the court instructed the jury that it must determine beyond a reasonable doubt whether the first degree murder in the case had been committed under one or more of the alleged special circumstances.
Specifically, the jury was required to find (1) that the murder was willful, deliberate, and premeditated; (2) that Fernandes "personally committed the act which caused the death of the person murdered"; and (3) that the murder was committed during the commission or attempted commission of a robbery and/or a kidnapping. With respect to the first requirement, the court explained: "If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it was a willful, deliberate and premeditated murder." As to the second requirement, the court instructed: "The clause 'the defendant personally committed the act which caused the death of a person murdered,' as used in these instructions, must be construed to mean that the defendant must have been personally present during the commission of the act or acts causing death, and must have directly committed or physically aided in the commission of such act or acts." Finally-as in the guilt phase of the trial-circumstantial evidence could only be used to prove Fernandes's intent for purposes of the special circumstances where it was consistent with the required mental state and could not be reconciled with any other rational conclusion. Thus, where the evidence of intent was susceptible to two reasonable interpretations, the jury was required to adopt the interpretation which pointed to the absence of the required intent.
After deliberations, the jury found both special circumstances true. The trial court then denied Fernandes's motion for new trial and issued its judgment of death on July 8, 1976.
3. Resentencing to Life in Prison
Appeal to the Supreme Court was automatic. While the appeal was pending, the Supreme Court transferred the matter to this court for consideration in light of its decision in Rockwell v. Superior Court (1976) 18 Cal.3d 420. In Rockwell, our high court held that the death penalty statutes in effect at the time of Fernandes's trial were unconstitutional because they impermissibly mandated a sentence of death if one or more special circumstances were found true. Thus, there was no provision allowing consideration of evidence of mitigating circumstances as to the offense or in the personal characteristics of the defendant. (Id. at pp. 442445.) Under the circumstances, we modified Fernandes's death sentence with respect to count one by reducing it to life imprisonment. (People v. Fernandes (May 31, 1978, 1 Crim. No. 16701) [nonpub. opn.].)
C. Resentencing Petition
On July 11, 2022, Fernandes petitioned for resentencing under former section 1170.95. Specifically, Fernandes contended that he had been convicted of first degree felony murder and could no longer be convicted of murder due to the changes to sections 188 and 189, because he was not the actual killer, did not aid or abet the actual killer with an intent to kill, and was not a major participant in the underlying felony or act with reckless indifference to human life during its commission. Counsel was appointed for Fernandes on July 18, 2022. The prosecution then filed an opposition to finding a prima facie case and a related request for judicial notice, arguing that the record of conviction-specifically, the jury's special circumstance findings-established that Fernandes acted with an intent to kill and was thus ineligible for relief as a matter of law. Defense counsel countered that the standard for establishing a prima facie case is low and the trial court should not resolve factual issues at this preliminary juncture.
After argument, the trial court denied Fernandes's resentencing petition by written order dated January 19, 2023, concluding that Fernandes had failed to state a prima facie case. Specifically, the court concluded Fernandes was not entitled to relief because the record of conviction indicated he was the actual killer who acted with specific intent to kill. This appeal followed.
II.
DISCUSSION
A. Resentencing Framework and Standard of Review
Senate Bill 1437 "eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule." (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Specifically, effective January 1, 2019, section 189 was amended to provide: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person 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 [(the statute defining felony-murder special circumstances)]." (§ 189, subd. (e).) Section 188 was also amended to state: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
The Legislature also added former section 1170.95 (now section 1172.6), which creates a procedure for offenders previously convicted under a felony-murder theory, the natural and probable consequences doctrine, "or other theory under which malice is imputed to a person based solely on that person's participation in a crime" to obtain the benefits of these changes retroactively. (§ 1172.6, subd. (a).) Under the statute, individuals convicted of murder can petition for relief in the court where they were sentenced if (1) the complaint or information filed against them allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or related theories; (2) they were convicted of murder following a trial; and (3) they could not now be convicted of murder "because of changes to Section 188 or 189." (Ibid.) If the petitioner makes a prima facie showing that he or she is entitled to relief, the court must hold an evidentiary hearing. (§ 1172.6, subd. (c).)
Petitions that fail to state a prima facie case for relief, however, may be rejected without holding an evidentiary hearing. (§ 1172.6, subd. (c).) In Lewis, supra, 11 Cal.5th 952, our high court held that superior courts may consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief: "The record of conviction will necessarily inform the trial court's prima facie inquiry under [section 1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Id. at p. 971.) Thus," 'if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Ibid.) And, as part of the record, a court may properly rely upon the jury instructions given at trial to determine whether a defendant is entitled to relief. (People v. Daniel (2020) 57 Cal.App.5th 666, 676; accord, People v. Estrada (2022) 77 Cal.App.5th 941, 945-948 (Estrada).)
We independently review a trial court's determination on whether a petitioner has made a prima facie showing. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
B. The Trial Court Correctly Found No Prima Facie Case
On appeal, Fernandes asserts that the superior court erred in failing to issue an order to show cause and hold an evidentiary hearing with respect to his resentencing request because, contrary to the superior court's ruling, the jury instructions given at trial, along with the corresponding jury verdicts, do not definitively establish that he was the actual killer. Rather, Fernandes urges, the jury could have concluded that he aided and abetted a felony murder without a specific intent to kill. We are not persuaded.
Preliminarily, we note that, like the superior court in this case, we are working from a limited record of conviction. Before us are only the charging documents, jury instructions, verdicts, some court minute orders, and certain sentencing orders. Based on these materials, we agree with Fernandes that-during the guilt phase of the trial-the jury might have convicted him of first degree murder without finding that he was the actual killer or possessed a specific intent to kill.
As detailed above, the jury in this case was instructed regarding first degree felony murder that the only intent required is the specific intent to commit the underlying felony. It was also told that malice could be implied "when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life." And the trial court further instructed that a defendant could be an aider and abettor to first degree felony murder where the victim was killed "by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of robbery," and the defendant either "directly and actively" committed the act constituting the crime or, "with knowledge of the unlawful purpose of the perpetrator of the crime," aided, abetted, advised, or encouraged its commission. In other words, a hypothetical jury could have concluded that Fernandes, intending only to rob Hansen, was guilty of a murder committed by an accomplice.
Moreover, while the jury found that Fernandes "intentionally inflicted great bodily injury" on Hansen and used a gun during the commission of the robbery during which the murder took place, this does not establish that he was necessarily the actual shooter or intended to kill. Per the guilt phase instructions, use of a gun could be established merely by displaying the weapon in a menacing manner or by using it as a club to bludgeon the victim. Thus, it is possible that Fernandes could have been convicted of both use of a gun and intentionally inflicting great bodily injury without actually shooting or intending to kill Hansen. In sum, while the trial transcript might tell a different tale, based on the instructions and verdicts from the guilt phase alone, we cannot conclude that the jury must have found beyond a reasonable doubt that Fernandes was the actual killer or that he had a specific intent to kill.
Fernandes's argument fails, however, when we consider the jury instructions and verdicts from the special circumstances phase of the trial. As stated above, during that proceeding the jury found true beyond a reasonable doubt that (1) the murder was willful, deliberate, and premeditated; (2) Fernandes "personally committed the act which caused the death of the person murdered"; and (3) the murder was committed during the commission or attempted commission of a robbery and/or a kidnapping. With respect to these findings, the jury was instructed that the killing was willful, deliberate, and premeditated if "preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill." (Italics added.) In addition, the clause" 'the defendant personally committed the act which caused the death of a person murdered,'" was broadly defined in the instructions to mean that "the defendant must have been personally present during the commission of the act or acts causing death, and must have directly committed or physically aided in the commission of such act or acts." (Italics added.)
Viewing the jury's findings in light of these instructions, it is clear that the jury must have found beyond a reasonable doubt either that Fernandes was the actual killer or that he was an aider and abettor who acted with the intent to kill. Either finding is fatal to Fernandes's resentencing claim because, under both circumstances, he could still be convicted of murder under the amendments to sections 188 and 189 enacted by Senate Bill 1437. Specifically, as stated above, section 189 now provides that a participant in the perpetration of certain enumerated felonies, including robbery and kidnapping, during which a death occurs, is liable for murder if the person was "the actual killer" or "[t]he person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree." (§ 189, subds. (a), (e)(1) &(2); compare Estrada, supra, 77 Cal.App.5th at p. 945 [concluding that Estrada was ineligible for resentencing as a matter of law because "[t]he record establishe[d] that Estrada was convicted of first degree murder as an aider and abettor with intent to kill"].) Because Fernandes could still be convicted of murder under either scenario, the superior court properly concluded that Fernandes is ineligible for resentencing as a matter of law.
III. DISPOSITION
The superior court's order denying resentencing under section 1172.6 is affirmed.
WE CONCUR: HUMES, P. J., LANGHORNE WILSON, J.
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.