Opinion
A158910
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. STERLING B. JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 71354B)
Defendant Sterling B. Jones appeals from the trial court's order of September 23, 2019, denying his petition to recall and vacate his conviction of first degree murder and for resentencing based on Penal Code section 1170.95. Defendant's court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Defendant was informed of his right to file supplemental briefing, and he has done so. After our review of counsel's brief and defendant's supplemental brief and our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm.
All statutory references are to the Penal Code.
Underlying Judgment of Conviction
Defendant and codefendant Neil Jones were charged with first degree murder with special circumstances for felony murder (rape) and felony murder (oral copulation). Defendant was also charged with attempted murder, rape, two counts of oral copulation and two counts of kidnapping.
From the opinion in Jones v. Superior Court (1981) 123 Cal.App.3d 160, we summarize the underlying facts:
In Jones v. Superior Court, supra, 123 Cal.App.3d 160, the Court of Appeal denied writ petitions and upheld the superior court's denial of a motion to dismiss the special circumstances against defendant and his codefendant under section 995. The facts stated in Jones v. Superior Court were based on preliminary examination testimony. (Id. at pp. 162, 163.) In 2019, the district attorney's response to defendant's request for resentencing pursuant to section 1170.95 reported that, according to the Attorney General's office, a direct appeal file for defendant cannot be found.
"[O]n Sunday morning, July 20, 1980, shortly after 1 a.m., petitioners [defendant and Neil Jones] each raped Ms. Turner and forced her to orally copulate them. These felonious sexual assaults were perpetrated within the confines of Turner and Vernon Greer's home at gunpoint (Greer held at bay). Their sexual crimes physically completed, petitioners conferred.
"Greer overheard petitioners' discussion proposing the alternatives of killing on site or taking the couple to the Alameda. They decided to take them to the Alameda, and Neil Jones told them they would not be killed but would be taken to 'the man' to determine if Greer was a dope dealer. Ms. Turner was ordered out of the house first and threatened violence if she ran.
"Petitioners' station wagon was used (Sterling driving) to transport their hapless victims to a roadside location some two miles distant. The kidnaping culminated with petitioner Neil Jones first shooting and killing execution-style Ms. Turner and then shooting and felling Greer who fled when the gun held at his head jammed." (Jones v. Superior Court, supra, 123 Cal.App.3d at p. 163.)
Defendant had a court trial before Judge Stanley Golde. He was convicted by the court on July 6, 1982, of first degree murder with felony murder special circumstances involving rape and oral copulation, "first degree" attempted murder, kidnapping (two counts), and two counts of oral copulation and rape. Defendant was sentenced to life without parole for special circumstance murder and concurrent sentences for the other crimes. Immediately before the court pronounced sentence on August 13, 1982, it denied defendant's motion to strike the special circumstances, stating: "The Court finds the nature of the crime peculiarly offensive. He not only in this Court's opinion deliberately and intentionally aided and abetted in a killing, but he further aided and abetted and participated in a crime that not only resulted in death but in degradation and humiliation." (Italics added.)
Petition for Resentencing
Section 1170.95 became effective on January 1, 2019, as part of Senate Bill 1437. "The legislation . . . addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending sections 188 and 189, as well as by adding 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 . . . . [¶] Senate Bill 1437 was enacted 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).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds . . . section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequence theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . .' (§ 1170.95, subd. (a).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723.)
Section 1170.95 permits a person to file a petition if all three of these conditions are met: "(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." (§ 1170.95, subd. (a).)
The pertinent change is to section 189, subd. (e) which now provides that "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." (Italics added.)
Subdivision (a) remains unchanged, and includes in pertinent part, "All murder that is perpetrated by means of a destructive device or explosive, . . . lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate arson, rape, carjacking, robbery, . . . kidnapping, . . . or any act punishable under Section 206, 286, 287, 288, or 289, or former section 288a . . . is murder of the first degree."
As a first step, the court "shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).)
On January 4, 2019, defendant filed a pro se "Petition for Resentencing (Penal Code § 1170.95)." The petition was a form petition, and boxes were checked indicating that defendant was convicted of first degree felony murder or murder under the natural and probable consequences doctrine and could not now be convicted because of changes to section 189 for the following checked reasons: "I was not the actual killer; [¶] I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request or assist the actual killer in the commission of murder in the first degree, [¶] I was not a major particpant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony," and "The victim of the murder was not a peace officer . . . ."
By order filed January 15, 2019, the trial court ordered the district attorney to submit briefing and appointed counsel for defendant. The order stated that defendant may file a reply brief after service of the district attorney's brief. The order specifically noted that it was "not an order to show cause," and that the court would first "determin[e] if [defendant] has made a prima facie showing for relief," citing section 1170.95, subdivision (c).
The district attorney filed a response to the request for resentencing, opposing it. The response included a copy of the opinion in Jones v. Superior Court, supra, 123 Cal.App.3d 160, a memorandum filed in the underlying case in opposition to a motion to suppress evidence, the verdict forms, abstract of judgment, and the transcript of the sentencing hearing. Defendant did not file a reply.
Defendant signed a waiver of his personal appearance at the hearing on the petition. Defendant was represented by counsel at the hearing on September 23, 2019.
At the hearing, the district attorney's position was that the petition should be denied for failure to state a prima facie case. The district attorney referred to the transcript of defendant's sentencing hearing. The trial court denied the petition for resentencing, finding that "statements made by Judge Golde at the time of sentencing describing the basis for the findings of guilt" precluded relief under section 1170.95.
We have reviewed the record on appeal for any arguable issues. We conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436. The order is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.