California Court of Appeal: At Felony-Murder Resentencing Hearing, Court May Not Deny Relief Based on Findings That Are Inconsistent With Previous Acquittal
by Douglas Ankney
The Court of Appeal of California, First Appellate District, held that “a trial court cannot deny relief in a § 1170.95 proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented.”
In 2004, a jury convicted Aaron Cooper of first-degree murder and kidnapping based on his participation with Frederick Cross and Miltonous Kingdom in the 1995 killing of William Highsmith. At trial, the jury was instructed only on felony murder, i.e., murder “committed in the perpetration of, or attempt to perpetrate, … kidnapping … is murder of the first degree.” § 189(a). While the jury found that a principal was armed with a firearm during both offenses, it acquitted Cooper of the charge of being a felon in possession of a firearm. He was sentenced to 58-years to life in prison, and his judgment was affirmed on appeal.
In 2019, Cooper petitioned for resentencing under Penal Code § 1170.95, arguing that due to changes in the law regarding felony murder and natural and probable consequences he could no longer be convicted of murder. The trial court concluded Cooper had made a prima facie showing of entitlement to relief, appointed counsel for him, and scheduled a hearing.
The parties did not submit any “new or additional evidence” but relied on the appellate opinion of his earlier appeal and the trial transcripts. The trial court found beyond a reasonable doubt that Cooper was “a major participant” in the underlying kidnapping and that Cooper had acted “with reckless indifference to human life” and denied relief. The trial court reached this conclusion based in part on its conclusion at the hearing that Cooper possessed and fired a gun. He appealed, arguing that the trial court was collaterally estopped from concluding he had possessed and fired a gun.
The Court of Appeal observed that Senate Bill 1437 (“SB 1437”) amended the felony murder rule (and the natural and probable consequences doctrine in relation 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.” People v. Lewis, 491 P.3d 309 (Cal. 2021). SB 1437 also added § 1170.95, which “provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” Id.
It is undisputed that Cooper was convicted of felony murder based on the jury instruction and based on the fact that at the time of Highsmith’s murder a defendant could be found guilty of felony murder if he was an aider and abettor of the underlying felony because he was held “strictly responsible for any killing committed by a co-felon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.” In re Taylor, 34 Cal. App. 5th 543 (2019).
The Taylor Court explained that in 1990 voters passed Proposition 115 “which made eligible for death ‘every person, not the actual killer, who with reckless indifference to human life and as a major participant,’ aids and abets a specified felony, including [kidnapping], that ‘results in the death of some person … and who is found guilty of murder in the first degree therefor … if [an enumerated] special circumstance is found to be true.’” Taylor quoting § 190.2(d). And § 190.2(d) was designed to codify the holdings of Tyson v. Arizona, 481 U.S. 137 (1987), and Emmund v. Florida, 458 U.S. 782 (1982), which ruled felony-murder participants are eligible for death only when their involvement was substantial and demonstrated a reckless indifference to the grave risk of death created by their actions. Taylor. Consequently, “only defendants who are also death eligible under § 190.2 may now be convicted of felony murder in the first place,” the Court explained.
The Court stated that Cooper made a prima facie showing that he could not be convicted of murder under the amended statutes, and the trial court held a “hearing to determine whether to vacate the murder … and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” § 1170.95(d)(1). “At the hearing … the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to § 188 or 189 made effective January 1, 2019.… 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. If the prosecution fails to sustain its burden of 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.” § 1170.95(d)(3).
The Court relied on “the analogous context for resentencing under the Three Strikes Reform Act of 2012 (the Act) in lieu of Cooper’s collateral estoppel argument. Similar to SB 1437, the Act added § 1170.126, creating a procedure by which some inmates already serving third strike sentences could seek resentencing” to comport with the Act’s prospective ameliorative effect. People v. Arevalo, 244 Cal. App. 4th 836 (2016). Both Arevalo and People v. Piper, 25 Cal. App. 5th 1007 (2018), held that a trial court could not conclude that a defendant is ineligible for resentencing under § 1170.126 by relying on factual determinations about the defendant’s gun use that “turn[ed] acquittals and not-true enhancement findings [at trial] into their opposites,” according to the Court.
In Arevalo, the defendant was convicted at trial of a third strike but acquitted of a charge of possession of a firearm by a felon and an allegation that he was armed with a firearm was found not true. On his petition for resentencing under § 1170.126, the trial court concluded he was ineligible for resentencing because the judge’s review of the trial testimony convinced the judge that the defendant “was armed with a firearm or deadly weapon” during the offense. Arevalo. The trial court believed it was not prohibited from finding the defendant was armed because the acquittal and not-true finding at trial did not establish “the nonexistence of guilt, factual innocence, or incredulity of testimony given” to support the charge and allegation. Arevalo. But Arevalo held that the standard of proof for determining whether a defendant is ineligible for resentencing is “beyond a reasonable doubt.” The California Supreme Court affirmed Arevalo’s holding in People v. Frierson, 407 P.3d 423 (Cal. 2017).
Piper considered whether a trial court properly found beyond a reasonable doubt that a defendant was armed with a firearm during the offenses at issue and was thus ineligible for resentencing, even though the jury had acquitted him of the firearm-related counts and found not true an arming allegation. Piper concluded that: “Under Frierson and Arevalo, on a resentencing petition, the trial court may not make an eligibility determination contrary to the jury’s verdict and findings.” To do so would allow a trial court to “turn acquittals and not-true enhancements into their opposites.” Piper.
Turning to the present case, the Court stated that the trial court turned Cooper’s acquittal of a firearm possession into its opposite, contrary to precedent barring it. However, the Court explained that it was far from certain, based upon Cooper’s involvement in the crimes, that he was eligible for resentencing even without the trial court’s error.
Accordingly, the Court reversed the order denying Cooper’s § 1170.95 petition and remanded to the trial court for a new hearing to determine whether the prosecution proved beyond a reasonable doubt that Cooper was a major participant in the kidnapping and acted with reckless indifference to human life. In so doing, the trial court may not rely on any evidence admitted at trial that contradicts the jury’s finding that the prosecution failed to prove beyond a reasonable doubt that Cooper possessed a firearm. See: People v. Cooper, 77 Cal. App. 5th 393 (2022).
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