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Court of Appeal:
Jury Instruction on Extinct Theory Mandates Resentencing Hearing
Justices Disavow Own Prior Opinion to Require Rehearing Despite Fact Prosecutor Did Not Rely on the Theory in Closing
By a MetNews Staff Writer
Div. Four of this district’s Court of Appeal has held that a resentencing hearing is required where the jury was instructed on the natural and probable consequences doctrine of murder liability on the part of an aider and abettor—a now-retroactively-invalid theory under amended Penal Code §§188 and 189—even if the prosecution only argued a theory based on an express intent to kill.
Presiding Justice Brian Currey wrote the unpublished opinion reversing an order by Los Angeles Superior Court Judge Henry J. Hall denying a resentencing without holding an evidentiary hearing. Justices Audrey B. Collins and Audra M. Mori joined in the opinion.
The reversal on Friday was an about-face for the panel which, in an earlier appeal in the same case, held that the prosecutor’s argued theory of liability was determinative for the resentencing motion. The change in course was brought about on a petition for rehearing which cited a contrary holding in the earlier 2023 published decision by Div. One in People v. Lee.
Appealing the denial was Donald Franklin Smith who was convicted in 1995 of two counts of first-degree murder, two counts of second-degree murder, and one count of attempted murder.
In 2017, §§188 and 189 were amended to eliminates aider and abettor liability for murder under the natural and probable consequences doctrine.
Smith moved in 2020 for resentencing as to one of his first-degree murder charges arguing that his conviction was based on the now-defunct theory of murder liability, which Hall denied at the prima facie stage.
First Appeal
The unpublished opinion in the first appeal, also authored by Currey and filed Jan. 4, 2024, rejected Smith’s assertion that the jury instruction entitled him to a hearing on resentencing under the amended resentencing code sections enacted after the changes to the felony murder rule.
Currey said:
“The prosecution’s closing argument…makes clear that the only theory of murder liability it presented to the jury was that Smith harbored the express intent to kill Brown. Because this was the only theory presented to the jury, the jury necessarily convicted Smith on that theory, not under the natural and probable consequences doctrine. In other words, the record demonstrates the jury found Smith guilty beyond a reasonable doubt of murdering [victim James] Brown under current law.”
The jurist opined:
“Although it is theoretically true [the jury] instructions left open the possibility that the jury could convict Smith on count four under the natural and probable consequences doctrine, the record, viewed as a whole, demonstrates Smith is ineligible for relief as a matter of law on that count.”
After the court affirmed the denial of his application for resentencing, Smith petitioned for a rehearing on the matter, citing the Lee case.
Rehearing on Resentencing
In the Lee opinion, written by Justice Helen I. Bendix and joined by Presiding Justice Frances Rothschild and Justice Gregory J. Weingart, the judges came to the opposite conclusion on similar facts. In holding that an evidentiary hearing on resentencing is required, Bendix wrote:
“We acknowledge that the prosecutor in closing proceeded solely on the theory that Lee personally committed a provocative act, with no suggestion that he was liable because of a provocative act committed by someone else. The jury instructions, however, were not so limited, and permitted the jury to convict Lee based on the act of a surviving accomplice.”
In the present case, the prosecution objected to the rehearing on the grounds that Smith’s petition should be forfeited because he could have brought the Lee decision to the court’s attention before the first appeal. Currey found the argument unpersuasive and said:
“Our main concern in resolving this appeal is that Smith receive a [resentencing] hearing which thoroughly conforms with the procedures set forth in the statute. We therefore decline to exercise our discretion to deem Smith’s argument forfeited, and instead reach the merits of how best to resolve this case in light of Lee.”
Currey concluded:
“Although we note that the issue presented in this case is a close one, principles of uniformity in the law favor changing course and following Lee. Having reconsidered the matter in light of Lee, we remand the matter for an evidentiary hearing on count four.”
The case is People v. Smith, B321024.
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