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Court of Appeal:
C.A. Declares Exception to Rule Laid Down in S.C. Opinion
Yegan Says Judge Who Presided Over Murder Trial May Rely on Knowledge in Denying Resentencing Petition, Explains That Evidentiary Hearing Would Be ‘Meaningless’; Defendant Directed Killing of Boy, 15
By a MetNews Staff Writer
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—AP Murderer Jesse James Hollywood is seen in a holding cell in Santa Barbara. The Court of Appeal for this district on Wednesday affirmed an order denying him a resentencing, saying that the judge who presided over his trial did not need to hold an evidentiary hearing to determine the facts. |
A man who, at age 20, ordered the kidnapping, then the slaying, of a 15-year-old boy, eluded authorities for more than four-and-a-half years—with his crime inspiring a movie and being spotlighted on “America’s Most Wanted” and other network programs—has failed in his attempt to persuade the Court of Appeal for this district that a judge erred in denying his resentencing petition without holding an evidentiary hearing.
Acknowledging that the California Supreme Court held in its 2021 decision in People v. Lewis that factual determinations should not be made by a judge in an initial review of such a petition, Justice Kenneth Yegan of Div. Six said in an opinion, filed Wednesday, that “[t]here must, of necessity, be an exception where the trial judge ruling on resentencing, heard the evidence at a death penalty trial.”
He wrote:
“The Legislature did not intend to provide sentencing relief or meaningless evidentiary hearings for someone who directs his cohorts to murder an innocent child.”
Presiding Justice Arthur Gilbert joined in that opinion. Justice Tari L. Cody authored a concurring opinion in which she expressed disagreement with some of Yegan’s reasoning.
The appellant is Jesse James Hollywood who was brought up in West Hills, an affluent community in the San Fernando Valley, became a teenage drug dealer, and befriended a Malibu resident, Benjamin Markowitz, who became a customer of his. On Aug. 6, 2000, Hollywood directed henchmen of his—former high school classmates—to kidnap Markowitz’s half brother, Nicholas Markowitz, 15, in order to coerce his customer to pay a $1,200 debt owed for drugs that had been supplied to him.
Three days later, having learned from a lawyer that anyone connected with a kidnapping faced a possible life sentence, Hollywood concluded that it was not safe to keep the youth alive, handed a TEC-9 automatic pistol to a subordinate, Ryan Hoyt, and told him to “take care of” Nicholas. Hoyt obliged (and is presently on death row at San Quentin based on the murder).
Hollywood was apprehended on March 9, 2005, in Brazil. He was tried in Santa Barbara Superior Court, found guilty by a jury under the then-existing felony-murder rule, and was sentenced by Judge Brian E. Hill on July 14, 2009, to life imprisonment without possibility of parole.
SB 1437
Senate Bill 1437, enacted in 2018, virtually abolished the ages-old felony murder rule.
The legislation added subd. (e)(2) to Penal Code §189 specifying that a person who “was not the actual killer” still faces liability for murder if the person “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.”
Hollywood, in 2021, petitioned for a resentencing pursuant to Penal Code §1172.6 which provides for relief where a person who was convicted under the felony-murder rule (or the repudiated natural and probable consequences doctrine) could not presently be convicted under the same set of facts. Hill summarily denied the petition, saying:
“This is a case in which the jury found that [Hollywood] had the intent to kill, and the relief is not available to non-killers who, nonetheless, had the intent to kill.”
Yegan’s Opinion
In his opinion affirming the order denying a resentencing, Yegan rejected the contention that Hill erred in denying a evidentiary hearing. He said that Hill, having presided at Hollywood’s trial, “was certainly aware of the facts and circumstances resulting in the victim’s death.”
Yegan declared:
“This was a notorious, senseless, and brutal homicide and everyone, including the appellant and his attorney, are aware of what factually happened. Our ruling will eliminate ‘clearly meritless’ petitions, which serves the legislative purpose to deny relief to a ‘major participant’ in a felony murder case.”
The jurist said that a hearing, following an initial review by the judge, does afford the inmate an opportunity to put forth new evidence but, he pointed out, Hollywood’s “theory of the case, including his own testimony, was heard and rejected at his trial.”
Previous Appellate Opinions
Yegan made note that the facts had been stated in two previous appellate opinions.
He recited them in a Oct. 5, 2006 opinion holding that the Santa Barbara District Attorney’s Office must be recused because Deputy District Attorney Ronald J. Zonen had provided information about the case to a film director/screen writer who was making a film, “Alpha Dog,” based on the case.
The facts were also recited in a May 12, 2008 California Supreme Court opinion by then-Justice Kathryn M. Werdegar.
Yegan cited the rendition of the facts by the Supreme Court in support of recognizing an exception from the rule that facts not be determined in advance of an evidentiary hearing.
Quotes Himself
Yegan, who has a penchant for quoting himself, began the opinion with words taken from his 2018 decision in People v. Martin: “The fabric of the law will stretch only so far before it will unravel.”
He remarked:
“Appellant seeks to stretch the newly enacted reduced murder penalties to his case. It just will not stretch and the fabric unravels. Leniency for a person who orders his cohorts to murder a 15-year-old child with a machine gun? The child is dead and our answer is, no.”
Intent to Kill
Hollywood argued that although the jury necessarily found that he had the intent to kill during the commission of a kidnapping—the felony upon which the felony murder charge was based—there was no finding that, in aiding the killer, he had the requisite intent. For that proposition, he relied on a dissent by Court of Appeal Justice Michael J. Raphael of the Fourth District’s Div. Two in the 2023 case of People v. Lopez.
Raphael, a former Los Angeles Superior Court judge, said in that dissent that SB 1437 “required not just an intent to kill, but intent to kill when acting to aid the killing.”
Yegan wrote:
“But appellant’s contention has been rejected in Lopez, which held that the defendant’s actus reus of assisting with the underlying felony is sufficient and not changed by Senate Bill 1437….
“We agree with the majority’s analysis in Lopez and conclude the actus reus element of section 189, subdivision (e)(2) requires an aider or abettor to have aided, abetted, or assisted a qualifying felony during which a killing occurs.”
Cody’s Opinion
Cody said in her concurring opinion:
“I concur in the judgment because I agree appellant’s conviction for aiding and abetting an enumerated felony murder under section 189, subdivision (e)(2) with intent to kill precludes relief under section 1172.6.…I write separately because I do not agree that factfinding is appropriate at the prima facie stage in this case.”
She noted the Supreme Court’s pronouncement in Lewis and remarked:
“The majority concludes an exception must exist here because the judge who ruled on the petition heard the evidence at a lengthy death penalty trial, and multiple opinions, including a Supreme Court opinion, recite the facts of the case….
“However, regardless of the trial’s duration or the potential punishment available, the judge who presided over the trial will often hear the section 1172.6 petition….And an opinion resolving a direct appeal is virtually guaranteed for posttrial murder convictions. Neither of these common occurrences warrants deviating from Lewis’ prohibition on factfinding at the prima facie stage.”
Pre-Trial Opinions
She did not share Yegan’s view that recitations of facts in Yegan’s 2006 opinion or Werdegar’s 2008 decision are of significance, commenting that “those opinions were issued before the facts could be determined in the crucible of trial.” She added:
“Our pretrial opinion quoted from the People’s factual summary of the underlying crimes….Our Supreme Court likewise stated: ‘As did the Court of Appeal, we draw our description of the crime from the People’s opposition to Hollywood’s petition for a writ of mandate.’…Adopting the People’s pretrial assessment of the facts is, in my view, incongruous with adjudicating a section 1172.6 petition. Moreover, given that these two pretrial opinions considered whether prosecutorial recusal was justified, the recitation of underlying case facts was incidental to each opinion’s focus.”
The case is People v. Hollywood, 2024 S.O.S. 793.
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