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Court of Appeal:
Judge Has Implied Power to Rethink Resentencing Ruling
Trial Court’s Decision to Deny Petition Is Affirmed Despite Its Previous Declaration That Defendant Is Entitled to Relief, Notwithstanding Lack of Express Authorization in the Controlling Statute for an About-Face
By a MetNews Staff Writer
The Court of Appeal for this district has held that a judge who initially ruled that a woman, convicted of murder, is entitled to a resentencing pursuant to Penal Code §1172.6, was authorized under his implied powers to grant reconsideration and, after further briefing, change his mind and deny the petition.
Tuesday’s decision means that Kwana Harris—who was present when a man was slain by her brother and participated in the planning of the crime—will remain in prison under a sentence of 15 years to life for second degree murder.
Justice Rashida Adams of Div. Three authored the opinion which affirms an order by Los Angeles Superior Court Judge Richard S. Kemalyan.
Judge’s Initial View
The judge initially determined that Harris was entitled to relief under §1172.6 which calls for a resentencing of persons convicted of murder under the now-repudiated “natural and probable consequences” doctrine. Persons whose acts would no longer constitute murder are resentenced for those deeds to which criminal liability does attach.
However, under Senate Bill 1437, enacted in September 2018 and effective on Jan. 1, 2019, an aider and abettor can still be found guilty of murder if that person shared the actual shooter’s intent to kill. Kemalyan’s initial perception of the evidence was that a witness related that Harris, who set up a meeting with her brother and the victim, admitted to him that she knew her brother intended to “harm” the man.
The judge noted:
“Although ‘killing’ is ‘harm’, ‘harm’ is not necessarily ‘killing.’ ”
Prosecutor Protests
The day before the scheduled resentencing hearing, the prosecution filed a brief pointing out that in other parts of his testimony, the witness said that Harris knew of an intent to “kill” the victim.
Kemalyan ordered additional briefing and further argument, ultimately finding that Harris could still be convicted of second degree murder.
On appeal, she argued that §1172.6 does not confer authority on a judge who has ruled that relief is available to then deny the resentencing petition, asserting that Kemalyan’s action violates her due-process rights and is barred by res judicata.
Adams responded:
“We conclude the court had the inherent authority to reconsider the initial order and did not err or violate Harris’s rights by doing so.”
She said that although §1172.6 “contemplates a single evidentiary hearing, it does not address whether the trial court may reconsider a ruling granting a petition prior to resentencing or the entry of an amended judgment.”
The jurist noted that “neither party has identified any legal authority directly addressing whether a trial court may reconsider a prior order in a post-judgment resentencing proceeding,” and, in deciding an issue of first impression, declared:
“[W]e determine that the trial court’s ruling was an interim order the trial court had the inherent power to reconsider. Although the trial court initially ruled Harris was entitled to relief, the court had not yet provided that relief. Harris had not yet been resentenced; there was no new sentence pronounced or amended judgment entered. The trial court had not lost jurisdiction over the matter….[T]he court’s order was not yet final and binding. The time to appeal had not yet passed.”
Petition Properly Denied
In an unpublished portion of the opinion, Adams said that Kemalyan made the right call in denying the petition. She said the evidence shows that Harris set up the meeting with the victim, Eric Alexander, knowing that her brother, Christopher Harris, intended to kill him.
“In addition to demonstrating consciousness of guilt,” she wrote, “evidence of Harris’s conduct after the shooting also bolstered a finding of implied malice. Harris told others that she kicked Alexander after Christopher shot him. She did not show concern for Alexander or seek help.”
The case is People v. Harris, 2024 S.O.S. 3410.
First-Degree Murder
Kwana Harris was convicted by a jury in 2009 of first-degree murder and was sentenced by Los Angeles Superior Court Judge Charlaine F. Olmedo to 25 years to life in prison. However, in February 2019, her petition for a writ of habeas corpus was granted by the Superior Court pursuant to the California Supreme Court’s 2014 decision in People v. Chiu.
There, it was held that “an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine.”
The District Attorney’s Office opted not to retry the defendant and Harris was resentenced to her present term of 15 years to life.
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