By David M. Greenwald
Executive Editor
An appellate court has overturned a lower court’s decision denying a man relief under Peanl; Code section 1170.95. That statute, passed under SB 1437, allows a person convicted of felony murder to have their conviction vacated and be resentenced if it is determined that the participant was not the actual killer, did not have the intent to kill or act with reckless indifference to human life.
Lemar Harrison filed for relief under 1170.95 but was denied by the trial court. He contended that the “trial court erred when it found his petition failed to state a prima facie case for relief and refused to issue an order to show cause.” This was due to the fact that “the record shows that the court that convicted him in a 2000 bench trial made a finding that he did not act with reckless indifference to human life.”
The Attorney General “agrees that the court that decided Harrison’s section 1170.95 petition erred by denying it at the prima facie stage and not issuing an order to show cause, but he disagrees that Harrison is entitled to relief on his petition.”
The appellate court ruled that they “agree with Harrison and the Attorney General that the resentencing court erred in denying Harrison’s petition at the prima facie stage.”
They add, “We further agree with Harrison that he is entitled to relief on his petition as a matter of law, so we will remand with instructions to grant his petition, vacate his conviction, and resentence him.”
Lemar Harrison and Lamont Johnson met a man in May 1996, attempting to purchase marijuana from the man—however, the men planned to rob the third man.
Johnson had the weapon, shot the victim several times, handed over the gun to Harrison and ordered him to shoot the victim as well.
The court notes, “After he was apprehended by the police, defendant admitted he shot at Harless and the ranger’s truck. At trial defendant testified that he did not know Johnson was going to rob Harless (the victim). Defendant was afraid of Johnson. When Johnson handed him the gun, defendant believed his only choice was to comply with Johnson’s orders.”
It went to a court trial, Harrison was acquitted of several of the charges, and, on the special circumstance, “the court found the prosecution’s evidence failed to establish beyond a reasonable doubt that Harrison (1) was the actual killer of Harless, (2) aided and abetted Johnson in the murder with the intent to kill Harless, or (3) was a major participant in the robbery and acted with a reckless indifference to human life.”
Harrison ultimately received a 25 year to life sentence on the murder count in addition to the conviction of robbery and personal use of a firearm (a total of seven years).
The prosecutor during the re-sentencing “initially conceded that Harrison had stated a prima facie case for relief” but later “decided its concession was ill-advised and argued Harrison had not made the required prima facie showing.”
The court agreed with the prosecution that Harrison had not established a prima facie case for resentencing, ruling that he could be convicted of felony murder under the amended versions of the law.
The court here notes, “The resentencing court recognized that it was not permitted to reopen the first trial court’s findings that Harrison was not the actual killer and did not have the intent to kill. But the resentencing court found it could re-examine the question of whether Harrison was a major participant and acted with reckless indifference in the robbery of Harless, despite the first trial court’s acquittal of Harrison on the special circumstance….”
The problem according to the appellate court is that the resentencing court “stated that the record of conviction showed that the evidence at Harrison’s trial was sufficient to prove beyond a reasonable doubt that Harrison had acted as a major participant with reckless indifference to the life of Harless, so that Harrison could still be convicted of felony murder under current law.”
They note, “To reach these conclusions, the resentencing court necessarily had to weigh the evidence from Harrison’s trial. This was improper.”
In short, the “trial court erred by engaging in factfinding at the prima facie stage when it reviewed the preliminary hearing transcript and determined that petitioner was a major participant who acted with reckless indifference to human life.”
The parties agree to the error but not the proper remedy.
The AG believed that “the case must be remanded for a hearing at which both parties may present new evidence and the prosecution will need to prove beyond a reasonable doubt that Harrison could be convicted of murder under current law.”
The Attorney General “briefly remarks that the first trial court’s acquittal on the special circumstance allegation was based on a misinterpretation of law, rather than reflecting an affirmative finding that Harrison did not act as a major participant with reckless indifference, implying that it is not conclusive for this reason.”
The court however notes that even though double jeopardy may not apply in this case, “it is significant that under state and federal law a judicial acquittal (such as the first trial court’s grant of a section 1118 motion) is conclusive for double jeopardy purposes even when the court misinterprets an element of an offense or erroneously adds an extraneous element to the offense.”
The order denying Harrison’s petition is reversed and the case will be remanded to the trial court, “with directions to grant the petition, vacate Harrison’s murder conviction, and resentence him in accordance with section 1170.95.”
