P. v. Fitzhugh

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Filed 4/9/21 P. v. Fitzhugh CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE,
Plaintiff and Respondent,
v.
ALPHONZE FITZHUGH,
Defendant and Appellant.
C089261
(Super. Ct. No.
STKCRFE20115309)
A jury found defendant Alphonze Fitzhugh and codefendant Robert Antonio
Barnes guilty of first degree murder, attempted murder, and attempted robbery.1 The jury
found true the special circumstance that the murder was committed during the
commission of or attempted commission of a robbery under Penal Code section 190.2,
1 Barnes is not a party to this appeal.

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subdivision (a)(17)(A).2 The trial court sentenced defendant to nine years plus life
without the possibility of parole, and we affirmed his convictions on appeal.
Defendant petitioned the trial court for resentencing based on changes to the
felony-murder rule under recently enacted Senate Bill No. 1437 (Senate Bill 1437).
(Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.) The trial court summarily denied his
petition before appointing him counsel after finding defendant was ineligible for
resentencing given the jury’s true finding on the robbery-murder special circumstance
under section 190.2. The court reasoned that in finding the special circumstance true, the
jury necessarily found defendant was a major participant who acted with reckless
indifference to human life during the crimes. The court also noted that this court
subsequently found sufficient evidence supported the jury’s special circumstance finding.
On appeal, defendant argues he was entitled to appointment of counsel and a
hearing on the merits of his petition before the trial court’s denial, because the jury’s true
finding on the robbery-murder special circumstance and this court’s prior opinion did not
preclude him from relief as a matter of law. We affirm.
I. BACKGROUND
We take the facts from the unpublished opinion we issued in 2018 affirming
defendant’s convictions in People v. Barnes (Nov. 30, 2018, C073287) [nonpub. opn.]
(Barnes).3 In 2009, Britani lived with her boyfriend, Evan, in her parents’ garage in
Acampo. Defendant had been friends with Evan and had shown him how to make money
selling drugs. At some point, they had a falling out and Evan no longer respected
2 Further undesignated statutory references are to the Penal Code.
3 Defendant attached a copy of our unpublished decision in Barnes to his Senate Bill
1437 petition. We also granted defendant’s request to incorporate the appellate record in
Barnes into the record for the present appeal.

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defendant. Defendant had also been close friends with Britani. She had considered
dating him at one point, which also caused defendant and Evan to dislike each other.
On the night of November 18, 2009, Britani and Evan left their garage apartment
to purchase food. When they returned, a man dressed in dark clothing with gloves and a
beanie or ski mask turned the corner and raised a gun at Evan. Britani screamed and
Evan ran. As Evan ran, he heard five or six shots; a bullet pierced his left leg. Britani
was shot in her torso and later died.
The shooter fled the scene and got into a waiting SUV parked near a neighbor’s
truck. The driver turned off the vehicle’s lights and drove away slowly. Law
enforcement later found two digital scales, more than 250 grams of marijuana and $500
cash, and Evan testified that there was $8,000 in a purse.
Multiple witnesses at trial testified that in the months leading up to the shooting
defendant had asked where Evan was living and had discussed robbing him. Another
witness testified that she heard defendant talking about wanting to kidnap Evan over
money or drugs. Defendant sent numerous text messages to various individuals as he
prepared for and planned the robbery. In the texts, defendant said that they needed to get
more shells and ammunition for his guns. Defendant purchased bullet proof vests from
another friend and inquired as to what caliber bullet the vests could stop.
On the night of the shooting, defendant’s and Barnes’s cell phones were in the
area of the crime scene shortly after 8:00 p.m. to until about 8:30 p.m. The first 911 call
was made at 8:38 p.m. Shortly after the shooting, defendant and Barnes showed up at
another friend’s house. Barnes seemed somewhat frantic, and defendant said that the
robbery went bad and that Britani was shot. Defendant said he was in the car when he
heard two shots and Britani scream. Barnes said he ran up on Evan, that Evan threw a
drink at him, and that he shot Evan in the leg. Britani screamed, startling Barnes, and the
gun went off. Both defendants claimed they did not intend to kill Britani.

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In March 2011, a grand jury indicted defendant on first degree murder (§ 187—
count one), attempted murder (§§ 664, 187—count two), and attempted robbery (§§ 664,
211—count three). The indictment further alleged the special circumstances that
defendant committed the murder while lying in wait (§ 190.2, subd. (a)(15)), and during
the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). For
all three counts, it alleged that defendant personally used a firearm causing death during
the offenses (§ 12022.53, subd. (d)).
A jury convicted defendant and Barnes of all counts and found true the robbery-
murder special circumstance. Although the jury found true that Barnes had personally
and intentionally discharged a firearm in the commission of all three counts, it found the
same firearm enhancements not true as to defendant. Defendant was sentenced to nine
years plus life without the possibility of parole.
Defendant appealed his convictions, arguing the trial court erred in admitting
several text message tag lines because they were more prejudicial than probative under
Evidence Code section 352 and were improper character evidence, prosecutorial
misconduct during closing argument, cumulative error, insufficient evidence supported
his attempted murder conviction, and that insufficient evidence supported the jury’s
robbery-murder special circumstance finding as to him. As to the latter claim, defendant
did not challenge that he was a major participant, but argued that the evidence was
insufficient to show he acted with reckless indifference to human life.
We rejected all of defendant’s contentions on appeal and affirmed the judgment in
its entirety in November 2018. As relevant here, in upholding the jury’s robbery-murder
special circumstance finding, we relied on our Supreme Court’s decisions in People v.

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Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)
to conclude defendant acted with reckless indifference to human life during the offenses.4
In February 2019, defendant filed a petition for resentencing under section
1170.95. According to the petition, defendant was the get-away driver during a robbery
of a drug dealer. The petition alleged the following: “Petitioner contends that from the
facts of the present case, he is eligible for resentencing from the jury not finding
Petitioner guilty of premeditation and deliberation that Petitioner intended to kill [Britani]
during the course of the robbery with the intent to kill under the natural and probable
consequence in the conviction he stands convicted of under the old felony murder rule.”
The petition further alleged that “[u]nder the facts of the present case and the New Felony
Murder Rule Petitioner is entitled to a reduction of his sentence from there being not an
iota of evidence that Petitioner planned or laid in wait to commit the murder he stands
convicted of in the present case.” Defendant requested the appointment of counsel and
an order to show cause.
In March 2019, the trial court summarily denied defendant’s petition in a
memorandum of decision after finding he was not entitled to relief as a matter of law.
Citing CALCRIM No. 703, with which the jury was instructed, the court reasoned that in
order to find the robbery-murder special circumstance true, the jury had to find defendant
was the actual killer, had the intent to kill, or was a major participant who acted with
reckless indifference to human life. The court further noted that this court had previously
found in Barnes that sufficient evidence supported the conclusion that defendant acted
4 After waiving oral argument in Barnes, defendant sought leave to file a supplemental
brief to raise a claim of insufficiency of the evidence regarding his murder conviction
under Senate Bill 1437. We denied defendant’s request because he did not dispute that
he was a major participant, and the arguments in his motion were precluded by our
holding that sufficient evidence supported the conclusion he acted with reckless
indifference to human life.

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with reckless indifference to human life, and that defendant did not dispute that he was a
major participant. According to the court, “[t]he facts of this case and the Jury’s finding
of truth of the Special Circumstance preclude the defendant from seeking relief under
Penal Code section 1170.95.” Given the court’s summary denial of defendant’s petition,
it concurrently denied the public defender’s request to be appointed counsel for
defendant. Defendant timely appealed.
II. DISCUSSION
Defendant contends the trial court prejudicially erred by denying his petition
because the jury’s true finding on the robbery-murder special circumstance did not
preclude him from relief; he also contends the court erred in relying on this court’s
conclusion in Barnes that sufficient evidence supported the jury’s finding that he was a
major participant who acted with reckless indifference to human life. According to
defendant, he made a prima facie showing he was eligible for relief, and the trial court
should have issued an order to show cause and held an evidentiary hearing. We disagree
and find that any alleged error is harmless.
Senate Bill 1437 (2017-2018 Reg. Sess.) was enacted to “amend the felony murder
rule and the natural and probable consequences doctrine . . . 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437
achieves these goals by amending section 188 to require that a principal act with express
or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending
section 189 to state that a person can be liable for felony murder only if: (1) the “person
was the actual killer”; (2) the person, with an intent to kill, was an aider or abettor in the
commission of murder in the first degree; or (3) the “person was a major participant in
the underlying felony and acted with reckless indifference to human life.” (§ 189, subd.
(e), as amended by Stats. 2018, ch. 1015, § 3.)

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Senate Bill 1437 also added section 1170.95 to provide the resentencing petition
process for a “person convicted of felony murder or murder under a natural and probable
consequences theory.” (§ 1170.95, subd. (a).) After a defendant submits a petition and
the court performs an initial review for missing information, subdivision (c) of section
1170.95 provides, in part: “The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner falls within the provisions of
this section. If the petitioner has requested counsel, the court shall appoint counsel to
represent the petitioner. The prosecutor shall file and serve a response within 60 days of
service of the petition and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served.”
Appellate courts are divided on whether or not trial courts may review the record
of conviction and deny a section 1170.95 petition before appointing counsel. (Compare
People v. Lewis (2020) 43 Cal.App.5th 1128, 1138-1140 [trial courts may review record
of conviction and need not first appoint counsel], review granted Mar. 18, 2020,
S260598, with People v. Cooper (2020) 54 Cal.App.5th 106, 123 [disagreeing with
Lewis], review granted Nov. 10, 2020, S264684.) The Supreme Court has granted review
on these issues. Here, the trial court denied the petition before appointing defendant
counsel or obtaining briefing from the parties.
We need not conclusively determine the requirements of section 1170.95,
subdivision (c) because any error in the trial court’s procedures would be harmless even
under the more stringent beyond-a-reasonable-doubt standard. (Chapman v. California
(1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) As we noted in Barnes, the jury
found the robbery-murder special circumstance true for the murder count. For the special
circumstances under section 190.2, subdivision (17)(A), the jury was instructed with
CALCRIM No. 703 as follows: “If you decide that a defendant is guilty of first degree
murder under a Felony Murder theory but was not the actual killer, then, when you
consider the special circumstance of Murder in the Commission of a Robbery, you must

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also decide whether the defendant acted either with intent to kill or with reckless
indifference to human life.
“In order to prove this special circumstance for a defendant who is not the actual
killer but who is guilty of first degree murder as an aider and abettor, the People must
prove either that the defendant intended to kill, or the People must prove all of the
following:
“1. The defendant’s participation in the crime began before or during the killing.
“2. The defendant was a major participant in the crime;
“AND
“3. When the defendant participated in the crime, he acted with reckless
indifference to human life.
“A person acts with reckless indifference to human life when he or she knowingly
engages in criminal activity that he or she knows involves a grave risk of death.
“The People do not have to prove that the actual killer acted with intent to kill or
with reckless indifference to human life in order for the special circumstances of Murder
in the Commission of a Robbery to be true.
“If you decide that the defendant is guilty of first degree murder, but you cannot
agree whether the defendant was the actual killer, then, in order to find this special
circumstance true, you must find either that the defendant acted with intent to kill or you
must find that the defendant acted with reckless indifference to human life and was a
major participant in the crime.
“If the defendant was not the actual killer, then the People have the burden of
proving beyond a reasonable doubt that he acted with either the intent to kill or with
reckless indifference to human life and was a major participant in the crime for the
special circumstance of Murder in the Commission of a Robbery to be true. If the People
have not met this burden, you must find this special circumstance has not been proved
true for that defendant.”

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The jury’s true finding for the special circumstance tracks the requirements of first
degree murder liability for a participant even after Senate Bill 1437’s modifications
because it found that, at a minimum, defendant was a major participant who acted with
reckless indifference to human life. (§ 189, subd. (e)(3).)
Defendant argues, however, that under People v. Torres (2020) 46 Cal.App.5th
1168, review granted June 24, 2020, S262011 (Torres) and People v. Smith (2020)
49 Cal.App.5th 85, review granted July 22, 2020, S262835, the narrower definitions of
“major participant” and “reckless indifference to human life” ushered in by Banks, supra,
61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 require further litigation to determine
whether his special circumstances make him ineligible for relief. It is true that since
defendant was convicted the Supreme Court has refined the analysis for who qualifies as
a major participant acting with reckless indifference to human life in Banks and Clark.
But defendant challenged the sufficiency of the evidence to support the jury’s special
circumstance finding in his direct appeal, and we previously determined that the special
circumstance finding was proper even considering Banks and Clark.5 Thus, this issue has
already been decided against defendant.
5 We recognize that there is a split of authority on whether a defendant must first seek
relief under Banks/Clark through a habeas petition before filing a section 1170.95
petition. (See People v. Gomez (2020) 52 Cal.App.5th 1, 17 [defendants seeking relief on
the basis of Banks/Clark must do so through habeas corpus], review granted Oct. 14,
2020, S264033; People v. Galvan (2020) 52 Cal.App.5th 1134, 1142-1143 [same],
review granted Oct. 14, 2020, S264284; People v. Allison (2020) 55 Cal.App.5th 449,
457-459 [same]; People v. Murillo (2020) 54 Cal.App.5th 160, 167-169 [same], review
granted Nov. 18, 2020, S264978; People v. Jones (2020) 56 Cal.App.5th 474, 482-485
[same], review granted Jan. 27, 2021, S265854; People v. Nunez (2020) 57 Cal.App.5th
78, 90-93[same], review granted Jan. 13, 2021, S265918; cf. People v. Torres, supra,
46 Cal.App.5th 1168, rev. granted; People v. Smith, supra, 49 Cal.App.5th 85, rev.
granted; People v. York (2020) 54 Cal.App.5th 250, 260 [“We part ways with Galvan and
Gomez because we do not agree that section 1170.95 requires a defendant to challenge a
pre-Banks and Clark special circumstance finding in a habeas corpus proceeding before
he or she may successfully challenge the underlying murder conviction in a section

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And, unlike defendant argues, a defendant’s Banks/Clark claim does not require
an appellate court to resolve disputed facts in contravention of the Sixth Amendment;
“ ‘the facts are a given.’ ” (Torres, supra, 46 Cal.App.5th at p. 1179, rev. granted.) “The
question is whether [the facts] are legally sufficient in light of Banks and Clark.” (Ibid.)
We have already determined that the facts were legally sufficient to show defendant acted
with reckless indifference to human life when we decided defendant’s direct appeal
against him.6
The purpose of section 1170.95 is to permit resentencing for individuals who
could not now be convicted under sections 188 and 189 because of Senate Bill 1437.
(Stats. 2018, ch. 1015 [“This bill would provide a means of vacating the conviction and
resentencing a defendant” where “the defendant could not be charged with murder after
the enactment of this bill”].) Because defendant could still be convicted of murder
despite the changes to sections 188 or 189, the trial court properly denied his petition.
The jury’s robbery-murder special circumstance remains valid even after Banks and
Clark. This renders any alleged error by the trial court harmless because it is beyond a
reasonable doubt that obtaining briefing from appointed counsel or holding a hearing to
1170.95 proceeding”], review granted Nov. 18, 2020, S264954.) The Supreme Court is
now set to resolve this split, having granted review in People v. Strong (Dec. 18, 2020,
C091162) [nonpub. opn.], review granted March 10, 2021, S266606, on the issue of
whether a felony-murder special circumstance finding under section 190.2, subdivision
(a)(17) made before Banks and Clark precludes a defendant from making a prima facie
showing of eligibility for relief under section 1170.95. Because this court has already
decided the Banks/Clark issue against defendant in his direct appeal, we need not address
the applicability of this split of authority.
6 We also note that “the retroactive relief . . . afforded by Senate Bill 1437 is not subject
to Sixth Amendment analysis. Rather, the Legislature’s changes constituted an act of
lenity that does not implicate defendants’ Sixth Amendment rights.” (People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156.)

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review the record of conviction would not have changed the jury’s finding and
defendant’s ineligibility.
III. DISPOSITION
The trial court’s order denying defendant’s section 1170.95 petition is affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HOCH, J.

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