P. v. Thomas

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Filed 7/31/20 P. v. Thomas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMAR LEVEAL THOMAS,
Defendant and Appellant.
E072539
(Super.Ct.No. INF058881)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff
and Respondent.

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In June 2007, defendant and appellant Jamar Leveal Thomas and three other men,
Jerret Lewis, Akil Williams and Dairus Lee, robbed and beat security guard Wallace
Brown. Brown died due to his injuries. Defendant was convicted of premeditated and
deliberate first degree murder, a gang crime and allegations, robbery, and the special
circumstance that the murder was committed during the commission of a robbery.
Defendant was sentenced to life without the possibility of parole. In 2012, defendant’s
convictions were affirmed on appeal (People v. Thomas (Mar. 29, 2012, D058369)
[nonpub. opn.]; hereafter, Opinion).1
On December 31, 2018, defendant filed his petition for resentencing pursuant to
Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Penal Code section 1170.952 (petition).
The petition was summarily denied by the trial court without a hearing. Defendant
appeals, contending that (1) the trial court’s summary denial of his petition for
resentencing was erroneous and remand is necessary for a hearing in accordance with the
statutory requirements of section 1170.95; and (2) his due process rights to a meaningful
opportunity to be heard under the Fourteenth Amendment and under the California
Constitution were violated by the trial court’s summary denial of his petition without
allowing for his appointed counsel to file a reply brief Both claims essentially attack the
trial court’s decision to summarily deny the petition. We conclude that although the trial
court erred by summarily denying the petition based solely on the true finding on the
1 We grant defendant’s request to take judicial notice of the Opinion and his
opening brief on direct appeal in case No. D058369.
2 All further statutory references are to the Penal Code unless otherwise indicated.

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robbery-murder special circumstance, remand is unnecessary as the facts in the record
support that defendant committed the first degree murder based on being a major
participant and acting with reckless indifference to human life during the commission of
the robbery. Defendant is not entitled to resentencing.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY3
On June 9, 2007, the victim was working the graveyard shift as a security guard at
a construction site. The construction site was near a Valero gas station located at the
intersection of Rosa Parks and North Indian Hill Canyon in Palm Springs. At around
2:00 a.m., defendant, Lewis, Williams and Lee all arrived together in an SUV at the gas
station. They went inside the store and then emerged. They reentered the SUV and
drove off in the direction of the construction site.
Approximately 20 minutes later, the victim was discovered lying on the pavement
near a van close to the Valero gas station. The victim was bleeding. He had significant
injuries to his head and left arm. The victim vomited and pieces of his teeth came out.
He was unresponsive and eventually died from his injuries. An autopsy revealed he had a
fractured nose, broken teeth, lacerations on his hands, and bruising on his head. He died
of an internal head injury due to blunt force trauma.
3 The facts are taken from the Opinion.

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The front passenger and driver’s side windows of the victim’s vehicle were
smashed out. A rock was found in the van and there was blood on the steering wheel.
There was blood on the undercarriage of the van and the driver’s side door.
The morning after the incident, defendant voluntarily went to the Palm Springs
Police Department. Defendant initially told police he was with Lee and Williams earlier
in the evening when they ran into Lewis. Defendant went home and went to sleep.
Defendant then admitted he was with Lee, Williams and Lewis when they saw the victim
in his van. Lewis said something about needing money. They stopped and Lewis pulled
the victim from the van and beat him. They all ran away because they thought that the
victim was dead.
Defendant changed his story again, after being told about what his cohorts had
said in their statements. He admitted that he tried to pull the victim from the driver’s seat
of the van, but Lewis pushed him aside, pulled the victim from the van and then beat him
up. Defendant told the police that at one point he saw Lewis repeatedly kicking the
victim, describing the kicking as “bam, bam, bam”; that he tried to get Lewis to stop but
could not stop him due to Lewis’s size.4 Lewis took the victim’s wallet and cellular
telephone.
Lewis was interviewed and stated that he and defendant had thrown rocks into the
victim’s van and broken the windows. While the victim was still sitting in the driver’s
seat, defendant grabbed the victim with one hand and hit him with his other hand.
4 Lewis weighed 296 pounds at the time.

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Defendant was unable to pull the victim from the van so Lewis helped him. Lewis hit the
victim twice in the back and ribs.
Defendant and Lee were put into the same room and their conversation was
monitored. They both discussed that Lewis was a snitch. Defendant said that Lewis
“know what he did . . . . Cause he kicked that nigga so many times, man just Poom,
poom, poom Cuz.” Defendant denied hitting the victim and told Lee that Lewis had
dropped his shoes off at his house and they were covered in blood.
B. PROCEDURAL HISTORY
Defendant was tried under a theory of aiding and abetting and that he was a major
participant and acted with reckless indifference to human life during the commission of
the robbery. The jury was instructed on aiding and abetting. They were also instructed
that they must determine as to the robbery-murder special circumstance that defendant
acted with the intent to kill or with reckless indifference to human life. As for reckless
indifference to human life, they had to determine whether defendant engaged “in criminal
activity that he knows involves great risk of death.”
Defendant was convicted of the premeditated and deliberate murder of the victim
(§ 187, subd. (a); count 1); active participation in a criminal street gang (§ 186.22, subd.
(a); count 2); and robbery (§ 211; count 3). In addition, for count 1, the jury found true
the special circumstance that the murder was committed during the commission of a
robbery (§ 190.2, subd. (a)(17)). For counts 1 and 3, the jury also found true the
allegations that the crimes were committed for the benefit of and in association with a

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criminal street gang (§ 186.22, subd. (b)).5 Defendant was sentenced to life without the
possibility of parole, plus the determinate term of two years.
Defendant filed an appeal. His sole claim was that there was insufficient evidence
presented to support that he acted with reckless indifference to human life to support the
robbery-murder special circumstance. The claim was rejected with the court concluding
that substantial evidence supported that defendant was a major participant and acted with
reckless indifference to human life.
On December 31, 2018, defendant filed his petition. In his petition, he stated that
he had been convicted of first or second degree murder based on the felony murder rule.
He declared that he was not the actual killer, he did not have the intent to kill and was not
a “major participant” nor acted with “reckless indifference to human life during the
course of the crime or felony.” No other documents were provided to the trial court.
On February 26, 2019, the trial court set a status conference for March 8, 2019.
On March 1, 2019 the People filed their response to the petition and opposition to the
issuance of an order to show cause. The People contended that Senate Bill No. 1437 was
unconstitutional. In addition, the People contended that defendant was not entitled to
relief because he was convicted of the special circumstance of robbery murder, which
required a finding by the jury that he acted with reckless indifference to human life and
5 In the Opinion, it was stated that defendant was also convicted of other
enhancements, including inflicting great bodily injury on the victim within the meaning
of section 12022.7, subd. (a). However, according to the probation report, defendant’s
opening brief and the transcript from sentencing, the only enhancements for which he
was found guilty were the gang enhancements.

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was a major participant. The People attached the Opinion and the jury verdict on the first
degree murder and the true finding on the special circumstance. The jury instructions
were also attached, including the instruction on aiding and abetting, and on the special
circumstance (CALCRIM No. 703), which required that it find defendant was a major
participant and acted with reckless indifference to human life.
On March 8, 2019, defendant was appointed counsel. Defense counsel was not
given the opportunity to file a reply to the People’s opposition to the petition. On March
15, 2019, the trial court conducted a hearing during which the People and defense counsel
were present. The trial court expressed that it had reviewed its own records. It noted that
the jury was instructed on aider and abettor liability. Further, it was instructed with
CALCRIM No. 703, which instructed them that they must find, in determining if the
special circumstance was true, that defendant acted with reckless indifference to human
life and was major participant in the robbery of the victim. The trial court concluded, “In
reviewing the verdict forms, the jury found that allegation, the special allegation of a
felony murder special circumstance true. They were appropriately instructed under
theories that would survive a [Senate Bill No.] 1437 analysis. This matter is summarily
denied.” Defendant’s counsel objected for the record.
DISCUSSION
“[Senate Bill No.] 1437 modified California’s felony murder rule and natural and
probable consequences doctrine to ensure murder liability is not imposed on someone
unless they were the actual killer, acted with the intent to kill, or acted as a major
participant in the underlying felony and with reckless indifference to human life.”

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(People v. Cervantes (2020) 46 Cal.App.5th 213, 220.) Senate Bill No. 1437 added
section 189, subdivision (e) which provides that “[a] participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a) [which includes robbery] in
which a death occurs is liable for murder only if one of the following is proven: [¶] (1)
The person was the actual killer. [¶] (2) The person was not the actual killer, but, 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. [¶] (3) The
person was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.”
Senate Bill No. 1437 also added section 1170.95 which provides, “(a) A person
convicted of felony murder or murder under a natural and probable consequences theory
may file a petition with the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial . . . .
[¶] (3) The petitioner could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
“ ‘If the petition contains all required information, section 1170.95, subdivision
(c), prescribes a two-step process for the court to determine if an order to show cause
should issue.’ ” (People v. Torres (2020) 46 Cal.App.5th 1168, 1176 (Torres).) “If it is

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clear from the record of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. [Citation.] If, however, a
determination of eligibility requires an assessment of the evidence concerning the
commission of the petitioner’s offense, the trial court must appoint counsel and permit
the filing of the submissions contemplated by section 1170.95.” (People v. Smith (2020)
49 Cal.App.5th 85, 92, fn. omitted.) The superior court can properly consider the record
of conviction and the appellate opinion affirming conviction in deciding at the initial step
if a prima facie case has been made. (People v. Verdugo (2020) 44 Cal.App.5th 320, 327,
329, review granted Mar. 18, 2020, S260493.)
Section 1170.95, subdivision (c), provides for a second step as follows: “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. These deadlines shall be extended for good cause. If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court shall issue an order to
show cause.”
After the issuance of an order to show cause the trial court shall conduct a hearing
to determine whether to vacate the murder conviction and recall the sentence.
(§ 1170.95, subd. (d)(1).) At the hearing, the burden is on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing and may rely

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“on the record of conviction or offer new or additional evidence” (§ 1170.95, subd.
(d)(3).)
Here, the parties dispute whether the trial court followed the correct procedure in
denying defendant’s petition. Defendant contends that the trial court could not
summarily deny the petition because defendant had made a prima facie case of eligibility,
he was denied his right to file a reply to the prosecutor’s opposition and the trial court
could not rely upon its own records in summarily denying the petition.
Further, on the merits, defendant insists his counsel should have been given the
opportunity to argue that the California Supreme Court in People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) had narrowed the
definition of major participant and reckless indifference to human life subsequent to his
conviction of the robbery-murder special circumstance. He further contends that failure
to allow him an opportunity to file a reply brief violated his due process and statutory
rights to counsel. In response, the People contend the trial court properly followed the
procedures in section 1170.95 in summarily denying the petition; he was not denied his
due process rights, and any conceivable error was harmless.
This court recently addressed nearly identical issues in People v. Law (2020) 48
Cal.App.5th 811 (Law). In Law, the defendant and a codefendant committed a home
invasion robbery during which one of them shot and killed one of the residents. In 2006,
the defendant was found guilty of first degree murder and the robbery-murder special
circumstance pursuant to section 190.2, subdivision (a)(17)(A). The defendant was found
not to be the shooter but was found guilty based on him being a major participant and

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acting with reckless indifference to human life. The defendant filed a petition for
resentencing pursuant to section 1170.95. The People filed a response attaching the
appellate court opinion and the jury instructions. The defendant’s petition was
summarily denied by the trial court without appointment of counsel or the filing of a
reply based on the true finding on the special circumstance. (Law, at pp. 815-816, 818.)
On appeal, the defendant argued that (1) the trial court had no discretion to review the
record of conviction when determining whether the defendant had stated a prima facie
case as it was limited to review of the allegations in the petition; (2) the record did not
support, after Banks and Clark, that the defendant was a major participant and acted with
reckless indifference to human life; and (3) the trial court erred by not appointing counsel
to help him respond to the prosecutor’s response. (Law, at pp. 818-819.)
This court first concluded that the trial court could consider the record of
conviction in determining whether the petition made a prima facie case for relief. It
found, “[A] trial court may consider the record of the petitioner’s conviction, including
documents in the court’s own file and the appellate opinion resolving the defendant’s
direct appeal.” (Law, supra, 48 Cal.App.5th at p. 821; see also People v. Verdugo, supra,
44 Cal.App.5th at p. 323.) Hence, the trial court was not restricted to only the allegations
in the petition for resentencing when determining whether a prima facie case had been
made. (Law, at p. 820-821.)
This court then noted the change in the law since the defendant had been convicted
of the robbery-murder special circumstance. We recognized that in Banks and Clark,
“[O]ur high court clarified that participation in an armed robbery, on its own, is

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insufficient to support a finding that the defendant acted with reckless indifference to
human life. ‘A sentencing body must examine the defendant’s personal role in the
crimes leading to the victim’s death and weigh the defendant’s individual responsibility
for the loss of life, not just his or her vicarious responsibility for the underlying crime.’
[Citation.] ‘The defendant must be aware of and willingly involved in the violent manner
in which the particular offense is committed,’ thereby, ‘demonstrating reckless
indifference to the significant risk of death his or her actions create.’ ” (Law, supra, 48
Cal.App.5th at pp. 817-818; see also People v. Torres, supra, 46 Cal.App.5th at pp. 1179-
1180 [recognizing the change in the law in Banks and Clark].)
This court found that such determination as to whether there was sufficient
evidence under the new law to deny the petition for resentencing could be made for the
first time on appeal. It found, “The ‘claim does not require resolution of disputed facts;
the facts are a given.’ ” (Law, supra, 48 Cal.App.5th at p. 822.)
This court then recognized that in Banks the high court reversed the defendant’s
robbery-murder special circumstance based on the defendant only being the getaway
driver. In Banks, the court “articulated several factors” in determining whether a party
was a major participant and acted with reckless indifference to human life. This
included, “ ‘What role did the defendant have in planning the criminal enterprise that led
to one or more deaths? What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the killing, in a position to

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facilitate or prevent the actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after lethal force was used?’ ”
(Law, supra, 48 Cal.App.5th at pp. 823-824, quoting Banks, supra, 61 Cal.4th at p. 803.)
The Law court also reviewed the findings in Clark. In Clark, the defendant
planned a burglary of a computer store and his codefendant was to execute the burglary
while carrying an unloaded firearm. Unbeknownst to the defendant, the codefendant
loaded the firearm and shot an employee he encountered while codefendant was in
another location. The Clark court reversed the robbery-murder special circumstance,
finding that the defendant was not present when his codefendant killed the employee so
he could not intervene; the defendant did not know the codefendant was predisposed to
be violent; and the defendant had planned for the burglary to occur after store hours and
the defendant did not intend that the gun be loaded. (Law, supra, 48 Cal.App.5th at p.
824.) “In sum, the court believed there was ‘nothing in [Clark’s] plan that one can point
to that elevated the risk to human life beyond those inherent in any armed robbery.’ ”
(Law, at p. 824.)
This court distinguished its facts from Banks and Clark. It found that the
defendant was “willingly involved in the violent manner” in which the home invasion
robbery occurred. The court noted that the defendant was at the scene and watched as his
codefendant pistol whipped the victim. The defendant did nothing to stop the
codefendant and did not render aid to the victim once the victim had been shot. It found
that the defendant’s behavior was “clearly distinguishable” from Banks and Clark. The
court concluded, “Although the trial court erred by concluding the special circumstance

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finding, on its own, rendered [the defendant] ineligible for relief—that is the court erred
by failing to determine whether [the defendant] qualified as a major participant who acted
with reckless indifference to human life under Banks and Clark—we conclude the error
was harmless because the record demonstrates the answer to that question is yes. As a
result, we conclude the denial of [the defendant]’s petition was proper.” (Law, supra, 48
Cal.App.5th at p. 825; but see People v. Smith, supra, 49 Cal.App.5th at p. 96
[disagreeing with Law, finding that such error requires remand for a hearing in the trial
court].)
Finally, this court addressed the failure of the trial court to appoint the defendant
counsel to file a reply brief to the People’s response. We found any conceivable error
was harmless beyond a reasonable doubt. We concluded, “Given the trial evidence,
counsel would not have been able to demonstrate in a reply brief or otherwise that Law
was not a major participant who acted with reckless indifference to human life.” (Law,
supra, 48 Cal.App.5th at p. 826.)
In Torres, supra, 46 Cal.App.5th 1168, that court also acknowledged the change in
the law under Banks and Clark. It concluded that the California Supreme Court had
significantly changed the meaning of “major participant” and “reckless indifference to
human life.” It found, “[O]ur Supreme Court’s decisions, clarifying what it means for an
aiding and abetting defendant to be a ‘major participant’ in an underlying felony and to
act with ‘reckless indifference to human life,’ construed section 190.2 in a significantly
different, and narrower manner than courts had previously construed the statute. . . .
Banks, supra, 61 Cal.4th 788 [], which elucidated the meaning of ‘major participant,’ was

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decided in 2015, and Clark, supra, 63 Cal.4th 522, [], which addressed the meaning of
‘reckless indifference to human life,’ was decided in 2016. Accordingly, in determining
if Torres could be convicted today of first-degree murder, we cannot simply defer to the
jury’s pre-Banks and Clark factual findings that Torres was a major participant who acted
with reckless indifference to human life as those terms were interpreted at the time.”
(Torres, at p. 1179.) The Torres court concluded, “We conclude that the trial court erred
in ruling that the pre-Banks and Clark robbery-murder special circumstance findings
preclude Torres from relief as a matter of law.” (Id., at p. 1180.)
We reach the same conclusions as in Law. First, the trial court could review the
record of conviction and records in its file in determining whether a prima facie case had
been made by defendant. It was not restricted to the allegations in the petition.
Moreover, it is clear that the trial court erred by finding that as a matter of law the
record on appeal and the record of conviction precluded defendant from showing that he
was not a major participant or acted with reckless indifference to human life based solely
on the true finding on the special circumstance. While the trial court stated it had
reviewed its own records, and it recounted the theory of murder in the trial court, it
exclusively relied on the true finding on the special circumstance in summarily denying
the petition. However, such error was harmless as even after Banks and Clark, the
evidence supports that defendant was a major participant and acted with reckless
indifference to human life.

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Defendant was present in the van with Lewis when he spotted the victim and
stated he needed money. At that point, the jury reasonably could believe that defendant
tried first to pull the victim from the van but was unsuccessful, or watched as Lewis
pulled him from the van. At that point, Lewis began kicking the victim. Defendant
described to police that Lewis kicked the victim, “Bam, bam, bam, bam.” He told Lee
that Lewis kicked him many times “Poom, poom, poom.” Defendant did nothing to
intervene and he ran off with the others because they believed that the victim was dead.
Defendant was present at the scene with three other gang members; he was in a position
to prevent the actual murder; his own actions and inaction played a role in the victim’s
death; and he left the victim for dead. This was sufficient evidence that he was a major
participant and acted with reckless indifference to human life even under newly enacted
section 189, subdivision (e).
Finally, even if the trial court erred by appointing counsel and then failing to allow
a reply brief to be filed, defendant is not entitled to remand. As in Law, counsel would
not have been able to demonstrate that defendant was not a major participant or failed to
act with reckless indifference to human life based on the trial evidence.
Based on the foregoing, any error made by the trial court in relying upon the
robbery-murder special circumstance was harmless. Defendant was not entitled to
resentencing as the facts support he was a major participant and acted with reckless
indifference to human life.

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DISPOSITION
We affirm the order denying defendant’s petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
FIELDS
J.

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