P. v. Higgins

Filed 3/12/21 P. v. Higgins CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
CARL HIGGINS,
Defendant and Appellant.
B300888
(Los Angeles County
Super. Ct. No. YA035529)
APPEAL from a judgment of the Superior Court of Los Angeles
County, Hector M. Guzman, Judge. Reversed and remanded.
Sara H. Ruddy, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Idan Ivri and Analee J. Brodie, Deputy Attorneys General, for
Plaintiff and Respondent.

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This is an appeal by defendant Carl Higgins from the denial of his
petition for resentencing under Penal Code section 1170.95.1 In 1999,
defendant was tried, along with two codefendants, Donald Ray Debose
and Anthony Flagg, for various charges relating to the murder of
Dannie Kim. As relevant here, the jury convicted defendant of first
degree murder (Pen. Code, § 187, subd. (a)), second degree robbery
(§ 211), and arson causing great bodily injury (§ 451, subd. (a)), and
found true the robbery-murder and arson-murder special circumstance
allegations (§ 190.2, subd. (a)(17)). The trial court sentenced defendant
to life without the possibility of parole, plus 10 years.
On defendant’s direct appeal from the judgment of conviction
(codefendant Flagg was also a party in that appeal), we reversed the
true finding on the arson-murder special circumstance for insufficient
evidence, but otherwise affirmed defendant’s conviction. (People v.
Flagg et al. (July 17, 2002, B135685) [nonpub. opn.] (Higgins I)).2
In 2019, defendant filed a petition for resentencing under section
1170.95, which provides that persons who were convicted under
theories of felony murder or murder under the natural and probable
consequences doctrine, and who could no longer be convicted of murder
following the enactment of Senate Bill No. 1437 (S.B. 1437), may
1 Undesignated statutory references are to the Penal Code. Neither
codefendant is a party to this appeal.
2 In the current appeal, we have granted defendant’s request for judicial
notice of the record on appeal in Higgins I.

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petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).)
The trial court summarily denied defendant’s petition after
reviewing defendant’s record of conviction. The court found that
defendant was ineligible for relief as a matter of law because the jury
had found true the robbery-murder special circumstance (§ 190.2, subd.
(a)(17)), which required the jury to find that if defendant was not the
actual killer, he aided and abetted the murder with the intent to kill the
victim, or was a major participant who aided and abetted the robbery
and acted with reckless indifference to human life. The court also
concluded defendant acted as a major participant who acted with
reckless indifference to human life based on our statement of facts in
Higgins I.
Defendant appeals from the trial court’s order, and contends that
the trial court’s summary denial of his petition should be reversed
because it relied on the robbery-murder special circumstance finding in
violation of People v. Torres (2020) 46 Cal.App.5th 1168 (Torres), review
granted June 24, 2020, S262011. In Torres, Division Five held that a
trial court commits reversible error by summarily denying a section
1170.95 petition based on the jury’s robbery-murder special
circumstance finding that predates People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). (Torres,
supra, at p. 1173; accord, People v. Harris (2021) __ Cal.App.5th __
[2021 WL 567388] (Harris); People v. York (2020) 54 Cal.App.5th 250,

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rev. granted, S264954, Nov. 18, 2020 (York); People v. Smith (2020) 49
Cal.App.5th 85, rev. granted, S262835, July 22, 2020 (Smith).)
The Attorney General asserts that Torres was incorrectly decided,
and that we should instead follow the line of cases following People v.
Galvan (2020) 52 Cal.App.5th 1134 (Galvan), review granted, S264284,
October 14, 2020. (See People v. Nunez (2020) 57 Cal.App.5th 78, rev.
granted, S265918, Jan. 13, 2021; People v. Jones (2020) 56 Cal.App.5th
474, rev. granted, S265854, Jan. 27, 2021; People v. Allison (2020) 55
Cal.App.5th 449; People v. Murillo (2020) 54 Cal.App.5th 160, rev.
granted, S264978, Nov. 18, 2020; People v. Gomez (2020) 52 Cal.App.5th
1, rev. granted, S264033, Oct. 14, 2020.)
Consistent with our prior decisions on the issue, we reverse the
trial court’s order in light of Torres. We also conclude that defendant’s
record of conviction does not establish as a matter of law that he acted
as a major participant with reckless indifference under the standards
established by Banks and Clark. We reverse the order summarily
denying defendant’s petition, and direct the court to issue an order to
show cause and proceed consistent with section 1170.95, subdivision (d).
FACTUAL BACKGROUND3
During the early morning of December 17, 1997, security cameras
at the Hollywood Park Casino recorded the movements and interactions
of defendant and codefendants Donald Ray Debose and Anthony Flagg.4
3 We recite the background from Higgins I.
4 Defendant, Flagg, and Debose were jointly tried before a jury.

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In the video footage shown at trial, the three men appeared to monitor
the gambling activities of Dannie Kim. After Kim collected her
winnings, the men followed her out of the casino.5 A few hours later,
firefighters called to the scene of a car fire discovered Kim alive, locked
in the trunk of her car. She had been shot several times and her body
was badly burned. Abrasions and tears found in the genital region
suggested she had been sexually assaulted. Days later, Kim died from
her injuries.
The prosecution called Willard Lewis to testify at trial. Around
5:15 a.m. on December 17, Lewis was sitting inside his parked car with
a prostitute near the Kelso Elementary School when he heard people
arguing outside his car. When he looked outside his car, he saw
defendant and Debose with an Asian woman who appeared to have
been “kind of beat up in the face.” The woman kept stating, “No, no,
no,” and there appeared to be struggling for 5 to 10 minutes. Lewis saw
Debose pull the woman by the arm towards a car as defendant was
“more or less blocking the way” to prevent the woman’s escape. Lewis
also saw the shadow of what he believed was a third person leaning
over the front seat of the passenger side area of the car. When Lewis
5 When Kim walked to her parked car in the casino parking lot around
3:50 a.m., Flagg and Debose exited the casino, followed by defendant a few
minutes later. At 3:53 a.m., the car that defendant, Flagg, and Debose had
arrived in began driving near a parking lot ramp and disappeared from
surveillance cameras around the same time as defendant disappeared from
cameras. Kim’s car was captured leaving another area of the parking lot as it
exited the casino grounds. The perpetrators’ car was then captured rolling
through a stop sign and then following Kim’s car as she drove away.

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laid back down in his car, he heard a car door or trunk slam shut and
heard three or four gunshots. Lewis looked and saw Debose standing
from where the gunshots had originated and saw Debose tucking away
something. Lewis then saw defendant leaving the vehicle and saying,
“Come on, Don.”
Defendant did not testify in his own defense, which was based on
the impeachment of the testimony of Lewis, a convicted felon.
PROCEDURAL BACKGROUND
By amended information, defendant, Flagg, and Debose were
charged with first degree murder (§ 187, subd. (a)), second degree
robbery (§ 211), and arson causing great bodily injury (§ 451, subd. (a)).
The information also alleged that the murder was committed during the
arson and robbery (§ 190.2, subd. (a)(17)).6
At the conclusion of trial, the court instructed the jury as to the
robbery-murder special circumstance allegation under CALJIC No.
8.80.1 as follows: “If you find that a defendant was not the actual killer
of a human being, or if you are unable to decide whether the defendant
was the actual killer or an aider and abettor, you cannot find the special
circumstance to be true as to that defendant unless you are satisfied
beyond a reasonable doubt that such defendant with the intent to kill
aided, abetted, . . . or assisted any actor in the commission of the
6 The amended information also alleged that the murder occurred during
unlawful penetration by a foreign object (§ 190.2, subd. (a)(17)), and occurred
during the infliction of torture (§ 190.2, subd. (a)(18)). The jury hung as to
these special circumstance allegations.

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murder in the first degree, or with reckless indifference to human life
and as a major participant, aided, abetted, . . . or assisted in the
commission of the crime of robbery . . . which resulted in the death of a
human being, namely Dannie Kim.”
By verdict on May 12, 1999, the jury found defendant guilty as
charged, and found true the allegation that the murder was committed
while defendant was engaged in the commission of robbery and arson
(§ 190.2, subd. (a)(17)). The verdict form did not specify whether the
jury found beyond a reasonable doubt that defendant was the actual
killer, intended to kill as an aider and abettor, or acted as a major
participant with reckless indifference to human life. The court
sentenced defendant to life imprisonment without the possibility of
parole, plus 10 years.
This court affirmed defendant’s judgment of conviction in Higgins
I. (Higgins I, supra, at p. 1.) Among defendant’s contentions in that
appeal was whether Lewis, who at one point was housed in the same
cell as defendant, provided legally false testimony at trial. (Id. at
pp. 13, 15.)7 We rejected the contention after finding that nothing in
7 From May 4 to 14, 1998, Lewis was housed in the same cell in Men’s
Central Jail with defendant, and there was no place to lock up documents
that inmates kept in their cells. (Higgins I, supra, at p. 14.) Part of
defendant’s contention on appeal was that Lewis fabricated his testimony to
obtain leniency in his own criminal case. (Id. at p. 15.) We rejected the claim
after finding no evidence that defendant had kept any documentation
containing information which Lewis could have used to fabricate his
testimony. Moreover, Lewis denied having had access to such
documentation. (Id. at p. 14.)

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Lewis’s testimony was impossible or inherently improbable so as to
warrant reversal of defendant’s conviction. (Id. at pp. 13–14.)
Flagg was also a party in the earlier appeal. He contended that
the true finding on the robbery-murder special circumstance had to be
reversed because there was insufficient evidence to support a finding
that he was a major participant who acted with reckless indifference to
human life. (Higgins I, supra, at p. 12.) Relying on People v. Proby
(1998) 60 Cal.App.4th 922, 928, we rejected Flagg’s contention, finding
ample evidence that he was a “‘major participant’ in the robbery of Kim
in that he was part of the concerted effort on the part of himself, Debose
and Higgins to select and stalk Kim as the robbery victim and was
present when the robbery, murder, and arson went down.” (Id. at
p. 13.) We reasoned that the evidence “amply support[ed] the jury’s
implied findings that Flagg was jointly engaged with Debose and
Higgins in the robbery or attempted robbery of Kim and that Debose
shot Kim during such crime.” (Id. at p. 12.)
We also noted that while the record did not reflect whether
defendant had left the casino in the same car as either Debose or Flagg,
“a reasonable inference could be drawn that he left almost immediately
after Kim did and was picked up before the car left the Casino grounds,
because there was no evidence that [defendant] was present in the
Casino after the car had left, and Lewis positively identified [defendant]
as one of the perpetrators present when Kim was shot. The record,
however, also does not disclose what happened between the time the
robbers’ and Kim’s vehicles disappeared down Century Boulevard

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around 3:55 a.m., and when Kim was shot around 5:15 a.m.” (Higgins I,
supra, at p. 11, fn. 2.)
On January 7, 2019, defendant filed a petition for resentencing
pursuant to section 1170.95, claiming entitlement to relief because he
was convicted of first degree murder under a felony-murder theory or
the natural and probable consequences doctrine. Defendant requested
that counsel be appointed on his behalf.
The court appointed counsel, the People filed an opposition and
supplemental brief, and defendant filed a reply and supplemental brief.
In a written memorandum of decision, the trial court summarily
denied defendant’s petition after finding that “the facts . . . derived from
the Court of Appeals [sic] Statement of the Case, shows that [defendant]
intended to kill, aid, abet, or assist the actual killer in the commission
of murder in the first degree, and or, was a major participant in the
murder and acted with reckless indifference to human life during the
course of the murder.” The court also based its ruling on the robbery-
murder special circumstance allegation: “[i]n essence, the jury found
that [defendant] intended to kill or was a major participant” during the
commission of the robbery.
Defendant timely filed a notice of appeal from the order
summarily denying his petition.
DISCUSSION
1. Governing Law
The legislature enacted S.B. 1437 “to amend the felony murder
rule and the natural and probable consequences doctrine, as it relates to

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murder, 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); accord,
§ 189, subd. (e).)
S.B. 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted,
S260493, Mar. 18, 2020.) Under the revised section 188, subdivision
(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43
Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony-murder or murder under the natural and
probable consequences doctrine, but who could not be convicted of
murder following S.B. 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he is
eligible for relief under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel, should
the petitioner seek appointment. (§ 1170.95, subd. (b)(2).)
If the petition includes the required information, subdivision (c) of
section 1170.95, prescribes “a two-step process” for the court to
determine if it should issue an order to show cause. (Verdugo, supra, 44

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Cal.App.5th at p. 327.) The court first “review[s] the petition and
determine[s] if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section.” (§ 1170.95, subd.
(c).) The court then appoints counsel, if requested, and reviews the
petition a second time after briefing by the parties to determine if
petitioner has established a prima facie case for relief. (Ibid.; see Lewis,
supra, 43 Cal.App.5th at p. 1140.) If the court concludes the petitioner
has made a prima facie showing, it must issue an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, at p. 328.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction and to
recall the sentence and resentence the petitioner on any remaining
counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327, citing § 1170.95,
subd. (d)(1).) The parties may rely on the record of conviction or present
“new or additional evidence” to support their positions. (§ 1170.95,
subd. (d)(3).)
2. Analysis
Defendant contends the trial court’s summary denial of his
petition was in error, because it could not rely on the jury’s special
circumstance finding made in 1999, before the Supreme Court’s
decisions in Banks and Clark. We agree with defendant. The jury’s
robbery-murder special circumstance finding alone does not, as a
matter of law, render defendant ineligible for relief. (Torres, supra, 46
Cal.App.5th at p. 1178.)

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As amended by S.B. 1437, subdivision (e) of section 189 provides
that participation in the perpetration or attempted perpetration of an
enumerated felony (here, robbery) in which a death occurs renders a
person liable for murder “only if one of the following is proven: . . .
[¶] . . . [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted . . . or assisted the actual killer 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, as described in subdivision (d) of Section
190.2.” Section 190.2, subdivision (d), in turn, provides that “every
person, not the actual killer, who, with reckless indifference to human
life and as a major participant, aids, abets . . . or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a)
which results in the death of some person or persons, and who is found
guilty of murder in the first degree therefor, shall be punished by death
or imprisonment in the state prison for life without the possibility of
parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.” Section
190.2, subdivision (a)(17) lists robbery as a qualifying felony.
The special circumstance finding in this case indicates that the
jury found that defendant was, at the least, a major participant in the
robbery who acted with reckless indifference to human life. However,
because the jury rendered its findings in 1999 (about 15 years prior to
the Banks and Clark decisions) in a verdict that did not specify whether
defendant was the actual killer, defendant is not precluded from

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showing that he could not be convicted of first degree murder as
redefined by S.B. 1437. (Torres, supra, 46 Cal.App.5th at p. 1179.)
Torres explains: “[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, subdivision (d) in a
significantly different, and narrower manner than courts had previously
construed the statute.” (Torres, supra, 46 Cal.App.5th at p. 1179.) The
Supreme Court in “Banks, supra, 61 Cal.4th 788, which elucidated the
meaning of ‘major participant,’ was decided in 2015, and Clark, supra,
63 Cal.4th 522, which addressed the meaning of ‘reckless indifference to
human life,’ was decided in 2016.” (Ibid.)
Both Banks and Clark were decided about 15 years after the jury
made its findings in defendant’s case. Thus, when determining if
defendant “could be convicted today of first degree murder, we cannot
simply defer to the jury’s pre-Banks and Clark factual findings that
[defendant] was a major participant who acted with reckless
indifference to human life as those terms were interpreted at the time.”
(Torres, supra, 46 Cal.App.4th at p. 1179 [defendant’s claim that the
evidence presented against him failed to support robbery-murder
special circumstance after Banks and Clark requires resolution of
whether the facts as given “are legally sufficient in light of Banks and
Clark”]; accord, In re Miller (2017) 14 Cal.App.5th 960, 979–980.)
The Attorney General asserts that Torres was wrongly decided
and urges us to fall in line with the cases following Galvan. In that

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case, our colleagues in Division One reasoned that defendant and others
like him would not be entitled to relief under the plain language of
section 1170.95, because the present inability to convict them of murder
was not “‘because of changes’” made by S.B. 1437 (see § 1170.95, subd.
(a)(3) [petitioner entitled to relief because he “‘could not be convicted
of . . . murder because of changes to Section[s] 188 or 189 made
effective’” Jan. 1, 2019]), but because of the “clarification of the
requirements for the special circumstance finding in Banks and Clark.”
(Galvan, supra, 52 Cal.App.5th at p. 1142.) The Galvan court also
reasoned that petitions under section 1170.95 are not “proper vehicle[s]”
for challenging a special circumstance finding, which must be
challenged through a habeas corpus proceeding. (Id. at p. 1141.)
Mindful of the conflicts in the law, we continue to follow Torres.
Defendant’ section 1170.95 petition seeks to have his “murder
conviction vacated and to be resentenced” on any remaining counts.
(§ 1170.95, subd. (a); see York, supra, 54 Cal.App.5th at p. 260 [“[o]ur
analyses in Torres and Smith recognized that section 1170.95 permits a
petitioner to challenge a murder conviction”].) Thus, because a
petitioner’s entitlement to section 1170.95 relief may require
consideration of the verdict (including any special circumstance
findings), the Banks and Clark decisions remain relevant for making
such determination.
The verdict in this case reveals a true finding under section 190.2,
subdivision (a)(17). Because the jury was not instructed on the
standards as enunciated in Banks and Clark, and because the jury did

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not find that defendant was the actual killer (as reflected in Higgins I,
we found the evidence supported a finding that Debose was the
shooter), we cannot conclude that defendant is precluded from relief as
a matter of law at this prima facie step of review.
Notwithstanding its reliance on the robbery-murder special
circumstance, the trial court also referenced our statement of facts in
Higgins I when determining that defendant either intended to kill or
was a major participant in the robbery who acted with reckless
indifference to human life. In a related argument, the Attorney General
asserts defendant’s record of conviction establishes as a matter of law
that the jury’s special circumstance finding is valid under the standards
established by Banks and Clark.8
We disagree with the trial court’s ruling and the Attorney
General’s argument. The record of conviction, particularly our opinion
in Higgins I, does not establish as a matter of law that defendant acted
with reckless indifference as a major participant during the robbery in
accordance with standards established by Banks and Clark. Many of
the facts made significant by those decisions were not addressed at trial
or were not clearly resolved by the jury. (See Banks, supra, 61 Cal.4th
at p. 803 & fn. 5; Clark, supra, 63 Cal.4th at pp. 618–623.) Moreover,
our opinion in Higgins I did not clarify as a matter of law that
defendant was a major participant who acted with reckless indifference
to human life within the meaning of section 189, subdivision (e)(3). (See
8 The Attorney General has made its argument within the context of
harmless error review.

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People v. Clements (2021) 60 Cal.App.5th 597, 613 [whether and to what
extent a prior opinion is probative in a specific case depends on the
circumstances, as “the issues on appeal [may] implicate different facts
than a later resentencing petition”].) Thus, while defendant is not
entitled to resentencing at this stage of the proceedings, he is entitled to
an evidentiary hearing pursuant to section 1170.95, subdivision (d) to
determine whether he could now be convicted of felony murder.
In light of our conclusion, we do not agree with the Attorney
General that any of the errors discussed above were harmless under the
principles set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson).
Clearly, had the trial court not erred in summarily denying defendant’s
petition, he would have obtained a more favorable result by having the
opportunity to present new or additional evidence at an evidentiary
hearing under section 1170.95, subdivision (d).
To the extent the Attorney General asserts that this court can
engage in the harmless error analysis under Watson to determine
whether it is reasonably probable defendant’s murder conviction would
be vacated and recalled in accordance with section 1170.95, subdivision
(d), we do not agree. At the second prima facie stage of review, the
court’s authority to make determinations without conducting an
evidentiary hearing is limited to readily ascertainable facts from the
record. (Harris, supra, __ Cal.App.5th at p. __ [2021 WL 567388 at
p. *10].) Without issuing an order to show cause, the court has no
authority to engage in factfinding, the weighing of evidence, or the
exercise of discretion to determine whether a petitioner is a major

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participant who acted with reckless indifference to human life. (See
ibid.; People v. Drayton (2020) 47 Cal.App.5th 965, 980.)
DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed, and the matter is remanded with directions to issue an order
to show cause and to proceed consistent with section 1170.95,
subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.

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