Filed 2/20/20 Nicholson v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

DESHAUN NICHOLSON,

Petitioner,

v.

THE SUPERIOR COURT OF KERN COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

F078914

(Kern Super. Ct. No. BF173703)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of prohibition. Jerold L. Turner, Judge.

Pam Singh, Kern County Public Defender, John C. Taylor and Cynda L. Bunton, Deputy Public Defenders, for Petitioner.

No appearance on behalf of Respondent.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Real Party in Interest.

-ooOoo-

INTRODUCTION

Trayvale Carlson and a second suspect entered a store while wearing masks. Carlson aimed a gun at the employees and customers and announced it was a robbery. The robbery was thwarted when the store’s armed security guard shot and killed Carlson. The second suspect immediately fled. Carlson’s girlfriend later gave information that led to petitioner Deshaun Nicholson as the second suspect.

Petitioner was charged with first degree murder of his alleged accomplice, Carlson, and additional felony offenses. At the preliminary hearing, the prosecutor argued defendant should be held to answer for the murder of his alleged accomplice based on the provocative act theory of murder. Petitioner was held to answer on the charged offenses and the information was filed.

Thereafter, petitioner filed a motion pursuant to Penal Code section 995 to dismiss the murder charge, on the sole basis that he could not be held to answer for Carlson’s murder based on the enactment of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (SB 1437) because it amended the felony-murder rule and sections 188 and 189. The superior court denied the motion.

Petitioner then filed a petition for writ of prohibition with this court and raised the same issue – that he could not be held to answer for Carlson’s murder based on SB 1437’s amendments to the felony-murder rule. This court denied the petition without comment. Petitioner filed a petition for review with the California Supreme Court, again raising the identical issue addressed in his section 995 motion and his writ filed with this court – that he could not be held to answer under SB 1437’s amendments to the felony-murder rule. The California Supreme Court granted review and remanded the matter to this court to issue an order to show cause (OSC) on the issue raised in his petition.

After this court issued the OSC, we requested supplemental briefing from the parties about whether the provocative act theory of murder applied to petitioner’s potential culpability for the homicide of Carlson, and whether that theory was affected by the amendments enacted by SB 1437.

In response, both parties have conceded that the felony-murder rule does not apply to the homicide of an accomplice, they proceeded under the wrong legal theory in their prior motions and petitions, and the provocative theory of murder was the correct legal theory that should have been applied in this case. Petitioner expressly withdrew the issue he had raised in his section 995 motion, and the writ petitions he filed with this court and the California Supreme Court, which were the basis for the issuance of the OSC.

We will review the procedural history of this case and the issues raised in the pleadings. As we will explain, we are compelled to follow Countrywide Home Loans, Inc. v. Superior Court (1997) 54 Cal.App.4th 828 (Countrywide) and dismiss the instant writ petition without prejudice and discharge the OSC because petitioner has belatedly withdrawn the sole issue raised in his petition. (Id. at p. 833.)

THE PRELIMINARY HEARING

The evidence at the preliminary hearing showed that on August 30, 2018, two men entered the Metro PCS store in Bakersfield wearing masks, and they attempted to commit a robbery. There were two employees in the store, at least one customer, and an armed security guard. The store’s security cameras recorded the entire incident.

The video showed the second suspect held the store’s door open and the first suspect, later identified as Carlson, entered the store. The second suspect walked in behind Carlson. Carlson was holding a gun and pointed it at the people in the store. There were conflicting statements from the witnesses about whether the second suspect was armed. It was not clear from the video whether the second suspect had a weapon.

The security guard immediately drew his handgun and shot Carlson, who later died from the gunshot wound. The second suspect fled and was not apprehended at the scene.

Based on information from Carlson’s girlfriend, petitioner was subsequently identified as the second suspect and arrested.

The Parties’ Arguments

At the close of evidence at the preliminary hearing, defense counsel argued there was very little evidence that petitioner was the second robbery suspect. The prosecutor replied there was strong circumstantial evidence that petitioner was Carlson’s accomplice based on the statements from Carlson’s girlfriend, and her identification of petitioner from a photographic lineup.

The prosecutor argued petitioner should be held to answer because the case presented “a classic provocative act, a murder here, where a security guard shoots one of two people as they’re attempting to rob the store.”

Neither the prosecutor nor defense counsel argued that the felony-murder rule potentially applied to this case.

The court found sufficient circumstantial evidence to hold petitioner to answer.

THE INFORMATION

On October 9, 2018, the information was filed that charged petitioner with count 1, first degree willful, deliberate and premeditated murder of Carlson (§§ 187, subd. (a), 189).

Petitioner was also charged with counts 2, 3, and 4, assault with a semiautomatic firearm on two customers and the security guard in the store (§ 245, subd. (b)); count 5, attempted robbery of one customer (§§ 664; 212.5, subd. (c)); count 6, possession of a firearm by a felon (§ 29800, subd. (a)(1)); and count 7, active participation in a criminal street gang (§ 186.22, subd. (a)).

It was further alleged petitioner committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that he had one prior strike conviction, one prior serious felony enhancement pursuant to section 667, subdivision (a), and two prior prison term enhancements (§ 667.5, subd. (b)), based on prior convictions for robbery (§ 212.5) and theft (§ 487(c)).

FELONY MURDER AND PROVOCATIVE ACT MURDER

Before addressing petitioner’s section 995 motion and writ petitions, we briefly review the felony-murder rule, the provocative act theory of murder, and the enactment of SB 1437.

The Felony-murder Rule

“Under the felony-murder doctrine [prior to the amendments enacted by SB 1437], when the defendant or an accomplice kills someone during the commission, or attempted commission, of an inherently dangerous felony, the defendant is liable for either first or second degree murder, depending on the felony committed. If the felony is listed in section 189, the murder is of the first degree; if not, the murder is of the second degree. [Citations.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez); People v. Bryant (2013) 56 Cal.4th 959, 965.)

“Felony-murder liability does not require an intent to kill, or even implied malice, but merely an intent to commit the underlying felony. [Citation.]” (Gonzalez, supra, 54 Cal.4th at p. 654.) “ ‘The felony-murder doctrine, whose ostensible purpose is to deter those engaged in felonies from killing negligently or accidentally, operates to posit the existence of that crucial mental state – and thereby to render irrelevant evidence of actual malice or the lack thereof – when the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.’ [Citations.]” (People v. Bryant, supra, 56 Cal.4th at p. 965.)

Natural and Probable Consequences

Independent of the felony-murder rule, “an aider and abettor can also be guilty of unintended crimes under the ‘natural and probable consequences’ doctrine: when the aider and abettor acts with knowledge of the criminal purpose of the direct perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the target offense, he or she is guilty of both the intended (target) crime and any other offense (the ‘nontarget offense’) committed by his or her confederate that was a ‘natural and probable consequence’ of the target crime he or she aided and abetted. [Citations.] Under the natural and probable consequences doctrine, ‘[b]ecause the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime. It follows that the aider and abettor will always be “equally guilty” with the direct perpetrator of an unintended crime that is the natural and probable consequence of the intended crime.’ [Citation.]” (People v. Flores (2016) 2 Cal.App.5th 855, 866–867.)

The Provocative Act Doctrine

“When someone other than the defendant or an accomplice kills during the commission or attempted commission of a crime, the defendant is not liable under felony-murder principles but may nevertheless be prosecuted for murder under the provocative act doctrine. The provocative act doctrine is to be distinguished from the felony-murder rule. ‘A provocative act murder case necessarily involves at least three people – in our case, the perpetrator of the underlying offense, an accomplice, and a victim of their crime. [Citation.]’ [Citation.] A variation on the law of transferred intent, the provocative act doctrine holds the perpetrator of a violent crime vicariously liable for the killing of an accomplice by a third party, usually the intended victim or a police officer. [Citations.] Under the felony-murder rule, if an accomplice is killed by a crime victim and not by the defendant, the defendant cannot be held liable for the accomplice’s death. [Citations.] The provocative act doctrine is not so limited. Under the provocative act doctrine, when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder. [Citations.] ‘In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.’ [Citation.]” (Gonzalez, supra, 54 Cal.4th at pp. 654–655, fn. omitted.)

“A murder conviction under the provocative act doctrine thus requires proof that the defendant personally harbored the mental state of malice, and either the defendant or an accomplice intentionally committed a provocative act that proximately caused an unlawful killing. [Citations.] A provocative act is one that goes beyond what is necessary to accomplish an underlying crime and is dangerous to human life because it is highly probable to provoke a deadly response. [Citations.] Although the doctrine has often been invoked in cases where the defendant initiates or participates in a gun battle [citation], it is not limited to this factual scenario. [Citations.] Malice will be implied if the defendant commits a provocative act knowing that this conduct endangers human life and acts with conscious disregard of the danger. [Citations.]” (Gonzalez, supra, 54 Cal.4th at p. 655.)

“A provocative act is conduct that is dangerous to human life, not necessarily in and of itself, but because, in the circumstances, it is likely to elicit a deadly response. The danger addressed by the provocative act doctrine is not measured by the violence of the defendant’s conduct alone, but also by the likelihood of a violent response.” (Gonzalez, supra, 54 Cal.4th at p. 657.)

“An important question in a provocative act case is whether the act proximately caused an unlawful death. ‘[T]he defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. [Citation.] “In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant’s liability will depend on whether it can be demonstrated that [the defendant’s] own conduct proximately caused the victim’s death ….” [Citation.] “[I]f the eventual victim’s death is not the natural and probable consequence of a defendant’s act, then liability cannot attach.” [Citation.]’ [Citation.] When the defendant commits an inherently dangerous felony, the victim’s self-defensive killing is generally found to be a natural and probable response to the defendant’s act, and not an independent intervening cause that relieves the defendant of liability. [Citations.] The question of proximate cause is ordinarily decided by the jury, unless undisputed evidence reveals ‘a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus.’ [Citation.]” (Gonzalez, supra, 54 Cal.4th at pp. 655–656.)

“[W]hen the conduct of two felons acting in concert provokes a deadly response, the question is only whether the defendant’s acts were a substantial factor contributing to the resulting death. If so, that defendant is guilty. Accompanying provocative acts of the accomplice do not dissipate culpability.” (Gonzalez, supra, 54 Cal.4th at p. 659.) “ ‘To be considered a proximate cause of [the victim’s] death, the acts of the defendant[] must have been a “substantial factor” contributing to the result. [Citations.]’ [Citation.]” (Id. at p. 657.) “[I]t is reasonably foreseeable that a crime victim will use force in self-defense. [Citations.]” (Id. at p. 658.)

SB 1437

In September 2018, Governor Newsom signed SB 1437, which became effective on January 1, 2019. “[SB] 1437 was enacted to ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to 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).) Substantively, [SB] 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. [SB] 1437 also adds … section 1170.95, which allows those ‘convicted of felony murder or murder under a natural and probable consequences theory … [to] 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 ….’ [Citation.]” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)

“Section 189, subdivision (e), as amended, provides that a participant in a specified felony is liable for murder for a death during the commission of the offense 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 ….’ ” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248, fn. omitted, petn. for review pending, petn. filed Dec. 26, 2019.)

“Senate Bill 1437 also ‘added a crucial limitation’ to section 188,” which defines malice for purposes of murder. (People v. Lamoureux, supra, 42 Cal.App.5th at p. 248]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099, review granted Nov. 13, 2019, S258175.) As amended, section 188 provides in pertinent part as follows: “Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)

Banks and Clark

As we will explain, in all the documents filed in this case, both parties addressed petitioner’s culpability for murder under the versions of sections 188 and 189 that were amended by SB 1437, based on People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 (Clark).

Banks and Clark “reviewed the factors established by the United States Supreme Court for determining whether an aider and abettor of felony murder who was not the actual killer nor harbored an intent to kill, was a major participant who acted with a reckless indifference to human life,” for purposes of the felony murder special circumstance. (People v. Ramirez (2019) 41 Cal.App.5th 923, 926, fn. omitted; In re Taylor (2019) 34 Cal.App.5th 543, 546.)

In their arguments before the superior court, this court, and the California Supreme Court, both petitioner and the People addressed whether petitioner was a major participant in the attempted robbery who acted with a reckless indifference to human life.

“The ultimate question pertaining to being a major participant is ‘whether the defendant’s participation “in criminal activities known to carry a grave risk of death” [citation] was sufficiently significant to be considered “major” [citations].” ’ [Citation.] Among the relevant factors in determining this question, [are] the following: ‘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 facilitate or prevent the actual murder, and did his or her own actions or inactions play a particular role in the death? What did the defendant do after lethal force was used?’ [Citation.]” (Clark, supra, 63 Cal.4th at p. 611.)

The factors to determine whether there is evidence of a defendant’s “reckless indifference to human life” include the defendant’s knowledge of weapons, and use and number of weapons; defendant’s physical presence at the crime and opportunities to restrain the crime and/or aid the victim; the duration of the felony; the defendant’s knowledge of the accomplice’s likelihood of killing; and defendant’s efforts to minimize the risk of violence during the felony. (Clark, supra, 63 Cal.4th at pp. 619–622.)

With this background in mind, we turn to petitioner’s pleadings that challenged the court’s decision to hold him to answer for murder.

PETITIONER’S SECTION 995 MOTION

On January 25, 2019, petitioner filed a motion in the superior court pursuant to section 995, to set aside count 1, first degree premeditated murder of Carlson. For purposes of his motion, petitioner conceded the evidence at the preliminary hearing raised sufficient cause to believe he was the second suspect in the attempted robbery.

Petitioner’s motion did not address the provocative act theory of murder, which the prosecutor relied on at the preliminary hearing. Instead, petitioner’s motion was entirely based on the enactment of SB 1437 and the resulting amendments to sections 188 and 189, which “abrogate[d] the felony murder rule….”

Petitioner argued that based on SB 1437’s amendments, he could only be held to answer pursuant to the factors addressed in Banks and Clark – if he was “a major participant in the underlying felony and acted with reckless indifference to human life ….” Petitioner argued that based on the evidence at the preliminary hearing and on the security video, he was not a “major participant,” he did not exhibit “reckless indifference to human life,” and the murder charge should be dismissed based on the statutes amended by SB 1437.

The People’s Opposition

On February 14, 2019, the Kern County District Attorney’s office filed a response and opposition to the section 995 motion.

The district attorney did not address the provocative act theory of murder. Instead, the district attorney asserted the entirety of SB 1437 was unconstitutional because it conflicted with Proposition 7, the Briggs Initiative, passed in 1978; and Proposition 115, the Crime Victim’s Justice Reform Act, passed in 1990.

In the alternative, the district attorney argued that even under the statutes amended by SB 1437, petitioner’s motion should be denied because the preliminary hearing evidence showed he was a “major participant” who acted in “reckless indifference to human life,” based on the factors in Clark and Banks.

The Superior Court’s Denial of Petitioner’s Motion

On February 21, 2019, the superior court heard petitioner’s motion to set aside the information pursuant to section 995. The parties stipulated the court could consider the preliminary hearing transcript and view the DVD of the store’s surveillance video of the attempted robbery (exhibit No. 1) in ruling on petitioner’s motion.

On February 22, 2019, the superior court denied petitioner’s section 995 motion, based on the factors in Banks and Clark that were raised in petitioner’s motion and addressed in the People’s opposition:

“There’s sufficient evidence for purposes of the preliminary hearing and presented at the preliminary hearing, to determine [petitioner] was a major participant in the underlying felony, and acted with reckless indifference to human life.”

The court did not address the provocative act theory of murder, as relied upon by the prosecutor at the preliminary hearing.

PETITION FOR WRIT OF PROHIBITION

On March 6, 2019, petitioner filed a petition for writ of prohibition with this court and requested for an immediate stay of his trial. The petition was supported by the documentary exhibits cited above.

The petition raised the identical issue as in his section 995 motion – he argued that based on SB 1437’s amendments to section 188 and 189, he could not be held to answer for Carlson’s murder because the preliminary hearing evidence did not establish that he was a “major participant” who acted with “reckless indifference to human life.”

Petitioner stated the amendment to section 188 “abrogate[d] the present felony murder rule so that now, to be convicted of murder, a defendant must personally harbor express or implied malice,” and the amended version of section 189 no longer “triggered felony murder liability for all participants in the perpetration of the enumerated felony.” The amended version of section 189, subdivision (e) now provided that a participant in “one of the enumerated felonies ‘is liable for murder only if one of the following is proven’ ” – the person was the actual killer, the person aided and abetted with the intent to kill, or 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 ….’ ” based on the factors in Banks and Clark.

Petitioner argued the preliminary hearing evidence did not establish either factor, and this court should grant his petition, order the superior court to set aside its prior denial of his section 995 motion, and enter a new order granting that motion and dismissing the murder charge.

Petitioner did not address the provocative act theory of murder, or whether the amendments enacted by SB 1437 modified that theory.

The People’s Informal Response

On March 22, 2019, at this court’s request, the Attorney General filed an informal response on behalf of the People.

The People’s informal response was based upon petitioner’s premise that the amendments enacted by SB 1437 applied to the determination of whether he was culpable for Carlson’s homicide. The People reviewed the factors in Banks and Clark, argued that the preliminary hearing evidence supported the murder charge, established petitioner was a major participant who played an active role in planning the attempted robbery, and acted with reckless indifference during the crime.

This Court’s Denial of Petitioner’s Writ

On April 4, 2019, this court summarily denied the petition for writ of prohibition without comment.

PETITION FOR REVIEW

On April 12, 2019, petitioner filed a petition with the California Supreme Court for review of this court’s denial of his petition for writ of prohibition. Petitioner began by stating that the court should grant relief because the petition raised a question of law about the impact of SB 1437 on his culpability for Carlson’s death. The petition was again virtually identical to the section 995 motion and the petition filed with this court, and stated that SB 1437 amended section 188 so as to “abrogate[] the present felony murder rule,” and section 189, subdivision (e) no longer “triggered felony murder liability for all participants in the perpetration of an enumerated felony.” The petition reviewed the factors set forth in Banks and Clark and argued he should receive relief because there was insufficient evidence he was a major participant who acted with reckless indifference to human life.

The petition did not address the provocative act theory or assert that the amendments enacted by SB 1437 also applied to that theory.

The California Supreme Court did not request or receive any briefing from the People.

Remand by the California Supreme Court

On June 12, 2019, the California Supreme Court granted review in petitioner’s case and transferred the matter back to this court, with instructions to vacate this court’s previous order denying his petition for writ of prohibition, and to issue an order directing the superior court to show cause why the relief sought in the petition should not be granted.

THIS COURT’S ORDER TO SHOW CAUSE

On June 19, 2019, this court issued the OSC in this matter, set a briefing schedule, and stayed further proceedings in petitioner’s trial pending further order of this court.

The People’s Return

On June 27, 2019, the People filed the return to this court’s OSC. The return was identical to the People’s informal response previously filed with this court. The People again appeared to accept petitioner’s premise that SB 1437’s amendments to sections 188 and 189 applied to the facts of this case. The People argued petitioner was properly held to answer for Carlson’s murder under the amended version of the law because he was a major participant who acted with reckless indifference to human life, based on the factors in Banks and Clark.

Petitioner’s Response to the Return

On July 26, 2019, petitioner filed a denial and supporting points and authorities. Petitioner restated the arguments previously raised in his section 995 motion, his original petition to this court for the writ of prohibition, and his petition for review to the California Supreme Court – that the amendments enacted by SB 1437 applied to his case, and he could not be held to answer for Carlson’s murder under the amended versions of the statutes pursuant to the factors in Banks and Clark. Petitioner, again, did not address whether SB 1437’s amendments applied to the provocative act theory of murder.

PETITIONER’S WITHDRAWAL OF HIS SOLE ISSUE

On November 1, 2019, this court sent a letter to the parties and requested supplemental briefing on the following issues:

“1.) Petitioner is charged with first degree premeditated murder of Trayvale Carlson. What is the legal basis for petitioner’s culpability for the murder of Carlson?

“2.) Does the provocative act theory of murder apply to the facts of this case?

“3.) If so, did the enactment of Senate Bill No. 1437 impact the provocative act theory of murder as applied to this case? Please explain.”

The People’s Supplemental Letter Brief

On November 21, 2019, the People filed a supplemental letter brief with this court.

The People advised this court that both parties had proceeded under the wrong legal theory in the prior pleadings filed in this case. The People stated the legal basis for petitioner’s culpability for the murder of his accomplice, Carlson, “is the provocative act theory, because petitioner’s conduct during the robbery provoked the murder of his confederate. It is the only basis the prosecutor argued at the preliminary hearing.” The People further stated:

“When petitioner filed his section 995 motion to set aside the indictment, he argued that Senate Bill No. 1437 (‘S.B. 1437’) modified the felony murder rule so as to preclude petitioner’s liability on that theory. (Pet. Exh. D.) Thereafter both parties and the Superior Court analyzed petitioner’s case in that context. (Pet. Exh. E, F, H.) Only after this Court’s order directing supplemental briefing on the provocative act theory did respondent realize that California’s felony murder rule does not apply when the actual killer is not one of the co-felons participating in the underlying felony. (People v. Washington (1965) 62 Cal.2d 777, 781 (Washington); People v. Gonzalez (2012) 54 Cal.4th 643, 654; People v. Briscoe (2001) 92 Cal.App.4th 568, 581 (Briscoe) [‘By law, the felony-murder rule does not apply when an accomplice is killed at the hands of a crime victim’].) Therefore, regardless of the reach of Senate Bill No. 1437, petitioner cannot be liable under a felony-murder theory in this case, because a crime victim actually fired the fatal shot.” (Italics added.)

The People stated that “[b]y its unambiguous terms, S.B. 1437 did not modify liability for murder under the provocative act theory.”

“S.B. 1437 modified California’s felony murder rule by amending sections 188 and 189. Section 188 now states that, except as provided in section 189, ‘Malice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)

“Section 189 first sets out what murders may be deemed first-degree murder based on the underlying crime. (§ 189, subd. (a).) Section 189 then adds a new and additional requirement that, even if a murder occurs during one of the offenses enumerated in subsection (a), one of three additional criteria must be satisfied.

“By its express terms, section 189, subdivision (e), applies only to crimes deemed to be first-degree murder under section 189, subdivision (a). (§ 189, subd. (e) [‘A participant in the perpetration or attempted perpetration of a felony listed in subsection (a)…’].) Under the provocative act theory, malice is not implied based solely on participation in a crime. (See e.g. People v. Cervantes, supra, 26 Cal.4th at p. 867; Washington, supra, 62 Cal.2d 777, 782; Briscoe, supra, 92 Cal.App.4th 568, 583.) Instead, malice is proven by the defendant’s conduct. The provocative act theory, therefore, is unaffected by the amendment to section 188.

“Similarly, the provocative act theory is unaffected by the amendment to section 189. Section 189 creates a list of offenses which, by their mere commission, automatically satisfy the malice required for first-degree murder. It is thus focused on the underlying crime instead of on the defendant’s conduct, and therefore is inapplicable to a provocative act theory. Section 189, subdivision (e), is concerned with conduct – but only in situations first falling within subdivision (a).”

In the alternative, the People argued this court should still deny petitioner’s writ because he was properly held to answer since the preliminary hearing evidence established his culpability for Carlson’s murder under the provocative act theory.

Petitioner’s Supplemental Letter Brief

On December 11, 2019, petitioner filed a supplemental letter brief.

Petitioner agreed with the People that “the wrong theory regarding liability for the death of Trayvale Carlson was argued in the court below.”

“Petitioner withdraws any argument that the holding order was in error based on changes to the felony murder rule effected by Senate Bill No. 1437….” (Italics added.)

Petitioner further stated:

“The Petitioner’s … section 995 motion was made on the grounds that Senate Bill No. 1437 modified the felony murder rule such that Petitioner could no longer be held criminally liable for the death of a confederate in an attempted robbery. That reliance on the felony murder rule was incorrect…. The correct rule to apply when the killer was a victim is the provocative act theory of murder.” (Italics added.)

Petitioner argued this court should still grant relief and direct the superior court to grant his section 995 motion and dismiss the murder charge. Petitioner asserted he cannot be held to answer for Carlson’s death “even under the correct theory” of provocative act. Petitioner claimed the arguments raised in his section 995 motion are “still valid if one substitutes provocative act theory for felony murder” and, based on the preliminary hearing testimony, there was insufficient evidence to hold him to answer even under the provocative act theory of murder.

Petitioner further stated, without analysis, that SB 1437 applies “tangentially” to the provocative act theory of murder because the amended statutes now state that “to be held liable for murder, the defendant must have acted with malice aforethought; malice cannot be implied from the conduct of a deceased confederate.”

DISCUSSION

As we have explained, the instant writ petition is before this court based on the superior court’s denial of defendant’s section 995 motion, that was based on the single issue that he could not be held to answer for murder because of the amendments enacted by SB 1437. Given the petitioner’s concession and withdrawal of the only issue raised in his petition, we are compelled to discharge the OSC as provided in Countrywide, supra, 54 Cal.App.4th 828.

I. The Preliminary Hearing
II.
We begin with the underlying basis for petitioner’s request for writ relief – that he was improperly held to answer for the murder charge at the preliminary hearing.

“The purpose of the preliminary hearing is to determine whether there is probable cause to conclude that the defendant has committed the offense charged. [Citations.]” (Galindo v. Superior Court (2010) 50 Cal.4th 1, 8.) For purposes of the preliminary hearing, probable cause is shown if a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (Ibid.)

“In making the determination of probable cause, the magistrates do not themselves decide whether the defendant is guilty. [Citations.] Rather, they simply decide whether a reasonable person could harbor a strong suspicion of the defendant’s guilt. In doing so, they may ‘weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses.’ [Citation.] … In sum, the magistrate’s role is limited to determining whether a reasonable person could harbor a strong suspicion of the defendant’s guilt, i.e., whether such a person could reasonably weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses in favor of harboring such a suspicion.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 251–252.)

“Moreover, ‘ “[e]vidence that will justify a prosecution need not be sufficient to support a conviction…. An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]” ’ [Citations.]” (Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1006 (Hudson).)

III. Section 995
IV.
“ ‘The purpose of a motion to set aside the accusatory pleading under … section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the … the magistrate at the preliminary hearing ….’ ” (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269; Hudson, supra, 7 Cal.App.5th at p. 1011.) The defendant’s challenge under section 995 need not be directed to the entire information but may instead seek to set aside a portion of the information. (People v. McGowan (2015) 242 Cal.App.4th 377, 382.)

“A defendant is ‘legally committed’ within the meaning of section 995, insofar as the quantum of evidence is in issue, if ‘it appears from the [preliminary] examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof.’ [Citation.] ‘The term “sufficient cause” is generally equivalent to “reasonable and probable cause,” that is, such a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ [Citation.]” (People v. Williams (1988) 44 Cal.3d 883, 924.) The superior court shall set aside an information if the defendant has “ ‘been committed without reasonable or probable cause.’ (§ 995, subd. (a)(2)(B).)” Bom v. Superior Court of Los Angeles County (2020) 44 Cal.App.5th 1, 11.)

“ ‘[I]n proceedings under section 995 it is the magistrate [at the preliminary hearing] who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.]’ ” or resolve factual conflicts. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; People v. McDonald (2006) 137 Cal.App.4th 521, 529; People v. Hawkins (2012) 211 Cal.App.4th 194, 200.)

V. Pretrial Review of the Denial of a Section 995 Motion
VI.
A petition for writ of prohibition is the appropriate method to seek pretrial review of the denial of a section 995 motion. (§§ 999, 999a; Hudson, supra, 7 Cal.App.5th at p. 1006; Bom v. Superior Court of Los Angeles County, supra, 44 Cal.App.5th 1.)

In reviewing the denial of a section 995 motion, “ ‘the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate ….’ [Citations.]” (People v. Gonzalez, supra, 2 Cal.5th at p. 1141.) We “defer to the magistrate’s findings of fact as long as they are supported by substantial evidence. [Citation.] However, review is independent if the magistrate made no factual findings because the reviewing court is essentially deciding whether the magistrate properly interpreted the law. [Citation.]” (Hudson, supra, 7 Cal.App.5th at p. 1006; People v. Hawkins, supra, 211 Cal.App.4th at p. 200.)

VII. Issues Raised in the Petition for Writ of Prohibition
VIII.
The instant writ proceeding challenges the denial of a section 995 motion, and “the grounds upon which the motion [was] based must be presented to the trial court, so that an appellate court may know whether the points thus made are well taken.” (Thompson v. Superior Court for Los Angeles County (1968) 262 Cal.App.2d 98, 102; People v. Damazoni (1924) 65 Cal.App. 252, 255.) The reviewing court “cannot pass on contentions made here unless they were urged in the trial court and were there determined;…” (Mesaris v. Superior Court of Los Angeles County (1970) 4 Cal.App.3d 976, 978.)

“When an appellate court considers a petition for writ of mandate or prohibition, the court may: (1) deny the petition summarily, before or after receiving opposition; (2) issue an alternative writ or order to show cause; or (3) grant a peremptory writ in the first instance …. [Citations.]” (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1239–1240.)

“ ‘When an order to show cause does issue, it is limited to the claims raised in the petition and the factual bases for those claims alleged in the petition. It directs the respondent to address only those issues.’ [Citation.]” (People v. Duvall (1995) 9 Cal.4th 464, 475; In re Lawley (2008) 42 Cal.4th 1231, 1248.) After the OSC is issued, the parties will file additional briefing, including the return and the opposition. (People v. Duvall, at p. 478.) “ ‘In this relatively uncomplicated manner both factual and legal issues are joined for review.’ [Citation.]” (Ibid.)

“This process of defining the issues is important because issues not raised in the pleadings need not be addressed. [Citation.]” (People v. Duvall, supra, 9 Cal.4th at p. 478, italics added; Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1235.) The scope of the proceeding “is limited to the claims [that] the court initially determined stated a prima facie case for relief.’ [Citation.]” (In re Lawley, supra, 42 Cal.4th at p. 1248, italics added.)

IX. Analysis
X.
As explained above, petitioner filed the pleadings, motions, and writ petitions following the preliminary hearing, and repeatedly argued that he could not be held to answer because of the impact of SB 1437’s amendments to the felony-murder rule. The district attorney’s office and then the People responded in kind, so that the disputed issue between the parties was whether there was evidence that petitioner was a “major participant” who acted with “reckless indifference to human life,” which raised questions of fact and law based on the factors in Banks and Clark. Petitioner repeated these same contentions in his petition for review to the California Supreme Court.

After the California Supreme Court granted review and remanded the matter, this court issued an OSC but also requested supplemental briefing on the potential application of the provocative act theory of murder and whether it had been affected by SB 1437’s amendments. In response, both petitioner and the People conceded petitioner’s potential culpability for Carlson’s murder would have been under the provocative act doctrine and not felony murder, and that they consistently – and incorrectly – had instead discussed the amendments to the felony-murder rule.

More critically, petitioner has expressly withdrawn the only issue raised in his section 995 motion, his petition for writ of prohibition to this court, and the petition for review filed with the California Supreme Court: “Petitioner withdraws any argument that the holding order was in error based on changes to the felony murder rule effected by Senate Bill No. 1437….” (Italics added.) Based on petitioner’s withdrawal of his sole issue, we are compelled to discharge the OSC. (Countrywide, supra, 54 Cal.App.4th at p. 832.)

While conceding their erroneous legal and factual arguments, petitioner requests this court instead address for the first time whether the section 995 motion should have been granted based on the argument that he could not be held to answer under the provocative act theory of murder. We decline to do so since that issue was never raised in any of the pleadings filed in this case. As we have explained, “ ‘[w]hen an order to show cause does issue, it is limited to the claims raised in the petition and the factual bases for those claims alleged in the petition,’ ” and “issues not raised in the pleadings need not be addressed. [Citation.]” (People v. Duvall, supra, 9 Cal.4th at pp. 475, 478; In re Lawley, supra, 42 Cal.4th at p. 1248; Board of Prison Terms v. Superior Court, supra, 130 Cal.App.4th at p. 1235.)

Finally, we acknowledge that after this court denied the petition for writ of prohibition, petitioner filed a petition for review with the California Supreme Court. The court granted review and transferred the matter back to this court, with instructions to vacate this court’s previous order denying his petition for writ of prohibition, and to issue an order directing the superior court to show cause why the relief sought in the petition should not be granted. In doing so, however, the California Supreme Court was addressing the sole issue raised in his petition for review, which petitioner has now withdrawn – that he could not be held to answer because of SB 1437’s amendments to the felony-murder rule.

“An order of the Supreme Court directing an alternative writ be issued is a determination that the petitioner is without an adequate remedy and nothing more. It is not an indication that the Supreme Court has found that the petitioner is correct on the merits. [Citation.]” (TRW, Inc. v. Superior Court (1994) 25 Cal.App.4th 1834, 1843, fn. 5.) In addition, the court has held that when it grants review, “ ‘the cause shall be placed on the calendar for oral argument unless oral argument is waived, or the court transfers the cause to a Court of Appeal, dismisses review as improvidently granted, orders the cause held pending decision of another cause, or issues a peremptory writ.’ [Citation.]” (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1258.)

“By its order directing that an alternative writ be issued, the California Supreme Court has determined that, in the ordinary course of law, petitioner is without an adequate remedy. [Citations.] Nevertheless, such an order does not deprive a Court of Appeal of its discretion to determine whether the petition is sufficient. [Citations.]” (Pedlow v. Superior Court (1980) 112 Cal.App.3d 368, 369–370; Countrywide, supra, 54 Cal.App.4th at p. 832.)

We have complied with the Supreme Court’s order to issue an OSC. However, we are compelled to discharge the OSC given petitioner’s belated withdrawal of the only issue that was raised in his petition for writ of prohibition to this court and his petition for review to the Supreme Court – a withdrawal that occurred after the Supreme Court directed this court to issue the OSC, and that prevents this court from addressing that issue on the merits. (Countrywide, supra, 54 Cal.App.4th at pp. 832–833; People v. Duvall, supra, 9 Cal.4th at pp. 475, 478; In re Lawley, supra, 42 Cal.4th at p. 1248; Board of Prison Terms v. Superior Court, supra, 130 Cal.App.4th at p. 1235.)

Therefore, based on petitioner’s belated concession, the petition for writ of prohibition is denied without prejudice, the OSC is discharged, and this court’s stay order is dissolved. Our discharge of the OSC is not a ruling on the merits of petitioner’s contentions as to the issue raised in his petition, so this decision does not have preclusive effect. (Countrywide, supra, 54 Cal.App.4th at p. 833.)

DISPOSITION

The petition for writ of prohibition is denied without prejudice. The order to show cause is discharged and this court’s stay order is dissolved.

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POOCHIGIAN, Acting P.J.

WE CONCUR:

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DETJEN, J.

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SMITH, J.