People v. Vallery CA2/7

Filed 1/11/23 P. v. Vallery CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B318292

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. A782361-02)

v.

RAYNARD JOHNNY VALLERY,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court

of Los Angeles County, Frederick N. Wapner, Judge. Reversed

and remanded with directions.

Eric R. Larson, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Charles S. Lee and Paul S. Thies,

Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

Based on crimes committed in 1986, Raynard Johnny

Vallery was convicted following a jury trial in 1989 on two counts

of first degree murder and two counts of robbery with true

findings on multiple-murder and felony-murder special-

circumstance allegations. In January 2019 Vallery petitioned for

resentencing pursuant to Penal Code section 1172.6 (former

section 1170.95).1 The superior court denied the petition without

holding an evidentiary hearing, finding Vallery “clearly acted

with the intent to kill.” We reverse the order denying Vallery’s

petition and remand with directions to issue an order to show

cause and conduct further proceedings in accordance with

section 1172.6, subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND

1. Vallery’s Murder Convictions

As detailed in our nonpublished opinion affirming Vallery’s

convictions (People v. Vallery (July 13, 1995, B045376), the

evidence at trial, viewed through the deferential lens applicable

on direct appeal, established that Vallery and Guy Ross during

the evening of April 14, 1986 formulated a plan to rob a

neighborhood liquor store and kill the husband and wife owners

to avoid capture.2 The following morning the two men carried out

1 Statutory references are to this code.

2 Vallery in his opening brief “adopt[ed] the Statement of

Facts contained in this Court’s prior opinion on direct appeal” for

purposes of a summary of the evidence presented at trial, while

emphasizing, because of the applicable standard of review, it was

written in the light most favorable to the People.

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their plan. While Vallery subdued and held the wife in the front

of the store, Ross stabbed the husband to death in a back room

after he claimed his wife had the combination to the store’s safe.

Ross then stabbed the woman to death when she said her

husband had the combination. Ross and Vallery fled with a small

amount of cash and some liquor.

According to our opinion, after being arrested Vallery

admitted taking the knife to the store and pointing it at the wife,

then giving it to Ross inside the store. Vallery also admitted to

police officers that he and Ross had agreed they could not leave a

witness, and Vallery originally had planned to kill the owners

with his hands.

As we explained in affirming Vallery’s convictions, because

the murders occurred in 1986, a true finding on the robbery-

murder special-circumstance allegation required proof the

defendant acted with an intent to kill. On appeal Vallery

contended the special-circumstance instruction given in his case

failed to accurately set forth that requirement. We rejected his

argument, holding, “Here, the instruction adequately informed

the jury that, if they found ‘the murder occurred during the

course of a robbery, and that the defendant has been convicted of

[multiple murders],’ it ‘must find beyond a reasonable doubt that

the defendant intended to kill a human being.’ . . . Simply stated,

findings under either a felony murder or deliberate, premeditated

theory did not permit the jury to make the special circumstance

finding unless and until it found an intent to kill.”

3

2. Vallery’s Petition for Writ of Habeas Corpus

On July 17, 2018 the superior court (Hon. Frederick N.

Wapner)3 denied Vallery’s petition for writ of habeas corpus,

which was based on the Supreme Court’s then-recent decisions in

People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.

Clark (2016) 63 Cal.4th 522 (Clark) identifying factors for

assessing whether the evidence at trial supported a jury’s felony-

murder special-circumstance finding (§ 190.2, subd. (a)(17)). In

its order denying the petition the court identified the sole

question presented as where Vallery fell “on the so-called Tison-

Edmund continuum,” referring to two United States Supreme

Court decisions, one in which the Supreme Court held the aider

and abettor’s role qualified him for the death penalty under the

felony-murder rule and the other where the conduct was

insufficient to qualify for the death penalty. After briefly

discussing those two cases, the court ruled, “Where petitioner

falls on this spectrum is not a close question. He helped plan the

crime where he and the co-defendant planned not only to rob the

victims, but to kill them because the victims knew them and

would be able to identify them. They took a knife with them.

The co-defendant stabbed the husband to death first, while

petitioner Vallery was holding his wife. The co-defendant then

stabbed her to death. Both defendants fled and hid the knife. . . .

The petitioner is even more culpable than Tison [whose death

sentence was upheld by the United States Supreme Court].”

3 Hon. Bernard J. Kamins, who presided at Vallery’s trial,

retired prior to the habeas corpus proceedings.

4

3. Vallery’s Petition for Resentencing

On January 9, 2019 Vallery, representing himself, filed a

petition for resentencing under former section 1170.95, checking

boxes on the printed form establishing a facially sufficient case

for resentencing relief, including the boxes stating he had been

charged with murder by complaint, information or indictment

that allowed the prosecution to procced under a theory of felony

murder or murder under the natural and probable consequences

doctrine, at trial he was convicted of first or second degree

murder pursuant to the felony-murder rule or the natural and

probable consequences doctrine, he was not a major participant

or did not act with reckless indifference to human life during the

course of the underlying felonies, and he could not now be

convicted of first or second degree murder because of changes

made to sections 188 and 189 by Senate Bill No. 1437

(Stats. 2018, ch. 1015) (Senate Bill 1437). Vallery requested the

court appoint counsel.

The prosecutor filed a response to the petition arguing the

record of conviction, including the appellate record and our

opinion affirming the judgment, established Vallery was

ineligible for resentencing relief because the jury found he had

acted with the intent to kill the two possible witnesses to the

robbery and there was more than enough evidence to prove he

was a major participant in the robbery who acted with reckless

indifference to human life as defined by amended section 189,

subdivision (e)(3).4

4 The prosecutor’s response also argued Senate Bill 1437 was

unconstitutional, a contention not asserted by the People on

appeal.

5

The court appointed counsel to represent Vallery. After

several continuances Vallery’s counsel filed a response stating he

had thoroughly reviewed the record on appeal and researched

applicable legal issues and concluded there were no reasonably

arguable issues to present in response to the prosecutor’s

opposition memorandum.

At a hearing on January 14, 2022, after the parties

submitted on their papers, the court (Judge Wapner) denied the

petition, stating, “The defendant clearly acted with the intent to

kill. This was a planned execution of two people so they would

leave no witnesses in a robbery attempt.”

Vallery filed a timely notice of appeal.

DISCUSSION

1. Section 1172.6 (Former Section 1170.95)

As is now familiar to bench and bar, Senate Bill 1437

substantially modified the law relating to accomplice liability for

murder, eliminating the natural and probable consequences

doctrine as a basis for finding a defendant guilty of murder

(People v. Gentile (2020) 10 Cal.5th 830, 842-843) and

significantly narrowing the felony-murder exception to the malice

requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e);

see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong);

People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)

Senate Bill 1437 also authorized, through former

section 1170.95, an individual convicted of felony murder or

murder based on the natural and probable consequences doctrine

to petition the sentencing court to vacate the conviction and be

resentenced on any remaining counts if he or she could not now

be convicted of murder because of Senate Bill 1437’s changes to

the definitions of the crime. (See Strong, supra, 13 Cal.5th at

6

p. 708; Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile,

supra, 10 Cal.5th at p. 843.) As amended by Senate Bill No. 775

(Stats. 2021, ch. 551, § 2), these ameliorative changes to the law

now expressly apply to attempted murder and voluntary

manslaughter.

If the petition contains all the required information,

including a declaration by the petitioner that he or she is eligible

for relief (§ 1172.6, subd. (b)(1)(A)), the court must appoint

counsel to represent the petitioner, if requested (§ 1172.6,

subd. (b)(3)), and direct the prosecutor to file a response to the

petition, permit the petitioner to file a reply and determine if the

petitioner has made a prima facie showing that he or she is

entitled to relief. (§ 1172.6, subd. (c); see Lewis, supra, 11 Cal.5th

at pp. 962-963.)

In determining whether the petitioner has carried the

burden of making the requisite prima facie showing, the superior

court properly examines the record of conviction, “allowing the

court to distinguish petitions with potential merit from those that

are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971; see

People v. Mancilla (2021) 67 Cal.App.5th 854, 864-865.)

However, “the prima facie inquiry under subdivision (c) is

limited. Like the analogous prima facie inquiry in habeas corpus

proceedings, the court takes petitioner’s factual allegations as

true and makes a preliminary assessment regarding whether the

petitioner would be entitled to relief if his or her factual

allegations were proved. If so, the court must issue an order to

show cause. . . . However, if the record, including the court’s own

documents, contain[s] facts refuting the allegations made in the

petition, then the court is justified in making a credibility

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determination adverse to the petitioner.” (Lewis, at p. 971,

internal quotation marks omitted.)

When a petitioner has carried the burden of making the

requisite prima facie showing he or she falls within the

provisions of section 1172.6 and is entitled to relief, the court

must issue an order to show cause and hold an evidentiary

hearing to determine whether to vacate the murder conviction

and resentence the petitioner on any remaining counts.

(§ 1172.6, subd. (d)(1).) At that hearing the court may consider

evidence “previously admitted at any prior hearing or trial that is

admissible under current law,” including witness testimony.

(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may

also offer new or additional evidence. (Ibid.)

2. The Special-circumstance Instruction and Jury Verdict

Do Not Establish Vallery’s Ineligibility for Resentencing

Relief as a Matter of Law

a. The superior court engaged in impermissible

factfinding

The superior court did not explain the basis for its finding

that Vallery was ineligible for resentencing relief because he

“clearly acted with the intent to kill,” either at the hearing held

on January 14, 2022 or in its written order following that

hearing. However, given the court’s observation that Vallery and

Ross planned in advance to kill any witnesses to the robbery—

detail described in our opinion affirming the convictions and in

the court’s earlier order denying Vallery’s petition for writ of

habeas corpus,5 but not part of the jury’s verdict in the case—it is

5 The prosecutor included both our opinion and the superior

court’s ruling denying Vallery’s petition for writ of habeas corpus

8

apparent, as Vallery argues, that the court engaged in judicial

factfinding not permitted at the prima facie stage of

section 1172.6 proceedings. (See Lewis, supra, 11 Cal.5th at

pp. 971-972.)

Although acknowledging the superior court did not refer to

the verdict in denying Vallery’s petition, the Attorney General

insists the court did not engage in improper factfinding because

the jury necessarily found Vallery had acted with the intent to

kill in finding true the robbery-murder special-circumstance

allegation. Recognizing (but not conceding) the non sequitur, the

Attorney General elsewhere argues, even if the rationale for the

superior court’s ruling was incorrect, we should affirm its order

based on the jury’s necessary finding of intent to kill because “‘“a

ruling or decision, itself correct in law, will not be disturbed on

appeal merely because given for a wrong reason.”’” (People v.

Turner (2020) 10 Cal.5th 786, 807; accord, People v. Smithey

(1999) 20 Cal.4th 936, 972.) Although this statement of appellate

practice is accurate, it is inapplicable here. Because of an

apparent error or omission in the trial court’s special-

circumstance instructions—at least as it appears from the limited

record now before us—the jury’s verdict does not establish

Vallery’s ineligibility for resentencing relief as a matter of law.

b. The jury did not necessarily find that Vallery had the

intent to kill both victims

“[A]s it stood in 1990, state law made only those felony-

murder aiders and abettors who intended to kill eligible for a

death sentence.” (Banks, supra, 61 Cal.4th at p. 798; accord,

People v. Mil (2012) 53 Cal.4th 400, 408-409 [“In People v.

as exhibits to his memorandum opposing Vallery’s petition for

resentencing.

9

Anderson (1987) 43 Cal.3d 1104 [the Supreme Court] determined

that the felony-murder special circumstance, as it then read,

applied only to the actual killer or to an aider and abettor who

intended to kill. [Citation.] In 1990, the voters approved

Proposition 115, which expanded the scope of Penal Code

section 190.2 by adding subdivisions (c) and (d). Accordingly, a

person other than the actual killer is now subject to the death

penalty or life imprisonment without the possibility of parole if

that person intended to kill or was a major participant in the

underlying felony and acted with reckless indifference to human

life”].)

Our opinion affirming Vallery’s convictions quoted a

portion of the special-circumstance instructions given at trial: “If

you find the defendant in this case guilty of murder of the first

degree, you must then determine if one or more of the following

special circumstances are true or not true: [¶] Number 1, that the

murder occurred during the course of a robbery, and that the

defendant has been convicted in this proceeding of more than

one murder in the first degree and one or more crimes of the first

or second degree murder. [¶] The People have the burden of

proving the truth of a special circumstance. [¶] If you have a

reasonable doubt as to whether a special circumstance is true,

you must find it to be not true. [¶] If you find beyond a reasonable

doubt that the defendant was either the actual killer,[6] a co-

6 In Carlos v. Superior Court (1983) 35 Cal.3d 131 the

Supreme Court held the felony-murder special circumstance

required an intent to kill even if the defendant was the actual

killer. People v. Anderson, supra, 43 Cal.3d at page 1147

overruled Carlos insofar as it required an intent to kill for the

actual killer in a felony-murder case, but left in place the intent

requirement for aiders and abettors. (See Banks, supra,

10

conspirator or an aider or abettor, then you must also find beyond

a reasonable doubt that the defendant intended to kill a human

being in order to find the special circumstance to be true. . . .”

(Italics added, concluding ellipses in original.)

The language quoted in our opinion appears to combine

elements from CALJIC Nos. 8.80, “Special Circumstances—

Introductory”; 8.81.3, “Special Circumstances—Multiple Murder

Convictions”; and 8.81.17, “Special Circumstances—Murder in

Commission of ____.” At the time of Vallery’s trial CALJIC

No. 8.80 (5th ed. 1988) included as an optional additional

paragraph the admonition, “You must decide separately each

special circumstance alleged in this case [as to each of the

defendants]. If you cannot agree as to all of the special

circumstances, but can agree as to one [or more of them], you

must make your finding as to the one [or more] upon which do

agree.]” The record before us does not include the special-

circumstance instructions given at trial, and the ellipses in our

opinion on direct appeal when quoting the instructions make it

impossible for us to determine whether the trial court included

this additional language.

In its verdict on the special circumstances the jury found

true the allegations that Vallery “has been convicted in this

proceeding of one or more murder(s) in the first degree and one or

more crimes of first or second degree murder within the meaning

of Penal Code Section 190.2(a)(3) [multiple murders]” and that

61 Cal.4th at p. 798.) Because the crimes with which Vallery was

charged took place prior to the 1987 decision in Anderson, the

trial court was required to, and did, instruct in accordance with

Carlos, as we noted in our opinion. However, it was undisputed

Ross, not Vallery, was the actual killer of both victims.

11

“the murders of JUNG KUEN CHONG and JUNG RAN CHONG

were committed, aided and abetted, or assisted by defendant

RAYNARD VALLERY while said defendant was engaged in the

commission of, and/or an accomplice in the commission of, to

commit the crime of robbery . . . within the meaning of Penal

Code Section 190.2(a)(17) [felony murder].”7

Regardless of his intent, as an aider and abettor of the

robberies during which the two victims were killed by Ross,

Vallery was guilty of two counts of first degree murder. (See

Strong, supra, 13 Cal.5th at p. 704 [under the felony-murder rule

as it existed prior to enactment of Senate Bill 1437, “‘when the

defendant or an accomplice kill[ed] someone during the

commission, or attempted commission, of an inherently

dangerous felony,’ the defendant could be found guilty of the

crime of murder, without any showing of ‘an intent to kill, or even

implied malice, but merely an intent to commit the underlying

felony.’ [Citation.] Murders occurring during certain violent or

serious felonies were of the first degree, while all others were of

the second degree”]; People v. Lewis (2001) 25 Cal.4th 610, 642

[“[l]iability for first degree murder based on a felony-murder

theory is proper when the defendant kills in the commission of

robbery, burglary, or any of the other felonies listed in

section 189”].) In that context, Vallery contends, because the

special-circumstance instruction specified the jury had to find he

intended to kill “a human being” while committing one or more

first degree murders, the jury could have found the felony-murder

special-circumstance allegation true as to both victims even if he

intended to kill only the wife and not her husband. (Recall,

7 At the Attorney General’s request, we augmented the

record on appeal to include this verdict form.

12

Vallery was restraining the wife in the front of the store when

Ross stabbed her husband to death in a back room after he failed

to reveal the safe’s combination. Ross then returned to the front

of the store and killed the wife.)

The Attorney General disputes this interpretation,

explaining, “The prosecution’s case was that the two murders

took place in the same course of events . . . . [T]he jury could not

have found that appellant intended to kill one victim without

finding that he intended to kill the other.” While that is a

reasonable—perhaps nearly inevitable—interpretation of the

trial evidence and the resulting jury verdict, for us to accept that

analysis would require judicial factfinding. As such, it does not

defeat Vallery’s prima facie showing of eligibility for resentencing

relief. And given the limited information we have as to the jury’s

instructions, Vallery’s contention is not implausible, requiring

the issuance of an order to show cause and an evidentiary

hearing to determine whether the petition should be granted.

13

DISPOSITION

The postjudgment order denying Vallery’s petition for

resentencing is reversed. On remand the superior court is to

issue an order to show cause and to conduct further proceedings

in accordance with section 1172.6, subdivision (d).

PERLUSS, P. J.

We concur:

SEGAL, J.

HOWARD, J.*

* Judge of the Marin County Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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