# People v. Vallery CA2/7

> California Court of Appeal · January 12, 2023

URL: https://www.frixlaw.com/law-library/cases/9353792

## Case

- **Court:** California Court of Appeal
- **Decided:** January 12, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

2
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

7
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.

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9353792. Public record. Not legal advice.