People v. Hollywood

Filed 2/28/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B323018

(Super. Ct. No. 1014465)

Plaintiff and Respondent, (Santa Barbara County)

v.

JESSE JAMES

HOLLYWOOD,

Defendant and Appellant.

“The fabric of the law will stretch only so far before it will

unravel.” (People v. Martin (2018) 26 Cal.App.5th 825, 828.)

Appellant seeks to stretch the newly enacted reduced murder

penalties to his case. It just will not stretch and the fabric

unravels. Leniency for a person who orders his cohorts to murder

a 15-year-old child with a machine gun? The child is dead and

our answer is, no.

Jesse James Hollywood appeals from the trial court’s denial

of his petition for resentencing. (Pen. Code, § 1172.6.)1 He was

previously convicted of first degree murder with a special

1 All further statutory references are to the Penal Code.

circumstance finding that the murder occurred during the

commission of a kidnapping. Appellant contends the trial court

erred in summarily denying his petition because the record of

conviction did not conclusively establish that he aided the actual

killer in the commission of the murder. We affirm.

Procedural Background

Appellant was convicted, by jury, of first degree murder (§§

187, subd. (a), 189) and kidnapping (§ 207). The jury found true

the special circumstance allegation that the murder occurred

during the commission of a kidnapping in violation of section 207

and with the intent to kill, within the meaning of section 190.2,

subd. (a)(17)(B). The jury also found true an allegation that

appellant’s co-principal possessed an assault weapon or machine

gun during the commission of the murder. (§ 12022, subd. (a)(2).)

The People sought the death penalty, but the jury decided

appellant should be sentenced to life without the possibility of

parole (LWOP). The trial court imposed a sentence of LWOP for

the murder plus three years for the firearm enhancement. The

trial court also imposed a determinate term of eight years for the

kidnapping.

We affirmed appellant’s conviction and sentence in an

unpublished opinion. We recited the People’s theory and the

evidence which supports it. Appellant denied ordering the

murder but admitted to ownership of the murder weapon.

(People v. Hollywood (Feb. 27, 2012, B222453) [nonpub. opn.].)

In 2021, appellant petitioned for resentencing pursuant to

section 1172.6 (former section 1170.95). The trial court appointed

counsel to represent him. After reviewing the jury instructions

and the jury’s special verdict forms, the trial court ruled that

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appellant was not eligible for resentencing because the jury found

he had the intent to kill during the commission of a kidnapping.

Consideration of Evidence at the Prima Facie

Or Stage One Hearing

The trial judge who ruled on the petition was the

trial judge who presided at appellant’s jury trial. He was

certainly aware of the facts and circumstances resulting in the

victim’s death. There is no need to restate the facts in detail.

The Attorney General correctly describes the offense in two

sentences: “[A]ppellant was a drug dealer who kidnapped and

ordered the murder of a child to enforce a debt appellant believed

the child’s brother owed appellant. Appellant’s subordinates

committed the murder at his specific direction.” These facts and

circumstances were recounted in our pretrial opinion granting

relief to appellant (recusal of the prosecutor), in the Supreme

Court opinion reversing our decision, and in our nonpublished

appellate opinion affirming the judgment of conviction. As

indicated, they were, and are, well known, to the trial judge who

heard the testimony in a protracted death penalty trial.

The California Supreme Court has told us that the trial

court should not weigh the evidence at a stage one hearing. (See

People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) There must,

of necessity, be an exception where the trial judge ruling on

resentencing, heard the evidence at a death penalty trial and

where the Supreme Court recites these facts in the same case.

(Hollywood v. Superior Court (2008) 43 Cal.4th 721, 725

(Hollywood).) The Supreme Court’s statements of law are

binding upon the trial court and the Court of Appeal (Auto Equity

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 457) unless the

new case is factually “fairly distinguishable” from the case where

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the Supreme Court has declared the law. (People v. Triggs (1973)

8 Cal.3d 885, 890-891, disapproved on another ground in People

v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4.) This is the

situation in the instant appeal.

This was a notorious, senseless, and brutal homicide and

everyone, including the appellant and his attorney, are aware of

what factually happened. Our ruling will eliminate “clearly

meritless” petitions, which serves the legislative purpose to deny

relief to a “major participant” in a felony murder case. (See

Lewis, supra, 11 Cal.5th at p. 971.) A petition for resentencing is

not a “game” to be played by checking a box on a form. It is a

search for truth in resentencing. We recognize that appellant can

introduce new evidence at a stage two hearing. But his theory of

the case, including his own testimony, was heard and rejected at

his trial. (See ante p. 2.)

Specific Contentions

Appellant contends the record of conviction may have

conclusively established that he had the intent to kill during the

commission of a kidnapping, but it did not establish the actus

reus requirement set forth in section 189, subdivision (e)(2), that

is, that he aided and abetted the actual killer during the

commission of murder with the intent to kill.

The People contend appellant is ineligible for relief as a

matter of law because aiding and abetting an enumerated felony

under section 189 with the intent to kill suffices to constitute

felony murder under section 189, subdivision (e)(2) and such a

finding precludes a petitioner from section 1172.6 relief. We

agree with the People.

4

Legislative Changes and Case Law

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill

1437) amended the felony murder rule and the natural and

probable consequences doctrine, “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 life.”

(Stats. 2018, ch. 1015, § 1, subd. (f).) To that end, Senate Bill

1437 amended section 188 by adding a requirement that, except

as stated in section 189, subdivision (e), all principals to murder

must act with express or implied malice. (§ 188, subd. (a)(3).)

Senate Bill 1437 amended the felony murder rule by adding

section 189, subdivision (e) to provide that, “A participant in the

perpetration or attempted perpetration of a felony listed in

subdivision (a) in which a death occurs is liable for murder only if

one of the following is proven: [¶] (1) The person was the actual

killer. [¶] (2) The person was not the actual killer, but, with the

intent to kill, aided, abetted, counseled, commanded, induced,

solicited, requested, or assisted the actual killer in the

commission of murder in the first degree. [¶] (3) The person was

a major participant in the underlying felony and acted with

reckless indifference to human life, as described in subdivision (d)

of Section 190.2.” (§ 189, subd. (e).)

Senate Bill 1437 also enacted section 1172.6, which

establishes a procedure for a defendant convicted of felony

murder or murder under a natural and probable consequences

theory to petition for resentencing if the petitioner “could not

presently be convicted of murder or attempted murder because of

changes to Section 188 or 189” made by Senate Bill 1437. (§

1172.6, subd. (a)(3).) The trial court may deny a section 1172.6

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petition at the prima facie stage (e.g., after appointing counsel

and before holding an evidentiary hearing) where the record of

conviction establishes that the petitioner is ineligible for

resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at pp.

970-971.) This occurs where, as here, the record of conviction

establishes that a petitioner was not convicted under any theory

of liability affected by Senate Bill 1437. (See, e.g., People v.

Farfan (2021) 71 Cal.App.5th 942, 956 [special circumstance

finding includes elements required for felony murder]; People v.

Estrada (2022) 77 Cal.App.5th 941, 945 [first degree murder

conviction based on direct aiding and abetting with intent to kill

ineligible for section 1176.2 relief].)

Section 189, as amended by Senate Bill 1437, provides that

“All murder that is . . . committed in the perpetration of . . .

kidnapping . . . is murder of the first degree.” (§ 189, subd. (a).)

Section 189, subdivision (e) provides that “A participant in the

perpetration . . . of [kidnapping] in which a death occurs is liable

for murder only if one of [three categories] is proven,” including,

subdivision (e)(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.” (§ 189, subd. (e).)

Appellant Is Not Entitled to Relief as a Matter of Law

Here, the trial court summarily denied appellant’s section

1172.6 petition because the jury’s true finding on the special

circumstance allegation established ineligibility for relief as a

matter of law. As the trial court explained, “This is not a natural,

probable consequences theory of liability. This is not a reckless

disregard for human life special circumstance. This is a case in

which the jury found that he had the intent to kill, and the relief

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is not available to non-killers who, nonetheless, had the intent to

kill.”

Appellant disagrees claiming the verdict form cited by the

trial court shows the jury found appellant guilty under a felony

murder theory without specifically finding the actus reus

requirement in section 189 subdivision (e)(2) to be true. Relying

on People v. Ervin (2021) 72 Cal.App.5th 90 (Ervin) and the

dissenting opinion in People v. Lopez (2023) 88 Cal.App.5th 566

(Lopez), review den. May 31, 2023, appellant contends Senate Bill

1437 “required not just an intent to kill, but intent to kill when

acting to aid the killing.” (Lopez, at p. 586 (dis. opn. of Raphael,

J.) italics added.)

But appellant’s contention has been rejected in Lopez,

which held that the defendant’s actus reus of assisting with the

underlying felony is sufficient and not changed by Senate Bill

1437. (Lopez, supra, 88 Cal.App.5th at pp. 578-580.) As Lopez

explained, the California Supreme Court rejected the same

argument in People v. Dickey (2005) 35 Cal.4th 884. (Lopez, at

pp. 577-578.) In Dickey, the Court examined the felony-murder

special circumstance language set forth in section 190.2,

subdivision (c) (former subdivision (b)), which is nearly identical

to the language used in section 189, subdivision (e)(2). (Dickey, at

pp. 900-901.)

We agree with the majority’s analysis in Lopez and

conclude the actus reus element of section 189, subdivision (e)(2)

requires an aider or abettor to have aided, abetted, or assisted a

qualifying felony during which a killing occurs. As the author of

Senate Bill No. 1437, said, the harshest punishment remains

“‘“for those who intentionally planned or actually committed the

killing.”’” (Lopez, supra, 88 Cal.App.5th at p. 579.)

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We are not persuaded that Senate Bill 1437 rendered

Dickey inapplicable simply because it predated the legislative

amendment. This is particularly true given the language in

section 189, subdivision (a) and our Supreme Court’s

interpretation of a phrase nearly identical to that used in the

amended section 189, subdivision (e)(2), neither of which were

discussed by Ervin, supra, 72 Cal.App.5th 90.

Based on the foregoing, we decline to adopt the alternative

interpretation of section 189, subdivision (e)(2) espoused by

appellant and the dissent in Lopez. Moreover, we reject

appellant’s contention that the absence of an express reference to

190.2, subdivision (c) in the amended section 189, subdivision

(e)(2) means the Legislature intended to alter this specific ground

for liability under the felony murder rule. Because the

Legislature used the same phrase interpreted by our Supreme

Court in Dickey when amending section 189 to state the new

felony-murder rule, we assume they intended it to have the same

meaning. (See Lopez, supra, 88 Cal.App.5th at p. 578.)

Thus, “[d]efendants who aid a qualifying felony with an

intentional plan to kill (i.e., an intent to kill) are the exact type of

offender” who remain liable for murder under Senate Bill 1437.

(Lopez, supra, 88 Cal.App.5th at p. 579.) We emphasize that

appellant provided the machine gun to his cohorts and ordered

them to kill the decedent. (See Hollywood, supra, 43 Cal.4th at p.

725.) The trial judge heard this evidence at the trial and there is

no showing that this did not occur. The Legislature did not

intend to provide sentencing relief or meaningless evidentiary

hearings for someone who directs his cohorts to murder an

innocent child.

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Checking a box on a printed form saying the petitioner

could not presently be convicted of murder, given the record of

conviction, is ridiculous. Appellant is a “direct aider and abettor”

as a matter of law. Reversal for an evidentiary hearing would be

a futile act. (In re Pratt (1980) 112 Cal.App.3d 795, 880.)

Disposition

The order denying appellant’s petition for relief pursuant to

section 1172.6 is affirmed.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

I concur:

GILBERT, P. J.

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CODY, J. CONCURRING:

I concur in the judgment because I agree appellant’s

conviction for aiding and abetting an enumerated felony murder

under section1 189, subdivision (e)(2) with intent to kill precludes

relief under section 1172.6. (People v. Lopez (2023) 88

Cal.App.5th 566, 579 [“Defendants who aid a qualifying felony

with an intentional plan to kill (i.e., an intent to kill) . . . can still

be convicted of first degree murder under the recent changes to

murder liability”].) I write separately because I do not agree that

factfinding is appropriate at the prima facie stage in this case.

At the prima facie stage, the court “should not engage in

‘factfinding involving the weighing of evidence or the exercise of

discretion.’” (People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis);

see also People v. Strong (2022) 13 Cal.5th 698, 720 [rejecting an

approach that “would entail factfinding prohibited at the prima

facie stage”].) The majority concludes an exception must exist

here because the judge who ruled on the petition heard the

evidence at a lengthy death penalty trial, and multiple opinions,

including a Supreme Court opinion, recite the facts of the case.

(Maj. opn. ante, at p. 3.)

However, regardless of the trial’s duration or the potential

punishment available, the judge who presided over the trial will

often hear the section 1172.6 petition. (§ 1172.6, subd. (b)(1)

[“The petition shall be filed with the court that sentenced the

petitioner . . . . If the judge that originally sentenced the

petitioner is not available to resentence the petitioner, the

presiding judge shall designate another judge to rule on the

petition.”].) And an opinion resolving a direct appeal is virtually

guaranteed for posttrial murder convictions. Neither of these

1 All further statutory references are to the Penal Code.

1

common occurrences warrants deviating from Lewis’ prohibition

on factfinding at the prima facie stage.

The rare feature of this case is that, prior to trial, both this

court and our Supreme Court issued opinions. But because those

opinions were issued before the facts could be determined in the

crucible of trial, the factual recitations in those opinions are not

of value in ruling upon a section 1172.6 petition. Our pretrial

opinion quoted from the People’s factual summary of the

underlying crimes. (Hollywood v. Superior Court (Oct. 5, 2006,

B188550) opn. ordered nonpub. Dec. 20, 2006, S147954.) Our

Supreme Court likewise stated: “As did the Court of Appeal, we

draw our description of the crime from the People’s opposition to

Hollywood’s petition for a writ of mandate.” (Hollywood v.

Superior Court (2008) 43 Cal.4th 721, 725.) Adopting the

People’s pretrial assessment of the facts is, in my view,

incongruous with adjudicating a section 1172.6 petition.

Moreover, given that these two pretrial opinions considered

whether prosecutorial recusal was justified, the recitation of

underlying case facts was incidental to each opinion’s focus.

Therefore, I respectfully depart from the majority opinion

to the extent it endorses factfinding at the prima facie stage in

this case.

CERTIFIED FOR PUBLICATION.

CODY, J.

2

Brian E. Hill, Judge

Superior Court County of Santa Barbara

_____________________________

Wayne C. Tobin, 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, Noah P. Hill, Supervising Deputy

Attorney General, and David F. Glassman, Deputy Attorney

General, for Plaintiff and Respondent.