Filed 8/18/20 P. v. Geise CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX


THE PEOPLE,                                                  2d Crim. No. B300192
                                                          (Super. Ct. No. 2001019839)
     Plaintiff and Respondent,                                 (Ventura County)

v.

RICHARD JOHN GEISE, JR.,

     Defendant and Appellant.


                   Richard John Geise, Jr., appeals from the trial court’s
denial of his petition for resentencing pursuant to Penal Code1
section 1170.95. Geise contends the court erred when it
concluded that he was not entitled to relief without conducting an
evidentiary hearing. We vacate the order and remand.
            FACTUAL AND PROCEDURAL HISTORY
                           Trial proceedings
             After a 2001 shooting at a Ventura market,
prosecutors charged Geise with murder (§ 187, subd. (a)), two


         1 Further       statutory references are to the Penal Code.
counts of attempted murder (§§ 664/187, subd. (a)), attempted
robbery (§§ 664/211), commercial burglary (then-§ 459), felon in
possession of a firearm (then-§ 12021, subd. (a)(1)), and
conspiracy to commit robbery (§ 182, subd. (a)(1)). (People v.
Geise (Mar. 18, 2004, B164906) [nonpub. opn.] [2004 WL 530727
at p. *3] (Geise).) They also alleged the felony-murder special
circumstance that Geise committed murder during the
commission or attempted commission of a robbery or burglary
(§ 190.2, subd. (a)(17)(A) & (G)), and that he personally used and
discharged a firearm when he committed his crimes (§ 12022.5,
subd. (a), 12022.53, subds. (b), (c) & (d)). (Geise, at p. *3.)
              The trial court instructed the jury on felony murder
(CALJIC No. 8.21), felony murder in pursuance of a conspiracy
(CALJIC No. 8.26), felony murder by an aider and abettor
(CALJIC No. 8.27), and special circumstance felony murder
during the commission of a robbery or burglary (CALJIC No.
8.81.17). The court also instructed jurors that a person who aids
and abets a crime need not be present at the scene of the crime
(CALJIC No. 3.01) and that a conspirator is liable for any offense
perpetrated by a coconspirator in furtherance of the conspiracy if
that offense is a natural and probable consequence of the
objective of the conspiracy, even if the conspirator was not
present when the offense was committed (CALJIC No. 6.11).
(Geise, supra, 2004 WL 530727 at p. *9.) It did not instruct jurors
on the mental state required for a true finding on the felony-
murder special-circumstance allegation (CALJIC No. 8.80.1).
(Geise, at p. *10.)
              During deliberations, jurors asked whether Geise
could be guilty of murder if he was not present at the scene of the
shooting. (Geise, supra, 2004 WL 530727 at p. *9.) The court




                                2
directed jurors to CALJIC No. 3.01. (Geise, at p. *9.) The jury
thereafter could not reach a verdict on the attempted murder
charges or make a finding on the firearm allegations. It
convicted Geise of all remaining charges. (Id. at p. *4.) It also
found true the special-circumstance allegation that he committed
murder during the attempted commission of a robbery. (Ibid.)
              Geise moved for a new trial. He claimed jurors had
to conclude that he was not present during the attempted robbery
because they rejected the firearm allegations despite evidence
that firearms were used by the actors present at the market. To
Geise, this indicated that the jury found him guilty under a
conspiracy theory.
              The trial court disagreed, finding “that there was
proof beyond a reasonable doubt to establish [Geise] as one of the
two shooters in the [market].” The evidence was largely
circumstantial but was “overwhelmingly strong.” Moreover, the
jury did not have to decide unanimously whether Geise was
guilty of murder as a direct participant or as an aider and
abettor. The court thus denied Geise’s motion, and sentenced
him to life in prison without the possibility of parole plus seven
years four months. (Geise, supra, 2004 WL 530727 at p. *4.)
                             Prior appeal
              On appeal, Geise argued his murder conviction
should be reversed because the instructions allowed jurors to
convict based on the theory that he participated in the robbery
but was not present at the scene. (Geise, supra, 2004 WL 530727
at p. *8.) The prosecution’s theory at trial was that Geise was
one of two men who attempted to rob the market, and was thus
guilty of felony murder. (Ibid.) During deliberations, however,
the jury asked whether Geise could be “engaged” in the crime of




                                3
robbery if he was not present at the scene of the crime. (Ibid.)
This question, along with the jury’s failure to reach a verdict on
the attempted murder charges and its rejection of the firearm
allegations, showed that at least some jurors believed he was not
at the scene of the shooting. (Ibid.)
             We agreed it was reasonably probable that one or
more jurors voted to convict Geise believing he was not present at
the market. (Geise, supra, 2004 WL 530727 at p. *9.) Although
not the theory advanced by prosecutors, CALJIC No. 3.01 told
jurors that a person who aids and abets a crime need not be
present at the scene. (Geise, at p. *9.) Because the evidence
showed that each would-be robber used a weapon at the market,
the jury’s failure to reach a finding on the firearm allegations
suggested that at least one juror believed Geise was not at the
scene, and instead convicted him as an aider and abettor or
conspirator. (Ibid.) We nevertheless affirmed Geise’s murder
conviction since jurors may rely on different theories of guilt in
reaching their conclusions. (Ibid.)
             We did reverse the true finding on the felony-murder
special circumstance, however, because the trial court failed to
instruct the jury on the mental state required to prove that
allegation. (Geise, supra, 2004 WL 530727 at pp. *10-11.) None
of the court’s other instructions conveyed the requisite mental
state to the jury, and at least one juror appeared unconvinced
that Geise was the actual killer. (Id. at p. *11.) Moreover, “the
evidence of mental state [was] not so overwhelming that the
juror(s) who convicted [Geise] as a non-killer would have
necessarily found that he acted with the requisite intent to kill or
reckless indifference to human life if [CALJIC No. 8.80.1] had
been given.” (Ibid.) We thus vacated the sentence on Geise’s




                                 4
murder conviction, and permitted prosecutors to retry the
special-circumstance allegation on remand or accept a sentence of
25 years to life in prison. (Id. at p. *12.) Prosecutors opted for
the latter.
                     Section 1170.95 proceedings
             In January 2019, Geise filed a section 1170.95
petition alleging he: (1) was convicted of felony murder or
murder under the natural and probable consequences doctrine;
(2) could not be convicted of murder under amended sections 188
and 189; and (3) was not the actual killer, did not aid and abet
the actual killer, and was not a major participant in the
underlying felony or did not act with reckless indifference to
human life. Prosecutors moved to dismiss the petition based on
the alleged unconstitutionality of the legislation enacting section
1170.95, Senate Bill No. 1437 (S.B. 1437). Alternatively, they
argued Geise, as a major participant in the underlying felony who
acted with reckless indifference to human life, did not set forth a
prima facie case for relief.
             The trial court appointed counsel for Geise, and held
a hearing on his petition in August. At the hearing the court
found beyond a reasonable doubt that Geise was a major
participant in the attempted robbery since he was one of two
gunmen inside the market. He thus failed to make a prima facie
showing that he was entitled to section 1170.95 relief. No order
to show cause would issue.
                            DISCUSSION
             Geise contends, and the Attorney General concedes,
the trial court erred when it determined that he did not make a
prima facie case that he was entitled to section 1170.95 relief.
We agree.




                                5
             In 2018, the Legislature enacted S.B. 1437 “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).)
“Now, to be convicted of murder, a principal must act with malice
aforethought; malice can no longer ‘be imputed to a person based
solely on [their] participation in a crime.’ [Citation.]” (In re
R.G. (2019) 35 Cal.App.5th 141, 144 (R.G.); see § 188, subd.
(a)(3).) Additionally, felony-murder convictions are now
permitted only for those who actually killed, directly aided and
abetted actual killers, or were major participants in the
underlying felonies who acted with reckless indifference to
human life. (People v. Cornelius (2020) 44 Cal.App.5th 54, 57,
review granted Mar. 18, 2020, S260410; see § 189, subd. (e).)
             S.B. 1437 “also added section 1170.95 [to the Penal
Code], which permits those convicted of [felony murder or]
murder under a natural and probable consequences theory to file
a petition with the sentencing court to vacate [their] conviction
and be resentenced.” (R.G., supra, 35 Cal.App.5th at p. 144.)
Subdivision (a) of section 1170.95 sets out the criteria for filing a
resentencing petition: “(1) [a] complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony-murder or murder
under the natural and probable consequences doctrine,” “(2) [t]he
petitioner was convicted of . . . murder following a trial,” and “(3)
[t]he petitioner could not [now] be convicted of . . . murder
because of changes to [s]ection 188 or 189.”




                                 6
              Subdivisions (c) and (d)(1) of section 1170.95 set forth
the process for the trial court to follow when it receives a petition:
First, the court “shall review the petition and determine if the
petitioner has made a prima facie showing that [they fall] within
the provisions of this section.” (§ 1170.95, subd. (c).) Next, “[i]f
the petitioner has requested counsel, the court shall appoint
counsel to represent [them].” (Ibid.) It must then direct
prosecutors to file and serve a response, and permit the petitioner
to file and serve a reply. (Ibid.) If, upon consideration of the
petition and the parties’ papers, the court determines that “the
petitioner [has made] a prima facie showing that [they are]
entitled to relief, [it] shall issue an order to show cause.” (Ibid.)
Within 60 days of issuing that order, “the court shall hold a
hearing to determine whether to vacate the murder conviction
and . . . resentence the petitioner.” (Id., subd. (d)(1).)
              Here, the trial court correctly followed the first three
steps—it determined that Geise made a prima facie showing that
he was eligible for relief, appointed counsel, and permitted
briefing—but erred when it determined, without an evidentiary
hearing, that Geise had not made a showing that he was entitled
to relief. The record shows that Geise was charged with and
convicted of murder, and that he could have been convicted under
the felony-murder rule. And on this record we cannot say, as a
matter of law, that the evidence shows that he could be convicted
of murder under the current versions of sections 188 and 189.
              As we observed in Geise’s prior appeal, it appears
that while some jurors believed Geise was one of the gunmen in
the market at the time of the murder, others concluded he was
not present and instead convicted him as an aider and abettor or
coconspirator. And those who voted to convict Geise as a non-




                                  7
killer did not necessarily find that he acted with the intent to kill
or with reckless indifference to human life. The court below
disregarded our observations, however, and instead determined
that Geise was one of the gunmen in the market. Engaging in
such factfinding without first issuing an order to show cause and
conducting an evidentiary hearing was error. (People v.
Drayton (2020) 47 Cal.App.5th 965, 982 (Drayton).)
             On remand, the trial court must issue an order to
show cause and conduct a hearing in accordance with section
1170.95, subdivision (d). (Drayton, supra, 47 Cal.App.5th at pp.
982-983; see People v. Endsley (2018) 28 Cal.App.5th 93, 104
[remand appropriate where trial court failed to follow statutory
procedures].) At that hearing, prosecutors bear the burden of
proving beyond a reasonable doubt that Geise is ineligible for
resentencing. (§ 1170.95, subd. (d)(3).) We express no opinion as
to whether prosecutors will be able to carry that burden.
(Drayton, at p. 983.)
                           DISPOSITION
             The August 7, 2019, order denying Geise’s petition for
section 1170.95 relief is vacated, and the matter is remanded to
the trial court with directions to: (1) issue an order to show cause
as to why Geise is not entitled to the relief sought in the petition,
and (2) conduct an evidentiary hearing to determine whether to
vacate his murder conviction, recall his sentence, and resentence
him.
             NOT TO BE PUBLISHED.

                                     TANGEMAN, J.
We concur:

             GILBERT, P. J.                       PERREN, J.



                                 8
                  F. Dino Inumerable, Judge

               Superior Court County of Ventura

                ______________________________

             Madeline McDowell, under appointment by the Court
of Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Charles S. Lee and David E.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
