California Legal Brief

The Rule of People v. Player is that a jury's not-true finding on a personal firearm use enhancement does not preclude a resentencing court from finding the defendant was the actual killer in a Penal Code section 1172.6 proceeding, under circumstances where the jury convicted the defendant of murder despite the not-true weapon enhancement finding.

Appeal from order denying petition for resentencing under Penal Code section 1172.6 in Superior Court, Los Angeles County.

Defendant Appellant was Lavell Tyrone Player — the defendant who participated in an armed robbery at a Denny's parking lot in 1981 that resulted in the shooting death of Toney Lewis.

Plaintiff Respondent was The People — the prosecution seeking to prove Player remained guilty of murder under current law despite amendments limiting felony murder liability.

The suit sounded in criminal resentencing under Penal Code section 1172.6 (formerly section 1170.95), which allows defendants convicted under theories of murder liability eliminated by Senate Bill 1437 to petition for relief.

The key substantive facts leading to the suit were that Player was convicted of murder in 1982 following an armed robbery at Denny's where Marcus Player suggested "making money," defendant asked for and received the gun, defendant confronted victim Lewis while co-defendant Fonteno took the woman's purse, and defendant shot Lewis after Lewis reached toward the dashboard. The jury found not true both a personal firearm use enhancement and a robbery special circumstance that incorrectly required a finding that defendant personally killed the victim.

The procedural result leading to the Appeal: The trial court denied Player's section 1172.6 petition after an evidentiary hearing, ruling that despite the jury's not-true findings, the resentencing court could find Player guilty either as the actual killer or as a major participant in the robbery acting with reckless indifference to human life.

The key question(s) on Appeal: 1) Whether the jury's not-true findings on the personal firearm use enhancement and robbery special circumstance collaterally estopped the resentencing court from finding defendant was the actual killer; 2) Whether substantial evidence supported the finding that defendant was the actual killer.

The Appellate Court held that under People v. Santamaria, a jury's not-true finding on a weapon enhancement does not preclude a resentencing court from finding the defendant was the actual killer because weapon use is not an "ultimate fact" of murder and the jury may have simply been uncertain about defendant's exact role while still being convinced of his guilt for murder.

The case is inapplicable when the jury made specific affirmative findings that the defendant was not the actual killer (rather than merely not-true findings on enhancements), when there has been a significant change in the law since the original factual findings, or when the issue sought to be precluded is an "ultimate fact" that must be proven beyond a reasonable doubt for the specific charge.

The case leaves open whether defendant could be found guilty as a major participant acting with reckless indifference (since the court did not reach this alternative theory), the scope of collateral estoppel in section 1172.6 proceedings beyond weapon enhancement findings, and how this holding applies to other types of not-true enhancement findings.