The Supreme Court’s denial of review yesterday in People v. Gray drew recorded dissenting votes from Justices Goodwin Liu and Kelli Evans and an 11-page separate statement by Justice Evans that Justice Liu signed. Justice Evans said that the lower courts’ analysis in the case — or, more accurately, their lack of analysis — “constitutes a miscarriage of justice” and that she “would grant review . . . , notwithstanding that there is no published conflict on the issue.”
It’s another Senate Bill 1437 case. The much-litigated 2018 legislation narrowed two types of murder liability and allowed for resentencing of defendants convicted under the earlier, now-invalidated, harsher laws.
The Second District, Division One, Court of Appeal, in an unpublished opinion, affirmed the denial of a petition to change the defendant’s life without parole sentence for felony murder. Over 40 years ago when he was 18, the defendant, with an accomplice, bound and gagged a burglary and robbery victim who died from suffocation or strangulation. Division One concluded resentencing was inappropriate because “the jury necessarily found intent to kill when it convicted Gray of [a] felony murder special circumstance.”
It’s the second opinion in the case. After the first one, the Supreme Court granted review, vacated the decision, and remanded for Division One to reconsider in light of People v. Curiel (2023) 15 Cal.5th 433 (see here, and see here regarding Curiel). The second opinion stated the jury’s intent-to-kill finding was, under Curiel, enough to reject resentencing.
Justice Evans wrote that the Court of Appeal’s reliance on the jury’s special circumstance finding “is subject to question.” She asserted that “the special circumstance instruction given at Gray’s trial did not expressly require ‘intent to kill’ ” and “[t]he issue of whether Gray acted with intent to kill was not properly raised, by the pleadings or otherwise, because none of the charged crimes or special circumstance required such a finding.” She “urge[d] lower courts to conduct a considered issue preclusion analysis before concluding that a defendant is ineligible for [resentencing] relief . . . based on jury findings rendered decades ago.”
