Opinion
B306362
10-22-2021
THE PEOPLE, Plaintiff and Respondent, v. CLAUDIO LAMAS BERNARDINO, Defendant and Appellant.
Elizabeth Richardson-Royer, 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 Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA037295, Lisa Mangay Chung, Judge. Reversed and remanded with instructions.
Elizabeth Richardson-Royer, 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 Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Defendant challenges the trial court's denial of his petition for resentencing pursuant to Penal Code section 1170.95. We conclude that the court applied the wrong standard of proof when considering defendant's petition and therefore reverse and remand with directions.
All further statutory references are to the Penal Code.
II. BACKGROUND
A. Defendant's Trial
In 2008, a jury found defendant guilty of first degree murder (§ 187, subd. (a)) and kidnapping (§ 207, subd. (a)) and found true an allegation that a principal was armed with a firearm during the commission of the murder (§12022, subd. (a)(1)). Defendant was tried with codefendants Jaime Garcia and Javier Esparza. The evidence at trial established:
"The body of Nicholas Ramirez was found in the trunk of his own car by police on September 18, 2006. The car was located in a desert field. Ramirez had been shot nine times. Ramirez had last been seen by his family on September 16, 2006.
"Some physical evidence connected [defendant and his codefendants] to the murder of Ramirez, but most of the evidence against them came from the testimony of [M.F.]
"[M.F.] testified that on September 16, 2006, about 2:00 a.m., he arrived at [Garcia]'s house in Littlerock, California. [M.F.] had driven from his home in Arizona to purchase a set of car rims from Garcia. When [M.F.] arrived, a party was going on in the garage, but [M.F.] went in the house and slept.
"That morning, about 6:00 or 7:00 a.m., [M.F.] drove Garcia to Garcia's girlfriend's house, where they picked up the rims. When they returned to Garcia's house, Garcia noticed that the tires on his car were slashed and his speakers were missing. Garcia was noticeably upset. Esparza, who is Garcia's brother, speculated that it 'could have been them guys from last night.'
"The party the previous night had been a birthday party for Garcia's close friend, Jesse Ramirez. Jesse's brother Nicholas Ramirez, the victim in this case, was at the party. Esparza and [defendant] were also at the party.
"At some point during the party, Jesse got into a fight with Esparza. Jesse left the party about 7:00 or 8:00 a.m., with Martin Guzman, who was living with Garcia at the time. According to Jesse, Guzman took a suitcase and clothes that belonged to Garcia, and slashed the tires of Garcia's car. The two men then took a train to Los Angeles.
"After Esparza's comment, Garcia went into the house and got his gun. He then told [M.F.], 'You are going to take us to go find this guy.' [M.F.] was scared and did what he was told. He drove Garcia and Esparza to Cesar Reyes's house. Reyes was standing outside, waiting for them. [M.F] then drove to Ramirez's house.
"As [M.F.] and his passengers arrived at the Ramirez house, Nicholas had just finished washing his car and was leaving in that car. According to Ramirez's brother, David, and sister, Yvonne, this occurred around 10:30 a.m. Yvonne saw [M.F.]'s car. Ramirez did not stop. Both Garcia and Esparza told [M.F.] to follow Ramirez.
"[M.F.] followed Ramirez to a gas station and pulled in right behind Ramirez's car. Garcia and Reyes got out of the car, approached Ramirez and, after the three men talked, Ramirez returned to his car accompanied by Garcia and Reyes. Garcia entered the front passenger seat and Reyes returned to [M.F.]'s car and told him to follow Ramirez's car.
"[M.F.] followed Ramirez to [defendant]'s house. [M.F.] initially told police that the others went inside the house, but he stayed outside and talked with his girlfriend on his phone. He never went inside. At trial, he denied making those statements. He testified that he went inside with the others.
"Inside the house, both Garcia and Reyes asked Ramirez, 'Where is my stuff?' or 'Where is my stereo?' Reyes hit Ramirez in the face, knocking him to the ground. Reyes began kicking Ramirez. Garcia continued to ask, 'Where is my stuff?' Ramirez replied he did not have it and did not know where it was. [Defendant] told Garcia to stop because Ramirez was bleeding on his carpet. [Defendant] directed Esparza to take Ramirez to the garage. Reyes forced Ramirez into the garage and everyone followed. Garcia ordered [M.F.] to go to the garage.
"In the garage, Garcia bound and tied Ramirez to a chair. Ramirez continued to deny he had Garcia's stolen items or that he knew where they were. Esparza now had Garcia's gun and sat down in front of Ramirez while both Garcia and Reyes threatened to kill him if he did not disclose the location of Garcia's items, as well as Reyes's stereo. Eventually, Ramirez said, 'I want to die. Just take my life.' Garcia then inserted a gag into Ramirez's mouth, Reyes used a pipe to strike Ramirez several times on his head and upper body, and Garcia hit Ramirez several times. For their part, Esparza and [defendant] kicked Ramirez. At some point, Reyes asked Garcia if [M.F.] was 'cool.' Garcia told Reyes, 'Yeah. It's okay,' which increased [M.F.]'s fear.
"Ramirez was walked out of the garage. Garcia ordered him into the trunk of his own car. After Garcia closed the trunk lid, he told Esparza and Reyes to follow him. Esparza and Reyes told [M.F.], 'We're taking your car to follow' Garcia. Esparza sat in the back seat and Reyes sat in the front passenger seat as [M.F.] drove, following Garcia. Having seen what the men had just done to Ramirez and recognizing that Reyes by himself could have beaten him in a fight, [M.F.] was even more afraid.
"After about 5 to 10 minutes of driving, Reyes told [M.F.] to stop the car. When he did so, Reyes got out of the car and ran away. Esparza ordered [M.F.] to continue following Garcia. [M.F.] did as he was told. After Garcia pulled off onto the shoulder near some shrubs, [M.F.] continued on past Ramirez's car for about 100 feet and stopped his car when Esparza told him to stop. Esparza got out of the car and walked towards Ramirez's car while [M.F.] remained inside his car. [M.F.] realized he had an opportunity to leave, but he stayed because he was aware that these men knew where his sister lived and that they were perfectly capable of finding him.
"When [M.F.] looked back, he saw Garcia standing over the trunk with the same handgun which he brought with him, the same one Esparza had been holding in the garage. [M.F.] looked away. He then heard at least four to five gunshots. When [M.F.] looked back, he saw Garcia in the back seat area of Ramirez's car and Esparza standing near the driver's door. As Garcia and Esparza entered [M.F.]'s car, they both told [M.F.] 'Go.'
"Garcia gave [M.F.] directions to the house where they had earlier picked up Reyes. There, all three went into the house. Garcia and Esparza changed their clothes and shoes, and [M.F.] drove them back to Garcia's house. Garcia and Esparza both told [M.F.] they were going to Arizona with him. Out of fear, [M.F.] drove Garcia and Esparza to Arizona. Garcia and Esparza stayed with [M.F.] for a day or two before leaving on different buses. Before Garcia left, he told [M.F.] 'we're going to come and get you' if [M.F.] told anybody what had happened.
"[Defendant] fled to Mexico. He was eventually arrested by the FBI and brought to California.
"On September 18, 2006, the police responded to a call about a suspicious vehicle in a desert field. The vehicle was Ramirez's car with his body in the trunk. Ramirez was bound at the wrists with cords, and gagged with a cloth and masking tape. There were nine bullet holes in the top of the trunk, and the prosecution expert opined that Ramirez had been shot when the trunk lid was closed. Ramirez had suffered nine gunshot wounds. The bullet pattern on the trunk lid and Ramirez's position inside the trunk were consistent with the shooter firing straight down into the trunk, firing three shots at Ramirez's head and six shots over Ramirez's torso.
"Ramirez was shot with James Wilson's .40-caliber Smith & Wesson semi-automatic handgun, which was stolen during a September 2005 burglary of Wilson's Littlerock residence. Blood splatter matched to Garcia was found on the wall of the Wilson residence immediately after the burglary, leading to the conclusion that Garcia was the burglar.
"This gun was not recovered after the murder. Matching was possible because Wilson had kept spent casings from rounds fired by the gun."
"Ramirez's car was tested for fingerprints and five fingerprints were obtained from the right trunk lid on the left edge. Two of those prints matched [defendant]'s fingerprints, specifically his right ring finger and his right little finger.
"Blood stains found on the entry way carpet of [defendant]'s house were consistent with Ramirez's blood. Blood stains consistent with Ramirez's blood were also found in the garage.
"The exterior and interior passenger side door handles of Ramirez's two-door car were swabbed for DNA evidence. DNA samples were taken from underneath the door handles where someone would grab them to open the door and on the edge. None of the DNA samples taken from Ramirez's car matched Ramirez. Based on two of the swabs taken from the driver's side door, there was enough for a partial profile. However, there was insufficient genetic information for a complete profile as to either. One of the swabs had a mixture of the DNA. The other swab contained DNA contributed by a single source, a male. It was possible to exclude Esparza's brother, Yvan Esparza, and [defendant] as the contributors of the DNA.
"A partial profile was also taken from passenger side interior and exterior door handles. It was a partial profile because there was a single locus where there was no genetic information. Genetic information was obtained from the rest of the sample, and it was a near complete profile. The genetic profile was consistent with having been contributed by Esparza. By contrast, Ramirez, Garcia, Yvan Esparza, [and defendant] were all excluded from that profile. The frequency of occurrence of that genetic profile was one in 831 trillion. The sample was not classified as a 'match' to Esparza's profile due to the missing information as to the single locus.
"A partial DNA profile obtained from the gag found in Ramirez's mouth was consistent with a mixture of at least two people. There was not enough genetic information to include or exclude Esparza. However, it was possible to exclude Ramirez, Garcia, Yvan Esparza, and [defendant].
"A pair of Nike shoes were obtained from Esparza in late February 2007. Based on a presumptive blood test, the right shoe sole, close to the bottom of the sole, tested positively for blood. However, no DNA was found on the sole of the shoe, and DNA found on the side of the sole was insufficient for reliable testing." (People v. Garcia (Aug, 17, 2012, B231949) [nonpub. opn.].)
B. Reyes's Trial and Appeal
Reyes proceeded to a separate trial at which defendant testified as a witness. The jury found Reyes guilty of second degree murder (§ 187, subd. (a)) and kidnapping (§ 207, subd. (a)) and found true the allegation that a principal was armed with a firearm in the commission of the offenses (§ 12022, subd. (a)(1)) and that Reyes had suffered a prior serious felony conviction within the meaning of the Three Strikes Law (§§ 667, subd. (a)(1), (b)-(i); 1170.12). (People v. Reyes (May 8, 2014, B248663) [nonpub. opn.].)
On appeal, Reyes contended, among other things, that the trial court erred in failing to instruct the jury that defendant was an accomplice as a matter of law. (People v. Reyes, supra, B248663.) In Reyes's view, because defendant had already been convicted of the crimes for which Reyes was on trial, he was an accomplice as a matter of law. (Ibid.) A prior panel of this Division rejected Reyes's argument noting, as an initial matter, that "[Reyes] has not cited, and we are not aware of, any case holding that a witness who has been convicted separately from a co-perpetrator must be treated as an accomplice as a matter of law when testifying as a witness in the co-perpetrator's trial. [¶] Even if [Reyes's] rule would be appropriate in some cases, the rule is not appropriate in cases like this one, where the witness did not testify at his own earlier trial. Here, even though [defendant] was convicted in the earlier trial, the jury did not make any determination of his credibility in reaching its verdict. In this trial, [defendant] did give his account of the crime, and the jury in this trial was in the best position to determine his credibility. [Defendant] claimed that he expected only a fistfight to occur, did not expect the matter to escalate, and did not attempt to save the victim because he was afraid for his own life. Given these facts, which were not before the jury in the first trial, the jury in this matter could have found that [defendant] was not an accomplice. (See People v. Anderson (1987) 43 Cal.3d 1104, 1138 . . . [a person is not an accomplice as a matter of law if there is evidence that he acted out of fear of the defendant rather than the necessary criminal intent].)" (People v. Reyes, supra, B248663.)
C. Defendant's Petition
On March 5, 2019, defendant filed a petition for resentencing under section 1170.95. On March 11, 2019, the trial court granted defendant's request for the appointment of counsel. On September 25, 2019, the court conducted a hearing at which defendant was now represented by privately retained counsel. The court found that defendant had made a prima facie case showing he was entitled to relief and issued an order to show cause.
On November 12, 2019, the District Attorney filed a response to defendant's petition, arguing, among other things, that defendant was not entitled to relief because he was an aider and abettor to the murder who acted with the intent to kill and was a major participant in the kidnapping who acted with reckless indifference to human life. In support of its response, the District Attorney filed the transcript of defendant's testimony from Reyes's trial in which defendant described his role in the offenses.
On November 25, 2019, defendant filed his reply. Among other things, defendant contended that the District Attorney was precluded by the doctrine of judicial estoppel from disputing that he was convicted under a felony murder theory of liability and that the jury could have concluded, based on defendant's testimony at Reyes's trial, that he acted out of duress, lacked the intent to kill, or was not an accomplice.
During the hearing on defendant's petition, conducted on June 10, 2020, the trial court noted that it had presided over both defendant's trial and Reyes's trial. Then, it rejected defendant's contention that the doctrine of judicial estoppel precluded the District Attorney from arguing that defendant was not eligible for relief. Finally, after discussing some of the evidence in this case, the court stated:
We grant the Attorney General's request to take judicial notice of the record from defendant's direct appeal. The Attorney General also requests that we take judicial notice not only of the portions of defendant's testimony from Reyes's trial that the District Attorney submitted to the trial court, but also the entire record in the direct appeal from that case. Defendant opposes the request for judicial notice to the extent it seeks notice of records from Reyes's appeal that were not submitted to the court in connection with the section 1170.95 petition. Although the court presided over Reyes's trial, it did not take judicial notice of the entire record from the direct appeal in that case. Nor was it asked to do so. We therefore decline to take judicial notice of the record from the direct appeal in Reyes's case.
"In looking at the totality of these circumstances, the court finds that the kidnapping in terms of the timing of it, the statements, what occurred with the victim with that participation is much more significant than simply just being a getaway driver or someone unintentionally [at] an event coming up with the kidnapping where there was an inadvertent situation where shots are fired. This was a much more premediated act where his participation, given the brutality of the beating, the statements, the display of weapons involved a great risk of death, although I do acknowledge he was not present and there was no evidence that he had the weapon or was involved in the actual shooting.
"The court finds in [ ]reviewing this that it does, as the trier of fact for purpose of this hearing, satisfy beyond a reasonable doubt that-putting aside felony murder and actual probable cause, that there is sufficient, to show both under aiding and abetting, knowledge of the specific intent to kill and a level of involvement with the kidnapping and murder both as to the timing and the circumstances that shows major participation and reckless indifference." The trial court thus denied defendant's petition.
III. DISCUSSION
A. Senate Bill No. 1437
"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 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).) In addition to substantively amending sections 188 and 189 . . . Senate Bill [No.] 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. [Citation.]
"Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: '(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) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection[s] 188 or 189 made effective January 1, 2019.' (§ 1170.95, subds. (a)(1)-(3); see also § 1170.95 subd. (b)(1)(A).) Additionally, the petition shall state '[w]hether the petitioner requests the appointment of counsel.' (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), 'the court may deny the petition without prejudice to the filing of another petition . . . .' (§ 1170.95, subd. (b)(2).)
"Where the petition complies with subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief. (§ 1170.95, subd. (c).)
"If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' (§ 1170.95, subd. (d)(1).) 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' (§ 1170.95, subd. (d)(3).) At the hearing stage, 'the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' (§ 1170.95, subd. (d)(3).)" (People v. Lewis (2021) 11 Cal.5th 952, 959-960.)
B. Standard of Proof at Section 1170.95, subdivision (d)(3) Hearing
Defendant contends that the trial court applied the wrong standard of proof at the section 1170.95, subdivision (d)(3) hearing by considering whether there was substantial evidence to support a finding that defendant was ineligible for relief. In defendant's view, the court was instead required to consider whether the prosecution bore its burden of proving beyond a reasonable doubt each element of murder under current law.
The Attorney General initially argued that the trial court was only required to consider whether there was substantial evidence to prove that defendant could be convicted of murder under current law and advocated for the standard set forth in People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted January 13, 2021, S265309 (Duke). Later, in his letter to this court dated August 13, 2021, the Attorney General abandoned his earlier position and, citing People v. Lopez (2020) 56 Cal.App.5th 936, 949, review granted February 10, 2021, S265974 (Lopez), adopted the view that trial courts should act as independent factfinders at section 1170.95, subdivision (d)(3) hearings. The Attorney General nonetheless argues that the court's statements at the hearing can fairly be interpreted as incorporating that standard of proof and the prosecution met its burden of proving each element of murder beyond a reasonable doubt.
The trial court, which decided this matter without the benefit of the decision in Lopez, supra, 56 Cal.App.5th 936, did not expressly state whether it was applying the standard articulated in Duke, supra, 55 Cal.App.5th 113 or Lopez. Yet its statement that the evidence was "sufficient, to show" [emphasis added] liability as either an aider and abettor or a major participant who acted with reckless indifference suggests that it was applying the Duke standard. The appropriate remedy in this circumstance is to remand the matter for a new hearing for the court to evaluate, using the proper standard of proof, whether defendant is ineligible for resentencing. (People v. Rodriguez (2020) 58 Cal.App.5th 227, 244, review granted Mar. 10, 2021, S266652.)
C. Judicial Estoppel
We next consider defendant's argument that the trial court erred in failing to apply the doctrine of judicial estoppel to preclude the prosecution from arguing that defendant acted with an intent to kill. "'"'Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary.'" [Citation.] The doctrine applies when "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake." [Citations.]' [Citations.]" (People v. Castillo (2010) 49 Cal.4th 145, 155, original emphasis omitted.)
We conclude that the doctrine of judicial estoppel does not apply because the Attorney General's position on Reyes's direct appeal was not "totally inconsistent" with the District Attorney's position here. In Reyes's direct appeal, the Attorney General argued that based on the evidence at his trial, the court did not err in failing to instruct the jury that defendant was an accomplice as a matter of law, that is, that no reasonable trier of fact could have concluded from the evidence that defendant did not share Reyes's intent to shoot and kill the victim. (People v. Fauber (1992) 2 Cal.4th 792, 834 ["Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom"].) This position is not "totally inconsistent" with the District Attorney's position at the hearing at issue here, which was that the trial court should conclude, based on the evidence presented at defendant's trial and defendant's testimony from Reyes's trial, that defendant was guilty, beyond a reasonable doubt, of murder under current law and thus ineligible for resentencing. Given the different fact finders, differing evidence, and the different matters at issue, we conclude the court did not abuse its discretion in failing to apply the doctrine of judicial estoppel.
Although the respondent's brief in Reyes's direct appeal is not part of the record on appeal, we infer this was the People's position based on the opinion in People v. Reyes, supra, B248663.
D. Other Constitutional Arguments
Defendant additionally argues that the Sixth Amendment prevents the trial court, in a section 1170.95 hearing, from relying on facts not found true by a jury. As defendant concedes, several courts have rejected his argument (see e.g. People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 ["[T]he Legislature's changes constituted an act of lenity that does not implicate defendants' Sixth Amendment rights"]; Lopez, supra, 56 Cal.App.5th at p. 957 ["Section 1170.95 petitioners are not criminal defendants charged anew with murder and constitutionally entitled to a jury trial"), as do we.
Finally, we consider defendant's contention that Senate Bill No. 1437 has retroactive application such that defendant's conviction must be vacated because the jury was instructed on a theory of murder that is no longer valid. We disagree and abide by our holding in People v. Martinez (2019) 31 Cal.App.5th 719, 728-729, that the Legislature intended to limit retroactive application of Senate Bill No. 1437 to those who seek relief by way of a section 1170.95 petition.
IV. DISPOSITION
The judgment is reversed and remanded with instructions to hold a new section 1170.95, subdivision (d)(3) hearing to evaluate whether defendant is eligible for resentencing under the proper standard of proof.
We concur: RUBIN, P. J., MOOR, J.