Opinion
B308332
10-19-2021
THE PEOPLE, Plaintiff and Respondent, v. PABLO DEEN CHAVEZ, Defendant and Appellant.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant. Ron Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. LA038760, Martin Larry Herscovitz, Judge. Affirmed.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Ron Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
MOOR, J.
Defendant and appellant Pablo Deen Chavez appeals the trial court's order denying his petition for vacatur of his second degree murder conviction and resentencing under Senate Bill No. 1437 (Senate Bill 1437) and Penal Code section 1170.95, following an order to show cause and hearing pursuant to section 1170.95, subdivision (d)(3).
All further statutory references are to the Penal Code unless otherwise indicated.
Chavez argues that another trial court's grant of his habeas corpus petition, which reduced his murder conviction from first to second degree murder under People v. Chiu, entitles him to immediate resentencing, or, in the alternative, to a second section 1170.95, subdivision (d)(3) hearing. Chavez further contends that the trial court failed to employ the proper standard at the hearing, as articulated in People v. Lopez (2020) 56 Cal.App.5th 936 (Lopez), review granted February 10, 2021, S265974, and People v. Rodriguez (2020) 58 Cal.App.5th 227 (Rodriguez), review granted March 10, 2021, S266652.
People v. Chiu (2014) 59 Cal.4th 155 (Chiu), superseded by statute as stated in People v. Gentile (2020) 10 Cal.5th 830, 838-839.
The People contend that the grant of Chavez's petition for habeas corpus does not preclude the trial court's denial of his petition. The People assert that the trial court's finding that Chavez harbored express malice beyond a reasonable doubt is supported by substantial evidence.
In the respondent's brief, the People disagreed with Chavez as to the standard the trial court must apply at a section 1170.95, subdivision (d)(3) hearing, and advocated for the standard set forth in People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted January 13, 2021, S265309. However, they argued that Chavez's petition was properly denied under the standard as set forth in the Lopez/Rodriguez line of cases as well as under the Duke standard. The Attorney General abandoned its position that Duke states the appropriate standard in its letter to this court, dated August 13, 2021, and, citing to Lopez, now adopts the view that trial courts should act as independent factfinders at section 1170.95, subdivision (d)(3) hearings.
We hold that the grant of Chavez's habeas corpus petition under Chiu does not entitle him to resentencing. We conclude that substantial evidence supports the trial court's findings, and affirm the trial court's order.
Because we affirm the trial court's order on this basis, we do not address its alternative bases for denial.
The facts are taken from this court's unpublished opinion in People v. Chavez (Feb. 19, 2004, B165844) (Chavez).
In February 2001, six months before the murder, Chavez attacked his childhood friend Eduardo Robles while Robles was at home sleeping, because he believed Robles owed him a radio. Robles's mother armed herself with a heavy stick and ran toward her son's room. Chavez pulled a knife and raised it to strike Robles, but Robles's mother hit Chavez with the stick before he was able to stab Robles. Chavez then threatened Robles's mother with the knife; she struck him with the stick again. Chavez told Robles's mother to teach her son to pay his debts. Chavez subsequently pulled out a toy gun that appeared to be real. Robles's mother told Chavez she was going to call the police. Chavez told Robles's mother that Robles was "going to regret this for the rest of his life," and left.
On August 21, 2001, Robles and a friend, Israel Huerta, were riding a bicycle to a relative's house to pick up a car. On the way, they passed Chavez's house. Chavez was in his yard and rushed toward Robles and Huerta when he saw them. Chavez swung at Robles, who got off the bicycle. Robles ducked to avoid the blow and threw Chavez down. Chavez fell, hitting his face on the ground. There was a woman standing in the doorway of Chavez's house who yelled, "Go get the gun." Robles and Huerta got back on the bicycle and continued to their destination.
Robles and Huerta picked up the car, put the bicycle inside, and drove back to Robles's house. Huerta stayed in the car; Robles got out and joined his brother and a friend outside the house. Less than ten minutes later, Chavez and his younger stepbrother, Jose Bueno, drove up to the house.
Bueno had been driving. When Bueno got out of the car, he removed a gun from beneath his seat and carried it with him. He did not attempt to hide the gun; it was visible from the moment he exited the vehicle. Chavez yelled, "You motherfucker" at Robles; Bueno also yelled at Robles. As Chavez and Bueno approached Robles, Robles pleaded, "Not at my house. Not right here." Robles tried to pull his brother back toward the house.
Chavez tried to punch Robles; Robles ducked. When Chavez missed, Bueno hit Robles on the head with the gun. Robles fell. Bueno shot Robles as he lay on the ground. Chavez was standing beside Bueno; Chavez said nothing.
Chavez and Bueno walked back toward their car. Bueno stopped and looked at Huerta. He said, "What about him?" Chavez replied, "He didn't do anything." Chavez and Bueno left. Robles died from the gunshot wound.
All of the witnesses identified Chavez and Bueno to police. Chavez and Bueno, however, could not be found. Their house was listed for sale within a week of the murder. Chavez was subsequently apprehended while re-entering the United States from Mexico.
PROCEDURAL HISTORY
Trial
Chavez was tried alone in 2003. At trial, the prosecution proceeded on alternative theories of aiding and abetting: (1) Chavez instigated the murder and shared his stepbrother's intent; and (2) the murder was the natural and probable consequence of a planned assault. The jury found Chavez guilty of first degree murder (§ 187), and found true the allegation that a principal was armed with a firearm (§ 12022, subd. (a)(1)). The trial court sentenced Chavez to 25 years to life in prison, plus one year for the firearm enhancement.
Bueno had not been located at the time of Chavez's trial.
At the time of Chavez's conviction, a defendant could be convicted of first degree murder under the natural and probable consequences doctrine if first degree murder was a foreseeable outcome of the assault and the killer (but not necessarily the defendant) harbored the necessary intent. (See Chiu, supra, 59 Cal.4th at p. 164.)
Appeal
On his direct appeal, Chavez contended (1) his counsel rendered ineffective assistance in plea negotiations; (2) there was insufficient evidence that the murder was premeditated; (3) the natural and probable consequences doctrine was unconstitutional; and (4) the prosecutor committed error under Griffin v. California (1965) 380 U.S. 609. In 2004, another panel of this court affirmed the trial court's judgment in its entirety.
Petition for Habeas Corpus
In 2015, Chavez filed a petition for habeas corpus with the superior court, arguing that his conviction for first degree murder must be reduced to second degree murder pursuant to Chiu, supra, 59 Cal.4th 155, which held that an aider and abettor may not be convicted of first degree murder under the natural and probable consequences doctrine.
The People filed an informal response stating that the writ should be granted. The trial court issued an order to show cause and set the matter for hearing. In 2016, the trial court granted the petition and reduced Chavez's conviction from first to second degree murder. Chavez's sentence was reduced to 15 years to life, plus one year for the firearm enhancement.
Section 1170.95 Petition and Briefing
Chavez petitioned for resentencing under section 1170.95 on January 7, 2019, arguing that his second degree murder conviction should be dismissed because he could no longer be convicted under a natural and probable consequences theory of murder. The court appointed counsel and set the matter for hearing.
In a written order on March 8, 2019, the trial court found that Chavez made a prima facie showing that he was entitled to resentencing, and ordered the People to show cause why the relief should not be granted.
The People filed an opposition to Chavez's petition on June 11, 2019, arguing that Chavez was ineligible for relief because: (1) he was convicted of first degree murder as a direct aider and abettor to a willful, deliberate, and premeditated murder; (2) his sentence was previously reduced to second degree murder pursuant to Chiu, (3) he was guilty of second degree murder under the natural and probable consequences doctrine pursuant to People v. Gentile (2019) 35 Cal.App.5th 932 (Gentile), review granted and ordered not to be published (Sept. 11, 2019), and reversed and remanded by People v. Gentile (2020) 10 Cal.5th 830; and (4) Senate Bill 1437 and section 1170.95 were unconstitutional.
Chavez replied to the People's opposition on December 19, 2019. Chavez argued that (1) section 1170.95 is constitutional; (2) he should be resentenced under section 1170.95, subdivision (d)(2), as a matter of law based on his successful writ for habeas corpus under Chiu; (3) section 1170.95 abrogates second degree murder based on a natural and probable consequences theory and the People relied on that invalid theory to secure the murder conviction; (4) Gentile, supra, 35 Cal.App.5th 932, had been depublished and was noncitable; and (5) Chavez was entitled to a subdivision (d)(3) hearing because he made a prima facie showing of eligibility for relief under section 1170.95.
Section 1170.95, Subdivision (d)(3) Hearing
The trial court held a hearing on its order to show cause on August 13, 2020. Defense counsel argued that there was insufficient evidence of implied malice to support the second degree murder conviction. Counsel stated that it was Chavez's mother who said "Go get the gun," and Chavez's brother who pistol-whipped Robles and then shot him to death. Chavez only intended to engage in a fist fight with Robles. Counsel argued that "Chavez had family members that were more aggressive than he was, but it doesn't show that he had an abandoned and malignant heart . . ."
The prosecutor responded that Robles would not have been killed if Chavez had not been involved. Chavez repeatedly attacked Robles over a lengthy time period. Chavez had gone to Robles's house with a knife and threatened his mother, telling her that he intended to kill Robles. Chavez later attacked Robles when he was riding a bicycle. Chavez brought his brother, who was armed with a gun, to Robles's house. Chavez was clearly in charge because he directed Bueno not to kill Huerta after Bueno asked what to do with him. Bueno was not involved in any way until Chavez brought him to Robles's house armed with a gun. Chavez's acts demonstrated both express and implied malice.
Defense counsel replied that there was no evidence in the record that Chavez knew Bueno had a propensity for violence, or that he himself used a gun. Assault with a gun is not always a dangerous felony and does not necessarily escalate to murder. The evidence indicated that Chavez brought his brother to Robles's house to stand behind him during the fist fight. There had to be some showing that Chavez knew his brother was violent for Chavez to be culpable of murder. Instead, Chavez told Bueno not to hurt Huerta, which was evidence that Chavez did not intend for anyone to be harmed. The purpose of section 1170.95 was to hold people culpable for their own actions, not the actions of others. Chavez's actions did not even demonstrate implied malice.
The Trial Court's Ruling
The trial court denied Chavez's petition on three bases: (1) despite the grant of habeas corpus to the contrary, in light of the instructions given, the jury necessarily decided that Chavez was guilty of murder as a direct aider and abettor; (2) this court held that there was substantial evidence of premeditation and deliberation on appeal; and (3) under its own independent review of the facts, the trial court found that Chavez harbored express malice beyond a reasonable doubt.
Motion to Reconsider
On September 4, 2020, Chavez filed a motion for reconsideration and request that the court clarify its ruling denying his section 1170.95 petition. On September 9, 2020, the court heard and denied the motion to reconsider. The court emphasized: "I had access to the entire record in this case, and that is on the basis that I found that the defendant harbored expressed malice." The court then repeated the bases for its ruling at the hearing on the petition. Counsel argued that, because Chavez had been granted Chiu relief he should be immediately resentenced. The trial court responded that Chavez had been granted relief-he had been resentenced under Chiu- but that did not entitle him to relief under section 1170.95.
Chavez timely appealed.
DISCUSSION
Section 1170.95"Effective January 1, 2019, the Legislature passed Senate Bill 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 of the Penal Code, Senate Bill 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. (See [People v.] Gentile[ (2020)] 10 Cal.5th [830, ] 843.)" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
"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 Section 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).)" (Lewis, supra, 11 Cal.5th at pp. 959-960.)
"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).)" (Lewis, supra, 11 Cal.5th at p. 960.) The trial court acts as the finder of fact, and evaluates the evidence to decide whether the court finds that the petitioner is ineligible for resentencing because he or she could still be convicted of murder under the current laws beyond a reasonable doubt. (Lopez, supra, 56 Cal.App.5th at p. 942; Rodriguez, supra, 58 Cal.App.5th at p. 238.)
Standard of Review
On appeal from a trial court's order denying a section 1170.95 petition following a subdivision (d)(3) hearing, this court applies the substantial evidence standard. (See People v. Clements (2021) 60 Cal.App.5th 597, 618 (Clements), review granted Apr. 28, 2021, S267624 [applying substantial evidence standard on appeal after section 1170.95, subdivision (d)(3) hearing]; Lopez, supra, 56 Cal.App.5th at p. 953 [same].) "In determining whether sufficient evidence supports a conviction, 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ". . . We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the [fact-finder's determination]. [Citation.]' (People v. Zamudio (2008) 43 Cal.4th 327, 357.)" (People v. Joseph (2019) 33 Cal.App.5th 943, 950.)
Analysis
The Trial Court Was Not Precluded from Denying Relief by Another Trial Court's Grant of Habeas Corpus Under People v. Chiu
Chavez challenges the trial court's ruling on several grounds. He first argues that the trial court was constrained (via law of the case, res judicata, collateral estoppel, or issue preclusion) by another trial court's grant of his habeas petition under Chiu, supra, 59 Cal.4th 155, and the reduction of his conviction to second degree murder.
Prior to the enactment of Senate Bill 1437, in Chiu, our Supreme Court held that "natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing is inconsistent with 'reasonable concepts of culpability.' ([Chiu, supra, 59 Cal.4th] at p. 165.)" (People v. Gentile (2020) 10 Cal.5th 830, 838.) The Court held instead that, "punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at p. 166.) In Chiu, the jury had been instructed on two theories of first degree murder-the defendant was either guilty of murder as a direct aider and abettor or the defendant was an aider and abettor to an assault that resulted in a murder, and liable under the natural and probable consequences doctrine. (Id. at p. 160.) Although the Supreme Court held that the natural and probable consequences doctrine was not a valid theory of liability, it also concluded that the defendant could still be held liable as a direct aider and abettor. (Id. at pp. 166-167.)
The Chiu court explained: "Because we now hold that a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine, we must determine whether giving the instructions here allowing the jury to so convict defendant was harmless error. When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.] Defendant's first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder. [Citation.]" (Chiu, supra, 59 Cal.4th at p. 167.)
The Chiu court determined that there was no basis in the record to conclude that the verdict was founded on the legally valid theory that the defendant directly aided and abetted the murder. (Chiu, supra, 59 Cal.4th at p. 168.) It agreed with the Court of Appeal that reversing the first degree murder and permitting the People to either accept a reduction in the conviction to second degree murder or retry the greater offense was the appropriate remedy. (Ibid.) The court noted that the People could seek a first degree murder conviction on the theory that the defendant was a direct aider and abettor on retrial. (Ibid.)
Chavez contends that at the section 1170.95, subdivision (d)(3) hearing, the court was not permitted to ignore the effect of his successful habeas petition. He argues that, because the trial court had to accept the court's ruling that it could not be determined which theory the jury relied upon, the prosecution was required to prove beyond a reasonable doubt that "the jury convicted [him] under the direct aiding and abetting theory, rather than the natural and probable consequences doctrine." Chavez reasons that, because the natural and probable consequences doctrine is no longer viable under Senate Bill 1437, and it could not be discerned whether the jury relied upon this invalid theory or the valid direct aiding and abetting theory, he could not be convicted of second degree murder today.
We disagree. If the jury's findings do not resolve the question of a petitioner's eligibility as a matter of law, the inquiry is not at an end. Instead, the trial court, as the court did here, issues an order to show cause and holds a section 1170.95, subdivision (d)(3) hearing, where the court, acting as the trier of fact, determines whether the petitioner could still be convicted of murder under the current laws beyond a reasonable doubt.(Lopez, supra, 56 Cal.App.5th at p. 942; Rodriguez, supra, 58 Cal.App.5th at p. 238.)
On October 5, 2021, the governor signed Senate Bill No. 775, which amends section 1170.95 effective January 1, 2022. The amendments specify the beyond a reasonable doubt standard.
We further reject Chavez's assertion that the prosecutor's concession that he was entitled to relief under Chiu in its informal response to his habeas petition was tantamount to a concession that there was insufficient evidence in the record for the jury to convict Chavez of murder as a direct aider and abettor. The prosecutor's concession was an acknowledgment that it was not possible to tell which theory the jury actually relied upon in reaching its verdict; it did not address whether sufficient evidence was presented to support a direct aiding and abetting theory at trial. The trial court that granted Chavez's habeas petition did not conclude there was insufficient evidence of direct aiding and abetting. The trial court reversed the conviction and gave the prosecution the option to retry the case on the first degree murder charge or accept a second degree murder conviction. Neither the success of Chavez's habeas corpus petition nor the prosecution's concession barred the trial court from determining that the prosecution "prove[d], beyond a reasonable doubt, that [Chavez] is ineligible for resentencing." (§ 1170.95, subd. (d)(3).)
The Trial Court Conducted an Independent Review of the Facts
Chavez next contends that "the superior court cited extensively from the analysis of all three factors of premeditation in [this court's prior opinion]. Despite claiming it had independently reviewed the facts and the law in this case, the superior court's analysis suggests it did not act as an independent factfinder in adopting the factual and legal conclusions proffered in [this court's prior opinion] and by the prosecutor. Accordingly, the court apparently adopted the prosecutor's argument that the petition should be denied because the prosecutor's evidence 'could' result in a murder conviction under current law. Hence, it appears the superior court failed to apply the proper standard of proof required under the Lopez-Rodriguez line cases [sic]."
We reject this contention. At the start of the hearing, the court listed the documents it had reviewed prior to the hearing and verified with the parties that the court's list covered everything that they wished to have considered. The parties agreed that it did. After listening to extensive argument regarding the facts and inferences to be drawn from them, the court ruled: "[I]ndependently reviewing the facts and the law on this case, I would come to the same conclusion. The fact that the natural and probable consequence theory was also given and argued to some extent by the prosecutor in this case, does not change the fact that there is proof beyond a reasonable doubt that the defendant had expressed [sic] malice, and if you have expressed [sic] malice even with the elimination of the natural and probable consequences theory, which is [sic] now been eliminated from the law in our state, he is still guilty of murder, therefore, the petition under [section] 1170.95 must be denied." Chavez cites to nothing in the record that would cause us to doubt the trial court's statement that it conducted an independent review of the facts and found that he could still be convicted of murder beyond a reasonable doubt. (See People v. Leonard (2014) 228 Cal.App.4th 465, 478 [holding that "'"error must be affirmatively shown"'"].)
The Trial Court's Independent Findings Are Supported by Substantial Evidence
We conclude that substantial evidence supports the trial court's finding that Chavez harbored express malice and thus could still be convicted of murder under the amendments to sections 188 and 189. Evidence was presented that Chavez planned to kill Robles. He intentionally went to Robles's house to attack him, and brought Bueno, who was visibly armed with a handgun. Chavez's prior relationship with Robles demonstrates motive. Chavez hated Robles because he believed that Robles owed him a radio. Based on that belief, Chavez attacked Robles while Robles was asleep, tried to stab him, and threatened Robles that he would regret his actions. The manner of the killing also indicates a preconceived design to kill. Bueno did not accidentally shoot Robles, or fire on him in the confusion of a physical altercation. He deliberately pistol-whipped Robles to the ground and shot him while he was lying there, defenseless. Chavez did not do or say anything to prevent Bueno from killing Robles, and expressed no surprise, dismay, or regret. The conversation between Bueno and Chavez concerning Huerta after the killing indicates that Robles's killing was premeditated. Bueno asked, "What about him?," and Chavez responded, "He didn't do anything." A finder of fact could reasonably infer that Bueno was acting at Chavez's behest, and that Bueno shot Robles because Chavez thought he had done something.
Because substantial evidence supports the trial court's finding that Chavez acted with express malice beyond a reasonable doubt, he could be convicted of murder under section 188, following the amendments wrought by Senate Bill 1437. A defendant who aids and abets murder with express malice is also guilty of murder. The trial court did not err in ruling that Chavez was ineligible for relief beyond a reasonable doubt.
DISPOSITION
We affirm the trial court's order denying Chavez's petition for resentencing under section 1170.95.
We concur: RUBIN, P.J., BAKER, J.