Opinion
B304341
05-01-2023
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO CERVANTES CHAVEZ, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of the County of Los Angeles No. LA036362, Shellie L. Samuels, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and
Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Defendant Ignacio Chavez appealed from the trial court's summary denial of his petition for resentencing on his murder and attempted murder convictions, arguing that the court erred: (1) by concluding, without first appointing counsel and conducting a hearing, that he was ineligible for sentencing relief on his murder conviction; and (2) by not applying Penal Code section 1172.6 to his attempted murder convictions. We reversed the denial of defendant's petition on his murder conviction, but affirmed as to his attempted murder convictions.
Defendant filed his resentencing petition pursuant to former Penal Code section 1170.95. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) Therefore, to avoid confusion, all further references to section 1172.6 shall include former section 1170.95.
All further statutory references are to the Penal Code.
Our Supreme Court granted review and remanded with instructions to vacate our decision and reconsider the matter in light of recent legislation. In response, we vacated our prior decision; and, following reconsideration, we now also reverse the trial court's denial of the petition as to the attempted murder convictions.
On October 5, 2021, the Governor signed Senate Bill No. 775 (Stats. 2021, ch. 551), effective January 1, 2022 (Senate Bill 775).
II. FACTUAL BACKGROUND
"On August 13, 2000, between 2:30 and 3:00 p.m., a Sectran Security armored car arrived at the Costco store in Van Nuys. The car was driven by Derek Davis. Davis was accompanied by Daniel Salazar, a security messenger. Salazar entered the store and returned about five minutes later with a bag of money.
"A man, later identified as [defendant's] brother Ramon, approached Salazar, pulled out a gun which looked like an AK-47, pointed it at Salazar and told him not to move. Salazar drew his handgun from his holster. Salazar and Ramon exchanged gunfire. Ramon fired at Davis, who was still inside the armored car. Salazar saw a second man with a rifle and ran for cover behind a pillar. Ramon 'hobbled off.'
"Taphi Chau, who was standing in front of Costco, saw a man pull out a large rifle and start shooting. Chau Van Kien heard gunshots, then was hit in his left side by bullets. Bach-tuyet Tran heard gunshots, then was hit by bullets in her stomach and leg. She saw a man with a big gun standing about 16 feet away from her. Vicky Cheung heard gunshots, was pulled to the ground, then was hit in the back with shrapnel.
"Rudolfo Frias, a Costco employee, was outside the Costco when the shooting occurred. He heard the sound of a high-powered assault rifle, then saw a man get 'his head blown off.'
"Davis put the armored car into reverse and crashed into a white van which was right behind the armored car. Frias saw Ramon, carrying the AK-47, get into the white van. He saw a man, later identified as [defendant], in the driver's seat of the van. More shots were fired as the van drove away.
"Victor Mercado was in a park near the Costco. He heard a loud thumping noise which sounded like a vehicle with a flat tire. He saw a white van go by very slowly. [Defendant] was driving the van.
"The van was found abandoned about four blocks from Costco near Sylvan and Kester. It had a flat tire. There were bullet holes in the rear and side panels of the van, and blood inside. A trail of blood led east on Sylvan.
"Los Angeles Police Officer Roberth Lugo saw Ramon walking on Sylvan. Ramon was carrying an AK-47 and bleeding from his back and leg. Lugo, who was off-duty, called 911. Police officers came to the scene and arrested Ramon.
"[Defendant] went to the home of his son Ignacio Chavez, Jr. He told his son that he was in big trouble and needed help. Junior went with [defendant] to [defendant's] house, where [defendant] got clothes and some other things. [Defendant] gave Junior a bag, which Junior put in the back of a television set. [Defendant] stayed with Junior for a few days.
"On August 17, Los Angeles Police Department Detective Steve Koman went to an address on Hazeltine to secure an apartment where [defendant] and Ramon had been living. While Detective Koman was waiting for a search warrant, Junior came to the apartment and was detained, handcuffed and questioned by police. According to Detective Koman, Junior told the detective that [defendant] told him that [defendant] and Ramon had done the Costco robbery and that Ramon had fired shots and been shot in the leg. Junior also told the detective that [defendant] had given him a pistol and a rifle to keep for him.
"Detective Koman sought and received permission to search Junior's house. Junior and the detective went to Junior's house and Junior showed the detective where the two guns were hidden.
"The two then returned to the Hazeltine apartment, where a search warrant was being executed. Junior gave police a key to a storage locker in the building which belonged to his family. There, police found a rifle. After this, police took Junior to the police station, where he was interviewed by other detectives.
"At trial, Junior admitted making statements to police which incriminated his father, but denied that those statements were true. He claimed that he lied because he felt intimidated by the officers and because the officers told him that his father would get less prison time if he was the driver of the van rather than the shooter.
"[Defendant's] fifteen-year-old son Ulises, who lived in the Hazeltine apartment, was interviewed by police on August 17, both at the apartment building and the police station. Ulises told police that [defendant] had told him that [defendant] and Ramon had been involved in a robbery at Costco that had 'gone bad.' [Defendant] had driven the van. The plan was for Ramon to shoot the guard, take the money and leave. However, people other than the guard were injured during the robbery and one man died.
"At trial, Ulises testified that he made up his statements to police because the police told him that the driver could get less time than the shooter, and because he wanted to go home.
"At trial, Los Angeles County Coroner's Department deputy medical examiner Dr. Jeffrey Gutstadt, testified that he performed an autopsy on a man identified as Owen Wolf, and that Wolf had died from a gunshot wound to the head. The damage was consistent with being hit with a round from a high-powered weapon such as an AK-47.
"Los Angeles Police Detective James Fountain, who arrived at the Costco after the shooting victims had been transported elsewhere, testified that Owen Wolf had been shot in the Costco parking lot on August 13, 2000.
"Los Angeles Police Department Criminalist Leonard Romero testified that he went to Costco in the evening of August 13 and collected casings and metal fragments. He compared those items with casings and bullets he fired from the AK-47 carried by Ramon when he was arrested. He concluded that most of the casings and about half of the fragments recovered from the Costco had been fired by the AK-47. There were no matches with the guns recovered from Junior's house or [defendant's] storage locker." (People v. Chavez (Jan. 28, 2003, B154750) [non pub. opn.].)
III. PROCEDURAL BACKGROUND
A. Convictions and Sentencing
In 2001, a jury found defendant guilty of murder in violation of section 187, subdivision (a) and found true the special circumstance allegation that the murder occurred during the commission of an attempted robbery within the meaning of section 190.2, subdivision (a)(17). The jury also found defendant guilty of four counts of attempted murder and one count of attempted robbery and found true the allegation that a principle was armed with an assault rifle in the commission of all the crimes within the meaning of section 12022, subdivision (a)(2).
On November 16, 2001, the trial court sentenced defendant to life without the possibility of parole on the murder conviction, plus an additional and consecutive 17-year sentence for the other convictions and enhancements.
B. Appeal from Judgment of Conviction
In the respondent's brief, the Attorney General contends that the People filed a motion for judicial notice of the record in defendant's direct appeal from his judgment of conviction, case number B154750. Our record, however, does not contain the referenced motion, and we therefore do not consider the prior record from the direct appeal.
On January 28, 2003, this Court issued an opinion on defendant's direct appeal that corrected certain errors in defendant's sentence, modified the special circumstance finding to reflect that the murder occurred during the commission of an attempted robbery, rather than a completed robbery, ordered the preparation of an amended abstract of judgment to reflect those changes, and otherwise affirmed the judgment of conviction. On November 4, 2003, the trial court entered an amended abstract of judgment showing that defendant's sentence on the murder conviction was life without the possibility of parole, plus 14 years.
C. First Section 1172.6 Petition
On February 25, 2019, defendant filed an initial petition for resentencing under section 1172.6. On April 10, 2019, the trial court reviewed the petition and "appoint[ed a] bar panel attorney to represent [] defendant on the petition for resentencing." On April 29, 2019, the court issued a ruling on the petition without defendant or counsel being present. The court ruled that section 1172.6 was unconstitutional and, in the alternative, that defendant was not entitled to resentencing "[b]ased on the facts of this case" because defendant was a major participant in the murder who acted with reckless disregard for human life. In making its alternative ruling, the court noted that "[t]his [was] not a close case." Defendant did not appeal from that order.
Our record on appeal did not contain a copy of defendant's initial section 1172.6 petition filed on February 25, 2019, but we granted the Attorney General's request to augment the record to include a copy of that petition.
D. Second Section 1172.6 Petition
On December 12, 2019, defendant filed a second petition for resentencing under section 1172.6 that contained the identical grounds for resentencing as his initial petition, including that he was not a major participant in the murder and did not act with reckless disregard for human life. Unlike his first petition, however, defendant attached a copy of an appellate decision (People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux)) holding that section 1172.6 was constitutional.
On December 24, 2019, the trial court reviewed the petition in chambers without defendant or counsel being present and denied it, finding that defendant "was a major participant and acted with reckless disregard for human life based on the facts listed in the court's previous ruling on [defendant's initial] petition for resentencing pursuant to [] section 117[2.6], dated April 24, 2019."
E. Appeal from Denial of Resentencing
On January 13, 2020, defendant filed an appeal from the trial court's order denying his second petition for resentencing. In People v. Chavez (July 21, 2021, B304341 [nonpub. opn.]), we reversed the denial of the petition on the murder conviction and remanded with instructions "to assure appointment of counsel and consider briefing from the parties in conformance with the procedures set forth in section 117[2.6]." But we affirmed the order denying the petition on the sentences for the attempted murder convictions.
Defendant filed a petition for review on the issue of whether section 1176.2 should be applied "to attempted murder liability under the natural and probable consequences doctrine." Following our Supreme Court's grant of review, the matter was transferred back to this court with directions "to vacate [our prior] decision and reconsider the cause in light of [Senate Bill 775]." In response, we vacated our decision, and the parties submitted further letter briefs on the effect of Senate Bill 775 on the attempted murder convictions.
IV. DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6
"Senate Bill [No.] 1437 [(Senate Bill 1437)] significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.' [Citations.] . . . [¶] Senate Bill 1437 . . . created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. (See []§ 1172.6 . . .; People v. Lewis (2021) 11 Cal.5th 952, 959-960 . . . [(Lewis)]; People v. Gentile [(2020)] 10 Cal.5th [830,] 843.) [Fn. omitted.] Under newly enacted section 1172.6, the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met (id., subd. (b)(1)(A)), including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [] [s]ection 188 or 189 . . . (§ 1172.6, subd. (a)(3)).
"When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' (§ 1172.6, subd. (c); see []Lewis, supra, 11 Cal.5th 952 [interpreting the prima facie requirement as originally codified in former § 1170.95].) If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. (See § 1172.6, subd. (c); Lewis, [supra, 11 Cal.5th] at pp. 970-972.) If, instead, the defendant has made a prima facie showing of entitlement to relief, 'the court shall issue an order to show cause.' (§ 1172.6, subd. (c).) If there has been 'a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner.' (Id., subd. (d)(2).) Additionally, the parties may stipulate that the petitioner is eligible for resentencing. (Ibid.) Otherwise, the court must hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).) 'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' (Ibid.) 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.' (Ibid.)" (People v. Strong (2022) 13 Cal.5th 698, 707-709 (Strong).)
B. Sentence on Murder Conviction
1. Collateral Estoppel or Issue Preclusion
The Attorney General contends that the trial court's denial of defendant's second petition should be affirmed under the doctrine of collateral estoppel or issue preclusion. Defendant does not contest that the initial threshold requirements for the application of the doctrine are satisfied here, but argues that fairness and judicial policy require that we consider the merits of his appeal.
The Attorney General suggests that the trial court denied the second petition on collateral estoppel grounds, but notes that even if the court did not expressly rule on those grounds, the denial can be upheld on appeal on "any applicable legal reasoning, even if different from that of the lower court," citing People v Smithey (1999) 20 Cal.4th 936, 972 and People v. Castange (2008) 166 Cal.App.4th 727, 734.
"Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] . . . [¶ . . . ¶] The 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]" (People v. Lucido (1990) 51 Cal.3d 335, 341, fns. omitted (Lucido).)
"Even assuming all the threshold requirements [of collateral estoppel] are satisfied, however, our analysis is not at an end. We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting. (See, e.g., [People v.] Sims [(1982)] 32 Cal.3d [468,] 477 ['this court must consider whether the traditional requirements and policy reasons for applying collateral estoppel were satisfied by the facts of this case'].) As the United States Supreme Court has stated, 'the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a nineteenth century pleading book, but with realism and rationality.' (Ashe v. Swenson (1970) 397 U.S. 436, 444 . . .; [fn. omitted] see also Jackson v. City of Sacramento (1981) 117 Cal.App.3d 596, 603 . . . ['collateral estoppel is not an inflexible, universally applicable principle; policy considerations may limit its use where the limitation on relitigation underpinnings of the doctrine are outweighed by other factors'].) Accordingly, the public policies underlying collateral estoppel-preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation-strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy." (Lucido, supra, 51 Cal.3d at p. 343.)
Even if we assume, without deciding, that the initial threshold requirements for application of the doctrine have been met, we agree with defendant that the policy considerations underlying the doctrine are outweighed by other factors present here, making its application in this circumstance unfair and contrary to sound judicial policy. Although the record reflects that the trial court may have appointed counsel for defendant at the outset, both of defendant's petitions were filed and denied without the assistance of counsel. Following the first denial of the petition, and within weeks of the appellate opinion in Lamoureux, supra, 42 Cal.App.5th 241, which rejected the trial court's primary basis for denying defendant's petition, namely, that 1172.6 was unconstitutional, defendant filed a second petition. Thus, as opposed to being vexatious, redundant, or a waste of judicial resources, defendant's second petition appeared to be a good faith effort to convince the trial court to reconsider the merits of his resentencing request in light of recent authority on what was then a vigorously disputed issue: the constitutionality of Senate Bill 1437. Had defendant timely filed a notice of appeal rather than a second petition, he would have avoided the technical basis for the purported estoppel against him, i.e., the decision in the prior proceeding was final. We note, however, that Lamoureux was not decided until after the time period in which defendant was required to file a notice of appeal from the initial denial of his petition elapsed. Further, we are reluctant to apply the doctrine against him in such a "hypertechnical" manner. (Ashe v. Swenson, supra, 397 U.S. at p. 444.) Given the Legislature's clear intent to provide sentencing relief to defendants who may be potentially eligible under 1172.6, we conclude that on these particular facts, it would further the interests of justice to refuse to apply the doctrine here.
2. Merits Analysis
Defendant argues that he met his initial burden of making a prima facie showing that he was eligible for resentencing on his murder conviction and the trial court thus erred in denying the petition without appointing him counsel and holding a hearing. The Attorney General counters that because the jury returned a true finding on the special circumstance allegation, it necessarily found that defendant acted "with reckless indifference to human life" and as a "major participant" (§ 190.2, subd. (d)), a finding that rendered defendant ineligible for resentencing as a matter of law.
As the Attorney General acknowledges, the jury made the special circumstance finding prior to the issuance of the opinions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which limited the definition of "'reckless disregard'" and "'major participant.'" Nevertheless, the Attorney General contends that because defendant has not previously sought relief pursuant to Banks and Clark, and no court has overturned the jury's special circumstance finding, the jury's finding was binding on the trial court and rendered defendant ineligible for relief under section 1172.6. Our Supreme Court has rejected this argument: a jury's felony murder special circumstances findings, made before the decisions in Banks and Clark do not preclude a defendant from making out a prima facie case for relief under section 1172.6. (Strong, supra, 13 Cal.5th at p. 710.) We thus disagree with the trial court's conclusion that the special circumstance finding, alone, rendered defendant ineligible for relief. The court was required to appoint counsel and conduct further proceedings in accordance with the terms of 1172.6.
C. Sentence on Attempted Murder Conviction
In enacting Senate Bill 775, the Legislature sought to "[c]larif[y] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories." (Sen. Bill No. 775 (2021-2022 Reg. Sess.), as amended Oct. 5, 2021, p. 3; Stats. 2021, ch. 551, § 1 -2.) Thus, as amended by Senate Bill 775, section 1172.6 now also expressly applies to persons previously convicted of attempted murder or manslaughter under a felony murder or natural and probable consequences theory. (§ 1172.6, subd. (a).)
Defendant contends, the Attorney General concedes, and we agree that under Senate Bill 775, defendant is entitled to a remand for further proceedings on his attempted murder conviction. We therefore will reverse and remand the attempted murder convictions for that purpose.
V. DISPOSITION
The order denying defendant's section 1172.6 petition for resentencing is reversed. The matter is remanded to the trial court with instructions to appoint counsel and consider briefing from the parties in conformance with the procedures set forth in section 1172.6.
We concur: RUBIN, P. J., MOOR, J.