Opinion
B298451
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. REBECCA CLELAND, Defendant and Appellant.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA163991) APPEAL from an order of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed. Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Rebecca Cleland appeals from a postjudgment order summarily denying her petition for resentencing under Penal Code section 1170.95. No meritorious issues have been identified by Cleland's appointed counsel following her review of the record or by our own independent review of the record. We affirm.
Statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted brothers Alvaro Quesada and Jose Quesada and their cousin Rebecca Cleland of conspiring to murder Cleland's husband and first degree premeditated murder with special circumstances findings the murder had been committed for financial gain and while lying in wait. All three defendants were sentenced to life in prison without the possibility of parole.
In an initial appeal in 2003 this court reversed the convictions of Cleland and Jose Quezada and remanded their cases for retrial. We affirmed the conviction of Alvaro Quesada.
A jury on retrial found Cleland guilty of both charges and found the special circumstances allegations true. Cleland was again sentenced to life in prison without the possibility of parole. We affirmed her conviction in 2008.
On March 6, 2019 Cleland, representing herself, filed a petition in superior court to vacate her convictions and to be resentenced in accordance with recent statutory changes relating to accomplice liability for murder. Cleland also requested the appointment of counsel.
Cleland's petition was considered by the sentencing court—the same trial judge who had presided at Cleland's second trial and sentenced her to life in prison without the possibility of parole. After reviewing the petition and this court's 2008 opinion affirming Cleland's conviction (People v. Cleland (July 21, 2008, B196885) [nonpub. opn.]), the superior court summarily denied the petition without appointing counsel. The court found Cleland "clearly acted with an intent to kill when she conspired to have her husband murdered for financial gain and by lying in wait" and, as a consequence, was precluded from sentencing relief under section 1170.95.
The court also held as a second and independent ground for denying Cleland's petition that section 1170.95 was unconstitutional. We do not reach this alternate ruling.
Cleland filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Right To Petition To Vacate Certain Prior Convictions for Murder
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder through amendments to sections 188 and 189. New section 188, subdivision (a)(3), provides, "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime."
Prior to enactment of Senate Bill 1437, section 188, subdivision (a), provided, "For purposes of Section 187, malice may be express or implied. [¶] (1) Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. [¶] (2) Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."
New section 189, subdivision (e), in turn, provides with respect to a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs—that is, as to those crimes that provide the basis for the charge of first degree felony murder—that the individual is liable for murder "only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
Senate Bill 1437 also permits, through new section 1170.95, an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437's changes to the definition of the crime. Section 1170.95, subdivision (c), requires the sentencing court to review the petition; determine if it makes a prima facie showing the petitioner falls within the provisions of section 1170.95; and, if the petitioner has requested counsel, to appoint counsel to represent the petitioner. After counsel has been appointed, the prosecutor is to file and serve a response to the petition; and the petitioner may file a reply. If at this point the court finds the petitioner has made a prima facie showing he or she is entitled to relief, the court must issue an order to show cause (§ 1170.95, subd. (c)) and conduct a hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts (§ 1170.95, subd. (d)(1)).
Once an evidentiary hearing has been ordered, the People have the opportunity to present new and additional evidence to demonstrate the petitioner is not entitled to resentencing. The petitioner also has the opportunity to present new or additional evidence in support of the resentencing request. (§ 1170.95, subd. (d)(3).)
In People v. Verdugo (2020) 44 Cal.App.5th 320 this court held, after receiving a facially sufficient petition but before appointing counsel for the petitioner, the superior court may examine the readily available portions of the record of conviction, including any appellate opinion affirming the conviction, to determine whether the petitioner has made a prima facie showing that he or she could not be convicted of first or second degree murder following the changes made to sections 188 and 189 and thus falls within the provisions of section 1170.95. (Verdugo, at pp. 329-330, 332.) We cautioned, however, because at this stage the court is only evaluating whether there is a prima facie showing the petition falls within the provisions of the statute, "if the petitioner's ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction, the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties' briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief." (Id. at p. 330.)
2. The Superior Court Properly Concluded Cleland Is Ineligible as a Matter of Law for Any Relief Under Section 1170 .95
We appointed counsel to represent Cleland on appeal. After reviewing the record, counsel filed a brief raising no issues. On November 22, 2019 we notified Cleland she had 30 days to submit a brief or letter raising any grounds of appeal, contentions, or arguments she wanted the court to consider. We have received no response.
As discussed, based on Cleland's petition and our prior decision affirming her conviction following retrial, the superior court determined Cleland had acted with an intent to kill (express malice) in connection with the murder of her husband and was ineligible for relief under section 1170.95 as a matter of law. That ruling was unquestionably correct.
We have examined the entire record and are satisfied Cleland's appellate attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Cleland's petition is affirmed.
PERLUSS, P. J. We concur:
SEGAL, J.
FEUER, J.