Opinion
F081861
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. REYES ESCOBEDO, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Lewis A. Martinez, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF105688A, Michael G. Bush, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Lewis A. Martinez, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 2005, petitioner Reyes Escobedo pled no contest to the second degree murder of Christopher Stoner. (Pen. Code, § 187, subd. (a).) The trial court sentenced petitioner to a term of 15 years to life.
Undesignated statutory references are to the Penal Code.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The trial court summarily denied the petition without providing a statement of reasons.
On appeal, petitioner asserts he established a prima facie claim for resentencing eligibility and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. The People concede error. We accept the People's concession and reverse.
FACTUAL AND PROCEDURAL HISTORY
On April 26, 2004, the Kern County District Attorney filed an information charging petitioner with the first degree premeditated murder of Stoner (§ 187, subd. (a); count 1), premeditated attempted murder of Dustin G. (§§ 187, subd. (a), 189, 664; count 2), kidnapping of Stoner and Dustin (§ 207, subd. (a); counts 3 & 4), and conspiracy to commit kidnapping (§ 182, subd. (a)(1); count 5). As to count 1, the information alleged a kidnapping special circumstance. (§ 190.2, subd. (a)(17)(B).) As to all counts, the information alleged petitioner knew that a principal in the offense was armed with a firearm. (§ 12022, subd. (d).)
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.
On December 8, 2004, a jury convicted petitioner on all counts and found all allegations to be true. On February 16, 2005, the trial court granted petitioner's motion for a new trial upon concession by the People. On the same date, petitioner pled no contest to an amended charge of second degree murder on count 1. All other charges and enhancements were dismissed. The parties stipulated that all evidence adduced at petitioner's trial could be considered to support a factual basis for the plea. Petitioner requested immediate sentencing and the court sentenced petitioner to a term of 15 years to life.
The trial transcript is not contained in the record on appeal. On appeal, the parties cite to the preliminary hearing transcript or the trial court briefing for a factual summary of the case. Very briefly stated, those documents reflect that, on October 12, 2003, Stoner and Dustin went to a motel room where they met up with several men. There, Stoner and Dustin were robbed, bound, and placed in a bathroom. When they exited the bathroom, petitioner was one of five other men present in the motel room. Thereafter, Stoner, Dustin, and their captors drove to multiple locations. Petitioner was one of the drivers. Eventually, they stopped. There is some dispute in the evidence as to whether petitioner got out of the car, but Dustin, Stoner, and at least some of their captors got out. Stoner was then shot twice in the head and later died. Dustin was shot once and left for dead, but survived.
On March 18, 2019, petitioner, in propria persona, filed a petition for resentencing pursuant to section 1170.95. Therein, petitioner stated he was convicted of first degree murder under the felony-murder rule, but the conviction was set aside and he subsequently pled guilty to second degree murder because he believed he could have been convicted at trial pursuant to the felony-murder rule. He further stated he could not now be convicted of murder because he was not the actual killer, was not a major participant in the felony and/or did not act with reckless indifference to human life, did not aid and abet the murder with intent to kill, and the victim was not a peace officer in the performance of his or her duties. He further requested that counsel be appointed to represent him during the resentencing process.
On March 22, 2019, the trial court appointed counsel to represent petitioner.
On April 4, 2019, the People filed a motion to dismiss the petition on the ground Senate Bill No. 1437 (2017-2018 Reg. Sess.) is unconstitutional. On January 28, 2020, the People filed a response to the petition on the merits. The People conceded the evidence did not show petitioner was the actual killer. However, the People argued the evidence was sufficient to establish petitioner aided and abetted the murder with intent to kill, or was at least a major participant who acted with reckless indifference to human life. On June 30, 2020, petitioner filed a reply and, on July 6, 2020, a supplemental reply. Therein, petitioner argued he pled guilty to second degree murder under a felony-murder theory. He further argued there was no prior finding that he was a major participant who acted with reckless indifference, and the evidence did not support such findings. He also pointed out that the source of the facts relied on by the People in support of their arguments was unknown.
The motion was fully briefed and eventually denied.
On July 30, 2020, the People filed a supplemental opposition, arguing petitioner was ineligible for resentencing on the additional ground that he admitted acting with intent to kill because he admitted an enhancement under section 189. On September 11, 2020, petitioner filed a supplemental reply, pointing out that he pled no contest to second degree murder without premeditation and without deliberation. On September 17, 2020, the People filed a second supplemental opposition, arguing again that petitioner was a major participant who acted with reckless indifference to human life. On September 22, 2020, petitioner filed a "FOURTH SUPPLEMENTAL REPLY," arguing the relevant record was comprised only of hearsay statements contained in the preliminary hearing transcript, and thus there was no record of admissible evidence on which to conclude petitioner was ineligible for relief.
The minutes of the plea hearing state that petitioner pled no contest to second degree murder on count 1 and admitted "ALLEGATION NUMBER 3 PURSUANT TO PC 189." However, the transcript of the plea hearing reflects no such admission. Rather, petitioner specifically pled no contest to second degree murder "without premeditation and without deliberation" and all other charges and enhancements were dismissed.
On September 22, 2020, the trial court summarily denied the petition in a minute order without providing a statement of reasons.
This timely appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) "to amend the felony murder rule and the natural and probable consequences doctrine . . . 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).) The bill accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):
"A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs 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." (§ 189, subd. (e); accord, Gentile, at p. 842.)
Additionally, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672.)
Finally, the bill added section 1170.95 to provide a procedure for those convicted of a qualifying offense "to seek relief under the two ameliorative provisions above." (Gentile, at p. 843.) This procedure is available to persons convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter." (§ 1170.95, subd. (a).)
"Section 1170.95 lays out a process" for a person convicted of one of the aforementioned offenses "to seek vacatur of his or her conviction and resentencing." (Gentile, supra, 10 Cal.5th at p. 853.) First, 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, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine[;]
"(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and]
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
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 contain the required information and the information cannot be "readily ascertained" by the court, the petition may be denied without prejudice to the filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a reply. The trial court must then hold a hearing to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
If the court determines the petitioner has met his or her prima facie burden, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts." (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must "prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed," as well as the "procedural history of the case recited in any prior appellate opinion." (§ 1170.95, subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
II. The Trial Court Erred in Failing to Issue an Order to Show Cause
The basis for the trial court's denial of the petition for resentencing is unclear. However, as the People concede, the record does not establish petitioner is ineligible for resentencing as a matter of law. Accordingly, the court erred in denying the petition at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 966 [at the prima facie stage, the court may deny a petition if the petitioner is ineligible for resentencing as a matter of law].)
In the plea context, a petitioner convicted of murder is ineligible for resentencing if the record establishes, as a matter of law, that (1) the complaint, information, or indictment did not allow the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or another theory of imputed malice; (2) the petitioner was not or could not have been convicted under such theory; or (3) the petitioner could presently be convicted of murder or attempted murder under the law as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.). (See § 1170.95, subd. (a)(1)-(3).)
Here, petitioner pled no contest to second degree murder with malice aforethought. This conviction does not render petitioner categorically ineligible for resentencing. (People v. Rivera (2021) 62 Cal.App.5th 217, 232-234 (Rivera) [a conviction of second degree malice murder does not categorically bar a petition under § 1170.95].) Furthermore, although the information alleged the murder was committed with premeditation, petitioner did not admit this allegation. Instead, petitioner pled no contest to a generic charge of murder in the second degree, which did not specify or exclude any particular theory of murder. (See Rivera, at p. 233 [generically charging murder did not preclude prosecution based on any particular theory of murder]; see also People v. Eynon (2021) 68 Cal.App.5th 967, 977-978 [same].) In entering his plea, petitioner did not admit to or stipulate to any particular theory of murder. Neither the charge nor the plea excludes petitioner from resentencing eligibility as a matter of law.
We additionally note the plea involved no admission or stipulation that petitioner was a major participant in an underlying crime who acted with reckless indifference to human life. Thus, to the extent the trial court may have determined petitioner was a major participant who acted with reckless indifference to human life, it necessarily engaged in factfinding. As the People concede, the trial court may not engage in factfinding involving the weighing of the evidence at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.) While the trial court may consider the record of conviction in determining whether a petitioner has stated a prima facie case, the court may not make factual findings based on that record. (Ibid.) To the extent the court engaged in factfinding, it erred.
Finally, petitioner argues the trial court may have impermissibly relied on the preliminary hearing transcript or probation report to conclude petitioner was ineligible for relief. This issue is moot in light of the People's concession that the available record does not establish petitioner's ineligibility for relief as a matter of law. Furthermore, section 1170.95, subdivision (d)(3) has been amended since this case was before the trial court, and the amendments will govern the admissibility of evidence on remand.
In sum, petitioner adequately alleged a prima facie claim for resentencing and the record does not rebut his allegations as a matter of law. The court was required to issue an order to show cause (§ 1170.95, subd. (c)), and to hold a hearing at which the prosecution bears the burden of proving petitioner's ineligibility for resentencing beyond a reasonable doubt, unless such hearing is waived (§ 1170.95, subd. (d)). In failing to do so, the court erred. Accordingly, we must reverse and remand for further proceedings. We express no opinion on the merits of the petition.
DISPOSITION
The September 22, 2020 order denying petitioner's section 1170.95 petition is reversed. On remand, the trial court is directed to issue an order to show cause and to conduct further proceedings as required under section 1170.95, subdivision (d), in light of the principles set forth herein.
[*] Before Hill, P. J., Smith, J. and Snauffer, J.