Opinion
E074388
03-05-2021
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALBERT MARTIN, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Butler, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF135704) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Butler, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In 2011, defendant and appellant Robert Albert Martin was convicted of second degree murder. This court affirmed the conviction in 2013. In 2019, defendant filed a petition to vacate his murder conviction and obtain resentencing pursuant to Penal Code section 1170.95, which was enacted by the Legislature through its passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). The trial court denied the petition without holding an evidentiary hearing.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues the trial court, in denying his section 1170.95 petition, erred in considering this court's prior opinion and finding it conclusively established his ineligibility for relief. We find no error and affirm the trial court's order denying defendant relief under section 1170.95.
II
FACTUAL AND PROCEDURAL BACKGROUND
The undisputed factual background is taken from this court's nonpublished opinion in case No. E055372 affirming defendant's conviction and sentence. (People v. Martin (Oct. 21, 2013, E055372) [nonpub. opn.] (Martin I).)
A. Prosecution's Evidence
On March 25, 2007, defendant and his friends went to a restaurant in Corona. Also present was the victim, Joel Wright, along with his family and friends. One of defendant's friends recognized Wright and indicated that Wright had previously "jumped" their "slow friend." Defendant, who was drinking with his friend, became "bothered" after hearing about Wright "jumping" his friend, and he began staring and "maddogging" Wright and staring at the people he was with. Wright stood up and said, "'What are you looking at'" and shouted "'Norco.'" Defendant walked over to Wright's table and "chaos" erupted. (Martin I, supra, E055372, at pp. 2-3.)
Defendant swung what appeared to be three or four fist blows toward Wright's chest and abdominal area. One of the blows caused Wright to "just stop[]," as if "the wind got knocked out of him." While being removed from the restaurant, defendant removed his shirt, threw gang signs and shouted "'Now what. Now what.'" Defendant got in a car, yelling "'Crown Town'" and "'CVLS.'" One witness identified a shirtless man who, while running in the parking lot, tripped and fell. When the man fell, he dropped a silver object that sounded like metal when it hit the ground. The police found a knife blade with blood on it in the parking lot. (Martin I, supra, E055372, at p. 3.)
Once inside the fleeing car, defendant began hitting the dashboard, laughing and screaming that he "stabbed that guy." Defendant exclaimed, "'I got him, I killed him. I knocked him out.'" During the drive, defendant was "[s]creaming, laughing hysterically," repeating, "'I got him. Knocked him out. I killed him. I fucked him up.'" When defendant arrived at the home of one of his friends, he ran through the house, after which a bladeless knife handle was found on the floor. (Martin I, supra, E055372, at p. 3.)
Wright died from stab wounds to his chest. (Martin I, supra, E055372, at p. 3.)
Detective Daniel Dunnigan of the Corona Police Department processed the crime scene. He saw the knife blade in the parking lot and the blood-stained, multi-tool corkscrew (corkscrew). Forensic technician Ralph Morales collected the items. After photographing them as found, Morales separately collected, packaged, and transported them back to the Corona Police Department where he locked them in a secure storage locker located in the laboratory. Sergeant Henderson collected the knife handle from the home, put it into an evidence envelope, and gave it to Officer Robert Montanez. (Martin I, supra, E055372, at pp. 3-4.)
On April 12, 2007, Daniel Verdugo, a forensic technician with the Corona Police Department, transported the knife blade, knife handle, corkscrew, and a sample of Wright's blood from the Corona Police Department property and evidence room to the local office of the California Department of Justice (DOJ) laboratory for forensic testing and analysis. DOJ analyst David Wu determined that the knife blade, knife handle, and corkscrew all tested positive for blood. Wu swabbed the items and sent the swabs up to the Richmond office of the DOJ for DNA analysis. DOJ senior criminalist, Jonathan Schell, testified that Wright's DNA was found on the corkscrew and knife blade, and defendant's DNA was found on the knife blade and knife handle. Verdugo testified that the knife handle matched the knife blade found in the parking lot of the restaurant. (Martin I, supra, E055372, at p. 4.)
Defendant admitted that his chest tattoo, "CT," stood for "Crown Town" and Corona. He said that "Crown Town" represents the neighborhood where he grew up in Corona and the people he associated with. He "earned" this tattoo by "put[ting] in some work around the neighborhood." Defendant said he "jumped into" the gang when he was 12, and he "need[ed] to be respected." (Martin I, supra, E055372, at p. 4.)
B. The Defense
Forensic pathologist Frank Sheridan opined the knife blade found in the parking lot could not have physically caused Wright's fatal wound because the blade was not long enough. Dr. Sheridan agreed, however, that Wright had been stabbed to death. Defense gang expert Randal Hecht opined that defendant was not a "CVL" gang member because CVL is a Hispanic gang and gangs are race segregated. (Martin I, supra, E055372, at p. 5.)
Regina Meyer, property administrator for the Corona Police Department, testified that in general, once evidence is submitted to her, the chain of custody begins. She stated that chain of custody begins when an item is logged into the police property computer. In the instant case, Morales did not enter the seized items of evidence into the computer until April 4, 2007. Meyer testified that if anyone wished to know where that evidence was between March 25 and April 4, 2007, he or she would have to ask Morales. Meyer testified that police department personnel who collect evidence should computer log that evidence into property records, "as soon as possible." (Martin I, supra, E055372, at p. 5.)
C. Procedural Background
Defendant was charged with second degree murder (§ 187, subd. (a)) and convicted of murdering Wright by stabbing him with a two and three-quarter-inch pocketknife during a fight. (Martin I, supra, E055372, at pp. 2, 5.) The jury also convicted defendant of active participation in a criminal street gang (§ 186.22, subd. (a)). The jury further found true the allegations that defendant committed the murder to benefit his gang, within the meaning of section 186.22, subdivision (b), and that he personally used a deadly and dangerous weapon, within the meaning of former section 12022, subdivision (b)(1), and section 1192.7, subdivision (c)(23). He was sentenced to 15 years to life, plus a consecutive one year in state prison. (Martin I, supra, E055372, at p. 2.)
Defendant subsequently appealed, and this court affirmed the judgment and sentence with directions to the trial court to correct defendant's presentence custody credits in a nonpublished opinion filed on October 21, 2013. (Martin I, supra, E055372, at pp. 1-2, 5-17.)
On January 1, 2019, Senate Bill 1437 became effective, which amended the felony-murder rule and the natural and probable consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 also added section 1170.95, which allows those "convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . ." (§ 1170.95, subd. (a).)
On August 28, 2019, defendant in propria persona filed a petition for resentencing pursuant to section 1170.95, requesting that his second degree murder conviction be vacated based on changes to sections 188 and 189, as amended by Senate Bill 1437, and asking to be resentenced. The People moved to strike the petition based on the unconstitutionality of Senate Bill 1437 and resulting statutes. The People also asserted the court should "summarily deny the petition because a review of readily available records contained in the court's judicial access database, including the appellate opinion addressing the judgment, demonstrates petitioner was the actual killer."
On December 13, 2019, the trial court denied the petition. Prior to denying the petition, the prosecutor informed the court that "[a]ccording to the appellate opinion in this case, the petitioner is the actual killer. It was a single-defendant case. According to the opinion, he stabbed the victim." When the trial court turned to appointed counsel, he replied "I have no reason to disagree with what [the prosecutor] just said, and I would just object for the record."
Defendant timely appealed from the court's order denying his section 1170.95 petition.
III
DISCUSSION
Defendant contends the trial court, in denying his section 1170.95 petition for resentencing, erred in relying on this court's prior opinion at the prima facie stage of the petition process because that information could only be considered at the hearing stage. He also claims that the court erred in determining this court's prior opinion conclusively established his ineligibility for relief. Defendant requests that denial of his petition be reversed and the matter remanded for further proceedings.
A. Senate Bill 1437 and Section 1170 .95
On September 30, 2018, the Governor signed Senate Bill 1437. "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)
By amending sections 188 (defining malice) and 189 (defining the degrees of murder), Senate Bill 1437 changed "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); see Martinez, supra, 31 Cal.App.5th at pp. 722-723.)
Senate Bill 1437 did not "alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator.'" (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted Mar. 18, 2020, S260598.) Accordingly, "[o]ne who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law." (Ibid.)
Under California Rules of Court, rule 8.1115, we may rely on appellate cases while review is pending as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.) --------
Senate Bill 1437 also added section 1170.95. That section provides that "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts." (§ 1170.95, subd. (a).) A petition may be filed when the following three conditions are met: "(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. [¶] (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, subd. (a)(1)-(3); see Martinez, supra, 31 Cal.App.5th at p. 723.)
Courts of Appeal have interpreted section 1170.95 to provide for multiple reviews of a petition by the trial court. (People v. Tarkington (2020) 49 Cal.App.5th 892, 897-898 (Tarkington), review granted Aug. 12, 2020, S263219; People v. Cornelius (2020) 44 Cal.App.5th 54, 57-58 (Cornelius), review granted Mar. 18, 2020, S260410; People v. Verdugo (2020) 44 Cal.App.5th 320, 326-328 (Verdugo), review granted Mar. 18. 2020, S260493; People v. Drayton (2020) 47 Cal.App.5th 965, 974-975 (Drayton).) Subdivision (b) of section 1170.95 describes an initial review to determine the facial sufficiency of the petition. (Verdugo, at pp. 327-328.) To be facially sufficient, the petition must contain the petitioner's declaration that the petitioner is eligible for relief according to the criteria in subdivision (a), the case number and year of conviction, and whether the petitioner is requesting appointment of counsel. (§ 1170.95, subd. (b)(1).) If the petition is missing any of this information "and cannot be readily ascertained by the court, the court may deny the petition without prejudice." (§ 1170.95, subd. (b)(2).) This initial review amounts essentially to a ministerial review to ensure that the right boxes are checked.
Section 1170.95, subdivision (c), then describes the next two levels of review and sets forth the trial court's obligations upon the submission of a complete petition. It provides, "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor['s] response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
The first sentence in section 1170.95, subdivision (c), refers to a prebriefing, initial prima facie review to preliminarily determine a petitioner's statutory eligibility for relief as a matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review, the trial court determines, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief. (Id. at pp. 329-330.) The court may review the complaint, the information or indictment, the verdict form or the documentation for a negotiated plea, and the abstract of judgment. (Ibid.) A Court of Appeal opinion is part of the defendant's record of conviction (id. at p. 333; Lewis, supra, 43 Cal.App.5th at pp. 1137-1138 [in determining the sufficiency of a section 1170.95 petition, the court may review the record of conviction, which includes the opinion in a defendant's direct appeal]; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080-1081 [same]), as are jury instructions. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020, S263939.) If these documents reveal ineligibility for relief, the trial court can dismiss the petition. (Verdugo, at p. 330.)
Courts of Appeal, including this court, have rejected the argument that a trial court is limited to the allegations in the petition when determining whether the petitioner has stated a prima facie claim for relief under section 1170.95. The Courts of Appeal concluded that a trial court can consider the defendant's record of conviction, including documents in the court's own file and the appellate opinion resolving the defendant's direct appeal, in determining eligibility. (Lewis, supra, 43 Cal.App.5th at pp. 1137-1138; Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v. Law (2020) 48 Cal.App.5th 811, 820-821 (Law), review granted July 8, 2020, S262490.) Relying on Lewis and Verdugo, we held that when determining whether a petitioner has stated a prima facie claim for relief under section 1170.95, the trial court is not limited to the allegations in the petition. Rather, the court may consider the entire record of conviction and subsequent appellate opinion. (Law, at pp. 820-821 [trial court did not err by looking to the record of conviction, the opinion in the defendant's direct appeal, and the jury instructions from his trial in evaluating his petition].)
But, if the record of conviction does not establish as a matter of law the petitioner's ineligibility for resentencing, evaluation of the petition proceeds to the second prima facie review, in which "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." (Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial court must accept as true the petitioner's factual allegations and make a preliminary assessment regarding whether the petitioner would be entitled to relief if the factual allegations were proved. (Id. at p. 328.)
Once the order to show cause issues, the court 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. (§ 1170.95, subd. (d)(1).) At such a hearing, both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) "[T]he 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); Martinez, supra, 31 Cal.App.5th at pp. 723-724.)
B. Standard of Review
We review de novo questions of statutory construction. (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041; (Drayton, supra, 47 Cal.App.5th at p. 981.) "Our primary task 'in interpreting a statute is to determine the Legislature's intent, giving effect to the law's purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent.'" (California Building Industry Assn. v. State Water Resources Control Bd., at p. 1041.)
C. Analysis
Defendant contends that his petition was denied at the third step of section 1170.95, subdivision (c), and that the trial court's appointment of counsel showed that it found a prima facie case under the first part of section 1170.95, subdivision (c), thereby triggering his entitlement to the evidentiary hearing described in subdivision (d). He acknowledges, however, that several appellate courts have published decisions that disagree with his interpretation of subdivision (c), concluding that a trial court may consider the record of conviction in evaluating the petitioner's prima facie showing. (See, e.g., Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at p. 323.)
In Lewis, supra, 43 Cal.App.5th 1128, the Court of Appeal explained: "Allowing the trial court to consider its file and the record of conviction is . . . sound policy. As a respected commentator has explained: 'It would be a gross misuse of judicial resources to require the issuance of an order to show cause or even appointment of counsel based solely on the allegations of the petition, which frequently are erroneous, when even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief. For example, if the petition contains sufficient summary allegations that would entitle the petitioner to relief, but a review of the court file shows the petitioner was convicted of murder without instruction or argument based on the felony murder rule or [the natural and probable consequences doctrine], . . . it would be entirely appropriate to summarily deny the petition based on petitioner's failure to establish even a prima facie basis of eligibility for resentencing.' (Couzens et al., Sentencing Cal. Crimes [The Rutter Group 2019] ¶ 23:51(H)(1), pp. 23-150 to 23-151.) We agree with this view and, accordingly, conclude that the court did not err by considering our opinion in defendant's direct appeal in evaluating his petition." (Lewis, at p. 1138; accord, Law, supra, 48 Cal.App.5th at pp. 820-821.) We will adhere to Lewis and our opinion in Law, pending guidance from our Supreme Court.
Although the trial court appointed counsel for defendant prior to summarily denying his petition, appointment of counsel does not suggest a defendant is entitled to an evidentiary hearing. Defendant's attempts to distinguish Lewis and Verdugo on this point and other grounds are unavailing. He asserts that, unlike in this case, "[t]he prior opinions in those cases supported the respective trial court's findings that no prima facie case existed because the theory under which the defendants were convicted was at issue and resolved in the appeal." However, the prior opinion from defendant's direct appeal demonstrates defendant is ineligible for relief as a matter of law because he was the actual killer.
The trial court's order does not specifically identify the materials on which it relied for its conclusion that defendant was ineligible for relief because he was the actual killer. Defendant assumes the trial court relied on the prior appellate opinion—a reasonable assumption. Where the prior appellate opinion conclusively demonstrates that the defendant was convicted on a theory which would render the defendant ineligible for relief under section 1170.95, the petition is properly denied at the eligibility stage. (Tarkington, supra, 49 Cal.App.5th at p. 899 [the defendant was actual killer]; Cornelius, supra, 44 Cal.App.5th at pp. 56, 58 [the defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), and, as the actual killer, was ineligible for 1170.95 relief].)
Defendant also argues that unlike in Lewis and Verdugo, the prior opinion from his direct appeal "did not rebut" his prima facie case because "the theory under which [he] was convicted of murder was not at issue on appeal" and "[i]t was not part of a discrete claim" where a prejudice analyses "might have figured." He further contends that "[n]o one could look at the prior opinion here and say, as it was said in Lewis, that the basis of [his] conviction 'has been litigated and finally decided against' [him]." But, defendant never argues that his conviction was based on anything other than actual-killer culpability. No facts suggest he might have been convicted as an aider and abettor. The defense's theory at trial was who was the lone killer—defendant or someone else, and whether the knife could have caused the fatal wound. (See Martin I, supra, E055372, at pp. 2-17.) There was no suggestion that defendant had been working together with another member of his party or that defendant aided and abetted anyone else. Thus, the dispute at trial was the identity of the lone killer and whether the knife was capable of inflicting the fatal stab wound. The jury resolved that issue against defendant.
While Senate Bill 1437 modified the law of murder in some cases of vicarious liability, it made no modifications to the law of murder for the actual perpetrator. Section 1170.95 does not provide a basis for reconsidering the guilt of defendants indisputably convicted on the basis that they were the actual killer. Because the prior opinion from defendant's direct appeal shows he was convicted of murder as an actual killer, defendant is not entitled to relief under section 1170.95 as a matter of law. The trial court therefore did not err in denying his petition for resentencing without issuing an order to show cause and holding an evidentiary hearing.
IV
DISPOSITION
The trial court's postjudgment order denying defendant's section 1170.95 resentencing petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.