Opinion
C091206
08-16-2021
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MEDINA, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 08F03645
Duarte, J.
Defendant Anthony Medina appeals from the trial court's order denying his propria persona petition for resentencing brought pursuant to Penal Code section 1170.95. Defendant argues the trial court erred in relying on a special circumstance finding to conclude no prima facie showing had been made. We disagree and affirm the order.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's Convictions
In 2011, following a trial in a case against defendant involving two separate incidents, the jury found defendant guilty of two counts of attempted first degree murder related to the first incident (§§ 664, 187, subd. (a)) with enhancements for discharging a firearm and causing great bodily injury, and one count of shooting at an occupied vehicle (§ 246) with the same two enhancements. (People v. Medina (2016) 245 Cal.App.4th 778, 786 (Medina 1).) The jury also found defendant guilty of unlawful possession of a firearm (former § 12021, subd. (a)). (Medina 1, at p. 786.) As to the events of the second incident, the jury found defendant guilty of first degree murder (§ 187, subd. (a)) and found the attempted robbery special circumstance true (§ 190.2, subd. (a)(17)(A)). (Medina 1, at p. 786.) The jury also found defendant guilty of attempted robbery. (Ibid.)
In our opinion on direct appeal, we summarized the two incidents resulting in these convictions as follows: In the first, defendant “was driving down Florin Road, with defendants Brandon Morton and David Whitehead in the backseat, and fired a gun at a black Lexus, hitting its two occupants. [Defendant] was convicted of two counts of attempted murder and shooting into an occupied vehicle. In the second incident, Morton believed he had been ‘shorted' several grams of methamphetamine in a drug sale. Morton, with [defendant] and Whitehead, met with the woman who had made the sale. She was accompanied by her boyfriend, Jason Fletcher, and another man. Morton shot and killed Fletcher. All three defendants were convicted of first degree murder with a robbery special circumstance and attempted robbery.” (Medina 1, supra, 245 Cal.App.4th at p. 781.)
In its charge to the jury at the conclusion of the parties' presentations, the trial court included CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990-Felony Murder (Pen. Code, § 190.2(d))), which told the jury that if it found defendant was not the actual killer, in order to prove the special circumstance true: “[T]the People must prove either that the defendant intended to kill, or the People must prove all of the following:
“1. The defendant's participation in the crime began before or during the killing;
“2. The defendant was a major participant in the crime;
“AND
“3. When the defendant participated in the crime, he/she acted with reckless indifference to human life.”
The trial court sentenced defendant to a term of 64 years to life, to be followed by a term of life without the possibility of parole. (Medina 1, supra, 245 Cal.App.4th at p. 786.) On March 17, 2016, we upheld these convictions on appeal, but modified the judgment to impose and stay defendant's sentences for attempted robbery and shooting at an occupied vehicle pursuant to section 654, which were not imposed in the trial court. (Medina 1, at pp. 786, 793.)
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019, was enacted “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).) The legislation accomplished this by amending sections 188 and 189 and adding section 1170.95 to the Penal Code.
Section 188, which defines malice, now provides in part: “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.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) Section 189, subdivision (e) now limits the circumstances under which a person may be convicted of felony murder: “A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [defining first degree murder] 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.” (Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 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 when all of the following conditions apply: [¶] (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.... [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
As relevant here, once a complete petition is filed, “[t]he 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 response is served.... 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).)
Defendant's Petition for Resentencing
On March 6, 2019, defendant filed a form petition in propria persona requesting resentencing under section 1170.95. On the form, defendant declared he had been convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine. Defendant further declared he was not the actual killer and had not acted “with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree.” Finally, defendant declared he “was not a major participant in the felony or... did not act with reckless indifference to human life during the course of the crime or felony.” The People responded that defendant failed to make a prima facie case that he was eligible for relief because the special circumstance, found true, described that defendant was the actual killer, intended to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life. The trial court appointed counsel and defendant, through counsel, filed a reply brief.
The trial court denied defendant's petition in a November 22, 2019 order without hearing in a written decision that determined defendant was ineligible for resentencing. In denying defendant's petition, the trial court made the following findings: “Both parties now having exercised their opportunities to respond and reply, the court has now examined the court's underlying file for Case No. 08F03645 and finds defendant [] ineligible for [§] 1170.95 relief from his first degree murder conviction and ineligible for such relief from his two attempted murder convictions on an equal protection theory. [¶] Specifically, a jury unanimously found beyond a reasonable doubt that defendant [] is guilty of the first degree murder of victim J.F., and found true an attaching attempted-robbery-murder special circumstance with regard to that murder. A jury also found beyond a reasonable doubt that defendant [] is guilty of the attempted murders of victims M.R. and A.G., and found true with regard to both of these a penalty allegation based on the attempted murders having been willful, deliberate, and premeditated.” The court further observed that the jury was instructed with CALCRIM No. 703 “on the special circumstances, and that if defendant [] was not the actual killer, the People had the burden of proving beyond a reasonable doubt that he acted with either the intent to kill or with reckless indifference to human life and was a major participant in crime.” The court further reasoned: “In light of the jury verdicts and the jury instructions given in Case No. 08F03645, it is clear that the jury necessarily found that defendant [] either was the actual killer, acted with intent to kill, or was a major participant in the underlying attempted robbery, with regard to the first degree murder of victim J.F. It is also clear that the jury necessarily found that defendant acted with intent to kill with regard to the attempted murders of victims M.R. and A.G. [¶] The Third District Court of Appeal, in its opinion on the appeal of this case affirming the judgment on appeal, which is partially published with respect to the issue of the sufficiency of the evidence of the attempted-robbery special circumstance with regard to the J.F. homicide (People v. Medina (2016) 245 Cal.App.4th 778 [opn. on grt. & transf. to reconsider in light of People v. Banks (2015) 61 Cal.4th 788]), rejected the Banks-based challenge to the special circumstance.”
Although the trial court's observation that this court upheld the special circumstance finding after considering Banks was correct, defendant points out that we issued our decision before our Supreme Court decided People v. Clark (2016) 63 Cal.4th 522. Since defendant argues that these two cases must be taken together and applied to the special circumstance at issue here in order to properly evaluate its continued validity, our prior consideration of the special circumstance in light of Banks does not foreclose further examination of the question of continued validity under the Banks/Clark cases if the proper procedure is invoked.
Defendant timely appealed. The case was fully briefed in July 2020; it was assigned to this panel on June 14, 2021.
DISCUSSION
Defendant contends that he established a prima facie case for relief, and the trial court erred in relying on the record of conviction, including the jury instructions and verdicts, in reaching its decision. Defendant specifically argues the court erred in determining the special circumstance finding conclusively established his ineligibility for resentencing because the jury necessarily concluded that he was either the actual killer, a major participant, or acted with reckless indifference. He posits that because the definitions of “major participant” and “reckless indifference to human life” were clarified by our Supreme Court after the jury made its findings in People v. Banks, supra, 61 Cal.4th 788 and People v. Clark, supra, 63 Cal.4th 522, the special circumstance findings from his trial are potentially invalid. Relying on People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres), defendant asserts Banks and Clark require further litigation of his case to determine his eligibility for relief.
The Attorney General responds that Torres was wrongly decided, and although Banks and Clark enabled defendants to file new habeas petitions attacking their special circumstance convictions, “section 1170.95 does not provide defendants with a generalized collateral attack on their convictions.” Rather, a defendant must first seek habeas relief on a special circumstance conviction and, if successful, can then proceed through the section 1170.95 process.
As a preliminary matter, in an effort to preclude the trial court's reliance on the jury's special circumstance finding, defendant urges that section 1170.95 does not permit a review of the record during the prima facie determination under subdivision (c). Our Supreme Court recently held that the trial court may consider the record of conviction in determining whether the petitioner has made a prima facie showing that they fall within the provisions of section 1170.95 in People v. Lewis (July 26, 2021, S260598) ___ Cal.5th ___ [2021 Cal. Lexis 5258 at pp. *29-*32] (Lewis). The Supreme Court reasoned: “The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process.” (Lewis, at p. __ [2021 Cal. Lexis 5258 at p. *30].)Following Lewis, we conclude that the trial court properly considered the record of conviction, including instructions to the jury and the jury's verdicts, in concluding that defendant failed to make a prima facie showing. Defendant fails to demonstrate error.
We next discuss the trial court's reliance on the jury's special circumstance finding. While briefing in this case was ongoing, the Fourth Appellate District, Division One in People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020, S264033, and the Second Appellate District, Division One in People v. Galvan (2020) 52 Cal.App.5th 1134, review granted October 14, 2020, S264284 (Galvan), issued opinions supportive of the Attorney General's position. (See People v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978.) More recently, Division Five of the Second Appellate District, in People v. York (2020) 54 Cal.App.5th 250, review granted November 18, 2020, S264954 (York), followed Torres and criticized Galvan. (See People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020 S262835.) The Second Appellate District, Division One then issued People v. Allison (2020) 55 Cal.App.5th 449, review denied December 23, 2020 (Allison) in direct response to York. The Fourth Appellate District, Division Two, then followed Allison in People v. Jones (2020) 56 Cal.App.5th 474, review granted January 27, 2021, S265854, as did the Second Appellate District, Division Two in People v. Nunez (2020) 57 Cal.App.5th 78, review granted January 13, 2021, S265918.
Although certain of those cases also concern the appropriate stage in the section 1170.95 proceedings for appointment of counsel, an issue recently decided by our Supreme Court in Lewis, supra, ___ Cal.5th at pp. ___, ___ [2021 Cal. Lexis 5258 at pp. *32-*34], this case does not. Here, the trial court appointed counsel for defendant, and the issue is solely whether defendant was able to challenge the continued viability of the jury's special circumstance findings in a petition brought pursuant to section 1170.95. We find Galvan and Allison more persuasive than the cases to the contrary.
Our Supreme Court's decisions in Banks and Clark clarified “what it means for an aiding and abetting defendant to be a ‘major participant' in an underlying felony and to act with ‘reckless indifference to human life,' [and] construed section 190.2, subdivision (d) in a significantly different, and narrower manner than courts had previously construed the statute.” (Torres, supra, 46 Cal.App.5th at p. 1179, review granted; see Galvan, supra, 52 Cal.App.5th at p. 1141, review granted.) In Galvan, the appellate court acknowledged these changes to section 190.2, subdivision (d) and considered whether a defendant could relitigate his special circumstance conviction using section 1170.95. (Galvan, at p. 1141.) There, as here, the defendant was convicted of first degree murder with a special circumstance finding under section 190.2, subdivision (a)(17), made before Banks and Clark were decided. (Galvan, at pp. 1138-1139.) On appeal, the defendant, like defendant here, argued that Banks and Clark had altered the meaning of “major participant” and “reckless indifference to human life” such that he was entitled to reconsideration of the conviction under section 1170.95. (Galvan, at p. 1137.)
The Galvan court first considered the relevant statutory language: “In order to be eligible for resentencing, a defendant must show that he or she ‘could not be convicted of first or second degree murder because of changes to Section[s] 188 or 189 made effective' as part of Senate Bill No. 1437.” (Galvan, supra, 52 Cal.App.5th at p. 1142, italics added, review granted; § 1170.95, subd. (a)(3).) The court concluded that as to Galvan the requirement was not met, because “[a]lthough [the defendant] is asserting that he could not now be convicted of murder, the alleged inability to obtain such a conviction is not ‘because of changes' made by Senate Bill No. 1437, but because of the clarification of the requirements for the special circumstance finding in Banks and Clark. Nothing about those requirements changed as a result of Senate Bill No. 1437. Just as was the case before that law went into effect, the special circumstance applies to defendants who were major participants in an underlying felony and acted with reckless indifference to human life. If [the defendant] is entitled to relief based on Banks and Clark, the avenue for such relief is not section 1170.95, but a petition for writ of habeas corpus.” (Galvan, at p. 1142.)
Defendant urges us to follow Torres, supra, 46 Cal.App.5th 1168, review granted, which also addressed the denial of a section 1170.95 petition based on the changes made by Banks and Clark. The Torres court concluded the summary denial of the defendant's petition based on the pre-Banks/Clark special circumstance finding raised the “possibility that [the defendant] was punished for conduct that is not prohibited by section 190.2 as currently understood, in violation of [the defendant's] constitutional right to due process” and, as relevant here, reversed and remanded. (Torres, at p. 1180.)
Torres had already sought habeas relief, claiming the special circumstance finding was no longer valid; his petition for relief had been denied. (Torres, supra, 46 Cal.App.5th at p. 1180, fn. 4, review granted.) The appellate court considered whether that habeas petition precluded the section 1170.95 petition but did not opine on whether habeas relief was more appropriate in light of section 1170.95's statutory language.
In York, supra, 54 Cal.App.5th 250, review granted, the appellate court did consider whether a habeas petition was a preferable route to relief. (Id. at pp. 258-259.) The York court reviewed the language of section 1170.95, subdivision (d)(2), which provides a streamlined path to relief under section 1170.95 if a defendant has “ ‘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.' ” (York, at p. 260.) Because the statute does not include a counterpart to this subdivision accounting for a situation where there is a prior finding that a petitioner did act with reckless indifference to human life and was a major participant in the underlying felony, the court reasoned such a finding should not preclude a petitioner from relief. (York, at pp. 260-261.) The court concluded Galvan was incorrect when it found the defendant there could only avail himself of relief “because of” Banks and Clark, rather than Senate Bill No. 1437. Absent Senate Bill No. 1437, a successful Banks and Clark challenge would invalidate only the special circumstance finding, whereas a successful section 1170.95 petition would invalidate the murder conviction. (York, at p. 261.)
The Allison court addressed York after ordering briefing on the precise issue here: “Whether the trial court properly relied on [the defendant's] admission of felony-murder special circumstances (§ 190.2, subd. (a)(17)) as the sole basis for finding that he had not made a prima facie showing that he was entitled to relief.” (Allison, supra, 55 Cal.App.5th at p. 456.) The Allison court first emphasized that section 1170.95 requires a prima facie showing by petitioner that he “ ‘could not be convicted of... murder because of changes to Section 188 or 189 made' in Senate Bill No. 1437.” (Allison, at p. 456.) It noted that the requirements for a finding of felony murder under the newly amended version of section 189 were identical to the requirements of the felony-murder special circumstance that had been in effect at the time of the challenged murder conviction (in the Allison's case, 1997; in the instant case, 2014). (Allison, at p. 456.) Thus, the special circumstance finding showed “as a matter of law that Allison could still be convicted of felony murder even under the newly amended version of section 189” and precluded a prima facie showing of eligibility. (Id. at p. 457.)
The Allison court disagreed with the argument to the contrary embraced by York, that because no court had examined whether there was a factual basis for the special circumstance finding since Banks and Clark were decided, the finding was insufficient to show ineligibility as a matter of law. (Allison, supra, 55 Cal.App.5th at p. 457.) We agree with the Allison court that Banks and Clark did not change the law, but merely clarified the same principles that existed earlier. (See ibid; see also In re Miller (2017) 14 Cal.App.5th 960, 978.) As the Allison court noted, the pattern jury instructions remain the same; Banks and Clark merely resulted in the addition of optional language thereto. (Allison, at p. 457.)
We further observe that the language in section 1170.95, subdivision (d)(2) anticipates, rather than precludes, the possibility of habeas relief before a section 1170.95 petition because one way to obtain a “prior finding” that meets the subdivision's requirements is via habeas. (In re Ramirez (2019) 32 Cal.App.5th 384, 406.) If a defendant has successfully obtained such relief, the trial court must provide the petitioner access to section 1170.95 relief. Nothing precludes relief under section 1170.95; the language simply presumes a petitioner will pursue alternative relief first.
Finally, we disagree that reliance on a special circumstance finding to determine that a defendant cannot make a prima facie case for resentencing as a matter of law requires the trial court to make “a separate determination concerning the validity of the special circumstance.” (York, supra, 54 Cal.App.5th at p. 262, review granted.) Such reliance on the jury finding requires only a simple review of the record to determine whether the factfinder found the special circumstance to be true and what that finding entailed. Such a review of prior proceedings is fully contemplated by section 1170.95, subdivision (c) (People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review granted March 18, 2020, S260493) and is grounded in sound policy. As our Supreme Court observed, the purpose of section 1170.95 is “to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process.” (Lewis, supra, ___ Cal.5th at p. ___ [2021 Cal. Lexis 5258 at p. *30].)
For all of these reasons, the trial court did not err when it denied defendant's petition.
DISPOSITION
The trial court's order is affirmed.
We concur: Robie, Acting P. J. Mauro, J.