Opinion
B299600
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. OMAR MIRELES, Defendant and Appellant.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael C. Keller, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA289903) APPEAL from an order of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Affirmed. Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2006, Omar Mireles was convicted of first degree murder for the gang-related shooting death of Kevin Rosas. He was not the shooter and was tried and convicted solely on the theory that he was a direct aider and abettor. He now appeals the trial court's denial of his petition for resentencing pursuant to Penal Code section 1170.95, a provision added by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437). Mireles's conviction was not affected by SB 1437, so the trial court correctly concluded he was not eligible for relief. We affirm.
Undesignated statutory citations refer to the Penal Code.
BACKGROUND
Mireles and a co-defendant were charged with murder and attempted murder after a gang-related shooting that left Rosas dead. Mireles assaulted the victim, but was not the shooter. Mireles and his co-defendant were tried separately. At a first trial in Mireles's case, the jury was instructed on the natural and probable consequences theory of aiding and abetting first degree murder. The jury deadlocked, and the court declared a mistrial.
On retrial, the prosecution proceeded solely on a theory of direct aiding and abetting. The jury was only instructed on that theory and was not instructed on natural and probable consequences or felony murder. The jury found Mireles guilty of first degree murder and found gang and firearm enhancements true.
We affirmed the judgment. (People v. Mireles (B193180, Mar. 5, 2008) [nonpub. opn.]) We rejected Mireles's sole argument that the trial court erred by admitting a video recording of a commercial program showing Mireles and his co-defendant discussing gang territory and the use of violence to safeguard it. We found the video relevant because it was "direct evidence that appellant possessed the intent necessary to render him an aider-abetter and principal to the murder." (People v. Mireles, supra, B193180.) We also noted the video showed "direct contact between appellant and [his co-defendant], in the course of [his co-defendant]'s threatening to do what he did do in the present instance. This was evidence of appellant's knowledge of [his co-defendant]'s unlawful purpose." (Ibid.)
Mireles filed a petition for resentencing on January 22, 2019, contending he could not be convicted of murder in light of the changes made by SB 1437. The Los Angeles District Attorney's office filed an opposition, which Mireles says was not served on him. The trial court had trouble locating the file from Mireles's case, and ultimately the file was only "partially reconstructed for the purpose of responding to this petition." According to Mireles, the reconstructed file consisted of a probation officer's report, a printout of court minutes from trial, and the opposition to his section 1170.95 petition. The District Attorney's office took the facts from our prior appellate opinion and argued the record of conviction showed Mireles was convicted solely on a theory of directly aiding and abetting premeditated murder. It also argued SB 1437 was unconstitutional in various respects.
The court did not appoint counsel for Mireles and summarily denied the petition. Taking the facts mostly from our prior opinion, the court found Mireles "clearly acted with an intent to kill and was a major participant who acted with reckless indifference to human life in Rosas's unprovoked senseless murder." The court also agreed with the District Attorney's office that SB 1437 was unconstitutional.
DISCUSSION
Effective January 1, 2019, SB 1437 addressed "certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending sections 188 and 189" and by adding "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. (Stats. 2018, ch. 1015, §§ 2-4.)" (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723 (Martinez).) In short, SB 1437 "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).)" (Martinez, at p. 723.)
This change "did not, however, 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.' [Citations.] One who directly aids and abets another who commits a murder is thus liable for murder under the new law just as he or she was liable under the old law." (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), rev. granted, Mar. 18, 2020, S260598; see People v. Gentile (2020) 10 Cal.5th 830, 848 (Gentile) [SB 1437 "does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought."].)
Section 1170.95 creates a multi-step procedure for a defendant to petition for resentencing pursuant to SB 1437. A defendant may petition for resentencing if he or she was "convicted of felony murder or murder under a natural and probable consequences theory" and the following conditions are met: "(1) A charging document 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 or second degree murder following trial or an accepted plea; and (3) The petitioner could 'not be convicted of first or second degree murder because of changes to Section[s] 188 or 189' made by Senate Bill No. 1436. (§ 1170.95, subd. (a).) [¶] Under section 1170.95, subdivision (b), the petition must include: a declaration from the petitioner that he or she is eligible for relief under the statute, the superior court's case number and year of conviction, and a statement as to whether the petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1).) If any of the required information is missing and cannot 'readily [be] ascertained by the court, the court may deny the petition without prejudice to the filing of another petition.' (§ 1170.95, subd. (b)(2).)" (Lewis, supra, 43 Cal.App.5th at pp. 1135-1136.)
Section 1170.95, subdivision (c) sets forth the procedure once the defendant files a complete petition: "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 petition. 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. 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."
Should the court issue an order to show cause, it must hold a hearing to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d).) If the court vacates the murder conviction, the court must resentence the defendant on the remaining counts, or if no target offense was charged, "the petitioner's [murder] conviction shall be redesignated as the target offense or underlying felony for resentencing purposes." (§ 1170.95, subds. (d)(3) & (e); see Lewis, supra, 43 Cal.App.5th at pp. 1136-1137.)
Largely ignoring the record of conviction that conclusively shows neither natural and probable consequences nor felony murder played any part in his conviction, Mireles advances four reasons why the trial court erred in denying his petition: (1) the court erred and violated his constitutional due process rights by not appointing him counsel, issuing an order to show cause, and holding a hearing; (2) the court improperly relied on our prior opinion in his direct appeal to deny relief without reviewing the full record of conviction; (3) the court violated his equal protection rights by refusing to apply SB 1437 to his case; and (4) section 1170.95 is unconstitutional. We reject each of his claims.
Any Alleged Procedural Errors Were Harmless Because Mireles Was Not Entitled to Resentencing
We follow the cases interpreting section 1170.95, subdivision (c) to permit a trial court to summarily deny a petition without appointing counsel when the defendant fails to make a prima facie showing of eligibility for resentencing. (People v. Falcon (2020) 57 Cal.App.5th 272, 275-276, rev. granted, Jan. 27, 2021, S266041 [citing cases].) In doing so, the court may consider the record of conviction, including the jury instructions from the petitioner's trial. (Ibid.; People v. Soto (2020) 51 Cal.App.5th 1043, 1055 (Soto), rev. granted, Sept. 23, 2020, S263969; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, rev. granted, July 22, 2020, S262835 ["For example, if the jury was not instructed on a natural and probable consequences or felony murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law because relief is restricted to persons convicted under one of those two theories."].)
We have taken judicial notice of the full record of conviction in Mireles's trial, including the jury instructions given at his retrial. Plus, Mireles conceded in his appellate briefs he was tried as a direct aider and abettor. These instructions made absolutely clear he was tried only as a direct aider and abettor. Natural and probable consequences and felony murder played no part in his conviction. Because the jury necessarily found he harbored malice when it convicted him as a direct aider and abettor, he was not entitled to resentencing as a matter of law. (Lewis, supra, 43 Cal.App.5th at p. 1137 ["Because one can be convicted of murder even after the amendments if he or she directly aided and abetted the perpetrator of the murder, defendant was required to make a prima facie showing that he was not such a direct aider and abettor."]; see Soto, supra, 51 Cal.App.5th at p. 1055 [jury instructions showed as matter of law defendant could not make prima facie showing under section 1170.95].)
Because Mireles was not entitled to relief, he suffered no prejudice under any standard from the trial court's failure to appoint counsel or hold a hearing, or from the court's reliance on our prior opinion without considering other documents in the record of conviction. (People v. Daniel (2020) 57 Cal.App.5th 666, 676 (Daniel), rev. granted, Feb. 21, 2021, S226366 ["[A] defendant . . . whose petition is denied before an order to show cause issues has the burden of showing 'it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.' "]; see People v. Edwards (2020) 48 Cal.App.5th 666, 675, rev. granted, July 8, 2020, S262481 [finding failure to appoint counsel, obtain briefing, or hold a hearing on section 1170.95 petition harmless under any standard].) We reject Mireles's suggestion that these alleged errors are not susceptible to harmless error analysis. (Daniel, supra, at p. 675 ["[T]he failure to appoint counsel upon the filing of a facially sufficient petition under section 1170.95 is susceptible to review for prejudice. [Citation.] And harmlessness is established if the record 'conclusively demonstrate[s] that [the petitioner] was ineligible for relief as a matter of law.' "].)
The trial court denied Mireles's petition because he acted with the intent to kill and because he "was a major participant who acted with reckless indifference to human life" in Rosas's murder. Mireles devotes almost 20 pages of his lengthy opening brief to arguing the trial court improperly applied the major participant/reckless indifference standard by relying on our prior appellate opinion, which was issued before the decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. His argument is beside the point. The major participant/reckless indifference standard applies to felony murder, which was not part of Mireles's case. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, fn. 9, rev. granted, Nov. 13, 2019, S258175.) We may affirm on any ground presented in the record. (People v. Financial Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 386.) The trial court properly denied his petition because the jury found he was a direct aider and abettor who acted with malice.
In his reply brief, Mireles argues the failure to appoint counsel was prejudicial because counsel would have raised his equal protection argument in the trial court. As we will explain in the text, this contention lacks merit, so raising it in the trial court would not have avoided denial of his petition.
Mireles's Equal Protection Claim Fails
Recognizing his conviction as a direct aider and abettor disqualified him from resentencing, Mireles contends section 1170.95 violated his state and federal equal protection rights because he was similarly situated to a gang defendant convicted as an aider and abettor based on the natural and probable consequences doctrine, who is entitled to resentencing pursuant to section 1170.95. His theory is this: Natural and probable consequences gang cases eliminated by SB 1437 are similar to direct aider and abettor gang cases "where, in the absence of evidence to support a finding of aiding and abetting, an expert testifies to gang practices, offers the opinion that the defendant is a gang member, and concludes that the defendant acted according to the gang's rules and with the mental state required to find the defendant aided and abetted the killer." In Mireles's view, both types of aiders and abettors lack the mental state for murder but SB 1437 benefits only one class and not the other.
"The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law should receive like treatment. [Citation.] ' "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citations.] The initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged." ' " (People v. Morales (2016) 63 Cal.4th 399, 408.)
As a direct aider and abettor, Mireles was not similarly situated to a defendant convicted of murder based on the natural and probable consequences doctrine. The jury in Mireles's case found he was a direct aider and abettor who acted with malice and with premeditation and deliberation or by lying in wait. (Gentile, supra, 10 Cal.5th at p. 844 ["[W]hen a person directly aids and abets a murder, the aider and abettor must possess malice aforethought."].) Until recently, a jury could convict a defendant of first degree murder based on natural and probable consequences without finding the defendant possessed malice aforethought. (Id. at p. 845 ["[W]hen a person aided and abetted a nonhomicide crime that then resulted in a murder, the natural and probable consequences doctrine allowed him or her to be convicted of murder without personally possessing malice aforethought. So long as the direct perpetrator possessed malice, and the killing was the natural and probable consequences of the crime the defendant aided and abetted, it did not matter whether the defendant intended to kill or acted with conscious disregard for human life."].)
In passing SB 1437, the Legislature "stated a need for 'statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.' (Stats. 2018, ch. 1015, § 1, subd. (b).) Accordingly, the Legislature found it 'necessary 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.' (Id., § 1, subd. (f).) Critically, the Legislature said that with the exception of the felony murder rule, '[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea.' (Id., § 1, subd. (g), italics added.) These findings, like the text of the statute, clearly indicate that the Legislature intended to restrict culpability for murder outside the felony-murder rule to persons who personally possess malice aforethought." (Gentile, supra, 10 Cal.5th at pp. 846-847.)
The jury's finding that Mireles possessed malice aforethought as a direct aider and abettor sets him apart from defendants who are convicted of murder without a finding of malice, the class of persons the Legislature sought to benefit through SB 1437. (Cf. People v. Cervantes (2020) 44 Cal.App.5th 884, 888 ["Normally 'offenders who commit different crimes are not similarly situated' for equal protection purposes."].) A defendant like Mireles is not the target of SB 1437, and he is not similarly situated to those who are. (Cf. People v. Johnson (2020) 57 Cal.App.5th 257, 270-271 (Johnson) ["Johnson is also not similarly situated to persons convicted of felony murder or murder under the natural and probable consequences doctrine because '[u]like [these murders], "[a] murder conviction under the provocative act doctrine . . . requires proof that the defendant personally harbored the mental state of malice . . . ." ' "].)
At base, Mireles's complaint is that insufficient evidence supported the jury's finding as to his intent because, in his view, the jury inferred his intent solely based on the gang expert's opinion. Whether or not accurate, he should have raised that sufficiency-of-evidence claim in his direct appeal more than a decade ago. Section 1170.95 was not intended to allow a direct aider and abettor to attack a jury's finding that he possessed malice aforethought in a long-final murder conviction. (See § 1170.95, subd. (a) [creating petitioning procedure for "[a] person convicted of felony murder or murder under a natural and probable consequences theory"].) The Legislature did not run afoul of equal protection by excluding direct aider and abettors like Mireles from section 1170.95.
We Need Not Address the Constitutionality of Section 1170 .95
Having concluded Mireles was not entitled to resentencing, we need not address the trial court's alternative finding that section 1170.95 is unconstitutional. (See Johnson, supra, 57 Cal.App.5th at p. 261 [declining to consider constitutional arguments because defendant was not entitled to resentencing].) We do note our agreement with the overwhelming view that section 1170.95 does not violated Propositions 7 and 115; does not violate Marcy's Law; and does not violate the separation of powers. (See, e.g., People v. Lippert (2020) 53 Cal.App.5th 304, 313-314 [noting cases rejecting constitutionality challenges to SB 1437].)
DISPOSITION
The order is affirmed.
BIGELOW, P. J. We Concur:
STRATTON, J.
WILEY, J.