Opinion
H049009
07-21-2023
THE PEOPLE, Plaintiff and Respondent, v. DANNY TEVAGA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 203458)
Before Greenwood, P. J., Grover, J. and Lie, J.
Defendant Danny Tevaga appeals an order denying his petition for resentencing under former Penal Code section 1170.95. For the reasons set forth below, we reverse the trial court's order and remand with directions to issue an order to show cause and conduct further proceedings under section 1172.6.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no changes to the text. (Stats. 2022, ch. 58, § 10.)
The facts of the offense are not relevant to the analysis and disposition of the appeal and therefore we have omitted them.
In December 1999, a Santa Clara County jury found Tevaga guilty of first degree murder (§ 187). The jury also found true a robbery-murder special circumstance allegation (§ 190.2, subd. (a)(17)) and a gang allegation (§§ 186.22, subds. (b)(1) & (b)(4)). Tevaga was sentenced to 25 years to life. This court affirmed the judgment in 2003. (People v. Lelei (Sept. 26, 2003, H021125) [nonpub. opn.].)
By separate order in this case, we granted Tevaga's request to take judicial notice of our records in his direct appeal (case No. H021125).
In March 2019, Tevaga filed a pro per petition for resentencing under former section 1170.95. Tevaga checked boxes declaring that an indictment had been filed against him that allowed the prosecution to proceed under a felony murder or natural and probable consequences theory and that he could not now be convicted of murder because of changes to section 188 and 189 that became effective on January 1, 2019. The trial court appointed counsel. Counsel moved to withdraw the pro per petition and file a hybrid petition for writ of habeas corpus and resentencing under former section 1170.95. In December 2019, pursuant to the trial court's order, Tevaga filed separate petitions for writ of habeas corpus and to vacate the murder conviction.
On February 24, 2021, the court denied both petitions in one order. The court denied the habeas petition based on its finding that there was sufficient evidence in the record to conclude that Tevaga was a major participant in the robbery who acted with reckless indifference under the standard announced in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The court then ruled that because it had upheld the felony-murder special circumstance finding, Tevaga was ineligible as a matter of law for resentencing under former section 1170.95. On this basis, the court concluded Tevaga had not made a prima facie case that he was eligible for resentencing, and it denied the section 1172.6 petition.
Tevaga timely appealed the trial court's denial of his resentencing petition.
On April 26, 2021, Tevaga filed a petition for writ of habeas corpus in this court (case No. H049040). On June 23, 2022, we ordered case No. H049040 to be considered together with the instant case. We have disposed of the habeas petition in case No. H049040 by separate order.
II. Discussion
Tevaga argues that under People v. Strong (2022) 13 Cal.5th 698 (Strong), the trial court's order summarily denying the resentencing petition should be reversed and the matter remanded to superior court for further proceedings. The Attorney General correctly concedes this argument.
In Strong, the California Supreme Court held that a felony-murder special circumstance finding made prior to its decisions in Banks and Clark does not categorically preclude a defendant from making a prima facie showing of eligibility for relief under section 1172.6. (Strong, supra, 13 Cal.5th at p. 720.) "Section 1172.6 offers resentencing for petitioners who have not been determined beyond a reasonable doubt to have the degree of culpability now required for a murder, attempted murder, or manslaughter conviction. Neither the jury's pre-Banks and Clark findings nor a court's later sufficiency of the evidence review amounts to the determination section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise adequate prima facie showing and deny issuance of an order to show cause." (Ibid.)
The prima facie inquiry under section 1172.6, subdivision (c) is "limited." (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) The court' "takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved."' (Ibid.) Although the court may rely on the record of conviction in determining whether defendant has made a prima facie showing, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972; see also Strong, supra, 13 Cal.5th at p. 720 [rejecting an "after-the-fact court review of a preBanks and Clark record" at the prima facie showing stage because such a determination would entail prohibited factfinding].)
In the present case, the jury's December 1999 felony-murder special circumstance finding occurred before the California Supreme Court's rulings in Banks and Clark in 2015 and 2016. Hence, the 1999 finding did not preclude Tevaga from making a prima facie showing in support of a section 1172.6 petition. (Strong, supra, 13 Cal.5th at p. 721.) Nor is the trial court's evaluation of the facts conducted on habeas review a proper basis for denying an order to show cause. (Id. at pp. 719-720.) Consequently, the trial court erred in denying Tevaga's petition on the basis of the 1999 felony-murder special circumstance finding and its evaluation of the facts.
Furthermore, Tevaga's petition alleged the facts necessary for relief under section 1172.6 (§ 1172.6, subds. (a)-(c)) and nothing in the record demonstrates that he is ineligible for relief as a matter of law. Because Tevaga's petition made a prima facie showing of entitlement to relief (see Lewis, supra, 11 Cal.5th at pp. 970-972; see also Strong, supra, 13 Cal.5th at p. 720), we will remand the matter to the trial court with directions to issue an order to show cause and hold further proceedings under section 1172.6.
Tevaga has filed a motion asking this court to stay the present appeal and the habeas proceeding, and to order a limited remand so that the superior court can consider the merits of his resentencing petition. The Attorney General has filed an opposition to the motion. The motion is denied.
III. Disposition
The trial court's February 24, 2021 order is reversed, and the matter is remanded with directions to issue an order to show cause and conduct further proceedings in accordance with Penal Code section 1172.6.