Opinion
2d Crim. B324292
09-18-2023
THE PEOPLE, Plaintiff and Respondent, v. RAUL TISCARENO, Defendant and Appellant.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Judith L. Meyer, Judge Superior Court County of Los Angeles (Super. Ct. No. NA081091) (Los Angeles County)
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Raul Tiscareno was sentenced to life in prison without the possibility of parole after he was convicted, by jury, of second degree robbery and first degree murder with a robbery special circumstance. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 211, 12022, subd. (a)(1).) He later filed a petition for writ of habeas corpus in which he suggested that he was eligible for resentencing under section 1172.6. The trial court appointed counsel to address the resentencing request. After reviewing the jury instructions from appellant's trial and the parties' briefs, the trial court found appellant was not eligible for resentencing because his trial jury had necessarily found either that he was the actual killer or that he directly aided and abetted the murder, with the intent to kill.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends the trial court erred in denying his petition without an evidentiary hearing because the jury could also have found that he conspired with a co-defendant to commit robbery and the killing was a natural and probable consequence of the robbery. The jury was, however, instructed that it could not find the robbery special circumstance true unless it also found that appellant was either the actual killer or an aider and abettor who acted with intent to kill. (CALJIC No. 8.80.1.) Under either alternative, appellant is ineligible for resentencing as a matter of law. We affirm the order denying appellant's section 1172.6 petition.
Facts
Ginie Samayoa was found dead, sitting in the driver's seat of her car with a single gunshot in the back of her head. The car's engine was still running and it was parked in the alley behind the apartment building where she had been living. About 30 minutes before her body was discovered, neighbors saw Samayoa leave the building with appellant, Daniel Keith Martinez and Michael Bonfiglio. Another neighbor saw Samayoa get into her car with the three men.
Samayoa had been supporting herself by using a laptop computer to make fraudulent credit cards and gift cards. Bonfiglio, who met Samayoa through his girlfriend, wanted her to give him the computer and related software. She told a neighbor that she was not going to comply. After Samayoa's death, a friend told investigating officers that the computer was the only item missing from her apartment. Samayoa's cell phone showed that she received numerous calls from Bonfiglio's girlfriend on the morning of her death. Her computer was found in appellant's apartment along with other items required to create fraudulent credit and debit cards. Police recovered the murder weapon after learning that Martinez buried it in a friend's backyard.
Appellant and Martinez were tried together for robbery and first degree murder with a robbery special circumstance. The jury was instructed on deliberate and premeditated murder, felony murder with robbery as the underlying felony, and felony murder with conspiracy to commit robbery as the underlying felony. (CALJIC Nos. 8.10, 8.20, 8.21, 8.26.) It was also instructed on an aider and abettor's liability for first degree murder. (CALJIC No. 8.27.)
With respect to the special circumstance, appellant's jury was instructed in terms of CALJIC No. 8.80.1, "If you find a defendant in this case guilty of murder in the first degree, you must then determine if the following special circumstance: is true or not true: that the Murder was committed while the defendant was engaged in, or was an accomplice in the commission of, attempted commission of the following felony: Robbery in violation of Penal Code section 211 or 211.5. [¶] [¶] . . . [I]f you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true. [¶] If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree."
In addition to finding this special circumstance to be true with respect to appellant, the jury also found that a principal in the robbery was armed with a firearm. (§ 12022, subd. (a)(1).) It was not asked to determine whether appellant was armed or personally used a firearm. We affirmed appellant's and Martinez's convictions in an unpublished opinion. (People v. Tiscareno and Martinez, March 24, 2015, B250637.)
In 2021, appellant filed a petition for writ of habeas corpus in which he raised issues related to his eligibility for resentencing under section 1172.6. The Superior Court denied the writ but appointed counsel to address the section 1172.6 issues. It later reviewed the jury instructions and other court records from appellant's trial, as well as the parties' briefs addressing his eligibility for resentencing. The trial court concluded appellant had not made a prima facie case for relief and was not eligible for resentencing as a matter of law because his trial jury necessarily found that he was either the actual killer or that he acted with intent to kill.
Discussion
Appellant contends the trial court erred because his trial occurred before our Supreme Court's opinions in People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522. The jury could, therefore, have found him guilty of felony murder either as an aider and abettor or as a coconspirator of the robbery without finding that he was a "major participant" who acted with "reckless indifference to human life." (People v. Strong (2022) 13 Cal.5th 698.) We are not persuaded.
Senate No. Bill 1437 (2018-2019 Reg. Sess.) (SB 1437) amended 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).) To that end, SB 1437 amended section 188 by adding a requirement that, except as stated in section 189, subdivision (e), all principals to murder must act with express or implied malice. (§ 188, subd. (a)(3).) It amends subdivision (e) of section 189 to provide that, "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) 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 ...." (§ 189, subd. (e).)
Senate Bill No. 1437 also created section 1172.6, which establishes a procedure for a defendant convicted of felony murder or murder under a natural and probable consequences theory to petition for resentencing if the petitioner "could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189" made by SB 1437. (§ 1172.6, subd. (a)(3).) The trial court may deny a section 1172.6 petition at the prima facie stage (e.g., after appointing counsel and before holding an evidentiary hearing) where the record of conviction establishes that the petitioner is ineligible for resentencing as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 971.) This occurs where, as here, the record of conviction establishes that a petitioner was not convicted under any theory of liability affected by SB 1437. (See, e.g., People v. Farfan (2021) 71 Cal.App.5th 942, 956 [special circumstance finding includes elements required for felony murder]; People v. Medrano (2021) 68 Cal.App.5th 177, 182-183 [conviction based on intent to kill]; People v. Mancilla (2021) 67 Cal.App.5th 854, 867 [conviction based on actual malice under provocative act theory].)
Section 189, as amended by SB 1437, provides that "All murder that is . . . committed in the perpetration of . . . robbery . . . is murder of the first degree." (§ 189, subd. (a).) It further provides, "A participant in the perpetration . . . of [robbery] 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).)
As we noted above, the instruction given to appellant's jury were virtually identical to subdivisions (e)(1) and (e)(2) of section 189. Based on that instruction, appellant's jury could not have found the special circumstance true unless it found beyond a reasonable doubt that appellant was either the actual killer or that he acted with the intent to kill, whether he acted as an aider and abettor or a co-conspirator. The same finding by a jury today would render him liable for first degree murder. As a consequence, appellant is ineligible for resentencing under section 1172.6 as a matter of law. The trial court correctly denied his petition.
Appellant's jury was not instructed to consider whether appellant was a major participant in a robbery committed with reckless indifference to human life. The jury instructions at his trial contain no reference to that formulation as a basis for the special circumstance finding. Thus, the issues addressed in Strong, Banks and Clark were not raised in appellant's trial.
People v. Letner and Tobin (2010) 50 Cal.4th 99, on which appellant relies, is not to the contrary. There, our Supreme Court held it was harmless error to instruct the jury in a capital case with a modified version of CALJIC No. 8.80 that "failed to instruct the jury explicitly that, under then existing law, an aider and abettor must have had the intent that the victim be killed in order for the special circumstance allegation to be true." (Letner and Tobin, supra. at pp. 180-181.) Appellant's jury, by contrast, was explicitly instructed that it could not find the special circumstance true unless it also found that appellant was either the actual killer or that he acted with the intent to kill.
People v. Offley (2020) 48 Cal.App.5th 588, is also distinguishable. There, the petitioner was convicted of murder under the natural and probable consequences doctrine. The jury also found true a sentence enhancement allegation that he "personally and intentionally" discharged a firearm within the meaning of section 12022.53, subdivision (d). But the sentence enhancement allegation did not require a finding that the defendant act with the intent to kill. (Offley, supra, at p. 597.) It was possible that he had been convicted without a jury finding he acted with an intent to kill or with conscious disregard for life. The trial court therefore erred when it concluded, at the prima facie stage, that he was ineligible for relief under section 1172.6 as a matter of law. (Offley, at pp. 598-599.)
Here, appellant's jury was explicitly instructed that it could not find the special circumstance true unless it found appellant was the actual killer or that he acted with the intent to kill. Its true finding on the special circumstance excludes appellant from relief under section 1172.6 as a matter of law.
Conclusion
The order denying appellant's petition for relief under section 1172.6 is affirmed.
We concur: GILBERT, P. J., BALTODANO, J.