Opinion
F085349
10-11-2023
THE PEOPLE, Plaintiff and Respondent, v. ROSE MARIE ACAJABON, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Erin R. Doering, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 12CM0820-003. Randy L. Edwards, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Erin R. Doering, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Petitioner Rose Marie Acajabon petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on her conviction for second degree murder. The trial court held an evidentiary hearing (§ 1172.6, subd. (d)) and denied the petition after finding petitioner was a direct aider and abettor in the murder.
Undesignated statutory references are to the Penal Code. Former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.
On appeal, petitioner asks us to construe section 1172.6, subdivision (d) to require the trial court, at the evidentiary hearing, to make a factual finding that the prior jury verdict was not based on a now-invalid theory of murder. She argues failure to make such a finding violates her jury trial rights under the Sixth Amendment to the United States Constitution.
We reject petitioner's arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This court previously summarized the facts underlying petitioner's offense as follows:
We provide these background facts because they were cited by petitioner. We do not rely on this factual summary to resolve the issues on appeal. (See § 1172.6, subd. (d)(3).)
"On March 5, 2012, Acajabon drove Jason Reyes and Donald Simpson into Hanford from Alameda County. Upon arriving in Hanford, the group met up with Reyes's daughter, [M.R.], and the four spent the afternoon smoking marijuana and consuming methamphetamine. Although [M.R.] had previously met Simpson, this was her first contact with Acajabon, whom her father referred to as 'wifey.' Later in the afternoon, after purchasing a train ticket back to Alameda for Simpson, the four stopped for food at a local [fast-food restaurant] drive-through. At approximately 5:15 p.m., while the group was parked outside of the [fast-food] restaurant, Reyes stated that he had been thinking about 'what he wanted to do' to a man named Armando Ramirez who lived in Hanford and had previously been convicted of molesting [M.R.]. Ramirez ended up serving nine years in prison for the offense. Still in the parking lot, Reyes informed the group that he had thought a lot about what Ramirez had done to [M.R.] and that he wanted to 'get that fool' or '[w]e are going [to] get that fool.'
"After leaving the [restaurant]'s parking lot, Acajabon stopped at a red light, and [M.R.] noticed that Ramirez was a passenger in an adjacent car. Acajabon and [M.R.] were in the front seats with Simpson and [Reyes] in the rear. As the car containing Ramirez made a left-hand turn into a nearby [store], Reyes pulled out a handgun and told Acajabon to turn into the [store] as well. Being in the incorrect lane to make a left-hand turn, Acajabon drove her car over the divider to reach the [store's] parking lot and then maneuvered her car into a parking spot facing the exit. Reyes exited the vehicle, approached Ramirez, and fatally shot him.
"Afterwards, Reyes climbed back into Acajabon's car and she drove away from the scene, back to [M.R.]'s apartment complex. Upon arriving at the complex, Acajabon, Reyes, and [M.R.] switched cars, and Simpson disappeared. Acajabon, Reyes, and [M.R.] spent the evening at a local drug house, and, at some point during the night, Acajabon and Reyes left Hanford. The two were later apprehended by police in Ventura[.]" (People v. Acajabon (Mar. 20, 2015, F067381) [nonpub. opn.], fn. omitted.)
In 2013, a jury found petitioner guilty of the second degree murder of Ramirez. (§ 187, subd. (a).) For this offense, she was sentenced to a term of 15 years to life. On appeal, we affirmed. (People v. Acajabon, supra, F067381.) In 2019, petitioner filed a petition seeking resentencing pursuant to section 1172.6.
The trial court denied the petition at the prima facie stage on the ground petitioner was prosecuted and convicted as a direct aider and abettor, and therefore was ineligible for resentencing. On appeal, we determined the trial court erred in denying the petition without issuing an order to show cause and holding an evidentiary hearing. We reversed and remanded with directions. (People v. Acajabon (Oct. 26, 2021, F081440) [nonpub. opn.].)
On remand, the trial court issued an order to show cause and ordered further briefing. (§ 1172.6, subd. (c).) The People filed an opposition to petitioner's petition for resentencing, which included portions of the record from petitioner's trial. Petitioner filed a reply.
The trial court held an evidentiary hearing on the petition on July 27, 2022. The court accepted the parties' joint stipulations as to certain facts of the case. The court also took judicial notice of the transcripts from petitioner's jury trial. The People presented no live testimony. Reyes and petitioner both testified on petitioner's behalf at the evidentiary hearing. Briefly stated, both Reyes and petitioner testified that Reyes put a gun to petitioner's head and forced her to drive into the parking lot where Reyes shot Ramirez. Petitioner testified that Reyes then pointed the gun at her and told her to flee the scene. At the close of the evidentiary hearing, the court ordered the parties to submit written post-hearing briefs.
After the parties submitted their post-hearing briefs, the parties appeared on October 17, 2022, for the court's ruling. The court found beyond a reasonable doubt that petitioner directly aided and abetted the murder. The court noted that petitioner's jury "may have possibly based its guilty verdict on a natural and probable consequence theory," but that the basis for the jury's verdict was "not the issue presently before the court." The court determined that the testimony presented at the evidentiary hearing by petitioner and Reyes was "wholly uncredible and self-serving." The court stated that petitioner's explanations for her participation in the offense "do not stand up to scrutiny." Thus, the court gave no weight to this testimony in determining whether the People had met their burden of proving petitioner guilty of murder beyond a reasonable doubt. The court found petitioner knew Reyes intended to commit the murder, intended to aid and abet the commission of that crime, and did aid and abet the commission of the murder by driving Reyes into the parking lot where Ramirez was killed. Accordingly, the court denied the petition.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) "to amend 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); accord, People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) The bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The bill amended the felony-murder rule by providing that a participant in a qualifying felony is liable for murder only if the victim was a peace officer in the performance of his or her duties, or the defendant was the actual killer, aided and abetted the actual killer in the commission of first degree murder with the intent to kill, or was a major participant in the felony and acted with reckless indifference to human life. (§ 189, subds. (e), (f); accord, Strong, at p. 708.)
Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, Gentile, supra, 10 Cal.5th at p. 853.) Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c); accord, Strong, supra, 13 Cal.5th at p. 708.) If the trial court determines the petitioner has made such a showing, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts." (Gentile, at p. 853; accord, § 1172.6, subds. (c), (d)(1).)
At this evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) Significantly, "[a] finding that there is substantial evidence to support a conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid.) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed," as well as the "procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3).)
We review the trial court's findings following the evidentiary hearing for substantial evidence, and the application of those facts to the statute de novo. (People v. Cooper (2022) 77 Cal.App.5th 393, 412.)
II. Analysis
Petitioner contends the order denying the petition must be reversed because the trial court did not find that the jury's verdict was not based on an invalid natural and probable consequences theory. Petitioner concedes no such finding is expressly required by section 1172.6, subdivision (d). However, she contends such finding is necessary to "protect and vindicate" her Sixth Amendment right to jury trial.
Petitioner's argument begins with the language of section 1172.6, subdivision (d)(3), and specifically the following two sentences: (1) "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019"; and (2) "A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Italics added.) Petitioner contends these two sentences are "unclear" and in conflict. Petitioner argues (1) the statute does not define what it means to be "ineligible" for resentencing, (2) proof beyond a reasonable doubt is equivalent to substantial evidence of guilt, and (3) the juxtaposition of these two sentences means that "substantial evidence" is "something other than proof beyond a reasonable doubt."
We discern no conflict or lack of clarity. Indeed, this language is particularly clear when viewed against the backdrop of former section 1170.95. Former section 1170.95, subdivision (d)(3) originally provided, "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Former § 1170.95, subd. (d)(3); see Stats. 2018, ch. 1015, § 4.) Appellate courts initially reached differing conclusions regarding the meaning of this provision as it related to the prosecutor's burden of proof and the court's role in that determination. (See People v. Garrison (2021) 73 Cal.App.5th 735, 745.) A majority of courts concluded the trial court was to act as an independent factfinder and the prosecution bore the burden of proving beyond a reasonable doubt that the petitioner was guilty of murder under a valid theory. (See, e.g., People v. Fortman (May 13, 2021, B304567) opn. ordered nonpub. Dec. 22, 2021, S269228; People v. Clements (Feb. 4, 2021, E073965) opn. ordered nonpub. Dec. 22, 2021, S267624; People v. Rodriguez (Dec. 7, 2020, B303099) opn. ordered nonpub. Dec. 22, 2021, S266652; People v. Lopez (Oct. 30, 2020, H047254) opn. ordered nonpub. Dec. 22, 2021, S265974.) However, in People v. Duke (Sept. 28, 2020, B300430) opinion ordered nonpublished November 23, 2021, S265309, the court held the prosecution was merely required to prove "beyond a reasonable doubt that the defendant could still have been convicted of murder under the new law" (italics omitted), which the court characterized as "essentially identical to the standard of substantial evidence." Accordingly, the Duke court considered whether substantial evidence would have supported a jury finding that the petitioner was guilty of murder under a valid theory.
Subsequently, Senate Bill No. 775 (2021-2022 Reg. Sess.) amended former section 1170.95, subdivision (d)(3) to clarify that the prosecution's burden of proof at the evidentiary hearing is "to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." The Legislature explained that this amendment "reaffirm[ed] that the proper burden of proof at a resentencing hearing under this section is proof beyond a reasonable doubt." (Stats. 2021, ch. 551, § 1(c).) Contrary to the holding in People v. Duke, supra, B300430, section 1172.6, subdivision (d)(3) now expressly provides: "A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." In other words, the court does not consider whether substantial evidence supports the jury's verdict under a valid theory of murder. Rather, section 1172.6, subdivision (d)(3) requires "the trial court, acting as an independent factfinder, to determine beyond a reasonable doubt whether defendant is guilty of murder under a valid theory of murder." (People v. Garrison, supra, 73 Cal.App.5th at p. 745.) As an independent finder of fact, the court is not required to determine the theory relied on by a prior jury. (People v. Basler (2022) 80 Cal.App.5th 46, 61 (Basler) [rejecting argument that People were required to prove, beyond a reasonable doubt," 'that the jury found that the [petitioner] was the actual killer or acted with the intent to kill if the [petitioner] was convicted of first degree murder as a direct aider and abettor.' "].)
Nonetheless, petitioner argues that "[p]ermitting the trial court to make a guilty finding following a [section 1172.6,] subdivision (d)(3) hearing, without requiring it to also make a factual finding that the original verdict was not based on a discarded theory of liability for murder, would strip [petitioner] of her Sixth Amendment right to have the jury determine credibility and apply that determination to the viable theories of liability for murder." Petitioner is incorrect. Section 1172.6 is a legislative "act of lenity that does not implicate [a petitioner's] Sixth Amendment rights." (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.) The retroactive relief afforded by section 1172.6 "is not subject to Sixth Amendment analysis." (Ibid.) Thus, the Sixth Amendment does not prohibit a trial court from determining that a petitioner is ineligible for resentencing based on facts not previously found by a jury beyond a reasonable doubt. (Basler, supra, 80 Cal.App.5th at pp. 61-62; accord, People v. James (2021) 63 Cal.App.5th 604, 609 ["No constitutional provision required the Legislature to authorize relief under the conditions specified in section [1172.6] and none compels it to make the conditions subject to jury determination."]; cf. People v. Perez (2018) 4 Cal.5th 1055, 1063-1064 [reaching the same holding with regard to resentencing pursuant to Prop. 36, the Three Strikes Reform Act of 2012].) This is because "a factual finding that results in resentencing ineligibility does not increase the petitioner's sentence; it simply leaves the original sentence intact." (Perez, at p. 1064; see James, at p. 611.)
In sum, section 1172.6, subdivision (d)(3) required the trial court to act as an independent factfinder in determining whether petitioner is guilty of murder under a valid theory. The statute does not require the court to find that petitioner's jury necessarily found her guilty under a valid theory. Nor does the Sixth Amendment apply to require such a finding. As a result, petitioner's arguments necessarily fail.
DISPOSITION
The order is affirmed.
[*] Before Levy, Acting P. J., Pena, J. and Smith, J.