Opinion
C092861
11-29-2021
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO ARELLANO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CR20035627)
ROBIE, J.
Defendant Ernesto Arellano appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95. Defendant argues the superior court erred in denying the petition because he made a prima facie showing that his conviction was based on a natural and probable consequences theory. He contends that the jury's findings on special-circumstance allegations do not bar relief. Finally, he contends the superior court erred in relying on the record of conviction.
Undesignated statutory references are to the Penal Code.
Because defendant's arguments are interdependent, we address them together. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, defendant was convicted of first degree murder for a gang-related shooting. (People v. Olague (Apr. 7, 2009, C053372) [nonpub. opn.].) Specifically, defendant was convicted of two counts of first degree murder and two counts of attempted murder. The jury also found true firearm allegations and gang enhancements as to each count and two special circumstances -- multiple murder and intentional gang killing.
The jury was given CALJIC No. 8.80.1, an instruction on special circumstances under section 190.2. That instruction, provided, in relevant part: "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." (CALJIC No. 8.80.1.) The jury was also instructed on the gang-murder special circumstance. (CALJIC No. 8.81.22.) In order for the jury to find that special circumstance true as to defendant, the jury had to determine beyond a reasonable doubt that "defendant intentionally killed the victim or, with the intent to kill, aided or abetted in the killing." (CALJIC No. 8.81.22.)
Following trial, defendant was sentenced to two terms of life without the possibility of parole for the two murder counts plus indeterminate and determinate terms on the remaining counts and allegations. Defendant's convictions and sentence were affirmed on direct appeal in 2009. (People v. Olague, supra, C053372.)
On January 7, 2019, defendant filed a petition for writ of habeas corpus in the superior court seeking to vacate his two first degree murder convictions under section 1170.95. The superior court treated the habeas petition as a petition for resentencing pursuant to section 1170.95 and appointed counsel for defendant. The petition asserted a "complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine." The petition asserted defendant was convicted of first degree murder following trial. The petition further asserted that following the amendments made to sections 188 and 189, he could not now be convicted of first degree murder.
The district attorney filed a responsive pleading moving to dismiss the petition on the grounds that the statute is unconstitutional and for failure to make a prima facie showing of eligibility. Defense counsel filed a reply and supplemental briefing. The parties further briefed the issue of whether defendant had made a prima facie showing for relief. Following a hearing, the superior court denied defendant relief on the ground he had not made a prima facie showing of eligibility. In denying resentencing, the court found that "the jury's finding that the special circumstances were true in this case required a finding of actual intent to kill thus making the petitioner ineligible for relief under the sentencing statute." The court also found "that there are readily ascertainable facts in the record of conviction as to each petitioner so as to refute the assertions in the declarations as a matter of law."
Defendant filed a timely notice of appeal.
DISCUSSION
I Applicable Law
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised the felony-murder rule in California "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 bill amended the definition of malice in section 188, revised the definition of the degrees of murder to address felony-murder liability in section 189, and added section 1170.95, "which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions." (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)
Section 1170.95, subdivision (a) states that a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court for resentencing "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 or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019."
Subdivision (b) requires the petitioner to submit a declaration that avers eligibility for relief under the statute (based on the requirements of subdivision (a)) and states the superior court case number, the year of conviction, and whether petitioner requests appointment of counsel. (§ 1170.95, subd. (b).) Section 1170.95, subdivision (c), which dictates how the court must handle the petition, reads: "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 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's 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."
Section 1170.95, subdivision (d)(1) provides that a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner as needed should be held within 60 days after the order to show cause; and the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. At the hearing, "[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Id., subd. (d)(3).)
II Defendant Is Not Entitled To Relief As A Matter Of Law
Defendant contends that the superior court erred by denying his petition for resentencing and failing to issue an order to show cause. According to defendant, the court erred in relying on the special-circumstance findings because the findings do not demonstrate premeditation and deliberation required for first degree murder. He concludes "the murder verdicts could only be based on natural and probable consequences liability." He further contends that the superior court erred in considering the record of conviction in finding he did not make a prima facie showing of eligibility for relief.
As a preliminary matter, our Supreme Court recently held in People v. Lewis (2021) 11 Cal.5th 952, 970-971, that it is proper for a trial court to consider the record of conviction in determining whether the petitioner has made a prima facie showing that he or she falls within the provisions of section 1170.95. 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. 971.)
Following Lewis, we conclude that the superior court properly considered the record of conviction, including instructions to the jury and the jury's verdicts, in finding that defendant failed to make a prima facie showing.
Here, the record of conviction demonstrates that defendant was ineligible for resentencing under section 1170.95 as a matter of law. In finding the multiple-murder and intentional gang-killing special circumstances true, the jury necessarily found either that defendant was the actual killer or an aider and abettor who harbored an intent to kill, findings that would make defendant guilty of murder under the amended law. (See §§ 189, subd. (e)(3), 1170.95, subd. (a).) Either finding makes defendant ineligible as a matter of law, and the jury's factual findings may not be relitigated in a section 1170.95 proceeding but must first be challenged by way of habeas corpus or another available collateral attack. (People v. Nunez (2020) 57 Cal.App.5th 78, 84-87, review granted Jan. 13, 2021, S265918.) Here, the jury found true the multiple-murder special circumstance alleged under section 190.2, subdivision (a)(3). As applied to a defendant who was not the actual killer, the multiple-murder special circumstance requires that a defendant have the intent to kill. (§ 190.2, subd. (c).) Here also, the jury found defendant guilty of two counts of first degree murder and found true an intentional killing by an active street gang member special circumstance. The jury's verdict and special-circumstance finding required that the jury conclude that, although defendant was not the actual killer, he intended the death of the victims. As the jury was instructed, it could not find the intentional killing by an active street gang member special circumstance true unless it found that defendant intended to kill the victim. (§ 190.2, subd. (a)(22).) Defendant has not identified any authority holding that would permit challenging that finding in a section 1170.95 proceeding.
Such special-circumstance findings, even under current law, would render defendant ineligible for relief as a matter of law because the jury's findings establish that defendant was a direct aider and abettor of the murder. (People v. Palacios (2020) 58 Cal.App.5th 845, 857, review granted Feb. 24, 2021, S266701 ["[D]efendant's record of conviction shows that he directly aided and abetted in the murder," rendering him ineligible for relief]; People v. Garcia (2020) 57 Cal.App.5th 100, 105, 112-113, review granted, Feb. 10, 2021, S265692 [defendant ineligible for relief where statement of facts in the appellate opinion reflected that the defendant was convicted as a direct aider and abettor of the killing].) These findings are dispositive on the issue of defendant's eligibility for resentencing. The jury concluded that appellant personally harbored an intent to kill (express malice) in both murder counts. Because defendant harbored an intent to kill, he would be liable for murder even under the changes to the law of murder wrought by Senate Bill No. 1437. (See People v. Gentile (2020) 10 Cal.5th 830, 847 ["the Legislature intended to restrict culpability for murder outside the felony-murder rule to persons who personally possess malice aforethought"].)
Attempting to avoid this result, defendant claims the jury's true finding on the gang special circumstance does not bar resentencing because that finding does not demonstrate premeditation and deliberation required for first degree murder. Defendant contends: "[A] finding of intent to kill does not find the premeditation and deliberation that is necessary to make the killing first degree murder. The true findings on the gang murder special circumstance show only that the jurors found that [defendant] intended [to] kill, not that he premeditated and deliberated. Thus, the murder verdicts could only be based on natural and probable consequences liability." He is mistaken. Nothing in Senate Bill No. 1437 changed the law regarding premeditation or deliberation. Nor did the bill trigger any right to resentencing based on the lack of premeditation or a jury's failure to find premeditation and deliberation. Instead, the Legislature chose the relevant inquiry for resentencing to be the existence of a finding of intent to kill. Since, as we have discussed, the jury in this case found defendant harbored an intent to kill in both the special-circumstance findings, the lack of a finding of premeditation and deliberation is irrelevant to the issue of eligibility for resentencing. Eligibility for resentencing turns on the jury's finding that he harbored an intent to kill. That finding establishes, as a matter of law, that defendant could still be convicted of first or second degree murder under the new law. (§ 1170.95, subd. (a)(3).) Defendant's jury determined, beyond a reasonable doubt, that he harbored express malice. And express malice murder remains a viable theory of murder liability following Senate Bill No. 1437. (People v. Gentile, supra, 10 Cal.5th at p. 846.)
Defendant further argues that instructional errors rendered any premeditation and deliberation finding against him to be error. While defendant attempts to conflate the language of CALJIC No. 8.80.1 with another instruction on premeditation, CALJIC No. 8.20, defendant has cited no authority to support his argument that findings of premeditation or deliberation (or the lack thereof) are relevant to the issue of eligibility for resentencing under section 1170.95. CALJIC No. 8.80.1 clearly states: "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." Similarly, in order to find the jury found the intentional gang-killing special circumstance true as to defendant, it had to determine beyond a reasonable doubt that "defendant intentionally killed the victim or, with the intent to kill, aided or abetted in the killing." (CALJIC No. 8.81.22.) Thus, the jury necessarily found that defendant harbored an intent to kill. Any error in the premeditation finding is irrelevant, and section 1170.95 is not the proper vehicle to demonstrate that some fact finding error occurred at trial. "Nothing in the language of section 1170.95 suggests it was intended to provide redress for allegedly erroneous prior factfinding." (People v. Allison (2020) 55 Cal.App.5th 449, 461.)
For the foregoing reasons, we conclude the trial court did not err in denying the petition.
DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
We concur: Raye, P. J., Hoch, J.