Opinion
F081879
03-24-2022
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL ROSAS AREVALO, Defendant and Appellant.
James S. Thomson, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SC036350A. Michael G. Bush, Judge.
James S. Thomson, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1988, appellant and defendant Ismael Rosas Arevalo was convicted, after a jury trial, of second degree murder and sentenced to 15 years to life.
In 2020, defendant filed a petition for resentencing pursuant to Penal Codesection 1170.95 and alleged his murder conviction was based on the felony-murder rule and/or the natural and probable consequences doctrine. The superior court denied the petition.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, his appellate counsel has filed a brief which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
The People filed this court's opinion from defendant's first appeal as an exhibit in support of its opposition to defendant's section 1170.95 petition. Defendant did not object to this exhibit and relied on this court's opinion for the factual statement in his appellate brief. The following facts are thus taken from this court's nonpublished opinion in People v. Arevalo (Mar. 13, 1990, F012633), filed as an exhibit to the People's opposition.
The victim, Juan Vega, known to his customers as "Tony," supplied narcotics to prostitutes in the Union Avenue area of Bakersfield. On December 28, 1987, he invited one of his customers, Connie Hummel, to his motel room. She was a heavy user of cocaine who financed her drug habit by prostitution. Hummel arrived at the motel room around midnight. Present were defendant (whom Hummel knew as "Frank"), a man known as "Indio," and Tony.
Hummel, Tony, and defendant used cocaine in the room. Hummel bought hers from Tony. Defendant had his own. He seemed "pretty high" and "not in a very good mood at all." Hummel noticed defendant and Tony would go in and out of the bathroom. Sometimes it was quiet; other times she could hear loud voices, speaking in Spanish, coming from the bathroom. She did not understand what the men were saying, but it did not "sound good" to her. However, outside of the bathroom, defendant kept a low, even tone; it was "spooky" to Hummel.
While in the motel room, Hummel noticed a rifle behind a pillow on the bed. She also saw the bulge of what appeared to be a gun in one of defendant's boots. The "gun" was dark and flat, attributes of an automatic. She did not see either Tony or Indio with a gun.
At one point, Hummel became frightened. Defendant had spoken of some people not being as smart as they thought. He then said, "I'm a soldier, and I'm capable of taking care of it." According to defendant, some people "needed to be killed." Defendant then suggested going to Delano. Tony and Indio agreed, and Tony asked if Hummel wanted to come along. Hummel, who was scared by this time, said, "[N]o." She then left the room; it was sometime before 5:00 a.m.
At approximately 7:00 a.m., two farm laborers found Vega's dead body on a road in the Delano area, approximately 36 miles from the motel. He had been shot six times. A forensic pathologist would later attribute the cause of death to "multiple gunshot wounds with hemorrhage." There were two fatal wounds, one in the head which lacerated the brain, and the other caused by a bullet entering the left side of the neck and traveling down into the left chest cavity. According to the pathologist, the victim was shot from behind in the spot where his body was later found. However, the doctor could not draw a conclusion about the victim's position or stance when he was shot.
The body, which was in a crouched or kneeling position, was undressed except for boxer shorts. Sheriff's deputies found Vega's clothing 200 feet away. There were no bullet holes or blood in or on the clothes. Given the position of the body, the number of bullet holes, and the victim's state of undress, it appeared, according to one experienced detective, to be an assassination type of killing.
Also located at the scene were five P.M.C. nine-millimeter Luger shell casings, four 9-millimeter full metal jacket bullets, and one Winchester Western 380-caliber automatic shell casing. During the subsequent autopsy, the pathologist removed two bullets from the body. One was nine-millimeter Luger bullet; the other was a 380-caliber bullet. Each had a full metal jacket. According to a ballistics expert, all of the nine-millimeter bullets were fired by the same weapon. A different weapon fired the 380-caliber bullets.
Sheriff's deputies searched defendant's apartment in McFarland the following day. The apartment was approximately 8 to 10 miles (a 10-minute drive) from the spot where the victim's body was discovered. Inside the apartment, authorities seized a brown paper bag containing two empty ammunition boxes and a beer carton atop a beer can. It appeared the ammunition boxes were placed in the bag after the beer can. The bag was wet on the bottom. One of the ammunition boxes was marked P.M.C. ammunition, made to military specifications, meaning the bullets had full metal jackets. The other was a 380-caliber ammunition box. Defendant's fingerprint was on the flap of the P.M.C. ammunition box.
Other items were seized from a dining room table. These included a beer can with the victim's fingerprint, a water glass with the victim's fingerprints, a water glass with defendant's fingerprints, and a tequila bottle bearing both defendant's and the victim's fingerprints.
By contrast, a search of the victim's Bakersfield motel room was unproductive. The room had already been cleaned when the authorities arrived. Sheriff's deputies were told there was nothing in the room.
Defendant was later arrested for Vega's murder.
Defense Case
In mid-December 1987, defendant quit his job as a cotton picker mechanic. He supplied an out-of-state address for mailing his check. At approximately the same time, defendant's wife took their children and moved out of the McFarland apartment. She returned to the apartment on December 27, 1987, to find it a mess. It looked to her as though someone had "trashed it." Defendant appeared at his sister's home in Houston, Texas, at approximately 3:00 p.m. on December 29th, 1987. He left after a couple of hours.
PROCEDURAL BACKGROUND
On or about May 23, 1988, an information was filed in the Superior Court of Kern County charging defendant with count 1, first degree premeditated murder of Juan Antonio Vega on or about December 29, 1987 (§ 187, subd. (a)); with enhancements for personally use of a firearm (§ 12022.5), and that a principal was armed with a firearm in the commission of the offense (§ 12022, subd. (a)).
On September 29, 1988, after a jury trial, defendant was found not guilty of first degree murder, and convicted of second degree murder as a lesser included offense. The jury found true the allegation that defendant personally used a firearm, and that a principal was armed with a firearm, in the commission of the offense.
On December 6, 1988, the court sentenced defendant to 15 years to life, plus a consecutive term of two years for the section 12022.5 enhancement, and ordered the section 12022, subdivision (a) enhancement stricken.
Defendant's First Appeal
On March 13, 1990, this court filed the nonpublished opinion that affirmed defendant's conviction and sentence. Defendant argued his conviction was not supported by substantial evidence because there was no direct evidence that he was present at the murder scene or killed the victim. We rejected this argument:
"[T]here was no direct evidence of [defendant's] involvement in the crime. However, the circumstance evidence tying him to Vega's murder was not insubstantial. Based on the cumulative effect of this evidence, a judge or jury could logically and legitimately find defendant guilty beyond a reasonable doubt.
"First, defendant was one of the last two people to be seen with the victim. During the hours immediately preceding Vega's death, defendant, while in victim's presence, appeared angry and expressed an intent to kill. At close to 5:00 a.m., he planned to travel to Delano with the victim.
"It would also appear the victim and defendant remained together after 5 a.m. The autopsy revealed the victim had a blood alcohol level of .18. The level was even higher at some relatively recent time before death. However, when Hummel left the motel room, the victim appeared 'pretty straight,' while defendant appeared drunk. The jury could have reasonably concluded the victim must have been drinking between 5 a.m. and his death. The beer can, water glass and tequila bottle all bearing his fingerprints are susceptible of an inference that he had been drinking in defendant's apartment, located about 10 minutes from the site where the victim's body was found.
"Defendant was also apparently in possession of an automatic handgun in the hours before Vega's death. There was a 'great' probability that whoever killed Vega used a handgun. Empty ammunition boxes, which had contained the same kinds of ammunition used in killing Vega, were found in defendant's apartment. Defendant's fingerprint was on the flap of one of the boxes.
"Last, there was evidence of defendant's possible flight following Vega's murder. It is curious that following a long night of cocaine use in Bakersfield, the defendant drove to Texas during the same 24-hour period, appeared at his sister's home, stayed a few hours, and then left.
"The considerable circumstantial evidence was sufficient to support defendant's conviction." (People v. Arevalo, supra, F012633).
This court also rejected defendant's challenges to the correctness of the instructions that defined malice, voluntary intoxication, and consideration of lesser included offenses; and held defense counsel was not ineffective for failing to make particular objections or request certain instructions.
SENATE BILL NOS. 1437 & 775
The instant appeal is from the denial of defendant's petition for resentencing that he filed pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), that was effective on January 1, 2019, and amended" '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.'" (People v. Lewis (2021) 11 Cal.5th 952, 959, italics added (Lewis).)
"Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability." (People v. Martinez (2019) 31 Cal.App.5th 719, 723; People v. Gentile (2020) 10 Cal.5th 830, 842.)
"In addition to substantively amending sections 188 and 189 … Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, supra, 11 Cal.5th at p. 959.)
"Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: '(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[;] [¶] [and] (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.' [Citations.] Additionally, the petition shall state '[w]hether the petitioner requests the appointment of counsel.' [Citation.] If a petition fails to comply with subdivision (b)(1), 'the court may deny the petition without prejudice to the filing of another petition.'" (Lewis, supra, 11 Cal.5th at pp. 959-960.)
"Where the petition complies with [section 1170.95, ] subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief. [Citation.] [¶] If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not … previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' [Citation.] 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' [Citation.] At the hearing stage, 'the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.'" (Lewis, supra, 11 Cal.5th at p. 960.)
Lewis
In Lewis, the court interpreted the provisions of section 1170.95 and held that petitioners "are entitled to the appointment of counsel upon the filing of a facially sufficient petition [citation] and that only after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether 'the petitioner makes a prima facie showing that he or she is entitled to relief.' [Citation.]" (Lewis, supra, 11 Cal.5th at p. 957.) Lewis held the language of section 1170.95, subdivision (c) "is mandatory: 'If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.'" (Lewis, at p. 963, italics added in original.) The court's failure to appoint counsel only constitutes state error subject to review under People v. Watson (1956) 46 Cal.2d 818. (Lewis, at p. 973.)
Lewis also held that "at the prima facie stage, a petitioner's allegations should be accepted as true, and the court should not make credibility determinations or engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, supra, 11 Cal.5th at p. 974.) When the court conducts the prima facie determination, section 1170.95, subdivision (b)(2) only permits screening out "noncomplying petitions, not petitions that lack substantive merit." (Lewis, at p. 968.)
Lewis further held that after appointing counsel, the trial court could rely on the record of conviction to determine whether the prima facie showing is made "to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) The record of conviction includes a prior appellate opinion, although it will be case-specific. (Id. at p. 972.) The prima facie finding under section 1170.95, subdivision (c) is limited, and the court must accept the petitioner's factual allegations as true and cannot reject the allegations on credibility grounds without conducting an evidentiary hearing. (Lewis, at p. 971.)" 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Ibid.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.] [T]he 'prima facie bar was intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972.)
Senate Bill No. 775
In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95, effective on January 1, 2022. (2020-2021 Reg. Sess.; Stats. 2021, ch. 551, § 1.) (Senate Bill 775).) As a result of the amendments, section 1170.95 clarified that "[a] person 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, attempted murder under the natural and probable consequences doctrine, or manslaughter," may file a petition to have that conviction vacated under certain circumstances. (§ 1170.95, subd. (a).)
The amendments also codified the holding in Lewis that a petitioner has the right to appointment of counsel, if requested, prior to the court making the prima facie finding: "Upon receiving a petition in which the information required by this subdivision is set forth …, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner." (§ 1170.95, subd. (b)(3).) After appointment of counsel, the parties shall have the opportunity to submit briefing, and "the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (Id. at subd. (c).)
If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so. (§ 1170.95, subd. (c).) If the court issues the order to show cause and conducts a hearing, the prosecution has the burden to prove beyond a reasonable doubt that petitioner is guilty of murder or attempted murder under the amended versions of sections 188 and 189. (§ 1170.95, subd. (d)(3).)
"The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court 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. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. 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." (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
DEFENDANT'S SECTION 1170.95 PETITION
On June 17, 2020, defendant filed, in pro. per., a petition for resentencing pursuant to section 1170.95, and requested appointment of counsel.
The petition was supported by defendant's declaration, signed under penalty of perjury, where he checked boxes on a preprinted form that stated he was entitled to resentencing under section 1170.95 because a complaint or information 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; at trial, he was convicted of first or second degree pursuant to the felony-murder rule or the natural and probable consequences doctrine; he could not now be convicted of first or second degree murder under the amended versions to sections 188 and 189; and he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony-murder doctrine and could not now be so convicted under the changed to section 188.
On June 26, 2020, the court dropped the matter from the calendar without comment.
On September 23, 2020, defendant, represented by the public defender's office, requested the matter be placed on calendar.
The People's Opposition
On September 30, 2020, the People filed an opposition to the petition and submitted this court's opinion as a supporting exhibit. The People explained this case predated the county's computerized system, and the physical file from defendant's case was unavailable because of flooding in the courthouse's basement.
The People asserted that based on this court's opinion that affirmed his conviction for second degree murder, defendant was not entitled to relief under section 1170.95 because he was not prosecuted under the felony-murder rule or the natural and probable consequences doctrine, and he was convicted as the actual killer.
The Court's Denial of the Petition
On October 6, 2020, the court held a hearing on defendant's petition. Defendant was not present but represented by the deputy public defender, who waived his presence. Defense counsel did not request to introduce any evidence.
The court denied the petition. "Given, quite honestly, that the opinion from the appellate Court, from the Fifth, is attached and it shows he's the actual killer, I'm just going to deny this outright. He's just simply not eligible."
On October 6, 2020, defendant filed a notice of appeal from the court's denial of his petition on that day.
DISCUSSION
As noted above, defendant's counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that defendant was advised he could file his own brief with this court. By letter on January 22, 2021, we invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
As required by Lewis and section 1170.95, defendant was represented by counsel, the court held a hearing on the petition and invited argument from both parties, and the defense failed to introduce any evidence. The superior court properly relied on this court's opinion from his first appeal to find he was the actual killer and deny the petition. (See, e.g., Lewis, supra, 11 Cal.5th at pp. 971-972.)
DISPOSITION
The judgment is affirmed.
[*] Before Hill, P. J., Levy, J. and Detjen, J.