Opinion
C089482
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. CLEMENTE SANCHEZ CARBAJAL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STK-CR-FE-2005-0011082 & SF098561A)
In 2007, a jury found defendant Clemente Sanchez Carbajal guilty of the second degree murder of Salvador Vasquez Bautista, and found that he personally used a knife in the commission of the offense; the jury rejected his argument that he killed the victim by stabbing him in the head in self-defense. We affirmed the judgment in defendant's previous appeal of his conviction. (People v. Carbajal (Sept. 18, 2009, C058114) [nonpub. opn.].) While serving his 16 years to life sentence, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, §§ 1-4), which amended the law governing murder liability under felony murder and natural and probable consequences theories and provided a new procedure under Penal Code section 1170.95 for eligible defendants to petition for recall and resentencing.
Undesignated statutory references are to the Penal Code.
Defendant filed a section 1170.95 petition but the trial court denied it before appointing counsel or receiving briefing. According to the court, defendant failed to make a prima facie showing under section 1170.95 because the record of conviction showed he was the actual killer.
Defendant appeals, arguing the trial court prejudicially erred and violated his federal constitutional rights to due process and the assistance of counsel by summarily denying his petition for resentencing without appointing counsel and receiving additional briefing from the parties. Finding no merit to his contentions, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
To facilitate our review of the court's order denying defendant's section 1170.95 petition, we incorporate facts and proceedings from our unpublished opinion affirming defendant's conviction.
Our unpublished opinion is part of defendant's record of conviction and may be properly considered in making the eligibility determination. (See People v. Verdugo (2020) 44 Cal.App.5th 320, 333, rev. granted Mar. 18, 2020, S260493 (Verdugo), citing People v. Woodell (1998) 17 Cal.4th 448, 456.)
According to our unpublished opinion, about 20 to 25 people attended a party in December 2005. An argument between the hostess and her boyfriend prompted the victim, his wife, and a third person to decide to leave the party. As they attempted to leave, their truck backed into defendant's car. Defendant, his brother, and three of his friends, beat on the passenger side of the truck. The victim either got out or was pulled from the truck. Defendant's group began to beat the victim.
A party guest attempted to interpose herself between the victim and his attackers. Defendant reached over her and stabbed the victim in the head, penetrating the full length of the knife into the victim's brain and killing him. The victim dropped to the ground. The victim had not shouted or swung at anyone at any point, and did not display any weapon. Subdural blood retrieved from the victim's skull indicated a blood-alcohol level of 0.11 percent at the time of the stabbing.
When asked, defendant did not explain why he had hit the victim. Defendant, his brother, and the others drove off in defendant's car.
On his arrest, defendant had three cuts on the palm of his right hand and red stains on the right collar of his jacket. The pathologist believed the wounds on defendant's hand were caused by his hand slipping off the handle and down onto the knife blade, since they were jagged like the upper portion of the blade and radiated out from one point. Defensive wounds would have straight edges, be deeper, and have more variable placement. In his opinion, the wounds were more likely to be the result of someone stabbing a hard object like a car's hood. The knife, which the police had retrieved from a neighbor's yard, had the blood of both the victim and defendant on it. The knife's tip was broken off. The autopsy, however, had not revealed any metal fragments in the victim's skull.
Defendant testified that he was standing and watching the argument between the hostess and her boyfriend when he heard the sound of one car hitting another. Walking over to the driveway, he saw that a red truck had backed into his car. He said that he merely knocked on the window to discuss the damage to his car. The victim quickly emerged from the truck and knocked defendant to the ground with the door, then began to kick him.
Defendant retreated while the victim was swinging at him. As defendant backed up, he felt trapped against the wall of the garage with no way out. He then noticed the victim was holding something that appeared to be shining in the light, and he warned the victim that he also had a knife, but the victim seemed to get only angrier.
Pulling a knife out of his pocket, defendant swung wildly at the victim but was aware only that he stabbed the victim somewhere in the face. He was not trying to kill the victim. He saw the victim throw something toward the side of the car, grab his head, and stagger away into the arms of his wife. Defendant gathered up his companions, and had his brother drive them away in defendant's car.
At the outset of trial, defense counsel noted that the focus of her case would primarily be perfect or imperfect self-defense, although she might consider voluntary manslaughter under a theory of sudden quarrel or heat of passion depending on how the testimony developed. Ultimately, the court instructed on provocation as a basis for choosing between first and second degree murder, on an unreasonable belief in the need for deadly force in self-defense as a basis for reducing murder to voluntary manslaughter, on an unintended death in the course of an assault as constituting involuntary manslaughter, and on a reasonable exercise of self-defense as making the homicide justifiable.
After deliberating for several days, the jury found defendant guilty of second degree murder (§ 187), and found true that he had personally used a knife during the killing (§ 12022, subd. (b)(1)). The trial court sentenced him to 16 years to life in state prison.
Defendant appealed, raising the sole issue of whether the trial court prejudicially erred in failing to instruct sua sponte in connection with the lesser offense of voluntary manslaughter on the alternative theory of sudden quarrel or heat of passion. While this court found that the trial court erred in failing to instruct on the sudden quarrel or heat of passion theory of voluntary manslaughter, we nevertheless affirmed the judgment after finding the error harmless because the evidence of heat of passion was extraordinarily weak, and, in convicting defendant of murder, the jury necessarily rejected this evidence. Otherwise it would have found reasonable self-defense and acquitted him, or unreasonable self-defense and convicted him only of voluntary manslaughter.
On January 24, 2019, defendant filed a petition for resentencing under section 1170.95. Defendant checked various boxes on a form petition alleging that 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; that at trial he was convicted of second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine; and that he could not now be convicted of second degree murder because of changes made to section 188 and section 189, effective January 1, 2019. He requested that counsel be appointed for him during the resentencing process.
Defendant's form petition also checked boxes alleging: (1) that he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; (2) that he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony murder doctrine and that he could not now be convicted of murder given changes to section 188, effective January 1, 2019; and (3) that there had been a prior determination by a court or jury that he was not a major participant and/or did not act with reckless indifference to human life under section 190.2, subdivision (d). Boxes stating, "I was not the actual killer," and "I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony" were left blank.
On May 3, 2019, the trial court summarily denied defendant's petition in an ex parte order without first appointing counsel or obtaining briefing from the parties. The order states that defendant failed to make "a prima facie showing" because he "was the actual killer who testified at the jury trial but claimed self defense. Defendant was found guilty of second degree murder with the use of a knife." Defendant timely appealed the court's order denying his resentencing petition.
DISCUSSION
1.0 Overview of Senate Bill 1437
Senate Bill 1437, which became effective on January 1, 2019, "amend[ed] 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." (Stats. 2018, ch. 1015, § 1(f) [uncodified preamble].) To accomplish this, the bill amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.) It also added a new 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. (Stats. 2018, ch. 1015, § 4.)
Senate Bill 1437 redefined malice under section 188 to require that a principal acted with malice aforethought; malice may no longer be imputed to a person based solely on his or her participation in a crime. (Stats. 2018, ch. 1015, § 2.) Section 188, subdivision (a)(3) now provides in relevant part: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime."
Section 189 was amended to redefine felony murder by adding new subdivision (e), which provides:
"A participant in the perpetration or attempted perpetration of [particular crimes] 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." (Stats. 2018, ch. 1015, § 3.)
Thus, the amended statute effectively made the crime of felony murder subject to the same requirements as special circumstances murder committed during the course of another felony under section 190.2, subdivision (a)(17).
Section 190.2, subdivision (d) is a special circumstance allegation that, if charged and proven, subjects a defendant to either death or life without the possibility of parole. The statute provides: "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a [specified felony, including kidnapping], which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4."
Senate Bill 1437 created a petitioning procedure under newly enacted section 1170.95 for those eligible to have their murder convictions vacated and to seek resentencing on the remaining counts. (Stats. 2018, ch. 1015, § 4.) Under the new statute, "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts 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. [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." (§ 1170.95, subd. (a).)
A petitioning defendant must file a declaration stating that he or she meets the above criteria and may request counsel be appointed. (§ 1170.95, subd. (b)(1)(A), (b)(1)(C).) If the defendant makes a prima facie showing of eligibility, the court must issue an order to show cause and hold a hearing "to determine whether to vacate the murder conviction and to recall the sentence . . . ." (§ 1170.95, subds. (c), (d)(1).) At that hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is not eligible for resentencing. (§ 1170.95, subd. (d)(3).) "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid.) The parties also may waive a resentencing hearing and stipulate that a defendant "is eligible to have his or her murder conviction vacated and for resentencing." (§ 1170.95, subd. (d)(2).)
2.0 Summary Denial of Section 1170.95 Petition
Defendant contends the trial court prejudicially erred by summarily denying his petition before appointing counsel as requested and allowing the parties to brief the petition. We disagree.
The parties' dispute turns on the meaning of section 1170.95, subdivision (c), which provides: "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 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."
The parties essentially dispute whether section 1170.95, subdivision (c) provides for two determinations by the trial court, or one. Defendant argues that the trial court makes one prima facie determination after appointing counsel and receiving briefing from the parties. The People argue that the first sentence of subdivision (c) authorizes a trial court to determine whether a petitioner has made a prima facie showing that he or she falls within the provisions of section 1170.95 before appointing counsel and receiving briefing. The People have the better argument.
Another review is provided for in section 1170.95, subdivision (b)(2). If any of the information required by subdivision (b)(1) "is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information." (§ 1170.95, subd. (b)(2).)
"It is a settled axiom of statutory construction that significance should be attributed to every word and phrase of a statute, and a construction making some words surplusage should be avoided." (People v. Woodhead (1987) 43 Cal.3d 1002, 1010.) Interpreting the statute as defendant urges would render the first sentence of subdivision (c) mere surplusage.
Defendant argues that if the Legislature had intended to give trial courts the power to summarily deny petitions under section 1170.95 without first appointing counsel, it would have used permissive terms in the subsequent sentence: "If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner." (§ 1170.95, subd. (c), italics added.) According to defendant, the sentence would have instead stated that the court "may appoint" counsel to represent the petitioner. We disagree.
We believe the requirement to appoint counsel is not discretionary but rather mandatory. But the requirement does not arise until after the petitioner has first made a prima facie showing that he or she falls within the provisions of section 1170.95. When interpreting statutory language, we do not examine language in isolation but consider it in the context of the statutory framework as a whole. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) "When the statutory framework is, overall, chronological, courts will construe the timing of particular acts in relation to other acts according to their location within the statute; that is, actions described in the statute occur in the order they appear in the text." (People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, rev. granted Mar. 18, 2020, S260598 (Lewis).) "The structure and grammar of this subdivision indicate the Legislature intended to create a chronological sequence." (Verdugo, supra, 44 Cal.App.5th at p. 332, rev.gr.) Thus, "we construe the requirement to appoint counsel as arising in accordance with the sequence of actions described in section 1170.95 subdivision (c); that is, after the court determines that the petitioner has made a prima facie showing that petitioner 'falls within the provisions' of the statute, and before the submission of written briefs and the court's determination whether petitioner has made 'a prima facie showing that he or she is entitled to relief.' (§ 1170.95, subd. (c).)" (Lewis, at p. 1140, fn. omitted.) "If, as here, the court concludes the petitioner has failed to make the initial prima facie showing required by subdivision (c), counsel need not be appointed." (Verdugo, at pp. 332-333.) Nor is briefing required.
Here, the record of conviction, including our prior opinion, shows that defendant actually killed the victim by stabbing him in the head with a knife. The guilty verdict shows the jury found beyond a reasonable doubt that he was the actual killer, and that it rejected his argument that he killed the victim in self-defense. Tellingly, and in line with the jury's verdict, defendant's form petition left the box blank that stated he was not the actual killer.
Because he was the actual killer, defendant is ineligible for resentencing as a matter of law under section 1170.95. He simply does not come within the provisions of the statute. No further briefing or evidence could aid the court in reaching this conclusion. Indeed, " '[i]t would be a gross misuse of judicial resources to require the issuance of an order to show cause or even appointment of counsel based solely on the allegations of the petition, . . . when even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief.' " (Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr.) The trial court's summary denial of the petition was thus proper.
3.0 Constitutional Rights to Counsel and Due Process
Defendant also argues the trial court's ruling violated his federal constitutional rights to due process and the assistance of counsel. Because defendant has not set forth a prima facie case that he falls within section 1170.95, we conclude that the denial of counsel did not violate his constitutional rights.
"A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing." (People v. Doolin (2009) 45 Cal.4th 390, 453.) " ' "The determination whether the hearing is a 'critical stage' requiring the provision of counsel depends . . . upon an analysis 'whether potential substantial prejudice to defendant's rights inheres in the [particular] confrontation and the ability of counsel to help avoid that prejudice.' " [Citation.]' [Citation.] ' "[T]he essence of a 'critical stage' is . . . the adversary nature of the proceeding, combined with the possibility that a defendant will be prejudiced in some significant way by the absence of counsel." ' " (People v. Rouse (2016) 245 Cal.App.4th 292, 297 (Rouse).)
Defendant's reliance on Rouse is unavailing. The court in Rouse held that "when a defendant currently serving a felony sentence presents a petition [under Proposition 47] pursuant to section 1170.18, subdivision (a) and is found eligible for resentencing, that defendant is entitled to the assistance of counsel at resentencing in every case involving a judgment of conviction of more than one felony such that the court has discretion to restructure the sentence on all counts." (Rouse, supra, 245 Cal.App.4th at p. 301.) Even assuming the right to the assistance of counsel emanated from due process rather than the Sixth Amendment, the Rouse court found that the defendant had a right to counsel at his resentencing after having been found eligible under the statute. (Id. at pp. 299-300.) The court emphasized, however, that it only found the right attaches at the resentencing stage and did not decide whether it attached at an earlier stage of the petition, including the eligibility phase. (Id. at p. 301.)
Here, by contrast, defendant's petition did not make even a prima facie showing of eligibility, and he cites no authority suggesting there is a right to counsel at a point analogous to the court's determination at the first step of section 1170.95, subdivision (c). "The court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.) This could not be a critical proceeding because it presents a purely legal question to which the presence of counsel would not contribute. (See People v. Simms (2018) 23 Cal.App.5th 987, 996.)
The trial court's summary denial of defendant's petition did not violate his constitutional rights.
DISPOSITION
The order denying defendant's petition under section 1170.95 is affirmed.
/s/_________
BUTZ, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
KRAUSE, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------