Opinion
E072781
10-21-2022
THE PEOPLE, Plaintiff and Respondent, v. TONY MARTINEZ CARRERA, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorney General, Robin H. Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF150270. John D Molloy, Judge. Reversed and remanded with directions.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorney General, Robin H. Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON TRANSFER
McKINSTER J.
Defendant and appellant, Tony Martinez Carrera, filed a petition for resentencing pursuant to former Penal Code section 1170.95, which the court dismissed. On appeal, defendant contended the court erred in dismissing his petition based on the jury's true finding on a felony-murder special-circumstance allegation. By opinion filed July 16, 2020, we affirmed.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise indicated.
On September 28, 2022, the California Supreme Court transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). On September 30, 2022, we ordered our decision vacated and set a briefing schedule.
Defendant argues that, pursuant to Strong, the court erred in determining the jury's true finding on the felony-murder special-circumstance allegation rendered prior to the decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) made him ineligible for relief. Defendant maintains he made the requisite prima facie showing, and the matter should be remanded for an order to show cause (OSC) hearing. The People concede that the matter should be remanded for further proceedings. We reverse and remand the matter for reconsideration.
On our own motion, we take judicial notice of our prior nonpublished opinion in People v. Carrera (May 7, 2013, E053997).) [nonpub. opn.] (Carrera), from defendant's appeal from the judgment. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We exclude a recitation of the facts stated in our prior opinion as irrelevant to the issues raised on appeal. We reserved ruling on the People's request for judicial notice, filed on November 6, 2019, of four petitions for writ of habeas corpus previously filed by defendant and the disposition orders denying those petitions. We hereby deny the request as irrelevant to the issues raised on appeal. (Evid. Code, §§ 452, subd. (d) & 459.)
A jury found defendant guilty of first degree murder (§ 187, count 1) and robbery (§ 211, count 2). The jury also returned a true finding on the special circumstance allegation that the murder was committed while defendant was engaged in the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) The jury found not true the allegation that defendant personally used a deadly and dangerous weapon to commit the murder. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The trial court sentenced defendant to life without the possibility of parole. (Carrera, supra, E053997.)
Defendant appealed. On May 7, 2013, this court affirmed defendant's convictions. (Carrera, supra, E053997.)
On February 11, 2019, defendant filed a petition for resentencing under former section 1170.95. The People filed a response arguing, in pertinent part, that defendant's petition should be summarily denied because the jury's true finding on the robberymurder special-circumstance allegation rendered him per se ineligible for relief.
On April 10, 2019, defendant filed a request for a 60-day extension to file a reply to the People's response. At the status conference hearing on April 26, 2019, a deputy public defender represented defendant and requested a stay until August 16, 2019. The People informed the court that a jury had found the robbery-murder special-circumstance allegation true, and the jury was given CALCRIM 703, meaning that it was required to find that defendant had the intent to kill or was a major participant who acted with reckless indifference to human life. Defense counsel said he had not reviewed the record. The court dismissed the petition and noted that the defense was objecting "for the record."
II. DISCUSSION
Defendant argues that the court erred in dismissing his petition, and the matter should be remanded for an OSC hearing. The People concede the matter should be remanded for further proceedings. We remand the matter for a new prima facie hearing.
"Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.'" (Strong, supra, 13 Cal.5th at pp. 707-708.) "Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. [Citations.] Under newly enacted section 1172.6, the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citations], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 [citation]." (Id. at p. 708, fn. omitted.)
"When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, supra, 13 Cal.5th at p. 708.) "As a general matter, a trial court should afford both parties the opportunity to brief the question of a petitioner's eligibility for relief and may extend the briefing deadlines 'for good cause' as necessary to ensure that such an opportunity is meaningful." (Lewis, supra, 11 Cal.5th at p. 966, fn. 4.)
"While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for . . . relief, the prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, '"the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Lewis, supra, 11 Cal.5th at p. 971.) "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.'" (Id. at p. 972.) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Ibid.)
Where a defendant's "case was tried before both Banks and Clark, . . . special circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6." (Strong, supra, 13 Cal.5th at p. 721.) A court "err[s] in concluding otherwise." (Ibid.)
If, instead, a defendant has made a prima facie showing of entitlement to relief, "'the court shall issue an order to show cause.'" (Strong, supra, 13 Cal.5th at p. 708.) Once the court determines that a defendant has made a prima facie showing, "the court must [then] hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill 1437. [Citation.] '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.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Id. at p. 709.) "Senate Bill 1437 relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life ....'" (Id. at p. 710.)
"[E]ffective January 1, 2022, the Legislature limited use of prior appellate opinions, allowing trial judges to [only] 'consider the procedural history of the case recited.' [Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing." (People v. Clements (2022) 75 Cal.App.5th 276, 292.){Fourth Dist., Div. Two}
Here, the jury rendered the special murder circumstance finding before both Banks and Clark were decided. With respect to those findings, "no judge or jury has ever found the currently required degree of culpability ...." (Strong, supra, 13 Cal.5th at p. 718, italics added.) Thus, as we originally determined, the special murder circumstance finding did not, alone, render defendant per se ineligible for relief. Therefore, the court below erred in denying defendant's petition on that basis.
However, we also determined, in reliance on this court's prior opinion, that any error was harmless because there was no reasonable possibility defendant's counsel could have convinced the court he was entitled to relief because the evidence was sufficient to support a finding that he was a major participant who acted with reckless indifference to human life under Banks and Clark. Thus, we effectively reduced the evidentiary burden to sufficiency of the evidence, from beyond a reasonable doubt, and erroneously relied exclusively upon the facts contained in this court's prior opinion. Therefore, the matter must be remanded for a new prima facie hearing prior to which defendant should be given the opportunity, if he so elects, to file a reply to any response filed by the People.
III. DISPOSITION
The order dismissing defendant's petition is reversed. The matter is remanded with directions to hold a new prima facie hearing. We express no opinion on whether defendant is entitled to relief following the hearing.
We concur: RAMIREZ P. J., MILLER J.