Opinion
B304428
06-29-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSE CERVANTES, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA081733, Rogelio Delgado, Judge. Reversed and remanded with directions.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
COLLINS, J.
Introduction
In 1995, a jury convicted appellant Jose Cervantes of murder, robbery, and attempted robbery, and found a robbery-murder special circumstance allegation to be true. The superior court sentenced appellant to life without the possibility of parole, plus three years. In 2019, appellant filed a petition for resentencing under Penal Code section 1170.95. The superior court appointed counsel for appellant and the parties submitted briefing. The court denied the petition, relying in part on the jury's finding that appellant was a major participant in the underlying offense who acted with reckless indifference to human life.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant asserts that the superior court erred in relying on the jury's finding, which predated the Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the law regarding major participants in an underlying offense who act with reckless indifference to life. Appellant urges us to follow the reasoning in People v. Torres (2020) 46 Cal.App.5th 1168, 1173, review granted June 24, 2020, S262011 (Torres), which held that a superior court commits reversible error by summarily denying a section 1170.95 petition based on a robbery-murder special circumstance finding that predates Banks and Clark. The Attorney General asserts that Torres was wrongly decided, and urges us to affirm the superior court's ruling.
Consistent with our prior decisions on the issue, we reverse the superior court's order based on the reasoning of Torres and similar cases. We also conclude that the record does not establish as a matter of law that appellant was a major participant who acted with reckless indifference under the standards established by Banks and Clark. We therefore reverse the order summarily denying appellant's petition, and direct the court to issue an order to show cause and proceed consistent with section 1170.95, subdivision (d).
Factual and procedural background
A. Underlying offense
Appellant and a codefendant, Ernesto Chagolla, were tried together. According to this court's opinion affirming their convictions:
“Both defendants as well as [two witnesses] were members of the Local Park gang. On the evening of August 2, 1993, the four men were at the corner of 22nd and Central Streets in Los Angeles with fellow gang members. Armed with a.25 caliber handgun, both defendants walked toward the Eastside Motel, approached Jose Rodriguez (Rodriguez) and Raul Cecena (Cecena), and demanded money from Cecena. Rodriguez ran away. Defendants then approached Juare Santiago (Santiago) who was seated in a van. When defendants tried to rob him, a fight ensued. Defendant Chagolla hit Santiago in the back of the head with the.25 caliber gun. The gun went off, killing Santiago. Defendants took Santiago's wallet, returned to their companions, entered defendant Chagolla's car, and left the scene of the crime.
“Based upon these facts, defendants were convicted of the attempted robbery of Cecena and the robbery and murder of Santiago. The jury found true the special circumstance allegation that the murder had occurred in the commission of a robbery as well as the allegation that defendant Chagolla had personally used a firearm during commission of the offenses.” (People v. Chagolla (June 16, 1997, B098092) [nonpub. opn.] (Chagolla).) In October 1995, the superior court sentenced appellant to life without the possibility of parole on the murder conviction, a consecutive three years on the attempted robbery conviction, and stayed the sentence on the robbery conviction. This court affirmed the judgment. (Ibid.)
B. Petition for resentencing
“In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) after determining that there was further ‘need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.' (Stats. 2018, ch. 1015, § l, subd. (b).)” (People v. Gentile (2020) 10 Cal.5th 830, 838-839 (Gentile).) Senate Bill 1437 amended section 189 to provide that a participant in qualifying felonies generally will not be liable for murder unless the person was (1) “the actual killer, ” (2) a direct aider and abettor in first degree murder, or (3) “a major participant in the underlying felony [who] acted with reckless indifference to human life[.]” (§ 189, subd. (e).) Senate Bill 1437 also added section 1170.95, which allows “[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition... to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts” under certain conditions. (§ 1170.95, subd. (a).)
On June 26, 2019, appellant filed a petition for resentencing under section 1170.95. The court appointed counsel for appellant on July 18, 2019. The Los Angeles County District Attorney (the People) filed a brief opposing appellant's petition, asserting that the “jury found true the special circumstance pursuant to Penal Code section 190.2, subdivision (a)(17), rendering [appellant] ineligible for section 1170.95 resentencing.” The People asserted that the jury's true finding on the special circumstance met the requirements of newly enacted section 189, subdivision (e). In addition, the People contended that Senate Bill 1437 was unconstitutional. The People's opposition included as exhibits this court's opinion in People v. Chagolla and the jury instructions given at trial.
The court did not state any prima facie findings on the record before appointing counsel. (See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 328 [a court may review a petition “before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95-that is, that the petitioner may be eligible for relief”].)
Section 190.2, subdivision (a)(17) defines as a special circumstance that the “murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, [or] attempted commission of” a robbery.
Appellant, through counsel, filed a reply. He argued that the evidence showed he was not the shooter, and the verdict form for the special circumstances found by the jury did not include the language required by the revised section 189, subdivision (e). Appellant also argued that Senate Bill 1437 was constitutional.
The court denied appellant's petition, stating in a written order, “The petition is summarily denied because the petitioner is not entitled to relief as a matter of law, for the following reason: [¶] The petitioner was convicted of murder. The jury found the special circumstance that the defendant was a major participant who acted with reckless indifference to human life as true, and further, the appellate opinion affirming the petitioner's conviction and sentence [sic]. [¶] For the foregoing reasons, the petition for recall and sentencing is DENIED.”
Appellant timely appealed.
Discussion
On appeal, appellant asserts that the superior court's summary denial of his petition should be reversed because the jury's robbery special circumstance finding was made prior to Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, and does not preclude relief under section 1170.95 as a matter of law. The Attorney General asserts that “Banks and Clark did not create new law or change what section 190.2, subdivision (d) has always meant.” Denial of a petition under section 1170.95 at the prima facie stage “is appropriate only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of law.' [Citations.] This is a purely legal conclusion, which we review de novo.” (People. v. Murillo (2020) 54 Cal.App.5th 160, 167-168, review granted Nov. 18, 2020, S264978.)
“Banks and Clark clarified the meaning of the special circumstances statute.” (In re Scoggins (2020) 9 Cal.5th 667, 674.) In Banks, the Supreme Court considered the circumstances under which an accomplice qualifies as a “major participant” in a felony murder. (Banks, supra, 61 Cal.4th at p. 794.) The court stated that in order to be held culpable, the “defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.” (Banks, supra, 61 Cal.4th at p. 801.) The court set out factors that “may be weighed in determining the ultimate question, whether the defendant's participation ‘in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered ‘major.'” (Id. at p. 803.) The following year, the Supreme Court stated in Clark that “reckless indifference” “encompasses both subjective and objective elements. The subjective element is the defendant's conscious disregard of risks known to him or her.... [R]ecklessness is also determined by an objective standard, namely what ‘a law-abiding person would observe in the actor's situation.'” (Clark, supra, 63 Cal.4th at p. 617.)
Our colleagues in Division Five of this district held in Torres, supra, 46 Cal.App.5th 1168, that when considering a section 1170.95 petition based on a conviction that predated Banks and Clark, the superior court “cannot simply defer to the jury's pre-Banks and Clark factual findings that [the petitioner] was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time.” (Id. at p. 1179.) In that case, the superior court considering the section 1170.95 petition “ruled that the existence of the jury's 2001 robbery murder special circumstance findings alone established that Torres 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' (§ 189, subd. (e)(3)), as a matter of law, thereby barring him from relief.” (Id. at p. 1178.) The Court of Appeal held that “the trial court erred in ruling that the pre-Banks and Clark robbery murder special circumstance findings preclude Torres from relief as a matter of law.” (Id. at p. 1180.)
The Attorney General asserts that Torres was wrongly decided, and urges us to instead follow the reasoning of cases such as People v. Galvan (2020) 52 Cal.App.5th 1134, review granted October 14, 2020, S264284. In that case, Division One of this district held that the “requirements for the felony-murder special circumstance did not change as a part of Senate Bill No. 1437, and are identical to the new requirements for felony murder following the enactment of Senate Bill No. 1437.... By finding a special circumstance allegation true, the jury makes precisely the same finding it must make in order to convict a defendant of felony murder under the new law. Because a defendant with a felony-murder special circumstance could still be convicted of murder, he is ineligible as a matter of law to have his murder conviction vacated. (See § 1170.95, subd. (a)(3).)” (Id. at pp. 1140-1141.) Galvan added that if a convicted defendant were “entitled to relief based on Banks and Clark, the avenue for such relief is not section 1170.95, but a petition for writ of habeas corpus.” (Id. at p. 1142.)
We recognize that this issue has divided courts within this district and across the state. (Compare, e.g., People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954 [“a pre-Banks and Clark special circumstance finding cannot preclude eligibility for relief under the section 1170.95 as a matter of law, because the factual issues that the jury was asked to resolve in a trial that occurred before Banks and Clark were decided are not the same factual issues our Supreme Court has since identified as controlling”]; People v. Harris (2021) 60 Cal.App.5th 939, 957, review granted Apr. 28, 2021, S267802 (Harris) [a “pre-Banks/Clark finding, without more, does not preclude relief under section 1170.95”]; People v. Secrease (2021) 63 Cal.App.5th 231, __ [277 Cal.Rptr.3d 535, 559] (Secrease) [for a section 1170.95 petition, the superior court must review the record to determine whether “the evidence meets the minimum threshold of personal culpability set by Banks and Clark”] with People v. Gomez (2020) 52 Cal.App.5th 1, 17, review granted Oct. 14, 2020, S264033 [“the proper procedure for [Gomez] to challenge her special circumstance findings based on clarification of the relevant law in Banks and Clark is to bring a petition for habeas corpus”]; People v. Jones (2020) 56 Cal.App.5th 474, 483, review granted Jan. 27, 2021, S265854 [“the proper procedure for Jones to challenge his special circumstance finding is to file a habeas petition and demonstrate the finding is not supported by sufficient evidence under Banks and Clark”]; People v. Nunez (2020) 57 Cal.App.5th 78, 93, review granted Jan. 13, 2021, S265918 [“whether a jury made a post- or pre-Banks and Clark MPRI finding, that finding establishes as a matter of law the defendant's ineligibility for relief under section 1170.95”].)
Mindful of the conflicts in the law, we continue to follow the reasoning in the line of cases including Torres. Where a section 1170.95 petitioner with a felony murder special circumstance finding has never been afforded a sufficiency-of-the-evidence review under the standards articulated in Banks and Clark, the superior court must undertake such an analysis. (See Secrease, supra, 63 Cal.App.5th at p. __ [277 Cal.Rptr.3d 535, 554] [“where a petitioner facing a felony-murder special-circumstance finding has never been afforded a Banks and Clark sufficiency-of-the-evidence review... section 1170.95 courts have an obligation to undertake such an analysis”]; Harris, supra, 60 Cal.App.5th at p. 958 [“Because the evidence supporting Harris's special circumstance finding has never been reviewed under the standards set forth in Banks and Clark, the superior court could properly determine he was ineligible for relief as a matter of law only after reviewing the available record of conviction in light of the Banks and Clark factors.”].)
The Attorney General asserts that we may review the record under the Banks and Clark standard as a matter of law, and affirm the superior court's ruling under a harmless error analysis. (See People v. Law (2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020, S262490.) We disagree; the record does not demonstrate that the error was harmless. As noted above, Banks requires that a defendant “be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.” (Banks, supra, 61 Cal.4th at p. 801.) Banks stated that the following factors may be considered in making such a determination: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death?[ ] What did the defendant do after lethal force was used?” (Id. at p. 803.) Clark stated that “reckless indifference” includes consideration of the “defendant's conscious disregard of risks known to him or her.” (Clark, supra, 63 Cal.4th at p. 617.)
Here, the record does not establish as a matter of law that appellant acted with reckless indifference as a major participant during the robbery in accordance with standards established by Banks and Clark. The appellate opinion, Chagolla, supra, says little about appellant's role and does not discuss evidence of his subjective awareness or involvement in planning the crimes. The opinion states that the victim died when, in the course of the robbery committed by appellant and defendant Chagolla, Chagolla hit the victim in the head with a gun and the gun went off. A fellow gang member testified that before appellant and Chagolla left the group to rob the victim, appellant gave the gun he was carrying to someone else “for protection in the event [a rival] gang returned.” Appellant therefore was apparently unarmed at the time of the robbery. Appellant and Chagolla left the group, the witness heard a gunshot, and appellant and Chagolla returned. Appellant and his companions then left the area in Chagolla's car. Chagolla later told a witness that the shooting was an accident. At the sentencing hearing, the superior court remarked, “I'll certainly state for the record that this was not a premeditated [killing] and I think I'd go further it was not an intentional killing.” In their direct appeal, appellant and Chagolla challenged whether the felony murder rule applied, and this court dismissed the argument with little analysis: “The contention borders on the frivolous. Both statutory and decisional law recognize that a killing which occurs during the perpetration of a robbery is first degree murder. [Citation.] Enough said.”
The information included in the record on appeal, without more, is not sufficient to establish that appellant is ineligible for relief under section 1170.95 as a matter of law. “Banks and Clark hold that evidence showing no more than that a defendant is guilty of felony murder simpliciter, even if he knows a coperpetrator is armed, is insufficient to meet the minimum individual culpability standard of reckless indifference to human life.” (Secrease, supra, 63 Cal.App.5th at p. __ [277 Cal.Rptr.3d 535, 558].) Moreover, at the prima facie stage of review, a court's authority to make factual determinations without conducting an evidentiary hearing is limited to readily ascertainable facts from the record. (Harris, supra, 60 Cal.App.5th at p. 958.) Without issuing an order to show cause, the court has no authority to engage in factfinding, the weighing of evidence, or the exercise of discretion to determine whether a petitioner was a major participant who acted with reckless indifference to human life. (See ibid.; People v. Drayton (2020) 47 Cal.App.5th 965, 980.) The superior court's denial of appellant's petition was therefore not harmless error.
Determining whether appellant could now be found to have been a major participant who acted with reckless indifference within the meaning of section 189, subdivision (e)(3) requires factfinding following an evidentiary hearing pursuant to section 1170.95, subdivision (d). (See Harris, supra, 60 Cal.App.5th at p. 960.) We therefore remand for that purpose.
Disposition
The order denying appellant's section 1170.95 petition is reversed, and the matter is remanded with directions to issue an order to show cause and to proceed consistent with section 1170.95, subdivision (d).
We concur: WILLHITE, ACTING P.J., CURREY, J.