Opinion
B306079
02-23-2021
THE PEOPLE, Plaintiff and Respondent, v. JERRY A. CHAVEZ, Defendant and Appellant.
Allen G. Weinberg, 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, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA074077) APPEAL from an order of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed. Allen G. Weinberg, 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, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Jerry A. Chavez challenges the trial court's denial of his petition under Penal Code section 1170.95 for resentencing on his murder conviction. He argues that the trial court erred by denying his petition without first appointing counsel to represent him. We disagree and affirm. If the record of a defendant's conviction shows as a matter of law that the defendant is ineligible for resentencing, the trial court may summarily deny the petition without appointing counsel. (See People v. Verdugo (2020) 44 Cal.App.5th 320, 329, 332-333, review granted Mar. 18, 2020, S260493 (Verdugo).) In this case, the record of conviction shows that Chavez is ineligible because he killed the victim, and the trial court correctly denied the petition.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
In 2007, a jury convicted Chavez of one count of second degree murder (§ 187, subd. (a)), and one count of possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury also found that Chavez personally and intentionally discharged a firearm proximately causing great bodily injury and death (§ 12022.53, subd. (d)), among other enhancements. The trial court imposed an aggregate sentence of 62 years to life in prison. In a prior opinion in Chavez's direct appeal (People v. Chavez (June 2, 2008, B199018) [nonpub. opn.] (Chavez)), we described the facts of the case:
"At approximately midnight on January 15, 2006, Monique Betancourt arrived at the Top Ten Motel with her four children. Paul Reyes, who was the father of two of Betancourt's children and the stepfather of the other two, arrived shortly thereafter. Reyes pointed out to Betancourt that Chavez was at the hotel, and, while Betancourt unloaded Reyes' car, Chavez and Reyes had a verbal confrontation. Betancourt could not hear what they were talking about, but Chavez's girlfriend, Patricia Montano, testified that she was present and heard Reyes tell Chavez 'that he was going to take him out' and that 'it was his time.' Montano further testified that she saw the butt of a gun in Reyes' pocket and that she told Chavez to 'be careful' because Reyes had 'something in his pocket.'
"Reyes then accompanied Betancourt to their room to sleep. In his interview with the police, Chavez stated that he too went to his room but then left the hotel, 'got a hold of a gun,' and 'came back.' He said the gun was a 'Glock .40.'
"Betancourt testified that about 45 minutes after she and Reyes had gone to sleep, Chavez knocked at their door. Reyes dressed and went downstairs with Chavez. Moments later, Betancourt heard multiple gunshots and ran downstairs, where she found Reyes 'lying there' and Chavez running back to his car. Betancourt first chased after Chavez but then returned to Reyes' side, where she watched him die.
"Police investigators found approximately nine .40-caliber Smith and Wesson expended shell casings near Reyes' body. The medical examiner who performed the autopsy on Reyes identified six gunshot wounds, at least two of which would have been fatal on their own because of the extensive damage they caused to major organs—one went through Reyes' heart and one lung, and another went through his spleen and both kidneys. Other shots went through his arms, legs, and pelvis. The police found no weapons on Reyes' body or at the crime scene.
"In his interview with the police, a transcript of which was introduced at trial, Chavez admitted having shot Reyes but claimed that he acted in self-defense. He claimed that both in their verbal confrontation at the motel and on previous occasions, Reyes had 'pumped fear into' him. He said that when he went to Reyes' room at the motel, his 'intention was' just 'to go talk to him,' and that he had the gun with him in case he needed to use it 'in defense.' After he knocked on Reyes' door and the two of them went downstairs, Reyes 'come at me, you know what I mean? The way he was coming up, walking up real quick. And I said—I just—I turned around and I just—I let him have it.'
"Chavez did not testify at trial, but his fiancé[e], Corie Vargas, testified that she was present on two previous occasions when Reyes acted in an aggressive or threatening manner toward Chavez. On one of those occasions, Reyes was yelling at Chavez and had a gun in his hand." (Chavez, supra, B199018, at pp. 3-4.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which abolished the natural and probable consequences doctrine in cases of murder, and limited the application of the felony murder doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The legislation also enacted section 1170.95, which established a procedure for vacating murder convictions for defendants who could no longer be convicted of murder because of the changes in the law and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.)
Chavez filed a petition for resentencing on March 23, 2020. The trial court summarily denied the petition, finding that Chavez was ineligible for relief as a matter of law because "the court file reflects that [Chavez] was the actual killer and was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences."
DISCUSSION
A. Background on Section 1170 .95
Section 1170.95 allows a defendant serving a sentence for murder who could no longer be convicted of murder because of changes in the law enacted in Senate Bill No. 1437 to petition for resentencing. To obtain relief, a defendant must file a declaration affirming that he is eligible for resentencing under the new law. (See § 1170.95, subd. (b)(1).) The trial court must then determine whether the defendant has made a prima facie case for resentencing under section 1170.95, subdivision (c). As we described in People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis), this is a two-step process. First, the court "review[s] the petition and determine[s] if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).) This is "a preliminary review of statutory eligibility for resentencing," akin to an initial review of a petition for resentencing under Propositions 36 and 47. (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted Mar. 18, 2020, S260493.) "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." (Ibid.) In making this decision, the trial court may consider the record of conviction, including any prior appellate opinions in the case. (Lewis, supra, at pp. 1137-1138; Verdugo, supra, at pp. 329-330.)
If the trial court does not deny the petition at this point, "the court shall appoint counsel to represent the petitioner" (§ 1170.95, subd. (c)) for the second stage of prima facie review. The prosecutor then files a response, and the petitioner may file a reply. "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." (Ibid.) The review at this stage "is equivalent to the familiar decision[-]making process before issuance of an order to show cause in habeas corpus proceedings, which typically follows an informal response to the habeas corpus petition by the Attorney General and a reply to the informal response by the petitioner." (Verdugo, supra, 44 Cal.App.5th at p. 328, review granted Mar. 18, 2020, S260493.)
B. The Trial Court Did Not Err by Denying the Petition without Appointing Counsel
Chavez contends that Lewis and Verdugo erred by dividing the prima facie review under section 1170.95, subdivision (c), as described above, into two separate phases, and holding that the trial court may deny a defendant's petition at the first stage without appointing counsel. According to Chavez, there is instead only a single phase of review under section 1170.95, subdivision (c). Under this interpretation, in every case where the defendant submits a facially sufficient petition, the trial court is required to appoint counsel and obtain briefing before it may deny a petition.
We disagree. The court in Verdugo summarized our position well: "The structure and grammar of [section 1170.95, subdivision (c)] indicate the Legislature intended to create a chronological sequence: first, a prima facie showing; thereafter, appointment of counsel for petitioner; then, briefing by the parties." (Verdugo, supra, 44 Cal.App.5th at p. 332, review granted Mar. 18, 2020, S260493.) We stand by our reasoning in Lewis, supra, 43 Cal.App.5th at pp. 1139-1140, review granted Mar. 18, 2020, S260598, and we are not persuaded by Chavez's arguments to the contrary.
We acknowledge that our colleagues in the First District reached the opposite conclusion in People v. Cooper (2020) 54 Cal.App.5th 106, 123, review granted Nov. 10, 2020, S264684 and People v. Daniel (2020) 57 Cal.App.5th 666, 673-674, and we respectfully disagree. Even those cases, however, acknowledged that where the record of conviction shows as a matter of law that the defendant is ineligible, the error in denying a defendant's petition is harmless. (See People v. Cooper, supra, at p. 123; People v. Daniel, supra, at pp. 675-676.) Thus, even under Cooper and Daniel, the trial court's denial of Chavez's petition would be affirmed because, as we explain below, the record in this case shows as a matter of law that Chavez is ineligible for resentencing. --------
In this case, the trial court correctly denied the petition because Chavez is ineligible for relief as a matter of law. To be eligible for resentencing, a defendant must show that he "could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective" as a part of Senate Bill No. 1437 (§ 1170.95, subd. (a)(3)). Senate Bill No. 1437 amended section 188 to eliminate murder liability under the natural and probable consequences doctrine, and amended section 189 to limit felony murder liability to cases in which the defendant was 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. (See Gentile, supra, 10 Cal.5th at pp. 842-843.)
The record shows unequivocally that Chavez could not have been convicted under a theory affected by Senate Bill No. 1437, and Chavez himself does not argue otherwise. The jury at Chavez's trial received no instructions on either the natural and probable consequences doctrine or felony murder. Thus, "under the instructions, the jury necessarily found [Chavez] culpable for murder based on his own actions and mental state," and not based on the natural and probable consequences doctrine. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055.) Moreover, the opinion in Chavez's direct appeal shows that Chavez acted alone, and the jury found that he personally and intentionally fired the gun and caused the victim's death. Because the record of conviction shows as a matter of law that Chavez killed Reyes with malice aforethought, the trial court did not err by denying the petition at the first stage of review without appointing counsel.
DISPOSITION
The trial court's order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
BENDIX, J.