Opinion
B297673
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DURAN, Defendant and Appellant.
John Steinberg, 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, Idan Ivri, Deputy Attorney General, and Allison H. Chung, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. A532898) APPEAL from an order of the Superior Court of Los Angeles County, Mike Camacho, Judge. Reversed and remanded. John Steinberg, 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, Idan Ivri, Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
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Michael Duran (defendant) filed a petition seeking resentencing pursuant to Penal Code section 1170.95. The trial court summarily denied the petition without appointing counsel. This was error because the record of conviction did not foreclose relief as a matter of law. Accordingly, we reverse and remand.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
We take judicial notice of the opinion and appellate record from the direct appeal in this matter. (People v. Ruben Luna and Michael Duran (Mar. 27, 1987, B017105) [nonpub. opn.]) --------
A little after midnight on August 19, 1984, defendant and three other men stormed the courtyard of an apartment complex in El Monte, California. Defendant grabbed James Torres (Torres) from behind, and "took him to the ground." In the ensuing melee, Torres was punched, kicked and stabbed by two different knives. Torres sustained 20 stab wounds, and died from those injuries. Witnesses saw defendant participate in the melee, but no one saw defendant actually stab Torres. A jailhouse informant later reported that defendant admitted to stabbing Torres "a few times."
B. Prosecution , conviction and appeal
The People charged defendant and the three others with murder (§ 187), and alleged each personally used a deadly or dangerous weapon (that is, a knife) (§ 12022, subd. (b)).
The matter proceeded to a consolidated jury trial. The jury was instructed on the crimes of first and second degree murder, voluntary manslaughter due to heat of passion, and involuntary manslaughter due to imperfect self-defense. The jury was also instructed on the principles of aiding and abetting liability, including that "[o]ne who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any act that he knowingly and intentionally aided or encouraged." (Italics added.) In closing argument, the prosecutor recited this instruction in arguing that defendant was liable for murder even if some of the eyewitnesses were disbelieved because defendant was "on [the victim's] body moving his hands doing something" and "intended to help [the other men] with full knowledge." The jury convicted defendant of second degree murder, but found not true the allegation that defendant personally used a knife. The trial court subsequently imposed a sentence of 15 years to life in prison.
Defendant appealed his conviction. The court concluded that substantial evidence supported defendant's second degree murder conviction because "[t]he evidence was clearly adequate to support a jury finding that [defendant] had acted as a principal who personally harbored implied malice based upon his actions in tackling Torres from behind, then hitting, punching and holding him down while his companions fatally stabbed him."
II. Procedural Background
On February 7, 2019, defendant filed a petition seeking resentencing under section 1170.95. In the form petition, defendant alleged that he had been charged with murder, that he was convicted "under a theory of felony murder or murder under the natural and probable consequences doctrine," and that his murder conviction would be invalid under the "changes to Penal Code §§ 188 and 189 made effective January 1, 2019." He also requested the appointment of counsel.
The People opposed the petition, arguing that (1) section 1170.95 was unconstitutional, and (2) defendant was ineligible for relief under section 1170.95 because he was "convicted . . . as an actual killer, a principal, and not pursuant to the natural and probable consequences doctrine."
The trial court summarily denied defendant's petition on the ground that, after a review of the "available transcripts and notes" from the case file, defendant was "ineligible" for relief because he was "the actual killer."
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily denying his section 1170.95 petition without appointing counsel and permitting briefing by both parties. Because resolution of this argument turns on questions of statutory construction and the application of law to undisputed facts, our review is de novo. (People v. Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled to the appointment of counsel if, in his petition, he "makes a prima facie showing that he or she is entitled to relief" under that section. (§ 1170.95, subd. (c); People v. Lewis (2020) 43 Cal.App.5th 1128, 1140 (Lewis); People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo).) A person is entitled to relief under section 1170.95 if, as relevant here, (1) "[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder . . .," (2) he "was convicted of . . . second degree murder following a trial," and (3) he "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 person may be convicted of murder, even after the 2019 changes made to sections 188 and 189, if he "was the actual killer" (§ 189, subd. (e)(1)); or "was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(3).) A "'prima facie showing is one that is sufficient to support the position of the party in question.'" (Lewis, at p. 1137, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
On the facts of this case, defendant has made the requisite prima facie showing because his petition alleges that he was prosecuted for murder under the natural and probable consequences doctrine, convicted of second degree murder, and qualifies to be resentenced because of the changes to Penal Code sections 188 and 189.
The trial court reached a contrary conclusion by reasoning that, according to the People's representation and the court's own review of the record of conviction, defendant was "the actual killer." To be sure, a trial court evaluating whether a defendant has made a prima facie showing in a section 1170.95 petition is not required to accept the petition's allegations at face value and may also examine the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) But the contents of the record of conviction defeat a defendant's prima facie showing only when the record "show[s] as a matter of law that the petitioner is not eligible for relief." (Lewis, at p. 1138, italics added; Verdugo, at p. 330; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [record must show defendant is "indisputably ineligible for relief"].)
In this case, the record of conviction could support a finding that defendant was Torres's actual killer (if the jailhouse informant's testimony is believed) or, if not a killer, a major participant in the assault who acted with reckless indifference to human life (as we noted in our prior appellate decision rejecting defendant's sufficiency of the evidence challenge). But, critically, the record does not compel a finding, as a matter of law, that defendant was ineligible for relief under section 1170.95 because he was the actual killer or a major participant who acted with reckless indifference to human life. After all, the jury rejected the allegation that defendant had personally used a knife and hence was the actual killer. And we cannot necessarily infer from the jury's second degree murder verdict that defendant was a major participant who acted with reckless indifference because that verdict could just as easily have rested on the theory that defendant was liable for the murder as the natural and probable consequence of the assault that he aided and abetted, as that theory was presented to the jury by instruction and argument. This is undoubtedly why the People, in their brief on appeal, have conceded that "the guilty verdict by itself falls short of proving that [defendant] was the actual killer" or otherwise renders defendant categorically ineligible for relief under section 1170.95.
Because defendant has made a prima facie showing that he is entitled to relief under section 1170.95, he was entitled by the terms of that statute to the appointment of counsel, further briefing and a hearing. (§ 1170.95, subd. (c).) The trial court's summary denial of his petition was therefore erroneous.
DISPOSITION
The order is reversed and the matter remanded for further proceedings in accordance with the terms of section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P.J.
ASHMANN-GERST /s/_________, J.
CHAVEZ