Opinion
B311377
02-15-2022
THE PEOPLE, Plaintiff and Respondent, v. FEDERICO ESPARZA, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PA084639, Hayden A. Zacky, Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
HARUTUNIAN, J. [*]
Federico Esparza appeals from an order denying his petition for resentencing under Penal Code section 1170.95.A jury previously convicted Esparza of second degree murder under section 187, subdivision (a). We affirmed that conviction in an unpublished opinion. (People v. Topete et. al. (Jan. 7, 2020, B288850) [nonpub. opn].)
Undesignated statutory references herein are to the Penal Code.
Esparza now contends that the trial court erred under section 1170.95 subdivision (c) by failing to appoint him counsel. He argues that this error was not harmless. The Respondent agrees that the court erred in failing to appoint counsel, but claims that this error was harmless because Esparza is not eligible for relief under section 1170.95 as a matter of law.
Because the record of conviction establishes that Esparza is not eligible for resentencing under section 1170.95 as a matter of law, any error committed by the trial court was harmless. We affirm.
BACKROUND
A. Esparza's Convictions and Prior Appeal
The facts in this subsection are taken from our prior unpublished opinion. (People v. Topete, supra, B288850.)
In November 2015, Jose Burciaga was fatally shot by rival gang member Luis Angel Valdez. Valdez pled no contest to the murder and testified that Martin Topete and Federico Esparza aided and abetted the shooting of Burciaga.
Topete and Esparza were charged by information, along with Valdez, with the premeditated murder of Burciaga (§ 187, subd. (a)) and of shooting at an occupied vehicle (§ 246). Gang and firearm use allegations were alleged as to both counts (§§ 186.22, 12022.53, subds. (b)-(e)(1)).
A jury trial took place in February 2018. We previously held that the trial court correctly instructed the jury on the union of act and intent (CALCRIM No. 252), on the intent required for each of the substantive offenses (CALCRIM Nos. 520, 521 & 965), and on the requisite intent for aiding and abetting liability (CALCRIM No. 401). The jury found Esparza guilty of second degree murder and shooting at an occupied vehicle, and found true the gang and firearm enhancements.
On January 7, 2020, this court affirmed the judgment of conviction for Esparza in all respects except for remanding to the trial court to prepare corrected abstracts of judgment that accurately reflected the court's sentencing orders. We held that there was substantial evidence to support Esparza's second degree murder conviction, noting "ample evidence that Esparza harbored implied malice." (People v. Topete, supra, B288850 at p. 19.) The evidence established that Esparza was aware of Topete's and Valdez's gang membership, their desire to retaliate for a prior gang-related shooting of Valdez, and that knowing all of this, Esparza gave the gun to Valdez with that purpose. (Id. at pp. 24-26.)
B. Esparza's Section 1170.95 Petition for Resentencing
On January 22, 2021, Esparza filed a petition for resentencing pursuant to section 1170.95. The petition contained a declaration stating that Esparza was convicted of murder under the felony murder rule or natural and probable consequences doctrine, that he could not now be convicted of murder because of the amendments to sections 188 and 189, and requesting appointment of counsel.
On February 17, 2021, the trial court issued an order summarily denying Esparza's petition. The court did not appoint counsel beforehand. The court found Esparza ineligible for relief under section 1170.95 because the jury was instructed on a theory of murder based upon aiding and abetting and was not instructed on felony murder or the natural and probable consequences doctrine.
On March 9, 2021, Esparza filed a timely notice of appeal.
DISCUSSION
I. Senate Bill No. 1437 and Section 1170.95
On January 1, 2019, Senate Bill No. 1437 took effect" 'to amend 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.'" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill No. 1437 amended sections 188 and 189 of the Penal Code and added section 1170.95, which provides a procedure for individuals convicted of murder who could not be convicted under the law as amended to retroactively seek relief. (Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).)
Section 1170.95 created a procedure whereby individuals convicted of murder under the now-invalid natural and probable consequences doctrine or felony murder rule may petition to vacate their convictions and to be resentenced.
Section 1170.95 created a three-part eligibility test: (1) the defendant must have been charged with murder by means of a charging document that allowed the prosecution to proceed under a theory of felony murder or under the natural and probable consequences doctrine, (2) the defendant must have been convicted of first or second degree murder, and (3) the defendant could no longer be convicted of first or second degree murder due to changes to sections 188 and 189 effectuated by Senate Bill No. 1437. (§ 1170.95, subd. (a).)
A petition for relief under section 1170.95 must include a declaration that the petitioner is eligible for relief based upon meeting these three requirements supra, the superior court case number and year of conviction, and a statement as to whether the petitioner requests the appointment of counsel. (§ 1170.95, subds. (b) (1) (A)-(C).) "Where the petition complies with subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief." (Lewis, supra, 11 Cal.5th at p. 960, citing § 1170.95, subd. (c).)
If the court determines the petitioner has made a prima facie showing of eligibility for relief, it must issue an order to show cause. (§ 1170.95, subd. (c).) If the parties do not stipulate that the petitioner is entitled to relief at that point, then the court must hold a hearing and vacate the murder conviction if the prosecution fails to prove that the petitioner is ineligible for relief beyond a reasonable doubt. (§ 1170.95, subd. (d).)
II. Respondents Do Not Contest that Failure to Provide Counsel Was Error
In its recent decision in Lewis, the California Supreme Court, resolving a disagreement among the courts of appeal, held that once a petitioner files a facially sufficient petition requesting counsel, the trial court must appoint counsel before performing any prima facie review under section 1170.95, subdivision (c): "[P]etitioners who file a complying petition requesting counsel are to receive counsel upon the filing of a compliant petition." (Lewis, supra, 11 Cal.5th at p. 963.)
The Respondent does not dispute that the trial court's failure to provide Esparza counsel upon the filing of his compliant petition was error under Lewis. Rather, the parties disagree as to whether this error was harmless.
III. The Error in Denying Esparza's Petition Without Appointing Counsel Was Harmless Because He Is Ineligible for Resentencing
Esparza argues that there is a reasonable probability that he would have obtained a more favorable result had counsel been appointed, and thus we must reverse and remand.
Lewis held that failure to provide counsel under subdivision (c) of section 1170.95 is error under state law, and is tested for harmless error under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Lewis, supra, 11 Cal.5th at pp. 972-974.) Applying Watson, reversal is warranted if there is a reasonable probability that Esparza would have obtained a more favorable result had counsel been appointed. (See People v. Mancilla (2021) 67 Cal.App.5th 854, 864 (Mancilla); citing Watson, supra, 46 Cal.2d. at p. 836.)
For there to be a reasonable probability that Esparza could have obtained a more favorable result with counsel, he must be eligible for relief under section 1170.95. At the prima facie review stage, the court should deny a petition if the petitioner is ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 970-971; Mancilla, supra, 67 Cal.App.5th at pp. 864-865.) To make this determination, the court looks to the record of conviction: "The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) Previous appellate opinions in the same matter, such as ours in People v. Topete, supra, are "generally considered to be part of the record of conviction." (Lewis, at p. 972.) Jury instructions are also part of the record of conviction. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055 (Soto), review dism. by People v. Soto (Nov. 17, 2021, No. S263939), abrogated on another ground in Lewis, supra, 11 Cal.5th at p. 967.)
To be eligible for resentencing under section 1170.95, Esparza must have been convicted of felony murder or murder under a natural and probable consequences theory. (See § 1170.95, subd. (a); accord Gentile, supra, 10 Cal.5th at p. 853.) Esparza claims that the jury instructions establish, and that appointed counsel would have argued, that "it is possible the jury concluded Esparza participated in a crime, the natural and probable consequence of which was murder." Esparza points to language in CALCRIM No. 520, titled "First or Second Degree Murder with Malice Aforethought," which was provided to the jury, stating that the Esparza acted with "implied malice" if he committed an act where the "natural and probable consequences of the act were dangerous to human life." (CALCRIM No. 520.)
Esparza cites to CALCRIM No. 502 in both his briefs, but this appears to be a typo because the text he cites is from CALCRIM No. 520, which is the relevant instruction.
Numerous courts have rejected the argument Esparza asserts here, which is based on the similarity of language in two materially different theories of murder liability. (See, e.g., Mancilla, supra, 67 Cal.App.5th at p. 867, People v. Daniel (2020) 57 Cal.App.5th 666, 677-678 (Daniel); Soto, supra, 51 Cal.App.5th at p. 1056; People v. Lee (2020) 49 Cal.App.5th 254, 263-264.) This rejection is because "[a]lthough the instructions related to implied malice and the natural and probable consequences doctrine of aiding and abetting include similar language regarding a 'natural consequence,' they are distinctly different concepts." (Soto, supra, 51 Cal.App.5th at p. 1056; see also Mancilla, supra, 67 Cal.App.5th at p. 867.) With implied malice murder the perpetrator knows his conduct endangers another life and acts with conscious disregard of that life. (Soto, supra, 51 Cal.App.5th at p. 1058.) In contrast, under the natural and probable consequences doctrine, an aider and abettor who intends to commit a less serious crime can be convicted of a greater crime that is the natural and probable consequence of the lesser crime. (Ibid.)
Here, the record of conviction and jury instructions establish that the jury was instructed on second degree murder with malice aforethought, with express and implied malice instructions. It is undisputed that Esparza was convicted of implied malice murder, and not of intending to commit a lesser crime the probable consequence of which was second degree murder. (Topete, supra, B288850 at pp. 24-27.) Esparza does not claim otherwise; he simply clings to the similar language in the two different doctrines of implied malice murder and the natural and probable consequences doctrine.
Esparza also argues that Soto is distinguishable on its facts, and therefore we should reverse. He argues that compared to Soto, he had less direct involvement in the murder because he was not present at the time of the shooting, not a member of a gang, and simply gave the gun to Valdez prior to the shooting. Esparza additionally asserts that our prior decision establishes that he could have been convicted under a natural consequences theory because we wrote that "[m]alice is implied when the killing resulted from an intentional act, the natural consequences of which are dangerous to human life." (Topete, supra, B288850 at p. 18, citing People v. Thomas (2021) 53 Cal.4th 771, 814.) We reject these assertions. Again, Esparza conflates the similar language of "natural consequences" in two distinct doctrines.
Because the jury here was instructed on implied malice murder and not on felony murder or murder under the natural and probable consequences doctrine, Esparza was not eligible for relief under section 1170.95. Thus, failure to appoint counsel was harmless. (See Daniel, supra, 57 Cal.App.5th at p. 677 [where the "only instruction given on the elements of murder was CALCRIM No. 520," and "no instructions were given on felony murder or murder under the natural and probable consequences doctrine," petitioner was ineligible for relief under section 1170.95 as a matter of law and failure to appoint counsel was "harmless"].) While "Senate Bill No. 1437 changed the circumstances under which a person could be convicted of murder without a showing of malice, . . . it did not exclude from liability persons convicted of murder for acting with implied malice." (Soto, supra, 51 Cal.App.5th at p. 1057.)
In sum, Esparza is not eligible for relief under section 1170.95 as a matter of law, so there is no reasonable probability that Esparza could obtain a more favorable result with appointed counsel. (See Watson, supra, 46 Cal.2d at p. 837.) The superior court's error was harmless.
DISPOSITION
The order denying Esparza's motion for resentencing under section 1170.95 is affirmed.
We concur: GRIMES, Acting P. J., WILEY, J.
[*] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.