Opinion
B298127
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM RASCON GARCIA, Defendant and Appellant.
Edward H. Schulman, 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, Senior Assistant Attorney General, Charles S. Lee and Allison H. Chung, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. A529374) APPEAL from a judgment of the Superior Court of Los Angeles County, Juan C. Dominguez, Judge. Reversed and remanded with directions. Edward H. Schulman, 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, Senior Assistant Attorney General, Charles S. Lee and Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent.
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INTRODUCTION
In 1984, a jury convicted appellant William Rascon Garcia of second degree murder. He appealed, challenging a jury instruction concerning the elements required to find him guilty as an aider and abettor. Though we agreed the instruction was defective, we affirmed the conviction, finding appellant was not convicted as an aider and abettor.
Effective January 1, 2019, Senate Bill No. 1437 "'amend[ed] 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.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) It also enacted Penal Code section 1170.95, permitting those who claimed they could not be convicted of murder under the new rules to petition for resentencing. Among other things, section 1170.95 provides that the People have 60 days to oppose such a petition, and thereafter the petitioner has 30 days to reply. (§ 1170.95, subd. (c).)
All further undesignated statutory references are to the Penal Code.
In January 2019, appellant filed a petition under section 1170.95. On March 29, 2019, after finding the petition "properly filed," appointing counsel for appellant at his request, receiving the People's opposition to the petition, and continuing the matter to April 16, 2019, "for receipt of the petitioner's reply," the court "summarily denied" the petition because "the appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was convicted of murder on a theory of being a direct perpetrator and not a theory of felony-murder of any degree, or a theory of natural and probable consequence."
On appeal, appellant argues that the trial court erred in considering our previous opinion in determining whether he had made a prima facie showing of entitlement to relief, in dismissing his petition before receiving and considering his reply, and in interpreting our previous opinion to preclude him from relief. He asks us to reverse the court's judgment and direct the court to hold an evidentiary hearing at which the parties may present evidence.
We conclude that while the trial court was permitted to consider our previous opinion in determining whether appellant had made the requisite showing, it erred in dismissing the petition before receiving and considering appellant's reply. We further conclude that because the court erred in concluding our opinion precluded appellant from relief, the court's error was not harmless and warrants reversal. Because we do not conclude as a matter of law that the trial court should have found appellant had made the requisite prima facie showing, we find an evidentiary hearing is premature, and instead reverse the judgment and remand with directions to permit appellant to file his reply brief and to proceed as set forth in section 1170.95.
STATEMENT OF RELEVANT FACTS
A. Appellant is Convicted of Second Degree Murder
Appellant and his father were charged by information with murdering Dolores Patricia Easley in violation of Penal Code section 187. The information further alleged they had each inflicted great bodily injury upon her during the murder. Among the instructions given to the jury after trial were the following:
While the information does not elaborate on this allegation, in our 1985 opinion affirming appellant's conviction, we noted the victim "died from at least 20 blows to the head with blunt force . . . ."
- CALJIC 3.00 (Principles—Defined), which, among other things, stated that "One 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 reasonable or probable consequences of any act that he knowingly aided or encouraged."
- CALJIC 8.10 (Murder—Defined), which stated appellant and his father were charged with murder, and that murder was defined as "the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life." (Boldface added.) This instruction also stated that to prove murder, the People needed to prove the killing "was done with malice aforethought."
- CALJIC 8.11 ("'MALICE AFORETHOUGHT'"—Defined), which stated "'Malice'" could be implied "when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life . . . ."
- CALJIC 8.31 (Second Degree Murder—Killing Resulting From Act Dangerous to Life),
defining second degree murder as "also" when a human being was killed "as the direct causal result of an intentional act . . . the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life."
- CALJIC 8.70 (Duty of Jury as to Degree of Murder), informing the jury that should it find the defendant guilty of murder, "it will be your duty to determine and state in your verdict whether you find the murder to be of the first or second degree."
The jury found appellant guilty of second degree murder, but found he did not commit great bodily injury during the murder. On August 24, 1984, the court denied appellant's request for probation and sentenced him to 15 years to life.
The jury found appellant's father guilty of first degree murder, and that he committed great bodily injury during the murder.
B. Appellant Appeals His Conviction
Appellant appealed, arguing that his conviction "'must be reversed because the jury found him guilty as an aider and abettor although, in violation of People v. Beeman (1984) 35 Cal.3d 547, the jury was not instructed they must find he intended to aid in the killing to do so.'" In our 1985 opinion, we agreed "the jury was erroneously instructed on aiding and abetting when it was given CALJIC No. 3.00," warranting a "per se reversal," unless an exception applied. One such exception was if "'"'the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted.'"'" Another was if "'"'the defendant conceded the issue of intent . . . .'"'" We found both exceptions applied.
Specifically, we held "[t]he evidence at trial amply supports the view that the jury did not and could not have relied on an aiding and abetting theory in reaching its verdict as to each appellant." We noted several pieces of evidence demonstrating appellant's father's intent to kill -- such as "Only appellant father was heard to threaten to kill the victim and dump her at a dam as he and appellant son dragged her from the Torres' party" and "Appellant father was the one who went in search of the victim on the night of [the murder], stopping on the way to pick up appellant son" -- but found that "[a]ny similar evidence of intent . . . was notably lacking as to appellant . . . ." We also found that because both appellant and his father relied on an alibi defense, both failed to challenge the issue of intent. We therefore affirmed the judgment.
C. Appellant Petitions for Re-Sentencing
On January 3, 2019, appellant mailed to the Los Angeles Superior Court and the prosecutor a form petition for resentencing under section 1170.95, requesting appointment of counsel and alleging, among other things, that:
- he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony murder doctrine, and could not now be convicted of murder because of changes to section 188;
- there had been a prior determination by a court or jury that he was not a major participant and/or did not act with reckless indifference to human life under section 190.2, subdivision (d); and
- he was entitled to be re-sentenced pursuant to section 1170.95, subdivision (d)(2).
On January 23, 2019, the court issued a minute order noting receipt of the petition, finding it "properly filed," assigning it to the Honorable Juan Carlos Dominguez, and setting a "non-appearance petition review hearing" for March 11, 2019. (Capitalization omitted.) On February 22, 2019, the court appointed counsel to represent appellant.
On March 11, 2019, the People filed an opposition to the petition, arguing appellant did not qualify for relief under section 1170.95 because he was not charged with felony murder, and "the evidence presented at trial, which was accepted as true by the Court of Appeal in Case Number B007495, clearly shows that Petitioner was not only a participant in the murder, he was one of the principals who committed the murder" and therefore not convicted under the natural and probable consequences theory. The court issued a minute order noting receipt of the opposition and continuing the matter until April 16, 2019, "for receipt of the petitioner's reply . . . ."
The People additionally argued section 1170.95 was unconstitutional, and that appellant was a "major participant" in the murder, and thus liable under section 189, subdivision (e)(3). (§ 189, subdivision (e) ["A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶]. . .[¶] (3) The person 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"].)
On March 29, 2019, before receiving appellant's reply brief, the court issued an order "summarily den[ying]" the petition because "the appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was convicted of murder on a theory of being a direct perpetrator and not a theory of felony-murder of any degree, or a theory of natural and probable consequence." Appellant timely appealed.
DISCUSSION
A. Senate Bill No. 1437 Permits Those Convicted of Felony Murder or Murder Under a Natural and Probable Consequences Theory to Petition for Re-Sentencing
"On September 30, 2018 the Governor signed Senate Bill 1437, which, effective January 1, 2019, amended sections 188 and 189, significantly modifying the law relating to accomplice liability for murder." (People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review granted Mar. 18, 2020, S260493 (Verdugo).) Specifically, "Senate Bill No. 1437 'amend[ed] 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.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (Martinez, supra, 31 Cal.App.5th at 723.)
The review order states: "Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Lewis, S260598 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court." (Verdugo, S260493, Supreme Court Mins., Mar. 18, 2020.) The review order in People v. Lewis states: "The issues to be briefed and argued are limited to the following: (1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)." (People v. Lewis, supra, Supreme Court Mins. Mar. 18, 2020.)
"The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mtal state." (People v. Chun (2009) 45 Cal.4th 1172, 1182.) "[U]nder the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.'" (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
"Senate Bill 1437 also added section 1170.95 to the Penal Code, which permits an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if he or she could not have been convicted of first or second degree murder because of Senate Bill 1437's changes . . . ." (Verdugo, supra, 44 Cal.App.5th at 326.)
Section 1170.95 requires a petition for relief to include certain basic elements, such as a declaration that the petitioner is entitled to relief, information regarding the underlying conviction, and whether the petitioner requests the appointment of counsel. (§ 1170.95, subd. (b)(1).) "If any of the required information is missing and cannot be readily ascertained by the court, 'the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.'" (Verdugo, supra, 44 Cal.App.5th at 327, quoting § 1170.95, subd. (b)(2).)
Section 1170.95, subdivision (c), provides for "two additional court reviews before an order to show cause may issue, one made 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—and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at 328.) "Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts." (Id. at 327, citing § 1170.95, subd. (d)(1).)
B. The Court Determined Appellant Failed to Make the Second Prima Facie Showing
As set forth above, a court makes two prima facie determinations under section 1170.95, subdivision (c) -- one before the parties' briefing, and one after. The People contend the court dismissed appellant's petition on the initial review, arguing that a court need only appoint counsel after a petition "has made an initial prima facie showing [under subdivision (c)] . . . and appellant failed to reach this step." However, the People also admit "[t]he appointment of counsel occurs only after the petitioner has satisfied the first step of a prima facie analysis," and it is undisputed that the court appointed counsel for appellant.
While we find the record less than clear, because the court had already determined the petition was "properly filed," had appointed counsel for appellant, and had received the People's opposition to the petition, we conclude the court's order dismissing the petition was a finding that appellant had failed to make the second prima facie showing. (See Verdugo, supra, 44 Cal.App.5th at 332 ["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"]; id. at 328 [second prima facie review occurs "after briefing by both sides"].)
C. The Court Did Not Err in Considering Our Previous Opinion in Dismissing the Petition
Appellant argues the court erred in making its prima facie determination by looking outside the "four corners" of the petition. Whether the court is permitted to do so under section 1170.95 is a question of statutory construction, which we review de novo. (Verdugo, supra, 44 Cal.App.5th at 328, fn. 8.)
In Verdugo, our colleagues in Division Seven found that in conducting the first prima facie review, the court must be permitted to consult the "same material that may be evaluated under subdivision (b)(2)—that is, documents in the court file or otherwise part of the record of conviction that are readily ascertainable . . . ." (Verdugo, supra, 44 Cal.App.5th at 329.) In People v. Lewis, our colleagues in Division One opined this was "sound policy" because it "'would be a gross misuse of judicial resources to require the issuance of an order to show cause or even appointment of counsel based solely on the allegations of the petition, which frequently are erroneous, when even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief. For example, if the petition contains sufficient summary allegations that would entitle the petitioner to relief, but a review of the court file shows the petitioner was convicted of murder without instruction or argument based on the felony murder rule or [the natural and probable consequences doctrine], . . . it would be entirely appropriate to summarily deny the petition based on petitioner's failure to establish even a prima facie basis of eligibility for resentencing." (People v. Lewis (2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020, S260598; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 57-58, review granted Mar. 18, 2020, S260410 [affirming summary denial of petition based on verdict, trial transcript, and prior appeal].) We agree with Verdugo and Lewis, and see no reason why materials available to a court making the initial prima facie determination should be denied to a court making the second such determination.
The grant of review states: "Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Lewis, S260598 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court." (People v. Cornelius, supra, Supreme Court Mins., S260410.)
Appellant's citation to People v. Ramirez (2019) 41 Cal.App.5th 923 is inapposite. Ramirez held "Section 1170.95, subdivision (c) requires the superior court to review the petition and determine whether the petitioner has made a prima facie showing of entitlement to relief. . . . [¶] A prima facie showing of eligibility triggers the trial court's obligation to issue an order to show cause . . . ." (Id. at 929.) Ramirez did not discuss whether the trial court could review the court file or the record of conviction in making its prima facie determinations.
D. The Court Erred by Dismissing the Petition Before Receiving and Considering Appellant's Reply Brief
The court summarily denied appellant's petition after receiving the People's opposition, but before appellant's reply was received or due. The dismissal order did not mention the People's opposition, but the reason given for dismissal was one advocated by the People. Appellant argues the court erred by dismissing his petition before receiving and considering his reply. Whether section 1170.95 permits the court to find the second prima facie showing was not made under subdivision (c) after receiving an opposition from the People but before appellant's statutorily permitted reply is received or due is a question of statutory construction, which we review de novo. (Verdugo, supra, 44 Cal.App.5th at 328, fn. 8.)
Specifically, the People argued: "The Information for the instant case is very clear that the People did not elect to file felony murder charges. . . . Accordingly, Petitioner would only be eligible for resentencing consideration if murder was charged and proved under the 'natural and probable consequences theory.' . . . [¶] . . . [¶] . . . In the instant case, the evidence presented at trial, which was accepted as true by the Court of Appeal in Case Number B007495, clearly shows that Petitioner was not only a participant in the murder, he was one of the principals who committed the murder." The minute order denying the petition states the petition "is summarily denied" because "[t]he appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was convicted of murder on a theory of being a direct perpetrator and not a theory of felony-murder of any degree, or a theory of natural and probable consequence."
The language of the statute is clear: after the People file an opposition, "the petitioner may file and serve a reply within 30 days after the prosecutor response is served." (§ 1170.95, subd. (c).) As Verdugo noted, under section 1170.95, subdivision (c), the court may deny the petition: either "before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95" or "after briefing by both sides . . . ." (Verdugo, 44 Cal.App.5th at 328; see also id. at 330 [the second determination is to be made "with the benefit of the parties' briefing and analysis" (italics added)].) Here, it is undisputed that the court summarily denied the petition without affording appellant an opportunity to file a timely reply. We next address whether this error was harmless.
E. The Court Erred in Finding Appellant Was Not Entitled to Relief as a Matter of Law
The People contend any error the court made in dismissing the petition was harmless, because it is not reasonably probable appellant would have obtained a different outcome even had he filed a reply. Appellant argues the error is "structural," and not subject to a harmless error analysis. Because we conclude the error was not harmless, we do not address whether it was structural.
The court denied the petition because "the appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was convicted of murder on a theory of being a direct perpetrator and not a theory of felony-murder of any degree, or a theory of natural and probable consequence." Whether the court correctly interpreted our previous opinion is a question of law that we review de novo. (Sefton v. Sefton (2015) 236 Cal.App.4th 159, 168.)
While our previous opinion held that appellant was not convicted as an aider and abettor -- and only an aider and abettor can be convicted under the natural and probable consequences theory -- it said nothing about whether he was convicted under a theory of felony murder. Moreover, the instructions given at appellant's trial expressly permitted the jury to find appellant guilty if the killing occurred "during the commission or attempt to commit a felony inherently dangerous to human life." Although the instructions identified no particular felony, we cannot say the limited record before us conclusively refutes, as a matter of law, the jury's reliance on such a theory. Accordingly, the court erred in finding, as a matter of law, that our 1985 opinion precluded appellant from entitlement to relief.
"[U]nder the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.'" (People v. McCoy, supra, 25 Cal.4th at 1117.)
F. An Evidentiary Hearing Is Premature
Appellant contends that if we find the court erred in dismissing his petition, we must remand the matter for an evidentiary hearing under section 1170.95, subsection (d). Such direction would be warranted only if we found the trial court was required, as a matter of law, to determine that appellant had made the second prima facie showing under section 1170.95, subdivision (c). We cannot do so.
"The nature and scope of section 1170.95, subdivision (c)'s second prima facie review, made following a round of briefing by the prosecutor and counsel for petitioner, is equivalent to the familiar decisionmaking process before issuance of an order to show cause in habeas corpus proceedings . . . . Indeed, the standard for subdivision (c)'s second review—'a prima facie showing that he or she is entitled to relief'—is identical to the standard for issuance of an order to show cause in a habeas corpus proceeding, as set forth in rule 4.551(c)(1): 'The court must issue an order to show cause if the petitioner has made a prima facie showing that he or she is entitled to relief. In doing so, 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.'" (Verdugo, supra, 44 Cal.App.5th at 328.)
Here, appellant has alleged that he was convicted of second degree murder under, inter alia, the second degree felony murder doctrine, and that he could not now be convicted of murder because of the changes to section 188. He also has alleged that there had been a prior determination by a court or jury that he was not a major participant and/or did not act with reckless indifference to human life under section 190.2, subdivision (d). Were these allegations true, appellant would be entitled to relief, and the court would be required to issue an order to show cause unless it concluded, based on the court file or record of conviction, that appellant was not entitled to relief as a matter of law. Because the full record of conviction is not before us, we are unable to definitively state whether there exists any evidence that would prove beyond a reasonable doubt that appellant was not convicted under a theory of felony murder. Therefore, remanding for an evidentiary hearing would be premature. Instead, we direct the trial court to permit appellant to file his reply to the People's opposition, to consider such reply if filed, and to otherwise proceed as set forth in section 1170.95.
DISPOSITION
The judgment is reversed and remanded with directions to permit appellant to file a reply brief within 30 days of notice of the issuance of the remittitur, to consider such reply if filed, and to otherwise proceed as set forth in section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P.J.
We concur:
COLLINS, J.
CURREY, J.