Opinion
C089457
03-29-2022
THE PEOPLE, Plaintiff and Respondent, v. TONY RAMON GEROLAGA, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. STK-CR-FE-2003-0006717, SF087581A)
OPINION ON TRANSFER
HULL, J.
Defendant, Tony Ramon Gerolaga, Jr., appeals the trial court's denial of his in propia persona petition for resentencing pursuant to Penal Code section 1170.95 (statutory section citations that follow are to the Penal Code). Defendant complains the court erred in failing to appoint counsel prior to denying his petition and in determining he was not eligible for relief because he was convicted of attempted murder.
In our original unpublished decision, we affirmed the trial court's order denying defendant's section 1170.95 petition because the record and previous appellate decision showed that defendant was not charged with, nor tried on, a theory to which the amendments of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) could arguably apply. (People v. Gerolaga (April 27, 2020; C089457) [nonpub. opn.], [pp. 1-2] (Gerolaga).) Defendant appealed this denial to the California Supreme Court, which granted his petition for review and deferred briefing "pending consideration and disposition of related issues in People v. Lopez, S258175 and People v. Lewis, S260598."
On January 26, 2022, the Supreme Court transferred the matter back to us with directions to vacate the previous decision and reconsider the matter "in light of Senate Bill No. 775 (Stats. 2021, ch. 551) and People v. Lewis (2021) 11 Cal.5th 952 [(Lewis)]." Having done so, we now conclude that a review of defendant's original trial record, which we incorporate herein at respondent's request, demonstrates he is ineligible for relief as a matter of law. Accordingly, we affirm the trial court's order.
Facts and History of the Proceedings
We take this background from our unpublished decision issued in 2005 affirming defendant's convictions, Gerolaga (Aug. 1, 2005, C045811):
"Viewed in the light most favorable to the verdicts, the evidence showed that on March 30, 2002, shortly after he cashed a monthly check for tribal benefits, Leonard Starkey was savagely beaten and robbed in a room at the Super 8 Motel on West March Lane in Stockton. Starkey, who was beaten so badly he was in a coma for a month and developed post traumatic cerebral palsy, has no memory of the attack; however, other evidence linked defendant to the crime. Two latent fingerprints taken from the air conditioner in the motel room matched defendant's prints. In addition, a taxi driver (John Lagomarsino) testified he dropped Starkey, a man, and a woman off at the motel at about 2:15 a.m. When shown a photographic lineup sometime later, Lagomarsino picked out a photograph of defendant's girlfriend, Juanita Aguilar, because it looked most like the woman he dropped off. Telephone records showed that after Lagomarsino dropped off Starkey and the other two, multiple telephone calls were made from the motel room to a telephone number at the home of Manuel Martinez. At the time of the calls, defendant and Aguilar were staying at Martinez's home, and Martinez testified defendant and Aguilar were at the house when he left for work at around 9:30 p.m. on the night Starkey was attacked. In an interview with police, defendant denied being at the Super 8 Motel that night, although he claimed to have stayed there in the past. At trial, however, defendant admitted he went to the Super 8 Motel that night but denied assaulting Starkey.
"The evidence further showed that on January 9, 2003, defendant savagely beat Carol Hayes at her home on South Laurel Street in Stockton. Hayes testified that before the attack, defendant had been staying at her house, but she told him to leave on January 6 or 7. On the afternoon of the 9th, defendant came over, ostensibly to pick up some things he had left there. Without warning, he struck her and knocked her to the floor. While he was beating her, he asked her where her purse or her money was. (Hayes had cashed her AFDC check earlier that day.) She told him it was in the kitchen. After beating her bloody, defendant bound her hands with duct tape behind her back, then put duct tape over her eyes. When she told defendant she needed to pick up her daughter by 5:00 p.m., defendant told Hayes her daughter would be taken care of. He then wrapped duct tape around her head, over her nose and mouth. Hayes managed to move her chin so she could gasp a little bit of air through the corner of her mouth. After he taped her nose and mouth, defendant told Hayes that if she called the police, he would come back and shoot her.
"Hayes's car was later found abandoned in a field near where defendant had been living in a tent. Two latent prints from the trunk of the car matched defendant's prints.
"Ultimately, defendant was charged in an amended information with seven different counts based on both incidents. With respect to the attack on Starkey, defendant was charged with attempted murder (count 1) and robbery (count 2). As an enhancement, the information alleged that in committing both crimes, defendant inflicted great bodily injury on Starkey causing him to become comatose due to brain injury.
"With respect to the attack on Hayes, defendant was charged with robbery (count 3), attempted murder (count 4), witness intimidation (count 5), auto theft (count 6), and false imprisonment (count 7). As an enhancement, the information alleged that in committing the robbery and the attempted murder, defendant had inflicted great bodily injury on Hayes.
"The trial court denied defendant's motion to sever the Starkey counts from the Hayes counts. The jury found defendant guilty of all charges except the attempted murder of Starkey, choosing instead to find him guilty of the lesser included offense of assault with a deadly weapon or force likely to produce great bodily injury. The jury also found all of the enhancement allegations were true.
"After denying defendant's new trial motion, the trial court sentenced defendant as follows: an indeterminate term of life, plus three years for the enhancement, for attempting to murder Hayes; a consecutive upper term of six years, plus five years for the enhancement, for robbing Starkey; the upper term of four years, plus five years for the enhancement, for assaulting Starkey (stayed); the upper term of six years, plus three years for the enhancement, for robbing Hayes (stayed); a consecutive three years for the witness intimidation of Hayes; a consecutive eight months (one-third the middle term) for stealing Hayes's car; and a consecutive eight months for falsely imprisoning Hayes." (Gerolaga, supra, C045811 [pp. 2-5].) Our unpublished decision stayed defendant's sentence for false imprisonment pursuant to section 654 and otherwise affirmed the judgment. (Id. at p. 31.)
On April 10, 2019, defendant filed an in propia persona petition seeking appointment of counsel and resentencing for his attempted murder conviction pursuant to section 1170.95. The trial court denied his request on April 16, 2019, in an ex parte order that found defendant was not entitled to relief as a matter of law because he was convicted of attempted murder. Defendant timely appealed.
Discussion
I
Relevant Law
In 2018, the Legislature enacted Senate Bill 1437 (2017-2018 Reg. Sess.) which amended section 188 to require proof of personal malice aforethought in all murder convictions (§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2), except in cases prosecuted under the felony murder rule. (§§ 188, subd. (a)(3), 189, subd. (e).) "The effect of the new law was to eliminate liability for murder under the natural and probable consequences doctrine." (People v. Offley (2020) 48 Cal.App.5th 588, 594; see also People v. Gentile (2020) 10 Cal.5th 830, 838-839 [caselaw and Senate Bill 1437 have eliminated the natural and probable consequence's applicability to murder in the first and second degree].) The legislation also enacted section 1170.95, which provides a mechanism allowing a petitioner to request vacatur of a murder conviction where that petitioner could not have been convicted of murder under the new law. It further provides for resentencing of those petitioners who were so convicted. (Stats. 2018, ch. 1015, § 4; Gentile, at p. 843.)
Prior to Senate Bill No. 775, appellate courts unanimously held section 1170.95 inapplicable to final convictions for attempted murder. (See, e.g., People v. Dennis (2020) 47 Cal.App.5th 838, 844-847, review granted July 29, 2020, S262184; People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1105, review granted Nov. 13, 2019, S258175; People v. Munoz (2019) 39 Cal.App.5th 738, 754-756, review granted Nov. 26, 2019, S258234.) However, Senate Bill No. 775 (Reg. Sess. 2021-2022) amended subdivision (a) of section 1170.95 to read, in pertinent part: "A person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's . . . attempted murder . . . conviction vacated and to be resentenced on any remaining counts . . . ." (Stats. 2021, ch. 551, § 2.) Senate Bill No. 775 became effective January 1, 2022 (Cal. Const. art. IV, § 8; Stats. 2021, ch. 551, §2). Thus, certain petitioners convicted of attempted murder are now eligible to seek relief under section 1170.95.
Section 1170.95, subdivisions (b) and (c) create a two-step process for evaluating a petitioner's eligibility for relief. (Lewis, supra, 11 Cal.5th at pp. 960-962.) First, the trial court determines whether the petition is facially sufficient under section 1170.95, subdivision (b). (Lewis, at p. 960.) If the petition is facially sufficient, then the trial court moves on to subdivision (c), appointing counsel (if requested) and following the briefing schedule set out in the statute. (Lewis, at p. 966.) Following the completion of this briefing, the trial court then determines whether the petitioner has made a prima facie showing he or she is entitled to relief. (Ibid.)
As the Supreme Court explained, "[w]hile the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "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."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."' [Citation.]" (Lewis, supra, 11 Cal.5th at p. 971.)
"To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)" (People v. Porter (2022) 73 Cal.App.5th 644, 651.)
II
Application to These Proceedings
Following transfer from the California Supreme Court, defendant reiterates his complaints that the trial court erred in failing to appoint counsel and in determining defendant was not eligible for relief because he was convicted of attempted murder. The People disagree, arguing that remand for further proceedings is unnecessary because defendant is ineligible for relief as a matter of law given that he was not prosecuted under the natural and probable consequences doctrine.
Although Senate Bill No. 775 has expressly authorized individuals convicted of attempted murder to seek relief under section 1170.95 (Porter, supra, 73 Cal.App.5th at pp. 651-652), we now conclude any error here in failing to appoint counsel, allowing briefing on defendant's eligibility, and conducting a hearing under section 1170.95 subdivisions (b) and (c) is harmless beyond a reasonable doubt. (Lewis, supra, 11 Cal.5th at pp. 973-974; Porter, at p. 651.).
Here, the amended information did not charge defendant with attempted felony murder or attempted murder as an aider and abettor under a natural and probable consequences theory. Nor could defendant have been charged with attempted felony murder because that crime does not exist under California law. (People v. Billa (2003) 31 Cal.4th 1064, 1071, fn. 4.)
Further, a review of the jury instructions from defendant's original trial shows he was prosecuted for willful, premediated attempted murder. Accordingly, the record on appeal shows as a matter of law that defendant was not prosecuted on the natural and probable consequences doctrine, and thus, was not tried on a theory to which the amendments of Senate Bill 1437 could arguably apply. (§§ 664/189, subd. (e)(1), 1170.95, subd. (a)(3); Lewis, supra, 11 Cal.5th at p. 971.) Under these circumstances, defendant has not met his burden of showing it is reasonably probable that he would have obtained an order to show cause in the absence of trial court error. (Lewis, at pp. 973-974; Porter, supra, 73 Cal.App.5th at p. 651.)
Disposition
The trial court's order is affirmed.
We concur: RAYE, P. J., ROBIE, J.