Opinion
B329109
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GOMEZ et al., Defendants and Appellants
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant Michael Gomez. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Ivan Rivera. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. BA389963, Richard S. Kemalyan, Judge.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant Michael Gomez.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Ivan Rivera.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
STRATTON, P. J.
These appeals challenge orders denying petitions for resentencing brought under Penal Code section 1172.6 by defendants Michael Gomez and Edgar Rivera. We reverse the denial of the resentencing petitions and remand for further proceedings under section 1172.6, subdivision (d)(3).
Statutory references are to the Penal Code.
BACKGROUND
In August 2013, the People filed an Information charging Michael Gomez and Edgar Rivera with one count of murder in violation of section 187, subdivision (a). The Information also alleged a principal used and discharged a firearm causing great bodily injury and death and the offense was committed for the benefit of a criminal street gang. (§§ 12022.53, subds. (b), (c), (d), &(e)(1); 186.22, subd. (b)(1)(C).)
On January 28, 2015, both defendants pleaded no contest to voluntary manslaughter, admitted personally using a firearm in the offense, and admitted the truth of the gang allegation. Defendant Gomez also admitted three prison priors pursuant to section 667.5, subdivision (b). In accordance with their plea agreements, the trial court sentenced Rivera to a total sentence of 23 years imprisonment-the low term of three years for voluntary manslaughter plus 10 years for the firearm enhancement and 10 years for the gang enhancement. The trial court sentenced Gomez to a total sentence of 29 years-six years for manslaughter plus 10 years for the firearm enhancement, 10 years for the gang enhancement, and three years for the prison priors.
On August 3, 2022, Gomez filed a petition for resentencing pursuant to section 1172.6. He argued nothing in the record established the identity of the actual killer and nothing in the information precluded the prosecution from pursuing more than one theory of the case, including accomplice liability based on the natural and probable consequences doctrine or the felony murder rule. The People opposed the petition and Gomez filed a reply.
On August 19, 2022, Rivera filed a petition for resentencing pursuant to section 1172.6. He argued there was no evidence he was the actual killer and therefore he was eligible for resentencing. Relying on the transcripts of the preliminary hearing and the change of plea hearing, the People argued that Rivera was prosecuted on a direct aiding and abetting theory and was ineligible for relief. In reply, Rivera contended co-defendant Gomez was the actual killer and he, Rivera, was prosecuted for murder under a natural and probable consequences theory of liability and was therefore entitled to an evidentiary hearing to determine if he could still be found guilty as charged.
Both petitioners appeared through counsel. On April 26, 2023, the trial court denied both petitions, relying on the charging Information, the transcript of the change of plea hearing, and the preliminary hearing transcript.
In ruling, the trial court stated: "Here, the court makes only a passing discussion of the preliminary hearing transcript to therefore avoid any allegation that the court is engaged in factfinding. I have already said that I note that the decedent is Edwin Cordero who died at the scene and had two gunshots wounds. I believe these are readily ascertainable facts from the record and does not involve fact-finding. [¶] Beyond this, the focus for this court happens to be the plea transcript. The court makes the following findings in reference to the petitions. One, the People did not argue at the conclusion of the preliminary hearing any theory of felony murder or natural and probable consequences; Two, each defendant pled no contest to a violation of Penal Code section 192[, subdivision] (a), voluntary manslaughter. Voluntary manslaughter can be considered to fall now under the ambit of [sections] 1437 and 1172.6; [¶] Three, each defendant admitted personal use of a firearm in the commission of the manslaughter. As each defendant admitted to the personal use of a firearm-let me underline that, each defendant admitted to the personal use of a firearm-and the victim was shot and killed, there is no issue of vicarious liability for the court to consider. Essentially, each defendant has admitted to potentially being the actual killer; [¶] Four, Penal Code [section] 192[, subdivision] (a), voluntary manslaughter, does not require malice. As such, malice is not being imputed to either defendant in this case; therefore, the theories of felony murder, natural and probable consequences, or any other theory that would involve imputed malice does not apply to these petitions. [¶] Therefore, neither defendant has demonstrated in their theory disapproved by [Senate Bill No.] 1437 or [section] 1172.6 that was utilized to convict either defendant. As such, as matter of law, neither defendant is entitled to relief.... [¶] Here, the court finds that based upon the record of conviction, as I have noted neither of the defendants is eligible for relief as a matter of law, and as a result, the court so finds and denies the petitions." These appeals followed.
For context only, we relate the alleged facts of the offense as set out in the probation reports and Rivera's brief: "According to the detective, the defendants, Gomez and Rivera were members of the [Ford] Maravilla gang[.] [O]n the day of the crime, the defendants observed the victim Edwin Cordero, a rival gang member exiting the gold line Metro train. The defendant Rivera was driving Gomez['s] vehicle, and followed [the victim in the vehicle.] As they slowly approached the victim who was walking on the sidewalk, Gomez asked him what gang did he belong to. The victim informed the defendants of their rival gang name and Gomez the passenger in the vehicle shot the victim in the torso area several times, resulting in his death."
DISCUSSION
A. Applicable Law
Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited the scope of the felony murder rule and eliminated the natural and probable consequences doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 957) (Lewis).) Petitions for resentencing carry out the intent of Senate Bill No. 1437, which was "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); Lewis, at p. 967.) Petitions under section 1172.6 address convictions where a defendant was not the shooter but was held vicariously liable on one of several theories of liability identified in the statute. If the record establishes ineligibility for resentencing as a matter of law, the petition has been properly denied. (Lewis, at pp. 970-972.) However, the petition and record must establish conclusively that the defendant is ineligible for relief. (People v. Lopez (2022) 78 Cal.App.5th 1,14 [a "petitioner is ineligible for resentencing as a matter of law if the record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that . . . the petitioner was the actual killer."].) (Ibid.) When a trial court denies a section 1172.6 petition based on the failure to make a prima facie case for relief, our review is de novo. (Ibid.)
After appointment of counsel, the trial court assesses whether a prima facie case for relief has been made. The prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) In assessing whether a defendant has made a prima facie case for relief pursuant to section 1172.6, ruling on a resentencing petition, the trial court is entitled to review the record of conviction, which includes the jury summations, jury instructions, verdict forms, and prior appellate opinions. (Lewis, at pp. 971-972.) However, Lewis cautions that although appellate opinions are generally considered to be part of the record of conviction, the prima facie bar was intentionally set very low; a trial court should not engage in" 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
At the prima facie stage where a defendant has entered a plea of guilty or no contest, the trial court must decide whether the plea and pre-plea record show as a matter of law that the prosecution did not rely on any theories of murder and attempted murder eliminated by Senate Bill No. 1437, or that the defendant admitted facts as part of the plea which support a still-valid theory. (People v. Fisher (2023) 95 Cal.App.5th 1022, 1028.)
B. Analysis
The People concede, and we agree, that the record does not support the conclusion that Gomez and Rivera are ineligible for relief as a matter of law. The statute affords relief where, as here, a defendant pleaded guilty to a charge of voluntary manslaughter and the prosecution could have pursued a murder conviction on a natural and probable consequences theory had the case proceeded to trial. (§ 1172.6, subd. (a)(1).)
The Information charged both defendants generically with murder and the prosecution could have proceeded on a natural and probable consequences theory of liability on the murder charge had the case gone to trial. (People v. Rivera (2021) 62 Cal.App.5th 217, 233 ["neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded" and an information that charges the crime of murder "allow[s] the prosecution to proceed under any theory of murder"].)
At the plea, neither defendant admitted to being the actual killer or did either defendant stipulate to any particular theory of murder. That both defendants admitted using a firearm in the commission of the offense does not establish ineligibility for relief under section 1172.6 as a matter of law. (People v. Offley (2020) 48 Cal.App.5th 588, 597-599; In re Ferrell (2023) 14 Cal.5th 593, 604 [citing Offley with approval and noting that admitting a violation of section 12022.53, subdivision (d) does not encompass a finding of implied malice, only an intent to discharge a firearm].)
Both defendants argue the trial court cannot consider the evidence presented at the preliminary hearing in deciding whether a prima facie case has been made. Whether a trial court may rely on evidence adduced at a preliminary hearing where the petitioner later pled guilty or no contest is currently pending in the California Supreme Court. (People v. Patton (2003) 89 Cal.App.5th 649, review granted June 28, 2023, S279670.) We need not decide the question here because even if the evidence at the preliminary hearing were considered, it does not establish ineligibility as a matter of law. The record of conviction, including the evidence from the preliminary hearing, establishes no more than either of the defendants may have been the actual killer. At the preliminary hearing, a witness testified that Gomez shot the victim; the same witness later testified Rivera shot the victim. The evidence, if considered, is equivocal as to the identity of the actual killer and as such cannot be used without the trial court acting as a factfinder, a role it cannot undertake at the prima facie stage. (People v. Estrada (2024) 101 Cal.App.5th 328, 339-340.) Both defendants are entitled to an evidentiary hearing on their petitions for resentencing and the trial court is directed to go forward with such a hearing upon remand.
DISPOSITION
The order denying the petition for resentencing is reversed.
We concur: GRIMES, J., VIRAMONTES, J.