Opinion
C093997
03-30-2022
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO JAVIER GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CM037256)
Duarte, J.
In 2014, defendant Alejandro Javier Gonzalez was found guilty of second degree murder and shooting at an occupied vehicle. In 2021, defendant filed a petition for resentencing under Penal Code section 1170.95, alleging he was convicted under the natural and probable consequences doctrine. The trial court summarily denied defendant's petition. On appeal, defendant contends he was entitled to counsel, briefing, a hearing, and an explanation for the trial court's denial; the Attorney General agrees remand is appropriate. We agree with the parties; we reverse the order and remand with directions to the trial court to issue an order to show cause under section 1170.95.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant and two others followed another car driven by rival gang members and as the two cars passed, one person from defendant's group fired a single shot at the other car, killing the victim. (People v. Gonzalez (July 31, 2020, C078505) [nonpub. opn.] (Gonzalez).) Defendant was charged with murder (count one) and shooting at an occupied motor vehicle (count two). (§§ 187, subd. (a), 246).
We granted defendant's motion for judicial notice of our opinion affirming the judgment of conviction and sentence in defendant's direct appeal. (Evid. Code, §§ 459, subd. (a) ["[t]he reviewing court may take judicial notice of any matter specified in Section 452"]; 452, subd. (d) [permitting a court to take judicial notice of records of "any court of this state"].)
At trial, the jury was instructed for murder with malice aforethought and "aiding and abetting/natural and probable consequences." The latter instruction allowed the jury to find defendant guilty of murder if, "[u]nder all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the [m]urder was a natural and probable consequence of the commission of" disturbing the peace, battery, or criminal street gang activity.
On December 5, 2014, the jury found defendant not guilty of first degree murder, guilty of second degree murder, not true that he personally used a firearm in commission of this crime, and true that the crime was committed for the benefit of a gang. On the second count, the jury found defendant guilty of shooting at an occupied motor vehicle and found true the allegation that he committed this crime for the benefit of a gang. Defendant was sentenced to 15 years to life in prison. (Gonzalez, supra, C078505.)
Defendant appealed and we affirmed the judgment. One of defendant's arguments challenged the target offenses used for the natural and probable consequences instruction. We concluded the instructions properly allowed defendant to be convicted of murder under that theory. Defendant also argued he could not be convicted under the then recently passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). We held the exclusive procedure for this contention was filing a petition under section 1170.95. (Gonzalez, supra, C078505.)
On December 28, 2020, defendant filed a form petition for resentencing under section 1170.95 in the trial court. He checked the boxes to indicate an information was filed against him allowing the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; he was convicted at trial of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; and that he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Defendant also requested appointment of counsel.
On April 9, 2021, the trial court issued two orders. One was an order on communication received, with boxes checked that the trial court had read and considered defendant's communication and that there was "[n]o action to be taken." Notice was given to defendant and the prosecutor, but the boxes for defense counsel were not checked. The second order was on the section 1170.95 petition. This form order had the box checked that the court found a prima facie case had not been made and for "Other," the order states: "Based on the Court's review of the file, the defendant does not qualify for the relief as set forth in [section] 1170.95."
Defendant timely appealed, and on his notice of appeal he noted he was not represented by an appointed attorney in the superior court. The case was fully briefed on January 21, 2022, and assigned to this panel on February 4, 2022. We sent an oral argument waiver notice to the parties on March 2, 2022; the parties waived oral argument.
DISCUSSION
Defendant contends the trial court prejudicially erred by not appointing him counsel before denying the petition and by prematurely finding he did not qualify for relief without first accepting briefing and holding a hearing. The Attorney General agrees remand is appropriate under recent case law and statutory changes to section 1170.95.
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). This bill was enacted 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." (Stats. 2018, ch. 1015, § 1, subd. (f).) Thus, Senate Bill No. 1437 amended sections 188 and 189, effective January 1, 2019, to, among other things, "eliminate[] natural and probable consequences liability for murder regardless of degree." (People v. Gentile (2020) 10 Cal.5th 830, 848.)
Senate Bill No. 1437 also authorized (by adding section 1170.95) an individual convicted of felony murder or murder based on the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if they could not have been convicted of murder because of Senate Bill No. 1437's changes to the definition of the crime. (People v. Gentile, supra, 10 Cal.5th at p. 843.) Trial courts first review the petition to determine whether it has been properly completed and then determine whether the petitioner has made a prima facie case for relief. (§ 1170.95, subds. (b), (c).) If a prima facie case is made, the trial court issues an order to show cause and holds an evidentiary hearing to determine whether to vacate the conviction and recall the sentence. (§ 1170.95, subd. (d).)
In People v. Lewis (2021) 11 Cal.5th 952, our Supreme Court set forth the appropriate procedure as follows: "[A] complying petition is filed; the court appoints counsel, if requested; the issue is briefed; and then the court makes one (not two) prima facie determination." (Id. at p. 966.) The court also held that the failure to appoint counsel was error under state statutory law; accordingly, "a petitioner 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing." '" (Id. at p. 974.)
Senate Bill No. 775 (2020-2021 Reg. Sess.) (Senate Bill No. 775) was signed into law on October 5, 2021, and codified Lewis's holding "regarding petitioners' right to counsel and the standard for determining the existence of a prima facie case." (Stats. 2021, ch. 551, § 1, subd. (b).) Specifically, section 1170.95 now explicitly requires appointment of counsel on receipt of a properly completed petition requesting counsel, and then: "Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the prosecutor's response is served. These deadlines shall be extended for good cause. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1170.95, subd. (c).) These modifications to section 1170.95 apply retroactively to defendant because his case is not yet final. (People v. Porter (2022) 73 Cal.App.5th 644, 652.)
The trial court's procedures here did not adhere to the prima facie process. Defendant's petition met all the threshold requirements of section 1170.95, subdivision (b), but the record indicates defendant was not appointed counsel, briefing was not ordered, there was no hearing, and the trial court did not fully set forth its reasons for denying the petition. After Lewis and Senate Bill No. 775, these steps are required before a court may decline to issue an order to show cause.
Neither party argues the error in failing to follow those procedures was harmless, and we cannot say it is reasonably probable the petition properly could have been denied without an evidentiary hearing on any other basis. (People v. Lewis, supra, 11 Cal.5th at pp. 972-974.) Nothing in the record of conviction necessarily renders defendant ineligible. The jury was instructed on natural and probable consequences murder and there is nothing establishing as a matter of law it did not find defendant guilty under this theory. The trial court was therefore required to issue an order to show cause.
DISPOSITION
The order denying defendant's petition for resentencing under section 1170.95 is reversed. The matter is remanded to the trial court with directions to issue an order to show cause and hold a hearing under section 1170.95, subdivision (d).
We concur: Robie, Acting P. J., Renner, J.