Opinion
B297087
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. RAUL GUZMAN, Defendant and Appellant.
Adrian K. Panton, 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 Kristen J. Inberg, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA040676) APPEAL from a postjudgment order of the Superior Court of Los Angeles County. Kathleen Kennedy, Judge. Affirmed. Adrian K. Panton, 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 Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
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Raul Guzman appeals the summary denial of his petition for resentencing under Penal Code section 1170.95. Appellant contends the superior court erred in denying the petition without first honoring his request for appointment of counsel. We disagree and affirm.
Undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
The appellate record does not contain a recitation of the underlying facts of the offense.
A jury convicted appellant of second degree murder on January 29, 1993. He was sentenced to state prison for 15 years to life with the possibility of parole plus a five-year enhancement for the personal use of a firearm under section 12022.5.
On January 31, 2019, appellant filed a petition for resentencing under section 1170.95, alleging that he had been convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine, and could not be convicted of murder because of the changes to sections 188 and 189 by Senate Bill No. 1437. The petition further alleged that appellant was "convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine," but could not now be convicted of murder due to changes to section 188. Appellant also checked the boxes on the form stating that he was not the actual killer, he did not aid and abet with intent to kill, and he was neither a major participant nor acted with reckless indifference to human life. Appellant's petition included a request that counsel be appointed to represent him.
On February 26, 2019, without appointing counsel and with no appearance by appellant or the People, the superior court summarily denied the petition. In its order the court stated: "[P]etitioner is not entitled to relief as a matter of law" because he "was convicted of murder but the court file reflects that the petitioner was the actual killer and was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences. There are no jury instructions for aiding and abetting, felony murder, or natural and probable consequences."
On March 27, 2019, the superior court issued a revised memorandum of decision in response to a letter from appellant. Again, the superior court denied the petition without appointing counsel, ruling that he was not entitled to relief as a matter of law. The court added the following information to its previous order:
"A review of the trial transcript confirms that the jury was not instructed on the natural and probable consequences theory of aiding and abetting a first degree murder. The trial judge during jury selection explained briefly the concepts of aiding and abetting and natural and probable consequences to the venire in a general fashion. Ultimately, however, the jury was not instructed on that theory, nor did the prosecutor rely upon the natural and probable consequences doctrine in her final argument. The jury found that each of the three defendants in this case shot at the victim and that each was guilty of first degree murder as either being the actual killer or an aider and abettor to the actual crime of first degree murder. The evidence presented revealed that [the] victim sustained numerous gunshot wounds while being shot simultaneously by the three defendants. Apparently, the specific wound that proved to be fatal was a shotgun blast that was apparently fired by a codefendant, however, clearly the jury was satisfied that this defendant was an aider and abettor of the charged crime. He is not entitled to relief."
DISCUSSION
I. The Superior Court's Summary Denial of Appellant's Petition Was Proper
A. Senate Bill No. 1437 and section 1170 .95
The Legislature enacted Senate Bill No. 1437 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).) To accomplish this objective, Senate Bill No. 1437 amended section 188, defining malice, and section 189, which classifies murder into two degrees and lists the predicate felonies for the crime of first degree felony murder. (Stats. 2018, ch. 1015, §§ 2, 3; People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
The amendments to section 189 included the new requirement that a participant in a specified felony during which a death occurs may be convicted of murder for that death "only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] [or] (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." (§ 189, subd. (e)(1)-(3).)
Senate Bill No. 1437 and its amendment to section 188 "significantly restricted potential aider and abettor liability, as well as coconspirator liability, for murder under the natural and probable consequences doctrine, effectively overruling [People v.] Chiu [(2014) 59 Cal.4th 155 (Chiu)] insofar as it upheld second degree murder convictions based on that theory. Now, rather than an objective, reasonable foreseeability standard, as discussed in [People v.] Prettyman [(1996) 14 Cal.4th 248] and Chiu, pursuant to new section 188, subdivision (a)(3), to be guilty of murder other than as specified in section 189, subdivision (e), concerning felony murder, the subjective mens rea of 'malice aforethought' must be proved: '[T]o be convicted of murder, a principal in a crime shall act with malice aforethought.' (See also Sen. Bill 1437 (Stats. 2018, ch. 1015, § 1, subd. (g) ['[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea'].) And that required element of malice 'shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).)" (People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019, S258175; People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18, 2020, S260598 (Lewis).) However, as Lewis observed, while the amendment to section 188 effectively eliminated use of the natural and probable consequences doctrine to support a murder conviction, the change did not "alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator.' (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see Chiu, supra, 59 Cal.4th at p. 167 [a direct aider and abettor 'acts with the mens rea required for first degree murder'].)" (Lewis, supra, 43 Cal.App.5th at p. 1135, rev.gr.)
In addition to these amendments, Senate Bill No. 1437 also added section 1170.95 to provide a procedure by which those convicted of felony murder or murder under a natural and probable consequences theory can seek retroactive relief if they could no longer be convicted of murder because of the changes in sections 188 or 189. (People v. Martinez, supra, 31 Cal.App.5th at pp. 722-723.) A petition under section 1170.95 must include the following allegations:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.
"(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(1)-(3).)
In addition, the petition must include a declaration of eligibility based on the requirements of subdivision (a), the year of conviction and the superior court case number, and whether the petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1).) Subdivision (b)(2) provides that "[i]f any of the information required by this subdivision is missing from the petition 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."
B. Appellant failed to make a prima facie showing that he falls within the provisions of the new law as required under subdivision (c) of section 1170 .95
Appellant contends the superior court erred in summarily denying his petition without honoring his request for appointment of counsel. But appellant's argument ignores the superior court's initial duty under section 1170.95, subdivision (c)—before it must appoint counsel—to "review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." Because appellant did not satisfy the first prima facie showing requirement of subdivision (c), the superior court did not err in failing to appoint counsel.
Section 1170.95, subdivision (c) prescribes the superior court's responsibilities upon the filing of a complete petition:
"The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
In interpreting section 1170.95, we must give meaning to all parts of the statute to the extent possible. (People v. Shabazz (2006) 38 Cal.4th 55, 67 [" 'The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible' "]; People v. Verdugo (2020) 44 Cal.App.5th 320, 329, review granted Mar. 18, 2020, S260493 (Verdugo).) "[T]he language used in a statute or constitutional provision should be given its ordinary meaning, and '[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . .' [Citation.] To that end, we generally must 'accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,' and have warned that '[a] construction making some words surplusage is to be avoided.' " (People v. Valencia (2017) 3 Cal.5th 347, 357; People v. Abrahamian (2020) 45 Cal.App.5th 314, 332.)
It is clear from the language of section 1170.95, subdivision (c) that the superior court conducts two separate reviews of a facially sufficient petition before an order to show cause may issue: The first review is "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 p. 328, rev.gr.)
Appellant, however, ignores the first step prescribed by subdivision (c), arguing that the superior court must appoint counsel if requested. Numerous courts have rejected appellant's position. (Lewis, supra, 43 Cal.App.5th at pp. 1137-1140, rev.gr.; People v. Tarkington (2020) 49 Cal.App.5th 892, 897-899 (Tarkington); People v. Offley (2020) 48 Cal.App.5th 588, 596-597; People v. Edwards (2020) 48 Cal.App.5th 666, 673-675, review granted July 8, 2020, S262481; People v. Law (2020) 48 Cal.App.5th 811, 820-821, review granted July 8, 2020, S262490; People v. Torres (2020) 46 Cal.App.5th 1168, 1173, 1178, review granted June 24, 2020, S262011; People v. Cornelius (2020) 44 Cal.App.5th 54, 57-58, review granted Mar. 18, 2020, S260410; Verdugo, supra, 44 Cal.App.5th at pp. 332-333, rev.gr.)
The issue of whether a superior court may consider the record of conviction in determining whether a petitioner has made a prima facie showing of eligibility for relief under section 1170.95 is currently under review by the California Supreme Court. (<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2311967&doc_no=S260598 &request_token=NiIwLSEmXkw5W1BBSCMtSEJJUEw0UDxTJSJeUzNRMCAgCg%3D%3D> [as of July 7, 2020], archived at <https://perma.cc/RV72-6SDZ>.) Pending further guidance from our Supreme Court, we agree with these courts' conclusions that section 1170.95, subdivision (c) permits the superior court to review the record of conviction as well as the averments of the petition, and to summarily deny the petition without the appointment of counsel where this initial review reveals that the petitioner is ineligible for relief as a matter of law.
" 'A prima facie showing is one that is sufficient to support the position of the party in question.' " (Lewis, supra, 43 Cal.App.5th at p. 1137, rev.gr., quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) In the initial prima facie review required by section 1170.95, subdivision (c), the superior court must determine the petitioner's "statutory eligibility for resentencing, a concept that is a well-established part of the resentencing process under Propositions 36 and 47. [Citations.] The court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.) In the context of Propositions 36 and 47, as well as in habeas corpus proceedings, this initial review does not require blind acceptance of the allegations contained in the petition, but permits the court to examine the record of conviction to determine if a prima facie basis for relief exists. (Lewis, at pp. 1137-1138 [court's initial review of petition for resentencing under Prop. 36 and Prop. 47 to determine if petition establishes prima facie case for eligibility includes examination of the record of conviction]; see also People v. Page (2017) 3 Cal.5th 1175, 1188-1189 [Prop. 47]; Teal v. Superior Court (2014) 60 Cal.4th 595, 600 [Prop. 36].)
" '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.' " (Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr.)
So it is in the case at bar. The record here as augmented on appeal shows that appellant was convicted of second degree murder with a finding by the jury that he personally used a firearm in the commission of the offense, and there was no instruction on the natural and probable consequences doctrine or felony murder. Not only an actual killer, but also a direct aider and abettor may be convicted of murder notwithstanding the amendments to sections 188 and 189, which changed nothing with regard to direct aider and abettor liability. "One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law." (Lewis, supra, 43 Cal.App.5th at p. 1135, rev.gr.) Accordingly, appellant was required to make a prima facie showing that he was not convicted as the actual killer or a direct aider and abettor, and thereby " 'falls within the provisions of' the statute." (Lewis, at p. 1137; § 1170.95, subds. (a)(3) & (c).) He failed to do so. (See People v. Whalen (2013) 56 Cal.4th 1, 85 [appellant's burden includes presenting an adequate record for review and affirmatively demonstrating error]; People v. Garza (2005) 35 Cal.4th 866, 881 ["on appeal a judgment is presumed correct, and a party attacking the judgment . . . must affirmatively demonstrate prejudicial error"].) The superior court therefore properly denied the petition on the basis of its finding that appellant was not entitled to relief as a matter of law because he was not convicted under a theory of felony murder or natural and probable consequences, the two theories affected by Senate Bill No. 1437.
Appellant attached the following documents from the archived trial record to his motion to augment the record on appeal: the minute order of the jury's verdict declaring appellant guilty of second degree murder and finding that he personally used a firearm in the commission of the murder (§ 12022.5), the abstract of judgment, and four jury instructions given to appellant's jury—CALJIC No. 8.10 defining murder, CALJIC No. 8.30 defining unpremeditated murder of the second degree, CALJIC 8.70 instructing the jury to find the degree of murder, and CALJIC 8.74 requiring a unanimous verdict. Appellant does not claim that additional relevant documents or instructions exist that he was unable to obtain.
Appellant claims that the superior court's failure to note that his codefendant was convicted of first degree murder while he was convicted of "the lesser offense of second degree murder" "does not inspire confidence that appellant in fact was the actual killer." The assertion lacks merit. The superior court did, in fact, note that appellant's codefendants were found guilty of first degree murder, and that even though the fatal wound was inflicted by a codefendant's gunshot, all three defendants simultaneously shot the victim multiple times, and each was guilty of murder as the actual killer or a direct aider and abettor. The court concluded that appellant is not entitled to relief because "clearly the jury was satisfied that [appellant] was an aider and abettor of the charged crime."
It is also irrelevant that appellant was convicted of second degree rather than first degree murder: A conviction of second degree murder simply means that the murder was not willful, deliberate, and premediated, it was not perpetrated by means of an explosive device, weapon of mass destruction, by use of ammunition designed to penetrate armor, poison, lying in wait, or torture, it was not committed in the perpetration of a qualifying felony, and the murder was not committed by intentionally firing a gun from a vehicle with the intent to cause the death of a person outside the vehicle. A conviction of second degree murder plainly does not mean the defendant was not the actual killer or a direct aider and abettor.
As relevant to first and second degree murder, section 189 provides: "(a) All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former Section 288a, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.
"(b) All other kinds of murders are of the second degree."
In sum, the allegations in the petition that appellant "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189" but was nevertheless "convicted of 2nd degree felony murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine" are contradicted by the record of conviction. Because the record of conviction plainly shows that appellant does not fall within the provisions of the statute, he did not make the first prima facie showing required under section 1170.95, subdivision (c). Appellant is thus ineligible for relief as a matter of law, and the superior court properly denied his petition without first appointing counsel. (§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.)
II. Appellant Was Not Entitled to Appointed Counsel
Despite his failure to meet his obligation to make a prima facie showing of eligibility for relief, appellant nevertheless maintains the superior court should have appointed counsel and proceeded to the next stages of review under section 1170.95, subdivision (c).
We reject the assertion on the basis of the Lewis court's reasoning, which we adopt: "The provision for the appointment of counsel is set forth in the second sentence of section 1170.95, subdivision (c), and does not, when viewed in isolation, indicate when that duty arises. When interpreting statutory language, however, we do not ' "examine that language in isolation, but in the context of the statutory framework as a whole." ' [Citation.] When the statutory framework is, overall, chronological, courts will construe the timing of particular acts in relation to other acts according to their location within the statute; that is, actions described in the statute occur in the order they appear in the text." (Lewis, supra, 43 Cal.App.5th at pp. 1139-1140, rev.gr.) Thus, "the requirement to appoint counsel as arising in accordance with the sequence of actions described in section 1170.95 subdivision (c); that is, after the court determines that the petitioner has made [the first] prima facie showing that petitioner 'falls within the provisions' of the statute, and before the submission of written briefs and the court's determination whether petitioner has made 'a prima facie showing that he or she is entitled to relief.' " (Id. at p. 1140; Tarkington, supra, 49 Cal.App.5th at pp. 900-901.)
The question of when the right to appointed counsel arises under section 1170.95, subdivision (c) is also pending before the California Supreme Court. (<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2311967&doc_no=S260598&request_token=NiIwLSEmXkw5W1BBSCMtSEJJUEw0UDxTJSJeUzNRMCAgCg%3D%3D> [as of July 7, 2020], archived at <https://perma.cc/RV72-6SDZ>.) --------
We also reject appellant's claim that the dismissal of his petition without the appointment of counsel violated his federal constitutional rights to counsel and due process under the Sixth and Fourteenth Amendments.
The United States Supreme Court has declared that the Sixth Amendment "right to appointed counsel extends to the first appeal of right, and no further." (Pennsylvania v. Finley (1987) 481 U.S. 551, 555.) In this regard, the high court has explained that a petition seeking postconviction relief by an imprisoned defendant constitutes "a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief, [citation], and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well." (Id. at p. 557; In re Barnett (2003) 31 Cal.4th 466, 474.) Likewise, the California constitution confers no unconditional constitutional right to counsel to mount a collateral attack on a judgment of conviction, and the rules for postconviction relief—whether by petition for writ of habeas corpus or coram nobis—require the petition to first make a prima facie showing of entitlement to relief before the court issues an order to show cause and appoints counsel. (In re Barnett, at p. 475 [habeas corpus]; People v. Shipman (1965) 62 Cal.2d 226, 232-233 [coram nobis]; People v. Fryhaat (2019) 35 Cal.App.5th 969, 982; People v. Rodriguez (2019) 38 Cal.App.5th 971, 982.)
Appellant did not make a prima facie showing that he came within the provisions of section 1170.95, which would have triggered a statutory right to counsel. (§ 1170.95, subd. (c).) In the absence of the requisite prima facie showing that appellant was entitled to relief, the superior court was not required to appoint counsel, order briefing, issue an order to show cause, or schedule a hearing. (See § 1170.95, subds. (c), (d)(1).)
DISPOSITION
The postjudgment order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
ASHMANN-GERST, J.
CHAVEZ, J.