Opinion
G057723
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. KWANG CHOL JOY, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF1632) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 2014, a jury convicted Kwang Chol Joy of second degree murder for slaying Maribel Ramos. (Pen. Code, §§ 187, subd., (a) & 189, subd. (b); all further statutory references are to the Penal Code.) The trial court sentenced Joy to 15 years to life in prison. This court affirmed the judgment. (People v. Joy (Mar. 25, 2016, G050733) [nonpub. opn.].)
In April 2019, Joy filed in the trial court a petition for resentencing under section 1170.95, a new statutory provision enacted as part of Senate Bill No. 1437 (Sen. Bill 1437). "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending sections 188 and 189, as well as by adding section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)" (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).) Significantly, relief under section 1170.95 is available only to those "'convicted of felony murder or murder under a natural and probable consequences theory[.]'" (Id. at p. 723.)
In People v. Anthony (2019) 32 Cal.App.5th 1102 (Anthony), the court explained Sen. Bill 1437's changes to the application of the felony murder rule and the natural and probable consequences doctrine as it relates to murder "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, § 4; § 1170.95, subd. (a)(3).)" (Anthony, supra, 32 Cal.App.5th at p. 1147.)
The trial court denied Joy's resentencing petition on the ground it failed to set forth a prima facie case for relief under section 1170.95. Specifically, the court found Joy "is not eligible for relief under the statute because . . . [his] murder conviction[] is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors."
Joy appeals from the postjudgment order denying his petition for resentencing. Appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Joy filed a supplemental brief. Because our review of the record discloses no arguable issues, we affirm the postjudgment order denying Joy's petition for resentencing under section 1170.95.
Counsel filed a declaration stating she thoroughly reviewed the record in this case, as did an attorney at Appellate Defenders, Inc. Counsel advised Joy she was filing a brief on his behalf per the procedures outlined in Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. She provided Joy with a copy of the brief and informed him he personally could file a supplemental brief raising any points he wished to call to this court's attention. Counsel advised Joy he could ask counsel to withdraw. After receiving that advisement, Joy filed a request to relieve Vento as his counsel of record, but this court denied the request.
I
BACKGROUND
A. Case Facts
We summarize the pertinent facts of the case from our first opinion as follows:
"A sobbing Maribel Ramos called 911 on the evening of April 21, 2013, because she 'fear[ed] the worst' from defendant, who rented a room from her and held unrequited feelings for her. She told the dispatcher that when she rejected his advances that night, he 'sounded like he would hurt [her]' and she was 'scared for [her] life,' in part because defendant boasted he had a black belt in martial arts. An officer arrived and spoke with defendant, who said he would move out by the end of April.
"About 10 days later, on May 2, Ramos alerted a friend, Paul Lopez, by text message that defendant was quarreling with her about his unpaid rent. When Lopez called Ramos, she sounded frightened because defendant was still arguing with her. She put her cell phone on speaker, and Lopez announced he would help 'kick him out' the next day if necessary, but Lopez heard only mumbling from the background in response. Before Ramos ended the call, she assured Lopez she would see him the next evening at a softball game. Lopez texted her several times that night, but received no response.
"Nor did she return his calls the next day, and when Ramos did not appear at the game, Lopez and others went to check on her, but no one answered their knock at her door, though her lights were on. Her concerned friends called the police, who attempted for hours to locate a working key to gain entry to her apartment, before forcing the door. During that time, they learned defendant had been sitting in his car and watched their arrival and futile efforts, but did nothing. Instead, defendant finally called the police dispatcher to say he did not want to enter the apartment while the police were there. When an officer approached him and asked why he failed to provide assistance, he responded that he thought something was 'seriously wrong.' Defendant told Ramos's cousin he saw her leave with a male, but ignored requests for further details.
"Inside the apartment, the officers found no obvious signs of a struggle or a fight. But detectives discovered blood stains on the sleeves of gray, polka dot pajamas someone had folded and placed in Ramos's closet. Her car was parked at the complex, but her keys, license, coin purse, and cell phone were missing.
"Defendant agreed to an interview at the police station that night. He admitted he had been watching Ramos's apartment with binoculars and "ducked in the back seat' when the police arrived. During the interview, the detectives noticed numerous injuries on defendant's body, including a large, recently inflicted scratch from his hairline to his right eyebrow. His left arm bore several scratches and puncture wounds, there were scratches on the inside of his right wrist, a scratch on the left side of his neck, and four parallel scratches on his right tricep. Defendant claimed he received the scratches while pulling fishing lines from bushes in a park. According to defendant, the scratch near his eye resulted from a $12,000 cosmetic procedure he had undergone to appear younger at Ramos's suggestion; he was 53 and she was 36. Defendant also claimed he paid for Ramos's groceries and other expenses, but admitted his only source of income was unemployment assistance."
"Defendant admitted he and Ramos had argued on the evening of May 2 because he had overstayed his move-out date. He wanted to stay two more weeks, but refused to pay in advance. Defendant acknowledged Ramos had put Lopez on the speaker phone, and then retreated to her bedroom. The last time he saw her she was wearing gray, polka dot pajamas. He left, returned in an hour to find her gone, and then he left again for a drive because he was 'frustrate[d].' When he returned, her bedroom light was on, and one of her larger purses was there, but not her small purse, keys, or cell phone. Defendant claimed Ramos dated frequently and always had 'dates lined up,' but he called the police the next morning to report her as a missing person.
"Defendant remained a suspect in Ramos's disappearance, but the police released him pending her return or discovery of her body. Previously, the detectives had seized defendant's external hard drive, and when he asked for it back, they questioned how he used it since he did not have a computer. He explained he connected it to computers at the public library, where he claimed he tried to assist in finding Ramos over the Internet.
"The detectives obtained a search warrant to monitor defendant's computer and Internet usage at the Orange County Public Library. During a library visit on May 16, 2013, after perusing a Facebook page dedicated to finding Ramos, defendant typed 'how long does it take a human body to decay' into a search engine. He then cleared the search from his Internet browsing history.
"Forensic examination revealed defendant then directed his browser to a mapping Web site where he searched for and displayed on his screen the Peter's Canyon area in Orange County. After switching the map display to a satellite view, he zoomed in on a particular area and a particular tree near Santiago Canyon Road and Jackson Ranch Road, approximately 7.5 miles away from an upcoming 'awareness walk' Ramos's friends planned through Facebook to compare notes about finding her. After zooming in on the map, defendant again cleared his Internet browsing history.
"Detectives responded to the area pinpointed by defendant's Internet search and found Ramos's body within 45 minutes of their arrival. Her upper body was still concealed by rocks and pebbles, but investigators found that clumps of her hair had been pulled out. When she was discovered, her leg bones protruded from the ground and her feet were missing. A pathologist determined animals had consumed portions of her body, but could not ascertain the cause of her death. Officers arrested defendant the next day, and in searching him they found Ramos's military identification tags ('dog tags') in his clothing."
B. Relevant Procedural Facts
The prosecution tried the case on a theory of first degree premeditated murder. (§§ 187, subd. (a) & 189, subd. (a).) In closing arguments, the district attorney asserted circumstantial evidence showed Joy killed Ramos by some undetermined method, buried her body in a shallow grave in Peter's Canyon, and then unintentionally led police to her body by utilizing a mapping Web site and zooming in on a satellite view of the area where the body lay. The district attorney further contended Joy had a motive for killing Ramos: unrequited love. He argued Joy's "state of mind is: 'If I can't have Maribel, I am going to make sure that nobody else can either.'"
Defense counsel's closing argument presented numerous theories, ranging from a version of "the real killer is still out there" to accident, heat of passion, self-defense, and suicide. Neither felony murder nor murder under the natural and probable consequences doctrine played any part in the case.
The jury acquitted Joy of first degree murder, but convicted him of second degree murder. The trial court sentenced Joy to 15 years to life in prison. We affirmed the judgment on appeal.
On April 8, 2019, Joy filed a petition for resentencing under section 1170.95. The petition consisted of a form declaration upon which Joy checked boxes stating the following facts: "1. A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. . . . 3. I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019. . . . 6. I was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine and I could not now be convicted of murder because of changes to Penal Code § 188, effective January 1, 2019."
These specific assertions parrot the factual prerequisites for obtaining relief under section 1170.95. The statute provides that "[a] person convicted of felony murder or murder under a natural and probable consequences theory" may file a petition to have the murder conviction vacated and to be resentenced on any remaining counts where all three of the following conditions are met: "(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[;] [¶] [and] (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).)
The trial court denied the petition without a hearing. Based on "[a] review of court records," the court concluded Joy had not established a prima facie case for relief under section 1170.95: "[D]efendant is not eligible for relief under the statute because . . . defendant's murder conviction[] is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors."
II
DISCUSSION
Following Wende guidelines, we have reviewed counsel's brief and the appellate record. Pursuant to Anders, supra, 386 U.S. at p. 744, counsel identified only one potential issue for our consideration: whether the trial court erred in finding no prima facie case for relief under section 1170.95. Based on our independent review of the record, we conclude the issue is not arguable.
Joy's resentencing petition on its face contains an obvious falsehood. The petition states: "I was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine and I could not now be convicted of murder because of changes to Penal Code § 188, effective January 1, 2019." The record reveals Joy was not convicted under either the felony murder doctrine or the natural and probable consequences doctrine. The prosecutor asserted the theory Joy committed premeditated, first degree murder. Because relief under section 1170.95 is available only to those "'convicted of felony murder or murder under a natural and probable consequences theory,'" (Martinez, supra, 31 Cal.App.5th at p. 723), Joy's petition for resentencing does not state a prima facie case under the statute.
The arguments in Joy's supplemental brief are difficult to decipher. He argues he "was convicted of second degree murder under the natural and probable consequences doctrine of implied malice" but not "under the aiders and abettors theory." The argument makes no sense. A murder conviction under the natural and probable consequences doctrine necessarily entails a finding the defendant aided and abetted the direct perpetrator of a target offense, the natural and probable consequences of which was murder.
The natural and probable consequences doctrine "is an 'established rule' of American jurisprudence [citation]. It is based on the recognition that 'aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 260.)
Joy also essentially argues Sen. Bill 1437 changed the definition of implied malice in section 188, subdivision (a)(2), so that it no longer "contain[s] the Natural and Probable Consequences Doctrine." Consequently, he argues, "[u]nder the new definition of implied malice . . . appellant's murder [conviction] should be vacated and [he] resentenced on any remaining counts." Finally, Joy appears to argue he could not be convicted of murder "because the cause of death was unknown[.]"
Our review of the entire record does not show the existence of an arguable issue. Consequently, we affirm the judgment. (Wende, supra, 25 Cal.3d at p. 443.)
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.