Opinion
E074809
02-23-2021
THE PEOPLE, Plaintiff and Respondent, v. HARRISON LAVERGNE, JR., Defendant and Appellant.
Harrison Lavergne, Jr., in pro. per.; Joanna McKim, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF050756) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Harrison Lavergne, Jr., in pro. per.; Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On June 1, 2005, an information charged defendant and appellant Harrison Lavergne, Jr., with the murder of Ignacio Garcia under Penal Code section 187, subdivision (a) (count 1); attempted premeditated murder of Miguel E. under sections 664, and 187, subdivision (a) (count 2); and assault by means of force likely to produce great bodily injury on Francisco L. under section 245, subdivision (a)(1) (count 3). As to count 1, the information alleged defendant used a deadly and dangerous weapon, a knife, in the commission of the murder under sections 12022, subdivision (b)(1), and 1192.7, subdivision (c)(23).
All further statutory references are to the Penal Code unless otherwise specified.
We refer to witnesses by their first names, with or without last initials, to preserve their anonymity. (Cal. Rules of Court, rule 8.90(b).) No disrespect is intended. --------
On September 9, 2008, a jury found defendant guilty as charged, and found true that defendant used a deadly and dangerous weapon in the commission of the murder. Thereafter, the trial court sentenced defendant as follows: (1) an indefinite term of 25 years to life, plus one year for the weapon enhancement on count 1; (2) life with the possibility of parole on count 2, to run consecutively; and (3) the upper term of four years on count 3, to run consecutively. The court awarded defendant 1,370 actual days custody credits, and ordered him to pay fines and fees. Defendant appealed and we affirmed the judgment. (People v. Lavergne (Oct. 13, 2010, E047778) [nonpub. opn.].)
On January 23, 2019, defendant filed a petition for resentencing under section 1170.95 (the Petition). On March 19, 2019, the People filed a response contending that defendant was ineligible for relief because he was the actual killer. The People argued that the court lacked jurisdiction because the Petition was unconstitutional. After counsel was appointed for defendant, he filed a reply. In the reply, defendant argued that Senate Bill No. 1437 (Sen. No. 1437) was constitutional and requested that the court take judicial notice of the arguments presented in People v. Lamoureux (2019) 42 Cal.App.5th 241; Lamoureux had not yet been decided. On August 23, 2019, the trial court stayed the proceedings pending the outcome of Lamoureux. On November 19, 2019, the Lamoureux court found that Sen. No. 1437 was constitutional. (Lamoureux, at p. 251.) On November 22, 2019, the trial court lifted the stay in this case.
At the hearing on defendant's petition for resentencing on February 14, 2020, the People moved to dismiss the Petition. The prosecutor stated: "Looking at the instructions in imaging, there were no instructions on natural and probable consequences for felony murder. There was a true finding on personal knife use and the 201[0] opinion in imaging shows [defendant] is the actual killer." Defense counsel submitted. Thereafter, the trial court noted defendant's objection for the record and denied the Petition. The record is unclear what defendant had objected to.
On February 20, 2020, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
"In May 2005, Garcia and Flavio T[.] lived in a trailer located inside a junkyard in Thermal where they and [Francisco] worked; [Miguel] lived in his van in the same junkyard. [Francisco] was a friend of defendant and had stayed at defendant's house for a few days; [Miguel] had also visited defendant's house several times. Neither [Francisco] nor [Miguel] had had any problems with defendant. [Francisco] admitted he was addicted to methamphetamine and used it as often as he could get it, sometimes daily. [Francisco], [Flavio], and Garcia frequently used drugs together.
"Shortly before May 1, 2005, a problem arose between defendant and an unidentified person at the junkyard. Garcia tried to intervene, but defendant told him not to get involved and that he did not want to see Garcia at the junkyard.
"In the evening of May 1, 2005, Garcia, [Francisco], [Flavio], and a woman identified only as Connie had used methamphetamine in [Flavio]'s trailer. Garcia and Connie left, and a few minutes later, [Francisco] heard Garcia yelling for help and asking for someone to call an ambulance. [Francisco] went outside and saw defendant, who was standing next to the door of Garcia's car, hitting Garcia, who was in the driver's seat. Another man, whom [Francisco] had never seen before and could not describe, was also striking Garcia. Connie got out of the car.
"[Francisco] heard Garcia ask defendant what was happening and heard defendant respond, 'You're gone' and 'Fuck the ambulance.' Defendant continued to hit Garcia. [Francisco] asked what was happening, and defendant said, 'He's gone, and you're gone, too.' Defendant then came over to [Francisco] and hit him on the face, nose, and stomach, knocked him to the ground, and kicked him in the face and body. [Francisco] sustained fractures to his nose and forehead. [Francisco] asked why defendant was hitting him, and defendant said, 'It was on the contract.' At some point, [Francisco] saw [Flavio] come out of the trailer and run away.
"Defendant went back to Garcia's car and asked the man who was with him for 'the blade.' [Francisco] saw defendant pull something out of Garcia's body. [Francisco] then ran away. Garcia bled to death in his car as a result of multiple stab wounds.
"[Francisco] ran to an acquaintance's house, and that man drove [Francisco] back to his trailer park. The managers of the park called the police. [Francisco] was initially reluctant to tell the police who had stabbed Garcia, but he later called the police and identified defendant as the assailant. [Francisco] selected defendant's photograph from a photographic lineup.
"At about 11:00 the same night, [Miguel] left his van to urinate. On his way back, defendant and two or three other men attacked him and hit him. Defendant stabbed him nine times, inflicting life-threatening wounds. [Miguel] could not describe the other men because it was too dark." (People v. Lavergne, 2010 Cal.App.Unpub. LEXIS 8118, *3-6, 2010 WL 3994183.)
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: "Whether there is a basis to find appellant eligible for relief under [Sen. No. 1437] and was there compliance with the statutory requirements set forth in Penal Code section 1170.95?"
We offered defendant an opportunity to file a personal supplemental brief. On January 29, 2021, defendant filed a 50-page handwritten supplemental brief. In the brief, defendant contends that (1) the trial court erred in failing to comply with the statutory requirements set forth in section 1170.95 because the record below fails to show defendant was the actual killer or personally used a knife; and (2) his counsel provided ineffective assistance of counsel (IAC).
Sen. No. 1437, "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 Penal Code sections 188 and 189, as well as by adding Penal Code 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." (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)
Prior to Sen. No. 1437's enactment, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019) 35 Cal.App.5th 141, 144.) "This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed ' "for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion." ' " (R.G. at p. 144.) Aider and abettor liability under the doctrine was thus "vicarious in nature." (Chiu, at p. 164.)
Sen. No. 1437 "redefined 'malice' in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer "be imputed to a person based solely on [his or her] participation in a crime." [Citation.]' [Citation.] [Sen. No. 1437] also amended section 189, which defines first and second degree murder, by, among other things, adding subdivision (e). Under that subdivision, a participant in enumerated crimes is liable under the felony[-]murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life." (People v. Munoz (2019) 39 Cal.App.5th 738, 749, fn. omitted.) "[Sen. No. 1437] thus ensures that murder liability is not imposed on a person who did not act with implied or express malice," or—when the felony-murder doctrine is at issue—"was 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." (Id. at pp. 749-750.) However, 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. Lewis (2019) 43 Cal.App.5th 1128, 1135.)
Sen. No. 1437 also added section 1170.95, which permits persons convicted of murder under a felony-murder or natural and probable consequences theory to petition in the sentencing court for an order vacating their convictions and allowing the defendant to be resentenced. (Stats. 2018, ch. 1015, § 4; Martinez, supra, 31 Cal.App.5th at p. 723.) An offender may file a section 1170.95 petition if he or she was prosecuted under a felony-murder or natural and probable consequences theory, but under amended sections 188 or 189, could not have been convicted of first or second degree murder. (§ 1170.95, subd. (a).)
Section 1170.95, subdivision (c), sets forth the trial court's obligations upon the submission 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. . . . 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." Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence, and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) At such a hearing, both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) "[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th 723-724.)
The initial prima facie review is "to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (People v. Verdugo (2020) 44 Cal.App.5th at 320, 329.) At this stage of review, the trial court may rely upon the petitioner's record of conviction, including the charging documents, jury instructions, verdict forms, and appellate decision, to conclusively establish ineligibility for relief. (See § 1170.95, subd. (a)(1)-(2); Verdugo, at p. 333; Lewis, supra, 43 Cal.App.5th at pp. 1137-1139.)
In this case, an examination of the record shows that defendant cannot make a prima facie showing that he is entitled to relief under the provisions of section 1170.95. The record of the jury instructions given and defendant's convictions show that he was prosecuted as a direct aider and abettor under an express or implied malice theory, and not based on the natural and probable consequences or felony-murder theory. Defendant's conviction record also shows that there was substantial evidence to support the jury's finding that defendant was the actual killer of Garcia and that he personally used a knife in the commission of the murder. In our unpublished opinion, we summarized that Francisco heard Garcia yelling for help. When Francisco went outside, defendant was standing next to the door of Garcia's car, hitting Garcia, who was in the driver's seat. Moreover, Francisco heard Garcia ask defendant what was happening. Defendant responded, " 'You're gone' and 'Fuck the ambulance.' " Defendant then continued to hit Garcia. When Francisco asked defendant what was happening, defendant stated, " 'He's gone, and you're gone, too.' Defendant then came over to [Francisco] and hit him on the face, nose, and stomach, knocked him to the ground, and kicked him in the face and body." Thereafter, defendant "went back to Garcia's car and asked the man who was with him for 'the blade.' [Francisco] saw defendant pull something out of Garcia's body. [Francisco] then ran away. Garcia bled to death in his car as a result of multiple stab wounds." Francisco eventually told the police that defendant was the person who stabbed Garcia.
Based on the record of conviction in defendant's underlying case, the court properly determined defendant was statutorily ineligible for resentencing because his murder conviction was not based on the felony-murder rule or the natural and probable consequences doctrine. Therefore, the court was not required to conduct a hearing on defendant's eligibility for resentencing.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
In order to establish a claim of IAC, a defendant must demonstrate that "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome." (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Hence, an IAC claim has two components: deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails. An appellate court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland v. Washington (1984) 466 U.S. 668, 697, 687-694.) Trial counsel's performance is deemed reasonably competent unless the record does not provide an explanation for his performance, or " ' "there simply could be no satisfactory explanation." ' " (People v. Lopez (2008) 42 Cal.4th 960, 966.)
In this case, defendant failed to establish either component of his IAC claim. First, defendant failed to establish that his counsel's performance fell below the objective standard of reasonableness. It appears defendant is arguing his counsel rendered IAC because there are "important facts that were given to counsel for appellant but she failed to review any of the case facts or ask appellant for any information about the case. [¶] . . . [¶] Counsel for appellant could not fulfill his duties without a clear idea of what appellant was claiming in his petition for resentencing and he could not discharge his duty to investigate by merely going by the prosecutor's evidence or facts." Defendant's argument fails because there was nothing defense counsel could have brought forth to change the fact that defendant was convicted for murder as a principal and that he personally used a knife in the commission of the murder. Second, defendant also failed to establish that, but for his counsel's failure to conduct a more thorough investigation for defendant's resentencing petition, he would have obtained a more favorable result. As discussed in detail ante, defendant is ineligible for relief as a matter of law under section 1170.95 because he was the actual killer. Therefore, even if defense counsel had reviewed the petition more thoroughly, defendant would not have obtained a more favorable result.
C. CONCLUSION
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We are satisfied that defendant's attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (Id. at p. 126; Wende, supra, 25 Cal.3rd at pp. 441-442.)
DISPOSITION
The trial court's order denying defendant's petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. I concur: FIELDS
J.
MENETREZ, J., Concurring.
The appellate review procedures under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), in which we read the entire record ourselves to search for arguable grounds for reversal, apply "only to a defendant's first appeal as of right." (People v. Thurman (2007) 157 Cal.App.4th 36, 45; People v. Serrano (2012) 211 Cal.App.4th 496, 498; People v. Cole (2020) 52 Cal.App.5th 1023, 1032 (Cole).) Because this appeal concerns a postjudgment proceeding in which there is no constitutional right to effective assistance of counsel, there is no right to Wende/Anders review.
Appellant Harrison Lavergne Jr.'s counsel filed a brief raising no issues. Lavergne was notified and filed a personal supplemental brief. We should address the issues raised in the supplemental brief but should not read the entire record ourselves to look for arguable grounds for reversal. (Cole, supra, 52 Cal.App.5th at pp. 1039-1040.)
Lavergne argues that the trial court committed certain procedural errors. The argument fails because the claimed procedural errors were harmless. The record of conviction confirms that Lavergne is ineligible for relief under Penal Code section 1170.95 as a matter of law—he was not tried on a felony murder or natural and probable consequences theory, and the true finding on the enhancement for use of a knife shows that the jury found he was the actual killer. Lavergne also claims that he received ineffective assistance of counsel on his petition. That argument too fails because he cannot show prejudice and also because there is no constitutional right to effective assistance of counsel on a petition under Penal Code section 1170.95.
For all of the foregoing reasons, I concur in the judgment only.
MENETREZ
J.