Opinion
G057658
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. SIVEA UU LOGOLEO, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Esther P. Kim, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 98WF2620) OPINION Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Reversed and remanded with directions. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Sivea Uu Logoleo appeals from the lower court's order denying his petition for resentencing pursuant to Penal Code section 1170.95.
All further statutory references are to the Penal Code.
The parties agree, as do we, the court erred by summarily denying the petition. Contrary to its ruling, the petition did state a prima facie case for relief under section 1170.95. As a result, the matter must be remanded, counsel must be appointed for appellant, and the requisite statutory briefing and hearing procedures must be followed.
FACTS
In 1999, appellant and his codefendant Emi Tauanuu, Jr., were charged in an amended information with murder (§ 187, subd. (a)), residential burglary (§§ 459 & 460, subd. (a)), and residential robbery (§§ 211/212.5, subd. (a), & 213, subd. (a)(1).) It was further alleged both were ineligible for probation because the victim was 60 years old or older (§ 1203.09, subds. (a) & (b)(1), (2), & (5).)
In the original information, appellant was charged with first degree murder with two special circumstance allegations. (§ 190.2, subds. (a)(17)(G) (murder committed during a burglary) & (a)(17)(A) (murder committed during a robbery).) Those allegations were omitted in the amended information filed the same day as appellant's guilty plea.
The amended information also alleged the defendants each personally used a dangerous or deadly weapon — "a flashlight" and "hands and feet" — in the commission of the murder. (§ 12022, subd. (b).) Appellant's name was subsequently crossed out of the weapon-use enhancement, leaving only Tauanuu's.
In a plea bargain, appellant admitted the murder, burglary, and robbery charges, along with the allegation the victim was 60 years old or older. On his guilty plea form, the weapon use allegation was again crossed out, and his maximum sentencing range was correspondingly reduced by one year.
As a factual basis for his guilty plea, appellant stated: "On or about October 30, 1998, in Orange County I did enter the residence of Wilfred and Katherine Barnes, without their permission, with the specific intent to steal property therein. While inside, Mr. Barnes woke up and my crime partner beat him to death. I did nothing to intervene. I continued to steal from around his person and in his house while he was dying. Mr. Barnes was 81 years old at the time and I knew he was an elderly man."
Appellant was sentenced to an indeterminate term of 25 years to life for the murder with the possibility of parole. Sentencing on the burglary and the robbery was stayed pursuant to section 654. The personal weapon use enhancement was dismissed as to appellant, apparently on a motion by the deputy district attorney (her initials are next to the crossed-out references to the enhancement and its punishment on the guilty plea form). The court minutes, the docket, and the abstract of judgment, make no mention of this enhancement or its disposition.
The appellate record contains no reporter's transcript of the guilty plea proceedings and the court reporter has informed us his notes from that hearing have been destroyed.
In 2019, appellant filed a petition for resentencing pursuant to section 1170.95. In it, he requested appointment of counsel and declared he entered his guilty plea to first degree murder because he believed he could have been convicted of first or second degree murder at trial under the felony murder rule or the natural and probable consequences doctrine.
The lower court summarily denied the petition by minute order without appointing counsel. The minute order appears to be a boilerplate minute order with two different bases for denial. It states: "The petition does not set forth a prima facie case for relief under the statute. A review of court records indicates [appellant] is not eligible for relief under the statute because [appellant] does not stand convicted of murder or [appellant's] murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors." The record does not specify what "court records" were reviewed.
DISCUSSION
Legal Background
Effective January 1, 2019, Senate Bill 1437 (SB 1437) changed both the felony-murder rule and the natural and probable consequences doctrine as it applies to murders. (Stats. 2018, ch. 1015, §§ 2-4.) Specifically, it "amend[ed] 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." (Id., § 1, subd. (f).) Thus, section 188 now requires that all principals in a murder must act with express or implied malice to be convicted of that crime. (Id., § 2.) Similarly, section 189 now provides the felony-murder rule does not apply to a defendant who was not the actual killer or a direct aider and abettor to the murder unless he or she was a major participant in the underlying felony who acted with reckless indifference to human life. (Id., § 3; see People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
SB 1437 also established a procedure for defendants previously convicted of murder to seek resentencing if they believe they could not currently be convicted under the amended provisions of sections 188 and 189. (Stats. 2018, ch. 1015, § 4 [adding newly codified § 1170.95].) Section 1170.95 describes what must be included in a petition for resentencing, and sets forth the procedure to be followed by a trial court upon receiving a 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." (§ 1170.95, subd. (c).)
In its initial review of whether a petitioner has made a prima facie showing he or she "falls within the provisions of this section," the court merely examines whether the petitioner has stated his or her eligibility for relief, i.e., he or she falls within the preliminary provisions of the section. Thus, a petitioner must allege: (1) an accusatory pleading was filed against him or her allowing prosecution under the felony-murder rule or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she was convicted of murder following a trial, or pleaded guilty to murder in lieu of a trial at which he could have been so convicted (id., subd. (a)(2)); and (3) he or she could not today be convicted of murder after the 2019 amendments to sections 188 and 189 (id., subd. (a)(3)).
The petition must be filed in the sentencing court and served on the prosecuting attorney and petitioner's trial attorney or county public defender. If the sentencing judge is not available, the presiding judge shall designate a judge to rule on the petition. (§ 1170.95, subd. (b)(1).) The petition must include petitioner's declaration he or she is eligible for relief, the court case number and year of conviction, and whether or not he or she desires appointment of counsel. (Id., subds. (b)(1)(A), (B), & (C).) If any of the required information "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." (Id., subd. (b)(2).)
If, based on the record of conviction, the petitioner is unequivocally ineligible for relief under the section, the trial court may summarily deny it. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1137 [record, including prior appellate court opinion, was sufficient to determine a direct aider and abettor theory of murder liability and thereby exclude defendant from 1170.95 eligibility]; People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, petition for review filed Feb. 5, 2020, S260493 (Verdugo) [same]; cf. People v. Cornelius (2020) 44 Cal.App.5th 54, petition for review filed Jan. 29, 2020, S260410 [court may deny petition without appointing counsel where petitioner is indisputably ineligible for relief when a direct perpetrator of a murder]; People v. Cervantes (Jan. 30, 2020, B298077) ___Cal.App.5th___, petition for review filed Jan. 31, 2020, S260440, and People v. Flores (Feb. 3, 2020, D075826) ___Cal.App.5th___ [same for voluntary manslaughter]; compare People v. Shipman (1965) 62 Cal.2d 226, 232 [appointment of counsel not required in coram nobis proceedings, where after examination of allegations "in the light of any matter of record" there are no "adequate factual allegations stating a prima facie case"].)
However, if the petitioner makes a threshold showing of eligibility, and the record does not facially disqualify him or her, the court must appoint counsel and entertain briefing from the prosecutor and appointed counsel. If, after briefing, the petitioner has established a prima facie case he or she is entitled to relief, i.e., if a showing regarding his or her eligibility has been made, the court must issue an order to show cause, and thereafter hold a full hearing to determine whether petitioner is entitled to relief. (§ 1170.95, subds. (c) & (d)(1).)
At that hearing, the prosecutor bears the burden of proof, and must "prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3).) "If the prosecutor does not stipulate to vacating the conviction and resentencing the petitioner, the People have the opportunity to present new and additional evidence to demonstrate the petitioner is not entitled to resentencing. [Citation.] The petitioner also has the opportunity to present new or additional evidence in support of the resentencing request. [Citation.]" (People v. Lopez (2019) 38 Cal.App.5th 1087, 1100, review granted Nov. 13, 2019, S258175.) "If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1170.95, subd. (d)(3).)
Analysis and Application
The parties agree the lower court erred by summarily denying appellant's petition without appointing counsel and receiving briefing. We concur. Appellant's declaration in support of his petition alleged an accusatory pleading was filed against him allowing the prosecution to proceed under the felony-murder rule or the natural and probable consequences doctrine, that he was convicted of first degree murder by means of a guilty plea in lieu of trial, and that he could not now be convicted of murder after the 2019 amendments to sections 188 and 189. His petition therefore made the necessary preliminary allegations. (§ 1170.95, subd. (a)(1), (2), & (3).) Similarly, appellant filed his petition in the superior court, and served it on the prosecuting attorney and the county public defender. The petition stated the court case number and year of conviction, and appellant requested appointment of counsel. (Id., subds. (b)(1)(A), (B), & (C).) Thus, appellant's petition was procedurally sufficient to move to the next step.
Based on the limited record we have before us, we cannot determine whether appellant was convicted as a direct aider and abettor who acted with actual malice or under a first degree felony-murder theory as a major participant in the underlying burglary and robbery who acted with reckless indifference to human life. If true, either one of those theories of liability would exclude him from section 1170.95 relief. However, if his culpability for this murder is instead based on a felony-murder theory even though he was not a major participant in the underlying burglary and robbery, and did not act with reckless indifference to human life, he may be eligible for relief.
Nothing suggests appellant's culpability was based on the natural and probable consequences doctrine.
The amended information charged appellant with murder under section 187, subdivision (a), but did not allege a theory of murder. Based on the factual basis for appellant's guilty plea, and the striking of the weapon use allegation, appellant was not the perpetrator. Nor does it appear he was a direct aider and abettor acting with actual malice. Rather, it appears his liability was most likely based on a first degree felony-murder theory, which presents a prima facie case for triggering a section 1170.95 inquiry after section 189's amendment. Whether appellant was a major participant who acted with reckless indifference to human life cannot be determined on the limited record before us. (Cf. In re Bennett (2018) 26 Cal.App.5th 1002, 1007 [defendant did not act as a major participant with reckless indifference to human life within the meaning of a robbery special circumstance murder]; see People v. Clark (2016) 63 Cal.4th 522; People v. Banks (2015) 61 Cal.4th 788.)
The record does show a preliminary hearing was held in this case - one at which "Georgia Katherine Barnes" testified. A reporter's transcript of that hearing, if still extant, may help resolve any contested issues at a section 1170.95 hearing. Moreover, because appellant was sentenced to a parole-eligible indeterminate term, and because the Orange County District Attorney's Office retains its case file records in such cases for use in future parole hearings, there may also be other evidence unavailable to the superior court at the time of its premature ruling that could be dispositive at a section 1170.95 hearing if one occurs. We express no opinion what such evidence could be, or how the superior court should rule. Nevertheless, we do reiterate the prosecution bears the burden of proof at a section 1170.95 hearing, and it is proof beyond a reasonable doubt. (§ 1170.95, subd. (d)(3).) --------
"[I]f the petitioner's ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction, the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties' briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at p. 330, petition for review filed Feb. 5, 2020, S260493, italics added.)
Therefore, because appellant's petition was procedurally sound, and because the record does not unequivocally show the underlying nature of appellant's murder conviction, the lower court's premature ruling denying the petition was error. Instead of summarily denying the petition, the court should have appointed counsel for appellant, entertained briefing from the prosecutor and appointed counsel, and held a full hearing if necessary. (§ 1170.95, subds. (c) & (d)(1).)
DISPOSITION
The order denying appellant's petition for resentencing is reversed and the matter is remanded with directions to appoint counsel, and receive briefing. If a prima facie showing of eligibility is shown, not merely alleged, the court should issue an order to show cause and hold a hearing as mandated by section 1170.95, subdivisions (c) and (d)(1). If not, the petition should be denied.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.