Opinion
H047525
12-15-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL LOUIS MADRIL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC507802)
This appeal raises the question of what a person convicted of felony murder or murder under a natural and probable consequences theory who is seeking to have his or her murder conviction vacated must plead to satisfy the pleading burden imposed by Penal Code section 1170.95. Manuel Louis Madril appeals from the denial of his section 1170.95 petition for failure to satisfy that pleading burden. He contends, and the Attorney General concedes, that he satisfied the section 1170.95 pleading burden. The Santa Clara County District Attorney, as amicus curiae, contends that the trial court properly denied the petition because Madril's petition was conclusory, failing to allege facts establishing entitlement to relief. We hold that section 1170.95 requires the pleading of ultimate facts and reverse.
All further statutory citations are to the Penal Code unless otherwise indicated.
I. BACKGROUND
We take the facts from our prior opinion in People v. Salinas, et al. (Nov. 14, 2008, H031419) [nonpub. opn.], (case No. H031419), where they are set forth more fully. On our own motion, we take judicial notice of that prior opinion. (Evid. Code, §§ 452, subd. (d), 459.) We also take judicial notice of the record in Madril's prior appeal (case No. H031419), as requested by the District Attorney. (Ibid.)
On the evening of October 8, 2005, two teenaged boys—Andrew S. and Robert C.—walked home thorough a San Jose park. They encountered a large group of males, one of whom told them to empty their pockets. One of the men hit Andrew in the eye and mouth and broke a 40-ounce beer bottle over his head. The man then removed the jersey, T-shirt, and shoes that Andrew was wearing. Someone slammed Robert's head onto a picnic table and took his jersey, T-shirt, and jewelry. The attackers fled and the teenagers went home. Andrew later sought medical attention and received six staples in his head and stitches on his right arm for cuts from the broken beer bottle.
San Jose police officers were dispatched to the park at approximately 9:23 p.m. in response to a 911 call reporting a possible fight. The first officers to arrive saw people running through the park and vehicles driving away in all directions, some with their headlights off.
At approximately 9:30 p.m., witnesses observed a blue minivan run a red light at the intersection of Quimby and Tully and hit the driver's side of a Honda Civic in the intersection. The minivan had been reported stolen a short time earlier from outside a home near Quimby Road in San Jose. Witnesses saw at least two men exit the minivan and run away. A third person—17-year-old Joseph V.—exited the minivan and collapsed. The collision killed the driver of the Honda instantly. A collision reconstruction expert testified that the minivan entered the intersection after the signal turned red, that there was no evidence that the driver of the minivan applied the brakes prior to entering the intersection, and that the minivan was traveling at approximately 58 miles per hour at the time of the crash.
Following the car accident, police found David Jacinto Salinas, an admitted Norteño gang member, hiding underneath a parked pickup truck near the crash scene. Two witnesses identified Salinas as one of the men who fled the minivan after the crash. Robert identified Salinas as the man who broke the beer bottle over Andrew's head in the park.
Madril's family took him to the hospital on the night of the car crash for injuries including bruises on his leg and head and cuts to his tongue. Madril, also an admitted Norteño gang member, did not respond when his mother asked him how he was injured. The day after the accident, Madril left San Jose to stay with his girlfriend in Tracy. Madril's blood was found in the crashed blue minivan, specifically on the passenger-side airbag and the passenger seat armrest. He was arrested in Tracy on October 13, 2005.
Joseph V., also a Norteño, testified for the prosecution at Salinas and Madril's joint trial pursuant to a plea agreement. He testified that he was at San Jose's Boggini Park with 15 to 20 other people, including Salinas and Madril, on the night of October 8, 2005. A group of teenagers asked his group for cigarettes. As the teenagers were leaving, Salinas told them to sit down at a picnic table or they would get shot. The teens were made to empty their pockets. Salinas hit one of the teenagers on the head with a 40-ounce beer bottle, grabbed him, threw him on the ground, and took his jersey. Madril went through the wallets on the table, then hit and kicked a different teenager and took off that teen's shirt. At Salinas's direction, Joseph picked up the shirts and jerseys that were on the ground and followed Salinas, Madril, and a fourth person out of the park. A short distance from the park, the group of four saw an empty van parked with its engine running. Salinas got in the van drove it back to the others; Joseph got into the front passenger seat while Madril and the fourth person got into the back. Salinas turned onto Quimby Road. He sped and ran multiple red lights. When Joseph told Salinas to slow down Salinas told him to shut up. They passed two patrol cars. Madril said "cop cars"; Salinas responded, "I got it," and drove faster. After running another red light, the van hit a red car.
B. Procedural History
Madril and Salinas were charged by information with first degree murder (§ 187; count 1), two counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 2 & 3), and vehicle theft (Veh. Code, § 10851, subd. (a); count 4). The information further alleged as to both defendants that the offenses were committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The information also alleged that Salinas personally used a deadly and dangerous weapon, a bottle, in the commission of count 2 (§ 12022, subd. (b)(1)), and that he had a prior serious felony conviction that also qualified as a strike (§§ 667, 1170.12).
Madril and Salinas were tried together in 2007. A jury found them both guilty of first degree murder during the commission or attempted commission of a robbery (§ 187; count 1), two counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 2 & 3), and vehicle theft (Veh. Code, § 10851, subd. (a); count 4). The jury found true the gang allegations attached to counts 2 through 4, but not true as to count 1; jurors found true the allegation that Salinas personally used a deadly and dangerous weapon during the commission of count 2.
The trial court sentenced Madril to an indeterminate term of 25 years to life consecutive to the determinate term of 13 years (the midterm of three years on count 2, plus 10 years for the gang enhancement, with a concurrent total term of five years on count 4). The court stayed the total term of 13 years on count 3 pursuant to section 654.
In case No. H031419, an unpublished opinion issued on November 14, 2008 in Madril's direct appeal, this court ordered the judgment modified to stay the sentence imposed on count 4 and affirmed the judgment as so modified.
On October 30, 2018, after Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was enacted but before its January 1, 2019 effective date, counsel for Madril filed a section 1170.95 petition on his behalf. The petition alleged that an information was filed against Madril that allowed the prosecution to proceed under a theory of felony murder, that Madril was convicted of felony murder at trial, and that he could not now be convicted of first or second degree murder because of the changes to Penal Code sections 188 and 189, effective January 1, 2019 for the following reasons: "(a) He was not the actual killer; [¶] (b) He did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder; [¶] (c) He was not a major participant in the felony or he did not act with reckless indifference to human life during the commission of a felony; [¶] (d) The victim was not a peace officer in the performance of his duties."
On December 5, 2018, Madril, again with the assistance of counsel, filed a declaration supporting his petition. He declared: "1. An Information was filed against me that allowed the prosecution to proceed under a theory of felony murder. [¶] 2. At trial I was convicted of 1st degree murder pursuant to the felony murder rule. [¶] 3. I could not now be convicted of 1st or 2nd degree murder because of the changes to Penal Code sections 188 and 189, effective January 1, 2019, for the following reasons: [¶] (a) I was not the actual killer; [¶] (b) I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder; [¶] (c) I did not act with reckless indifference to human life during the commission of a felony; [¶] (d) The victim was not a peace officer in the performance of his duties."
The prosecutor filed a response, arguing, among other things, that Madril's "conclusory allegations without supporting evidence from the record of conviction" failed to make the statutorily required prima facie showing and that Senate Bill 1437 is unconstitutional. The prosecutor's response included a detailed statement of the facts of the underlying offenses based on this court's decision on direct appeal and on specific trial evidence. The cited evidence and a copy of our opinion, among other documents, were attached as exhibits to the prosecutor's response.
In an order filed on October 29, 2019, the trial court denied the petition without issuing an order to show cause. The court concluded that Madril stated "no facts supporting [the] argument [that he is] entitled to relief under the provisions of Penal Code section 1170.95," calling his declaration "conclusory" and "grossly insufficient" because it "does not state any facts on which relief is sought." The trial court also concluded that Senate Bill 1437 is unconstitutional and denied the petition on that alternative ground as well.
Madril timely appealed.
II. DISCUSSION
A. Legal Principles
Senate Bill 1437, which became effective on January 1, 2019, 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).) "Under the felony-murder rule as it existed prior to Senate Bill 1437, a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state." (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248 (Lamoureux).) Likewise, under the natural and probable consequences doctrine pre-Senate Bill 1437, " 'the mens rea of the aider and abettor with respect to [the nontarget] offense [was] irrelevant and culpability [was] imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.' [Citation.]" (People v. Chiu (2014) 59 Cal.4th 155, 164, superseded by statute as stated in People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019, S258175.)
"Senate Bill 1437 restricted the application of the felony murder rule and the natural and probable consequences doctrine, as applied to murder, by amending" sections 188 and 189. (Lamoureux, supra, 42 Cal.App.5th at p. 248.) "As amended, section 188 provides in pertinent part as follows: 'Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' [Citation.]" (Id. at pp. 248-249.) "Section 189, subdivision (e), as amended, provides that a participant in a specified felony is liable for murder for a death during the commission of the offense 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. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . .' " (Id. at p. 248, fn. omitted.)
Senate Bill 1437 also enacted section 1170.95, subdivision (a), which provides: "A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (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."
The petition is required to include: "(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [And] [¶] (C) [w]hether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1).)
After a petition is filed, the trial court must review it to "determine if the petitioner has made a prima facie showing that [he or she] 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).) This and other courts of appeal have concluded "that section 1170.95 [subdivision (c) contemplates two separate assessments by the trial court of a prima facie showing: one focused on 'eligibility' for relief and the second on 'entitlement' to relief." (People v. Drayton (2020) 47 Cal.App.5th 965, 975 (Drayton); see People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review granted Mar. 18, 2020, S260493 ["section 1170.95, subdivision (c), prescribes a two-step process for the court to determine if an order to show cause should issue"]; People v. Tarkington (2020) 49 Cal.App.5th 892, 897, review granted Aug. 12, 2020, S263219; but see People v. Cooper (2020) 54 Cal.App.5th 106, 122-123 [holding that section 1170.95, subdivision (c) requires only a single prima facie review].)
If the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold a hearing to determine whether the petitioner is entitled to relief. (§ 1170.95, subds. (c) and (d)(1).) New or additional evidence may be offered at that hearing and "the 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).)
The legal sufficiency of a pleading is a legal question subject to de novo review. (See People v. Perlas (2020) 47 Cal.App.5th 826, 832 [a demurrer to an accusatory pleading challenges the sufficiency of the pleading and raises an issue of law that is reviewed demurrer de novo].) We likewise review questions of statutory interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
B. Petitioner Met His Pleading Burden
Madril and the Attorney General agree that Madril alleged sufficient facts to satisfy the section 1170.95 pleading burden. As an amicus, the District Attorney maintains that Madril's petition was correctly denied because it failed to allege facts establishing entitlement to relief. In the District Attorney's view, Madril's petition contained only conclusory assertions of such entitlement.
The District Attorney argued below and the trial court ruled that Senate Bill 1437 is unconstitutional. However, the District Attorney does not argue for affirmance on that ground, nor shall we affirm on that ground given that this and other courts of appeal have held that Senate Bill 1437 passes constitutional muster. (See, e.g., People v. Alaybue (2020) 51 Cal.App.5th 207; Lamoureux, supra, 42 Cal.App.5th at p. 251; People v. Bucio (2020) 48 Cal.App.5th 300, 311-312; People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896.)
Section 1170.95 sets forth three conditions that must be satisfied by a petitioner seeking relief: "(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).)
Here, Madril alleged in his petition: "1. An information was filed against Madril that allowed the prosecution to proceed under a theory of felony murder. [¶] 2. At trial Madril was convicted of 1st degree murder pursuant to the felony murder rule. [¶] 3. Madril could not now be convicted of 1st or 2nd degree murder because of the changes to Penal Code sections 188 and 189, effective January 1, 2019 for the following reasons: [¶] (a) He was not the actual killer; [¶] (b) He did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder; [¶] (c) He was not a major participant in the felony or he did not act with reckless indifference to human life during the commission of a felony; [¶] (d) The victim was not a peace officer in the performance of his duties."
The first two allegations—those regarding the charging document and conviction—are factual and the District Attorney acknowledges their adequacy. The third allegation—that Madril could not now be convicted of first or second degree murder because of the changes to the law—is a legal conclusion. (People v. Nunez (2020) 57 Cal.App.5th 78, 88-89 (Nunez) [describing assertion "that petitioner 'could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code [sections] 188 and 189' " as a "legal conclusion"].) Accordingly, if the petition stopped there, we would agree with the District Attorney's claim that Madril "merely asserted eligibility in the terms of the statute and stopped there."
Significantly, however, the petition goes on to assert factual allegations supporting that legal conclusion. In particular, the petition alleges that Madril was not the actual killer; did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder; was not a major participant in the felony or he did not act with reckless indifference to human life during the commission of a felony; and the victim was not a peace officer in the performance of his duties. Our colleagues in the Second District Court of Appeal recently concluded that allegations nearly identical to these constitute "factual grounds for eligibility under the statute" and suggested that alleging such grounds would be sufficient to satisfy the statutory pleading burden. (Nunez, supra, 57 Cal.App.5th at p. 89 & fn. 3; see also <https://restorecal.org/sb1437petition/[as of Dec. 14, 2020], archived at: <https://perma.cc/72Y4-3E3P> [link to form petition discussed to in Nunez].)
To be sure, Madril did not point to specific evidence supporting the allegation that he was not a major participant in the felony or did not act with reckless indifference to human life. But the pleading of evidentiary facts generally is not required in California. Instead, the "rule which applies to all kinds of pleading, whether criminal or civil," is that "[n]one but ultimate facts are to be pleaded . . . ." (People v. Tinnen (1920) 49 Cal.App. 18, 23 [addressing adequacy of allegations in an information]; People v. Green (1924) 65 Cal.App. 234, 235-236 ["It is ordinarily sufficient to charge an offense in the language of the statute if the latter defines it or describes the acts constituting the offense . . . . [¶] [An] information [that] charges in the language of the statute . . . charges ultimate facts"]; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 ["To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged"].) Ultimate facts are the elements of a crime and the elements of certain defenses, the existence of which is determined by the trier of fact from the existence of one or more evidentiary facts. (People v. Thompson (1980) 27 Cal.3d 303, 315, fn. 13, disapproved of on other grounds as stated in People v. Scott (2011) 52 Cal.4th 452, 470-471; People v. McCall (2004) 32 Cal.4th 175, 182.)
Madril's allegations track the language of section 189 as amended by Senate Bill 1437. As such, the petition alleges ultimate facts in compliance with the general rule governing pleadings in California. We hold those allegations are legally sufficient.
We grant the District Attorney's request to take judicial notice of the legislative history of Senate Bill 1437. (Evid. Code, § 452, subd. (c), § 459.) Nothing in those materials convinces us that the Legislature intended to depart from the general rule requiring the pleading of ultimate facts.
In arguing that greater specificity is required to satisfy the section 1170.95 pleading burden, the District Attorney relies on cases decided in the context of Proposition 47. For example, he points to the conclusion in People v. Perkins (2016) 244 Cal.App.4th 129, 137, that "defendant must provide some evidence of eligibility when he files the petition . . . ." The District Attorney's reliance on Proposition 47 cases is misplaced because those cases addressed whether the petitioner satisfied a production burden (that is, a burden to come forward with evidence), not a pleading burden. (See People v. Bullard (2020) 9 Cal.5th 94, 110 [a Proposition 47 petitioner seeking resentencing or redesignation under section 1170.18 "bears the burden of proof to show the relevant facts . . . ."]; 1 Witkin, Cal. Evid. 5th Burden § 1 (2020) [the term "burden of proof" is used to refer to both the burden of initially producing or going forward with the evidence and the burden of proving the issues of the case]; Director, Office of Workers' Compensation Programs v. Greenwich Collieries (1994) 512 U.S. 267, 272 [the term "burden of proof" has been used to refer to both the burden of persuasion and the burden of production, which is a party's obligation to come forward with evidence to support its claim].) The District Attorney does not argue that section 1170.95 imposes a burden of production on the petitioner. Instead, the District Attorney squarely and repeatedly frames the issue as the adequacy of the pleading. Accordingly, the Proposition 47 cases are inapposite.
Because this appeal does not raise the issue of whether section 1170.95 imposes a burden of production on the petitioner, we do not address or express any view on that issue.
The District Attorney also argues that the standards governing habeas petitions—including the requirements that the petitioner "state fully and with particularity the facts on which relief is sought" and provide copies of "reasonably available documentary evidence in support of claims"—were imported wholesale into section 1170.95 by this court in Drayton. We disagree. In Drayton, this court acknowledged that "habeas corpus procedures provide an imperfect analogy to" section 1170.95 but concluded that habeas corpus procedures provide a useful guide for the limited purpose of assessing the adequacy of a petitioner's prima facie showing. (Drayton, supra, 47 Cal.App.5th at p. 980, italics added.) Drayton drew the following limited guidance from the law governing habeas petitions: "the trial court should assume all facts stated in the section 1170.95 petition are true"; "[t]he trial court should not evaluate the credibility of the petition's assertions . . . [but], if the record 'contain[s] facts refuting the allegations made in the petition . . . the court is justified in making a credibility determination adverse to the petitioner.' [Citation]" (Ibid.)
It is also worth noting that, in the context of this case, the District Attorney's complaints about the absence of evidentiary facts in the petition and supporting declaration are somewhat academic. All of the relevant facts were before the trial court at the time it ruled because the prosecutor's response to the petition included a detailed statement of facts and had as an attachment a copy of this court's opinion in Madril's direct appeal, which set forth the relevant facts in detail. The District Attorney does not now take the position that any of those facts refute, as a matter of law, the allegations in the petition or establish as a matter of law Madril's ineligibility for relief. Thus, remanding the matter to allow Madril to file a more robust petition would have no practical effect except to waste time and judicial resources.
Finally, the District Attorney faults Madril for alleging only that he could not be convicted of first degree murder without also alleging that he could not be convicted of second degree murder. That argument was not raised below. We decline to reach it for the first time on appeal, particularly given the fact that the issue has not be briefed or responded to by the parties to the appeal. (People v. Camacho (2000) 23 Cal.4th 824, 837, fn. 4.)
III. DISPOSITION
The order is reversed and the matter is remanded to the trial court with directions to reconsider the petition in light of this opinion.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
PREMO, J.