From Casetext: Smarter Legal Research

People v. Malarkey

California Court of Appeals, Fifth District
Aug 9, 2023
No. F085140 (Cal. Ct. App. Aug. 9, 2023)

Opinion

F085140

08-09-2023

THE PEOPLE, Plaintiff and Respondent, v. JOHN MALARKEY, JR., Defendant and Appellant.

Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Erin Doering and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County. No. CF98909797, Jonathan B. Conklin, Judge.

Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Erin Doering and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT[*]

INTRODUCTION

Petitioner John Malarkey, Jr., petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his 12 convictions for murder and attempted murder. The superior court denied the petition at the prima facie stage after finding "sufficient evidence," including the facts described in petitioner's change of plea transcript, established petitioner was the actual killer as to the murders and attempted murders on counts one, five, six, seven, eight, nine, ten, eleven, and twelve, and "aided and abetted and was a substantial participant in" the murders on counts two, three, and four.

Undesignated statutory references are to the Penal Code. Former section 1170.95 has been renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.

On appeal, petitioner contends the court erred in failing to issue an order to show cause and hold an evidentiary hearing as to counts two, three, and four. The People concede error. We will reverse the order denying the petition as to counts two, three, and four and remand for further proceedings pursuant to section 1172.6.

Petitioner does not challenge the denial of his petition as to the remaining counts.

FACTUAL AND PROCEDURAL BACKGROUND

I. Underlying Charges and Convictions

On July 6, 1998, petitioner was charged with the murders (§ 187) of Rudolfo Sanchez (count one), Reyes Carrillo (count two), Alicia Duenes (count three), Marciano Perez (count four), Rachel Carrillo (count five), Alfredo Carrillo (count six), Mary Ruiz (count seven), Earl Grant (count eleven), and Tomas Valdez (count twelve). He also was charged with the attempted murders (§§ 187, 664) of Mary C. (count eight), Rosemary F. (count nine), and Ramon P. (count ten). As to count one and counts five through twelve, the People alleged petitioner personally used a firearm (§ 12022.5, subd. (a)(1)). As to counts two through four, the People alleged petitioner vicariously used a firearm (§ 12022, subd. (a)(1)).

Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.

Counts one through ten pertained to an incident on May 16, 1993, count eleven to an incident on May 30, 1993, and count twelve to an incident on April 12, 1992. As to counts one through seven and count twelve, the People alleged the murders were committed during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)). The People additionally alleged a multiple-murder special circumstance (§ 190.2 (a)(3)). As to count nine, the People alleged a great bodily injury enhancement (§ 12022.7, subd. (a)).

On July 7, 1998, petitioner pled guilty to all counts and admitted all allegations. At the same time, petitioner additionally pled guilty to the murder of Charles Martin and admitted a corresponding firearm enhancement in Fresno County Superior Court case No. CF98610370 (case No. CF98610370). The parties stipulated the police department reports constituted a factual basis to the plea. The prosecutor also asked a police detective to recite additional "basic fact[s]." The detective stated the following facts, to which petitioner's counsel stipulated:

The superior court's denial of a petition for resentencing in case No. CF98610370 is the subject of a separate appeal, People v. Malarkey, F085149.

"Under Fresno Police Department Case Number 92-31129 . . . on April 12th, 1992, [petitioner] personally used a North American Arms .22 caliber magnum pistol and shot and killed victim [Tomas] Valdez in the course of a robbery.

The detective's quoted recitation of the facts refers to this individual as "Thomas." We refer to him as Tomas, consistent with the information.

"Fresno Sheriff's Department case [Number] 93-11413 . . . on or about May 2nd, 1993, [petitioner] personally used a North American Arms .22 caliber magnum pistol and shot and killed victim Charles Martin, having planned and premeditated the shooting.

"Fresno Police Department case [Number] 93-40680 . . . on May 16th, 1993, [petitioner] attempted to rob [a club]. In the course of the robbery [petitioner] was personally armed with a Ruger nine millimeter handgun and shot and killed Rudolfo Sanchez, Rachel Carrillo, Alfredo Carrillo, and Mary Ruiz. [Petitioner] attempted to murder with a nine millimeter handgun Mary [C.], Rosemary [F.], and Ramon [P.], causing great bodily injury to Rosemary [F.]. [¶] [Petitioner], while vicariously armed with a North American Arms .22 caliber magnum pistol, [petitioner's] unnamed co-principal in the robbery shot and killed Reyes Carrillo, Alicia Duenes, also known as Perez, and Marciano Perez.

"Fresno Police Department Case Number 93-45111, . . . on May 30th, 1993, [petitioner] personally used a Ruger nine millimeter handgun to shoot and kill Earl Grant."

Immediately following the change of plea, petitioner was sentenced to an agreed-upon sentence, for both cases, of 37 years, eight months, followed by an indeterminate term of 40 years to life, and eight terms of life without the possibility of parole. All terms were imposed to run consecutively.

II. The Petition for Resentencing

On May 23, 2022, petitioner filed a petition for resentencing pursuant to section 1172.6. Counsel was appointed to represent petitioner.

It appears petitioner previously had filed a section 1172.6 petition, which was denied without prejudice on procedural grounds. The People filed a response to the first petition, and asked that it be considered as their response to the second petition. Neither the first petition nor the People's response is contained in the record on appeal.

The matter came on for hearing on August 30, 2022, and the court stated it had reached a tentative ruling. The court stated it had reviewed the record, and particularly the transcript of the change of plea hearing, which provided "a very detailed factual basis." The court noted the factual basis established that petitioner was the actual killer or attempted to kill in all but counts two, three, and four. In counts two, three, and four, petitioner was "vicariously armed." Nonetheless, the court's tentative view was that there was "sufficient evidence to find beyond a reasonable doubt that [petitioner] aided and abetted those killings or was a part of the substantial - I forget factor three - of those killings." Although the court found it difficult "to conceive . . . how [section 1172.6] would provide relief," it deferred ruling to allow the parties an opportunity to review the change of plea transcript.

At the next hearing on September 27, 2022, petitioner's counsel submitted on the petition and asked that an order to show cause issue. The People submitted on the court's tentative ruling. The court stated it had "completed a substantial review of the facts and circumstances of the case, including the change of plea transcript." Based thereon, the court found "substantial evidence establishing that [petitioner] was both the actual participant in the counts and the killings as indicated by the court and a substantial participant and aided and abetted the others." The court characterized the evidence in support of this finding as "overwhelming." The court reiterated that defendant was the actual killer in count one and counts five through twelve, and that he aided and abetted and was a substantial participant in the murders on counts two, three and four. Accordingly, the petition was denied.

The court then clarified that it intended its ruling to apply to "both petitions and all counts involved," an apparent reference to a petition for resentencing case No. CF98610370. The court noted that it had reviewed two case files, and that the cases originated from a time "prior to consolidation."

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) "to amend the felony murder rule and the natural and probable consequences doctrine . . . 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); accord, People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) The bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The bill amended the felony-murder rule by providing that a participant in a qualifying felony is liable for murder only if the victim was a peace officer in the performance of his or her duties, or the defendant was the actual killer, aided and abetted the actual killer in the commission of first degree murder with the intent to kill, or was a major participant in the felony and acted with reckless indifference to human life. (§ 189, subds. (e), (f); accord, Strong, at p. 708.)

Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, [or] attempted murder under the natural and probable consequences doctrine" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, Gentile, supra, 10 Cal.5th at p. 853.) Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c); accord, Strong, supra, 13 Cal.5th at p. 708.) In making this determination, the court may rely on the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 970-971 (Lewis).) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, at pp. 971-972.)

If the trial court determines the petitioner has met his or her prima facie burden, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts." (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1172.6, subds. (c), (d)(1).) At this evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) Significantly, "[a] finding that there is substantial evidence to support a conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid.)

To demonstrate prejudice from the denial of a section 1172.6 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)

II. The Court Erred in Denying the Petition as to Counts Two Through Four

As the People concede, the superior court erred in determining that petitioner was ineligible for resentencing on counts two, three, and four because its conclusion was based on fact finding, which is impermissible at the prima facie stage.

At the prima facie stage,"' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved." '" (Lewis, supra, 11 Cal.5th at p. 971.)" '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Ibid.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) Rather, "[a]t the prima facie stage, the court may deny a petition if the petitioner is ineligible for resentencing as a matter of law." (People v. Flores (2022) 76 Cal.App.5th 974, 987.)

Here, the superior court reviewed the "facts and circumstances of the case, including the change of plea transcript," and determined that substantial evidence established petitioner was "a substantial participant and aided and abetted" the murders in counts two, three, and four. However, the portions of the change of plea hearing transcript cited by the court merely state that petitioner was "vicariously armed" when an "unnamed co-principal in the robbery shot and killed" the victims. Thus, the cited portions of the record fail to establish, as a matter of law, that petitioner was a major participant in the attempted robbery who acted with reckless indifference to human life,or that he directly aided and abetted in the murders of the victims alleged in counts two, three, and four. Nor does petitioner's admission, in 1998, of a robbery-murder special circumstance necessarily establish his ineligibility for resentencing. (See Strong, supra, 13 Cal.5th at p. 703.)

This may be a compelling inference given that petitioner was the actual killer or attempted killer of seven other victims during the same robbery. Nonetheless, the bare record is insufficient to establish petitioner's culpability for murder as a matter of law. Rather, such findings must be made following an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.) We take no position on the ultimate disposition of the petition as to these counts.

In sum, the record reflects no basis for denial of the petition as to counts two, three, and four at the prima facie stage and the court therefore erred in denying the petition with respect to these counts. The order must be reversed with respect to these counts and the matter remanded with directions to conduct further proceedings pursuant to section 1172.6.

DISPOSITION

The court's September 27, 2022 order denying the petition is reversed with respect to counts two, three, and four, and the matter is remanded for further proceedings pursuant to section 1172.6. In all other respects, the order is affirmed.

[*] Before Hill, P. J., Franson, J. and DeSantos, J.


Summaries of

People v. Malarkey

California Court of Appeals, Fifth District
Aug 9, 2023
No. F085140 (Cal. Ct. App. Aug. 9, 2023)
Case details for

People v. Malarkey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN MALARKEY, JR., Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Aug 9, 2023

Citations

No. F085140 (Cal. Ct. App. Aug. 9, 2023)