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People v. Malarkey

California Court of Appeals, Fifth District
Aug 9, 2023
No. F085149 (Cal. Ct. App. Aug. 9, 2023)

Opinion

F085149

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. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. CF98610370. Jonathan B. Conklin, Judge.

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

Office of the State Attorney General, Sacramento, California, 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 murder conviction. The superior court denied the petition at the prima facie stage without an evidentiary hearing.

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.

Petitioner appeals from the superior court's denial of his petition for resentencing. Appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Petitioner submitted his own letter brief and requested this court address certain issues.

We will address petitioner's issues and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Underlying Charges and Convictions

On May 13, 1998, petitioner was charged by way of information, and along with Lanelle Marie Malarkey (also known as Lanelle Denn), with the murder of Charles Martin. (§ 187; count one.) The information also alleged a robbery-murder special circumstance (§ 190.2, subd. (a)(17)) as to both defendants. As to petitioner only, the information alleged an enhancement for personal use of a firearm (§ 12022.5, subd. (a)(1)). As to his codefendant only, the information alleged a special circumstance for having previously been convicted of murder in the first or second degree (§ 190.2, subd. (a)(2)).

On July 7, 1998, petitioner pled guilty to the murder and admitted the firearm allegation. The special circumstance allegation was stricken upon motion by the People.

At the same hearing, petitioner also pled guilty in Fresno County Superior Court case No. CF98909797 (case No. CF98909797) to 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 pled guilty to 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, petitioner admitted that he personally used a firearm (§ 12022.5, subd. (a)(1)). As to counts two through four, petitioner admitted that he vicariously used a firearm (§ 12022, subd. (a)(1)). Petitioner also admitted various special circumstances and a great bodily injury enhancement.

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

The superior court's denial of resentencing in case No. CF98909797 is the subject of a separate appeal, People v. Malarkey, F085140.

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:

"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." (Italics added.)

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.

The matter came on for hearing on August 30, 2022, along with petitioner's petition for resentencing in case No. CF98909797, 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, apparently referencing case No. CF98909797. 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 actual murders on counts two, three and four, again apparently referencing case No. CF98909797. Accordingly, the petition was denied. Although the court did not specifically explain its ruling with regard to the separate count involved in the instant case, the court clarified that it intended its ruling to apply to "both petitions and all counts involved." The court noted that it had reviewed two case files, and that the cases originated from a time "prior to consolidation."

DISCUSSION

I. Appellate Review and Delgadillo

In Delgadillo, the court held a Wende analysis is not applicable to a trial court's order that denies a petition for postconviction relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 222.) Delgadillo held that instead of using the process outlined in Wende, appointed counsel and the appellate court should do the following: "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Id. at pp. 231-232.)

People v. Wende (1979) 25 Cal.3d 436.

"If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.... If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned. [Citation.] . . . While it is wholly within the court's discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal." (Delgadillo, supra, 14 Cal.5th at p. 232.)

In this case, appellate counsel filed a brief pursuant to Delgadillo from the denial of petitioner's petition. The brief also included counsel's declaration that petitioner was advised he could file his own brief with this court. This court sent petitioner an order that, pursuant to Delgadillo, the appeal would be dismissed as abandoned if he failed to submit a letter brief within 30 days.

Petitioner filed a supplemental brief with this court in response to our Delgadillo order. We will address his arguments and exercise our discretion to independently review the record.

II. Applicable Law Regarding Section 1172.6

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, 842843 (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" 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. 971972.)

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 . . . 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.)

III. The Court Did Not Engage in Improper Factfinding

Petitioner argues that, in denying the petition, the superior court engaged in improper factfinding. We disagree that the court engaged in improper factfinding with regard to the single count at issue in this appeal. Moreover, even assuming error, petitioner was not prejudiced because our independent review of the record establishes he is ineligible for resentencing as a matter of law.

Pursuant to section 1172.6, a petitioner is ineligible for resentencing if he or she was the actual killer, acted with the intent to kill or malice aforethought, or was a major participant in the underlying felony who acted with reckless indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e), 1172.6, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.) Here, petitioner pled guilty to first degree murder, and stipulated to the fact that he "personally used a North American Arms .22 caliber magnum pistol and shot and killed victim Charles Martin, having planned and premeditated the shooting." By stipulating to his role as the actual killer, petitioner stipulated to facts necessary to sustain his murder conviction under the law as amended by Senate Bill No. 1437. (Cf. People v. Romero (2022) 80 Cal.App.5th 145, 153 ["admission to intentional, deliberate, and premeditated murder establishes [the petitioner] acted with actual malice sufficient to sustain the murder conviction under the law as amended by Senate Bill No. 1437"].)

It appears these stipulated facts formed the basis for the superior court's denial of the petition. Thus, it does not appear the superior court engaged in any improper factfinding when denying the petition. However, even if the court erred, the error was harmless. As the actual killer, petitioner is ineligible for resentencing as a matter of law and he cannot establish that he would have been afforded an evidentiary hearing absent error by the court. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Brooks (2017) 3 Cal.5th 1, 39 [reviewing court may uphold the trial court's ruling if it is supported by any legally correct theory].)

The petition was properly denied.

IV. Petitioner's Remaining Contentions

Petitioner argues the law has changed since the entry of his plea, rendering his plea invalid.

To the extent petitioner argues the law with respect to murder has been altered by Senate Bill No. 1437, we have already addressed and rejected his contentions.

To the extent petitioner argues his youth at the time of the offense rendered him incapable of premeditating the crime or forming the required malice, his contentions are irrelevant. Senate Bill No. 1437 does not offer resentencing to actual killers. (See § 1172.6, subd. (a); see also § 188, subd. (a)(3); § 189, subd. (e)(1).)

To the extent petitioner argues he is entitled to a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, his contention is not properly before us in this appeal from the denial of a petition for resentencing pursuant to section 1172.6. Franklin provides that youth offenders must have the opportunity "to make an accurate record of [their] characteristics and circumstances at the time of the offense so that the Board[ of Parole Hearings], years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' ...." (Franklin, supra, 63 Cal.4th at p. 284.) For defendants whose judgments are final, "the proper avenue is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and [In re Cook (2019) 7 Cal.5th 439]." (In re Cook, supra, 7 Cal.5th at p. 458.) Accordingly, if petitioner has not already been given an opportunity to preserve mitigating evidence of any youth-related factors, he may request a Franklin proceeding by filing a motion in the superior court.

V. Conclusion

Petitioner responded to this court's Delgadillo order and filed a supplemental brief. We have addressed the issues raised in his supplemental brief and furthermore exercised our discretion to conduct our own independent review of the record. There are no arguable issues, and petitioner was ineligible for resentencing on his murder conviction as a matter of law.

DISPOSITION

The court's September 27, 2022 order denying the petition 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. F085149 (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. F085149 (Cal. Ct. App. Aug. 9, 2023)