Opinion
D081789
04-10-2024
THE PEOPLE, Plaintiff and Respondent, v. KEVIN ALONSO MARQUEZ, Defendant and Appellant.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Lynne G. McGinnis and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCD207357, Rachel Cano, Judge. Affirmed.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Lynne G. McGinnis and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
DATO, J.
Kevin Alonso Marquez claims the trial court erred in denying his Penal Code section 1172.6 petition, which provides relief for defendants convicted of murder under certain theories that are no longer available in California. The trial court determined, based on the record of conviction, that Marquez was the actual killer and thus ineligible for relief under section 1172.6. We review the issue independently and come to the same conclusion. Accordingly, we affirm the order.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Marquez was charged with murder. (§ 187, subd. (a).) The complaint included special allegations that he personally used a firearm and acted for the benefit of a gang. (§§ 12022.5, subd. (a) &186.22, subd. (b)(1).)
Because only the procedural history of this case and the record of conviction is relevant, we do not recount the underlying facts.
Marquez pleaded guilty to voluntary manslaughter in 2009 and admitted to the firearm enhancement. (§§ 192, subd. (a) &12022.5, subd. (a).) As the factual basis for his plea, he stated, "I did unlawfully kill another human being without malice in imperfect self-defense. And I personally used a firearm in the commission of the offense." Consistent with his stipulated agreement with the People, he was sentenced to 21 years in prison.
In 2022, Marquez submitted a petition for resentencing under former section 1170.95, now 1172.6. He was appointed counsel and submitted a brief, which the court considered along with the record of conviction.In denying the petition, the court determined that he was ineligible for relief as a matter of law because, as the basis for his plea, he admitted to unlawfully killing another person. Marquez now challenges that decision.
See People v. Mares (2024) 99 Cal.App.5th 1158, 1161, footnote 1 (Mares) ("former section 1170.95, [was] renumbered as section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)").
The record of conviction available to the trial court consisted of the charging document, Marquez's change of plea form, court minutes and the abstract of judgment.
DISCUSSION
"Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, [§§] 2, 3.)" (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis). These changes were made, in part, to ensure that murder liability is not imposed on persons who either (1) were not the actual killer, (2) did not act with intent to kill, or (3) were not a major participant in some underlying felony who acted with reckless indifferent to human life.(People v. Gentile (2020) 10 Cal.5th 830, 842.) In addition to narrowing the circumstances in which these theories of murder liability can attach, the Legislature also enacted section 1172.6, which details the procedure by which defendants who were convicted under the now-disfavored murder doctrines (or pled to lesser charges to avoid prosecution under these theories) can have their convictions vacated and be resentenced.
Unless certain conditions exist that render that person nonetheless criminally liable for their participation in the murder. (§ 189, subds. (e)-(f).)
The new rules governing felony murder and the natural and probable consequences doctrine have been extensively considered in other cases. (See, e.g., Lewis, supra, 11 Cal.5th at pp. 959-960; People v. Harrison (2021) 73 Cal.App.5th 429, 432-433). We will not reiterate them other than to explain a few concepts that are pertinent here. When a petition seeks relief under section 1172.6, both the petitioner and the People may submit briefs to the court. The court then considers "whether the petitioner has made a prima facie case for relief" before issuing an order to show cause, which is followed by an evidentiary hearing. (Id., subds. (c)-(d).). At the prima facie stage courts may-and indeed should-consider the record of conviction to determine if a petitioner is not entitled to relief as a matter of law. (Lewis, at pp. 971-972.) This occurs when, for example, a defendant petitions for relief under 1172.6 even though no aspect of the underlying conviction involved the now-disfavored murder liability theories. By scrutinizing the record of conviction before granting an evidentiary hearing, courts can "distinguish petitions with potential merit from those that are clearly meritless." (Lewis, at p. 971.) No factfinding is permissible at the prima facie stage (id. at p. 972), but courts need not disregard the record of conviction when it is clear the petitioner's case does not fall within the scope of relief provided by section 1172.6. We review such a determination de novo. (People v. Flores (2022) 76 Cal.App.5th 974, 991.)
Marquez asserts that the court erred in finding him ineligible for relief as a matter of law because the record of conviction does not definitively establish he "personally harbored the intent to kill." He further claims it does it rule out the possibility that he took a plea deal "in lieu of going to trial for murder where the prosecutor could have proceeded under a theory of felony murder or murder under the natural and probable consequences doctrine."
We need not even look beyond the petitioner's plea form to find this was not the case. In that document, Marquez stated: "I did unlawfully kill another human being without malice in imperfect self-defense. And I personally used a firearm in the commission of the offense." The factual basis for his plea thus demonstrates he was the actual killer. There is no other logical way to read his admission that he "unlawfully kill[ed] another human being." Given this, his argument about intent is irrelevant. It is also not possible that his plea was motivated by a desire to avoid a prosecution that could have proceeded under either of the murder theories the Legislature has since curtailed as to accomplices. (See §§ 189, subd. (e) &190.2, subds. (c)-(d).)
Marquez's claim that the record does not establish he had an intent to kill would be a pertinent point only if he was not the actual killer. (See § 189, subd. (e)(2).) Interestingly, the crime to which he pleaded, voluntary manslaughter, requires no such element of intent. (People v. Lasko (2000) 23 Cal.4th 101, 111 ["intent to kill is not a necessary element of the crime of voluntary manslaughter"].)
It is common sense that criminal consequences for an actual killer are not affected at all by legislation that narrowed the circumstances in which accomplices can be found liable for a murder that took place while they assisted in another felony. Unsurprisingly, our caselaw makes this abundantly clear. (People v. Delgadillo (2022) 14 Cal.5th 216, 233 [actual killer not entitled to any relief under section 1172.6]; Mares, supra, 99 Cal.App.5th 1158, 1165 [Senate Bill No. 1437 "eliminated murder liability only for some convicts 'who were neither the actual killers nor intended to kill anyone.' "]; People v. Patton (2023) 89 Cal.App.5th 649, 657 ["As the sole and actual perpetrator of the attempted murder . . . Patton is ineligible for resentencing as a matter of law."]; People v. Garrison (2021) 73 Cal.App.5th 735, 744 ["as the actual killer, Garrison is ineligible for resentencing under [former] section 1170.95."]; People v. Garcia (2022) 82 Cal.App.5th 956, 973 ["resentencing relief under section 1172.6 is not available to an 'actual killer.' "]; People v. Harden (2022) 81 Cal.App.5th 45, 56 [petitioner ineligible for 1172.6 relief as a matter of law because she was convicted as the actual killer].)
As a result, Marquez cannot successfully argue that the record of his conviction is insufficient to support the trial court's conclusion. We need look no further than the factual basis for his plea to determine he was convicted as the actual killer. As such, relief under section 1172.6 is unavailable to him as a matter of law.
DISPOSITION
The order denying Marquez's petition for resentencing under section 1172.6 is affirmed.
WE CONCUR: O'ROURKE, Acting P. J. IRION, J.