Opinion
G062436
02-20-2024
THE PEOPLE, Plaintiff and Respondent, v. LUIS MARTINEZ, Defendant and Appellant.
Mark D. Johnson, 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, Assistant Attorney General, Christopher P. Beesley and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 04CF1271, Jonathan S. Fish, Judge. Affirmed.
Mark D. Johnson, 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, Assistant Attorney General, Christopher P. Beesley and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Luis Martinez appeals from the order denying his second petition for resentencing pursuant to Penal Code section 1172.6. His first petition was denied at the prima facie stage and that ruling was affirmed on appeal.
All further statutory references are to this code.
Martinez argues the trial court prejudicially erred by denying his current petition without appointing counsel because it was reasonably probable that had counsel been appointed, the trial court would have been required to issue an order to show cause. Specifically, Martinez claims that notwithstanding his guilty plea, in which he admitted to being the killer of his victim, there is sufficient evidence to create a reasonable doubt as to whether he was the actual shooter.
We affirm. Martinez's argument seems to misapprehend the issue to be determined in this resentencing proceeding. Martinez's guilty plea was supported by his admission that he personally killed the victim. That factual basis renders him ineligible for relief under section 1172.6 as a matter of law. The trial court's failure to appoint counsel for him was consequently at best harmless error.
FACTS
We derive our summary of the underlying facts from this court's unpublished opinion in Martinez's first appeal. (People v. Martinez (Sept. 8, 2021, G059624) (Martinez I).)
"In 2004, the Orange County District Attorney filed an Information alleging that Martinez and two other individuals committed murder (count 1; § 187, subd. (a)) and street terrorism (count 2; § 186.22, subd. (a)). It was further alleged that the murder was gang related (§ 186.22, subd. (b)), and that each of the defendants was a gang member who vicariously discharged a firearm which resulted in the death of the victim (§ 12022.53, subds. (d) &(e)(1)). Counsel was appointed to represent Martinez; he then entered pleas of not guilty to each of the charges, and he denied the special allegations.
"Martinez went to trial; mid-trial he elected to change his plea. On May 26, 2005, he pleaded guilty to first degree murder. In exchange, the district attorney agreed to dismiss count 2 and to strike the enhancements.
"At the time Martinez changed his plea, he personally executed under penalty of perjury the standard Tahl form which contained a factual basis for his guilty plea which said this: 'On 4/18/04 in Orange County I willfully &unlawfully with premeditation &deliberation did kill Armando Chavez with malice aforethought.' The trial court accepted the guilty plea and thereafter sentenced Martinez to 25 years to life in state prison." (Martinez I, supra, G059624.)
In re Tahl (1969) 1 Cal.3d 122.
Martinez filed his first resentencing petition in 2020; after counsel was appointed, the trial court denied it at the prima facie stage. We affirmed that denial on appeal, noting Martinez pleaded guilty to the murder and admitted under penalty of perjury that he was the actual killer, which "on its face disqualified him from receiving the relief he sought." (Martinez I, supra, G059624.)
Martinez filed the instant petition in January 2023. His petition includes all the required information, and requests the appointment of counsel. Documents attached to the petition, including Martinez's own narrative statement, suggest Martinez was not the actual shooter of the victim, but that he pleaded guilty on advice of counsel because he was facing a potential prison term of life without the possibility of parole if he lost at trial. Martinez claimed that another gang member, whom he identified, was the actual shooter, and also that a decade after he pleaded guilty, the detective who had investigated his case acknowledged having been wrong in believing Martinez was the shooter. At the detective's invitation, Martinez testified at a preliminary hearing against the person he identified as the actual shooter. The deputy district attorney who prosecuted the case against the other gang member praised Martinez for his cooperation. The other gang member later pleaded guilty to an unspecified crime in connection with the incident.
The trial court summarily denied the current petition without appointing counsel.
DISCUSSION
1. Resentencing Law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess., Stats. 2018, ch. 1015; Sen. Bill 1437) was enacted to limit the scope of the traditional felony-murder rule. It also eliminated the natural and probable consequences (NPC) theory for murder. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Pursuant to Sen. Bill 1437, murder liability can no longer be '"imposed on a person who [was] not the actual killer, [who] did not act with the intent to kill, or [who] was not a major participant in the underlying felony who acted with reckless indifference to human life."' (Lewis, at p. 959.) Sen. Bill 1437 also added section 1170.95 (later renumbered § 1172.6), which created a procedure whereby a "person convicted of felony murder or murder under the natural and probable consequences doctrine" can petition for relief. (§ 1172.6, subd. (a).)
Section 1172.6 provides a petition for relief must include: "(A) A declaration by the petitioner that the petitioner 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. [¶] (C) Whether the petitioner requests the appointment of counsel." (§ 1172.6, subd. (b)(1)(A-C).)
If the petition contains the required information and the petitioner has requested the appointment of counsel, the trial court must appoint counsel. (§ 1172.6, subd. (b)(3).) The court must then allow both the prosecutor and the petitioner to file briefs addressing whether the petitioner has made a prima facie showing that resentencing relief is appropriate, and then hold a hearing on the issue. (§ 1172.6, subd. (c).)
A prima facie showing of entitlement to relief is based on the record of conviction. (Lewis, supra, 11 Cal.5th at p. 970.) That record includes "documents in the court file or otherwise part of the record of conviction that are readily ascertainable [including] the complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment. (People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, abrogated on another ground by Lewis, supra, 11 Cal.5th at p. 967.) "Appellate opinions . . . are generally considered to be part of the record of conviction. [Citation.] However, . . . the probative value of an appellate opinion is case specific, and 'it is certainly correct that an appellate opinion might not supply all answers.' [Citation.] In reviewing 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.'" (Lewis, at p. 972.) '"However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner.'"" (Id. at p. 971.)
2. Law of the Case Doctrine
The Attorney General argues this second resentencing petition is barred by the doctrine of law of the case. We agree.
"Under the law of the case doctrine, when an appellate court '"states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal ...."' [Citation.] Absent an applicable exception, the doctrine 'requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.'" (People v. Barragan (2004) 32 Cal.4th 236, 246 (Barragan).)
"As its name suggests, the doctrine applies only to an appellate court's decision on a question of law; it does not apply to questions of fact." (Barragan, supra, 32 Cal.4th at p. 246.) The law of the case doctrine applies here because a court's evaluation of whether a prima facie standard has been satisfied is a question of law. (Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th 189, 201 ["whether or not a plaintiff has met his or her prima facie burden, and whether or not the defendant has rebutted the plaintiff's prima facie showing, are questions of law for the trial court, not questions of fact for the jury"]; see Barragan, at p. 246 ["an appellate court's determination 'that the evidence is insufficient to justify a finding or a judgment is necessarily a decision upon a question of law'"].) Consequently, "[s]uch a determination 'establishe[s] as the law of the case that all the evidence adduced at the previous trial was insufficient as a matter of law to establish' the finding or judgment." (Ibid.)
Martinez argues the law of the case doctrine should not apply here because his prior appeal was processed pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), and thus this court did not determine any issues of law. We disagree. In the prior opinion, this court found that Martinez's guilty plea, supported by his admission that he was the actual killer in this case, "on its face disqualified him from receiving the relief he sought." (Martinez I, supra, G059624.) We also held that "[s]ince Martinez was not convicted of murder under either a felony murder or natural and probable consequences theory, he is ineligible for relief ...." (Ibid.)
While it is true the law of the case doctrine only applies if the facts underlying the second determination are substantially the same as those underlying the first (see People v. Mattson (1990) 50 Cal.3d 826, 850 [the appellate court's binding legal determination "controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based"]), none of the additional facts Martinez alleges in this petition alter our analysis.
Martinez's eligibility for resentencing under section 1172.6 turns on whether his conviction was based on a theory relying on either felony murder or NPC. Even if we agreed there was some doubt as to the propriety or accuracy of Martinez's guilty plea (an issue we decline to address), it would not change the fact that his conviction was based on his guilty plea, in which he admitted direct responsibility for murder; his conviction was not based on either of the theories of murder culpability that are no longer viable.
Martinez also contends the law of the case doctrine does not apply because the law changed during the period between his first petition and this one. But the law he is referring to is the recodification of former section 1170.95 into current section 1172.6. While it is true that section 1172.6 states that Martinez is entitled to appointment of counsel on request if his petition includes all the required information to justify resentencing relief-whereas former section 1170.95 did not-that does not impact the issue before us, which is whether Martinez's guilty plea renders him ineligible for resentencing relief. That issue was resolved against Martinez in our prior opinion. Because neither the relevant facts nor the applicable law has changed since then, the law of the case doctrine applies.
In People v. Farfan (2021) 71 Cal.App.5th 942, the court acknowledged that as a general rule, successive petitions for the same relief may be barred, but that a retroactive change in the law between the two petitions creates an exception to that rule. (Id. at p. 951.)
3. Required Appointment of Counsel and Harmless Error
Martinez argues that because his section 1172.6 petition included all of the required information, the trial court erred by failing to appoint counsel to represent him as required by section 1172.6. We agree. The Attorney General does not dispute that point, but argues the court's error in failing to appoint counsel was harmless. Again, we agree.
Martinez concedes the Watson harmless error analysis applies here (see People v. Watson (1956) 46 Cal.2d 818), but argues it is "reasonably probable that, had the trial court appointed counsel, it would have been unable to conclude that no reasonable person could find appellant was entitled to relief, and therefore unable to deny the petition." Martinez's argument fails because a petition for rehearing under section 1172.6 provides potential relief only to those defendants whose murder convictions were based on application of the felony-murder rule or the NPC doctrine. Even if we had questions about the validity or factual accuracy of Martinez's guilty plea, it would not tend to prove he had been convicted under either of those alternative theories of murder culpability. To the contrary, it is undisputed he was not. We therefore conclude the trial court's failure to appoint counsel for him was harmless.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. SANCHEZ, J.