Opinion
F081998
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. JOE NUNEZ, JR., Defendant and Appellant.
Sylvia W. Beckham, 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, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. CF82286864. Arlan L. Harrell, Judge.
Sylvia W. Beckham, 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, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 1982, a jury convicted petitioner Joe Nunez, Jr., of conspiracy to commit murder for financial gain (Pen. Code, § 182; count I), and first degree murder (§ 187; count II) with the special circumstance the murder was committed for financial gain (§ 190.2, subd. (a)(1)). In bifurcated proceedings, the trial court found petitioner had served one prior prison term for a violent felony (§ 667.5, subd. (a)). The trial court orally sentenced petitioner to a three-year term for the prior prison term enhancement, followed by a term of life without the possibility of parole on count II. Although the court did not orally pronounce sentence on count I, the judgment of commitment reflects petitioner was sentenced to a concurrent term of life without the possibility of parole on that count. (See People v. Nunez (1986) 183 Cal.App.3d 214, 217 (Nunez I), disapproved on another ground by People v. Palmer (2001) 24 Cal.4th 856, 861, 867.)
Undesignated statutory references are to the Penal Code.
Our earlier opinion is contained in the augmented clerk's transcript of the present appeal. That prior opinion was partially published; the nonpublished portions of the opinion fall within the exception to the California Rules of Court, rule 8.1115(b)(1). (See Nunez I, supra, 183 Cal.App.3d 214; see also id. (July 10, 1986) F002058 [nonpub. opn.].)
In 2020, petitioner filed a petition for resentencing pursuant to section 1170.95. The court summarily denied the petition on the ground petitioner was "more than a mere participant" in the offense and "[t]he killing resulted from an intentional act with express or implied malice."
On appeal, petitioner argues the trial court erred in denying the petition without appointing counsel and by engaging in premature factfinding. Petitioner further argues these errors were not harmless. For reasons we explain, we conclude any error was harmless because the jury's special circumstance finding establishes petitioner is ineligible for resentencing as a matter of law.
Petitioner additionally argues his sentence is unauthorized and must be corrected. As the parties agree, the special circumstance finding does not apply to count I. Accordingly, a reference to the special circumstance in the judgment of commitment and sentencing minute order pertaining to count I must be stricken. Additionally, the authorized term for a conviction for conspiracy to commit murder is 25 years to life, not life without the possibility of parole. Accordingly, the sentence on count I must be corrected. We will remand with directions for the trial court to correct the judgment of commitment and sentencing minute order, and to correct the sentence as stated herein.
FACTUAL AND PROCEDURAL HISTORY
We previously summarized the facts underlying petitioner's offenses as follows.
Our factual summary is taken from the nonpublished portions of our opinion in petitioner's direct appeal. (See fn. 2, ante.) These facts were recited by both parties in their briefing. We recite these facts to provide context for the court's ruling and the parties' arguments. However, we do not rely on this factual summary in resolving the issues presented in this appeal. (See § 1170.95, subd. (d)(3).)
"On September 11, 1980, the body of Dwayne H. Johnson was found in a remote area of southern San Luis Obispo County. Death had resulted from four bullet wounds in the left chest and upper abdomen.
"On June 20, 1980, Dwayne Johnson and his wife, Jo Ann Johnson, took out a life insurance policy on Mr. Johnson's life. Mrs. Johnson made the first semi-annual premium payment in July. She was named as the sole beneficiary on the policy.
"Jo Ann Johnson became acquainted with Ruben Lozano, [petitioner's] uncle, sometime in the middle of August 1980. Lozano had gone to a bar in Santa Maria and met Jo Ann and her mother, who initially introduced herself as Julie, Jo Ann's niece. (Later, Lozano found out Julie's real name was Ramora Gonzalez.) After the women became aware that Lozano was carrying a pistol, Julie asked him if he could get a contract out on her husband. He felt she was joking and responded with a joke. The following day, he met Julie again, and she gave him some documents describing her husband and various details of his life. He kept the documents and subsequently gave them to law enforcement officials.
"On August 20, Lozano and another nephew, Manuel Medina, were at [a bar and pizza restaurant] in Nipomo. Medina speaks primarily Spanish, although he can speak enough English to get by. Lozano called Jo Ann Johnson in an attempt to introduce Medina to her. Lozano told her on the phone that her husband was at the [pizza restaurant]. She responded, 'That bastard, I wish somebody would kill him.' She then stated some figures to him, and he told her he would see what he could do about helping her. Back at the table, he told Medina about the conversation. Medina stated he would kill Mrs. Johnson's husband. The two men decided that Medina would not participate in any killing, but that he would pretend to help Mrs. Johnson, just so he could have sexual intercourse with her.
It appears Manuel's last name is Medina Galvan. Our prior opinion referred to him sometimes as Medina and sometimes as Galvan. For consistency, we refer to him as Medina.
"Lozano arranged a meeting between Jo Ann and Medina later that night at his house. When she arrived, Lozano told her to take off her clothes, and she stated, 'You mean if I don't cooperate with him sexually we won't have a deal?' Lozano responded that they did not have a deal, and he left the house. Medina and Jo Ann had some type of sexual encounter on the couch. Later that evening, Jo Ann told Lozano she and Medina had reached an agreement. She was going to pay Medina $5,000 to kill her husband, $1,000 down and $4,000 when the insurance money was paid. When he spoke to Medina, however, Medina assured him there was no agreement.
"On August 21, Lozano had two conversations with Medina. On both occasions, Medina assured Lozano that he was not going through with any deal with Jo Ann. On the second occasion, though, Medina asked for Jo Ann's phone number to call her simply for a date.
"On August 21, 1980, Jo Ann picked up a telegraphic money order from the Western Union office in Santa Maria. She was directed to the Santa Maria Bank by the telegraph operator so that she could cash the check.
"That evening, Dwayne Johnson went to [the pizza restaurant] to drink. Both [petitioner] and Medina were seen at the [pizza restaurant]. Furthermore, they were seen talking with Dwayne Johnson. A woman tending bar that night testified that Medina had a large amount of money in his wallet. He bought a round of drinks for everyone at the bar and tried to pay with a $100 bill, but the cashier would only accept a $50 bill. Later that evening, [petitioner] and Medina were given directions to [another bar] in Nipomo. Again, [petitioner], Medina and Dwayne Johnson were all present at [the bar]. Later that evening, one of the patrons of the bar saw [petitioner's] car, a 1977 black Cordoba, leaving [the bar] in an erratic fashion. The same car had been seen leaving the [pizza restaurant] earlier that evening at approximately 11 p.m., with two people in the car crouched down in their seats. Dwayne Johnson's car was seen at [the bar] the following morning, and he was never seen alive again.
"That same evening or in the early morning hours of August 22 (1:54 a.m.), Arnold Swanson, a Santa Maria police officer, drove by a 1977 black Cordoba, which passed by his car and accelerated to a rapid rate of speed. The driver of the car was Joe Nunez, [petitioner]. Another man was in the car and was identified as Manuel Medina. Officer Swanson pursued the car as it raced away. Eventually, the car was driven into another parked car, and Swanson saw [petitioner] exit the car and run away. [Petitioner] was wearing a T-shirt and some sort of pants. Swanson then checked the car for the registration and found $1,431 in the glove compartment. Ten to fifteen minutes later, [petitioner] came back wearing no shirt. [Petitioner] walked to the car and reached in the passenger side window in the area of the glove box. When Officer Swanson asked him what he was looking for, he replied, 'Nothing.' [Petitioner] further denied any knowledge of money in the car. He was arrested for hit and run. [Petitioner] later told Officer Swanson that the money was his and that he got it from 'a payoff on an insurance program and other things.'
"On August 22, Lozano had a conversation with [petitioner's] father and Jo Ann Johnson. He became suspicious as a result of these conversations and decided to contact the sheriff's department. Late that night, Deputy Sheriff [T.] Garrity met with Lozano. Lozano told him he suspected [petitioner] and Medina had contracted with Jo Ann Johnson to kill her husband, and he related the details of the meeting between Medina and Jo Ann.
"That same evening after dark, a dispatcher for the Santa Maria Police Department saw a person moving about [petitioner's] car, which had been placed in an impound lot. The dispatcher was only able to see through a video camera screen and could not tell if the person was male or female. The person was carrying a long, black object, which appeared to have soft edges. The dispatcher watched as the person crawled back over a fence.
"On Saturday, August 23, Mrs. Johnson filed a missing persons report with the San Luis Obispo Sheriff's Department.
"Lozano further testified that on that Saturday he drove [petitioner] to the Santa Maria Police Department because [petitioner's] car was impounded there. On the drive back from Santa Maria, [petitioner] commented, 'It was stupid of us to carry that kind of money with us.'
"Also on that Saturday, Lozano was contacted by two detectives from the sheriff's department, [D.] Mansfield and [J.] Maher. Lozano relayed the information he had on the homicide to Officer Maher. Thereafter, they had Lozano contact Jo Ann Johnson by phone, and they taped the conversation. A portion of the conversation was ruled admissible by the trial court and was played to the jury. In this conversation, Jo Ann Johnson told Lozano that she needed to know where the body was located. She also said she had been putting on an act of being upset for the benefit of the police and her husband's friends. She further told him that she was sure Dwayne Johnson was 'wasted.'
"Mrs. Johnson also was concerned that 'they' had acted unprofessionally on the night her husband was killed. She told Lozano they had been seen at [the bar] and had raced around in a black car outside of the bar. She also told Lozano that she had met with them earlier on the night of the killing and had given them the money, which had been wired to her. Subsequently, they called her and wanted a picture, so she met them that night and showed them a picture of her husband. Later that night, they called her again and said that they had shot her husband. They also told her the police had confiscated the money, and they wanted more money.
"Lozano had two other conversations with Jo Ann on August 24 and August 26. The conversation on August 24 was played to the jury in its entirety. Mrs. Johnson told Lozano in this conversation that the 'guy that speaks English' called her and told her not to worry because the body would show up. He told her they had dumped the body in a gully, and it would be found when it started to smell. He also told her they were watching her, and they needed the money. She told them she could not pay the money until after the body was found. The final conversation of August 26 that was played to the jury consisted of Jo Ann Johnson telling Lozano that she needed the body because she was in a financial bind. She stated she could not pay them until the body was found. She and Lozano discussed the possibility of getting the killers to produce the body or bring it to a place where it would be easier to find.
"On the following Friday or Saturday, which would be August 29 or 30, Lozano saw [petitioner] at a place in town referred to as The Chicken Coops. Lozano was wearing a radio transmitter taped to his leg. Lozano was attempting to find out the location of the body. He told [petitioner] Mrs. Johnson could not give him the rest of the money until she had the body. [Petitioner] said, 'You tell that bitch if she wants the body, I need three grand more.' Lozano later discovered the transmitter had slipped off his leg into his boot.
"The next day, [petitioner] approached Lozano at The Chicken Coops. He wanted to know how Lozano's grandmother had found out they had killed somebody. Lozano asked him what he was talking about, and [petitioner] replied, 'Well, that Johnson guy.' He further stated, '. . . we wasted him.' Lozano then testified [petitioner] told him, 'that they lured him out to a place called Tepusquet Canyon under the pretense of they were going to go to a party where there was a lot of women, and they had gone up there, and when he stopped to take a leak, he just reached -- got the carbine from Medina and shot through the top of the car.' [Petitioner] also told Lozano he had hit Johnson through the back. He further stated,' "I went around and he was just laying there, so I pumped two more, three more in him, and then I told him to help me to throw him off the cliff. [Medina] was sitting in the car all scared. And finally when we pushed him, he rolled down, and just threw him off the cliff." '
"[Petitioner] also had made other admissions to Lozano concerning his involvement in the crime on other occasions. [Petitioner] told Lozano that he was in a traffic accident. He had run into a parked car. [Petitioner] told Lozano he fled from the scene of the accident because he had blood stains on his pants. He then obtained some different pants and returned to the scene. [Petitioner] also told Lozano that he had broken into the impound yard and had removed the carbine rifle from his car.
"On September 8, 1980, Lozano was provided with a car by the sheriff's department. The car was equipped with recording devices. He and Medina set out to discover the location of Mr. Johnson's body so that Jo Ann could get her insurance problem resolved. Medina took him to Tepusquet Canyon, but they were not able to locate the body, although they found a ravine that had a bad smell coming from it. Lozano described the area as being deserted and approachable only by a winding road, which had no lighting. Lozano's and Medina's conversation, taken from the recording devices, was not introduced into evidence.
"Later that evening, after dark, Lozano and approximately six sheriff's officers went back to the canyon to search for the body. While they were searching, a vehicle drove by their location. The car was recognized by Lozano as the car driven by Jo Ann Johnson. Two people were in the car, but he was unable to identify them. Deputy Sheriff [L.] Hobson was present at the canyon, and he testified the car drove by at approximately 10 to 20 miles per hour. He definitely identified [petitioner] as the driver. Several sheriff's officers then pursued the car in their patrol units. They lost sight of the vehicle at first, but caught up with it four to five minutes later. By this time, a female was driving, and she was identified as Jo Ann Johnson. [Petitioner] had disappeared. The body of Dwayne Johnson was located on a later date, September 11, several miles south of where the officers were searching.
"[Petitioner] was not seen again until he was apprehended in Texas and returned to California in June 1982.
"After the body of Dwayne Johnson was discovered, it was examined by Dr. Karl Kirschner. He found four bullet wounds in the body. These were in the left chest and upper abdominal area of the body. He was able to remove three bullets from the body. The bullet wounds were the cause of death. The positions of the bullets were consistent with someone being shot face-to-face once and then several more times as the body was lying on the ground. He also determined that each of the shots had been fired from close range, no farther than five or six feet away. [Petitioner's] expert testified the body probably was shot at from a much closer range.
"The three bullets and several casings found near the body's location were examined. After examining the bullets, a criminalist determined they were likely to be of 30 caliber and were all fired by the same gun. The criminalist also examined the casings. The casings appeared to be 30-caliber casings. Another expert testified that an M-l carbine rifle would take 30-caliber ammunition.
"The evidence showed that Ruben Lozano had purchased an M-l carbine rifle from a merchant in Nipomo in the early part of August 1980. Subsequently, and before the disappearance of Mr. Johnson, Lozano sold the rifle to his nephew, Manuel Medina." (Nunez I, supra, F002058.)
On November 8, 1982, a jury found petitioner guilty of conspiracy to commit murder for financial gain (§ 182; count I) and first degree murder (§ 187; count II). As to count II, the jury found true the special circumstance the murder was committed for financial gain. (§ 190.2, subd. (a)(1).) The jury found not true the allegation that petitioner personally used a firearm in the commission of the murder. (§ 12022.5.) In bifurcated proceedings, the court found true the allegation that petitioner had served a prior prison term for a violent felony. (§§ 667.5, subd. (a), 667.6.)
Jo Ann Johnson and Medina were tried separately, both prior to petitioner. Jo Ann Johnson was tried in San Luis Obispo County and convicted of the lesser included offenses of conspiracy to commit voluntary manslaughter and voluntary manslaughter, with a finding that she was a principal and was armed with a firearm during the commission of the offense. Medina was tried in Santa Barbara County and convicted of the lesser offenses of conspiracy to commit voluntary manslaughter and voluntary manslaughter with a finding he was armed with a firearm but did not personally use it during the commission of the homicide. (Nunez I, supra, 183 Cal.App.3d at pp. 217-218.)
On January 10, 1983, the court sentenced petitioner to a term of life without the possibility of parole for first degree murder with a special circumstance. For the prior prison term enhancement, the court imposed a three-year term, to be served prior to the life term. The court did not mention count I in its oral pronouncement of sentence. However, the minute order and judgment of commitment to state prison indicates the court imposed a concurrent term of life without the possibility of parole on count I. On July 10, 1986, this court affirmed the judgment. (Nunez I, supra, 183 Cal.App.3d at pp. 217-218.)
On February 21, 2019, petitioner, in propria persona, filed a petition for resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a complaint, information, or indictment was filed against him that allowed him to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; he was convicted of first or second degree murder at trial; and he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. He also requested counsel be appointed to represent him on the petition.
On June 17, 2019, the court denied the petition on the ground petitioner failed to make a prima facie showing he falls within the provisions of section 1170.95. The court noted "[t]he condition set out at [section] 1170.95[, subdivision ](a)(3) does not apply" because petitioner was "more than a mere participant in the crime" and "[t]he killing resulted from an intentional act with express or implied malice."
On March 16, 2020, petitioner filed a request for permission to file a belated notice of appeal from the June 17, 2019 order. This court construed the petition as a petition for writ of habeas corpus and, on May 22, 2020, denied it. (In re Nunez (May 22, 2020, F080942).)
On September 2, 2020, petitioner filed a second petition for resentencing pursuant to section 1170.95. In the handwritten petition, petitioner stated that he was tried on a felony-murder theory and under the natural and probable consequences doctrine. He further stated that he was not the actual shooter, was not a major participant in the crime, and did not act with reckless indifference to human life. He also requested the appointment of counsel. With the petition, petitioner submitted a declaration from Medina, stating that Medina presented false testimony in his own trial regarding the identity of the shooter because he did not wish to admit he himself was the shooter. Medina declared that petitioner did not conspire with him to commit the shooting. Medina also declared that petitioner's trial counsel prohibited Medina from so testifying at petitioner's trial.
On October 19, 2020, the trial court denied the petition with prejudice. The court noted it had reviewed the record of conviction, including this court's opinion in petitioner's direct appeal. The court once again concluded "[t]he condition set out at [section] 1170.95[, subdivision ](a)(3) does not apply" because petitioner was more than "a mere participant in the crime" and "[t]he killing resulted from an intentional act with express or implied malice." The court additionally noted petitioner failed to serve the petition as required under section 1170.95, and had incorrectly captioned his petition.
This timely appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) "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).) The bill accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):
"A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder 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, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e); accord, Gentile, at p. 842.)
Additionally, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672.)
Finally, the bill added section 1170.95 to provide a procedure for those convicted of a qualifying offense "to seek relief under the two ameliorative provisions above." (Gentile, at p. 843.) This procedure is available to 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, attempted murder under the natural and probable consequences doctrine, or manslaughter." (§ 1170.95, subd. (a).)
"Section 1170.95 lays out a process" for a person convicted of one of the aforementioned offenses "to seek vacatur of his or her conviction and resentencing." (Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the sentencing court averring that:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, 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[;]
"(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and]
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
Additionally, the petition shall state "[w]hether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be "readily ascertained" by the court, the petition may be denied without prejudice to the filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a reply. The trial court must then hold a hearing to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.) 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.'" (Id. at p. 972.)
If the 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[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts." (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must "prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed," as well as the "procedural history of the case recited in any prior appellate opinion." (§ 1170.95, subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1170.95 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. Appointment of Counsel
Petitioner contends the trial court erred in failing to appoint counsel.
At the time the trial court ruled on the petition, our Supreme Court had not resolved whether section 1170.95 requires the appointment of counsel or further briefing immediately upon the filing of a facially sufficient petition. (See Lewis, supra, 11 Cal.5th at pp. 961-967.) However, both our Supreme Court and Legislature have since clarified that counsel must be appointed if requested, and briefing must proceed, so long as the petition complies with the requirements of section 1170.95, subdivision (b)(1) and (2). (§ 1170.95, subd. (b)(3); accord, Lewis, at pp. 962-963, 967.) Here, the People do not suggest the petition failed to meet the requirements of section 1170.95, subdivision (b). Accordingly, as the People concede, appointment of counsel and a full opportunity for briefing were required by section 1170.95, subdivisions (b)(3) and (c). (See Lewis, at pp. 961-963, 967.) The court erred in disposing of the petition without following these procedures.
III. Factfinding at the Prima Facie Stage
Petitioner contends the trial court engaged in improper factfinding at the prima facie review.
The trial court may not engage in factfinding involving the weighing of the evidence at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.) Thus, while the trial court may consider the record of conviction, including a prior appellate opinion, in determining whether a petitioner has stated a prima facie case, the court may not make factual findings based on that record. (Ibid.)
Here, the trial court stated that it considered the record of conviction, including the opinion in petitioner's direct appeal, to conclude petitioner was ineligible for relief. The trial court determined "[t]he condition set out at [section] 1170.95[, subdivision ](a)(3) does not apply" because petitioner was more than "a mere participant in the crime" and "[t]he killing resulted from an intentional act with express or implied malice." The basis for this determination is unclear.
As we explain below, the jury's special circumstance finding conclusively establishes that petitioner was either the actual killer or an aider and abettor in the murder who acted with intent to kill. On that basis, petitioner is ineligible for resentencing as a matter of law. However, to the extent the trial court may have made factual findings based on the record of conviction to reach the same conclusion, the court erred.
IV. Prejudice
Because the trial court erred in failing to appoint counsel, and may have erred by engaging in premature factfinding, we may affirm only if petitioner was not prejudiced by the error. (Lewis, supra, 11 Cal.5th at pp. 972-974.) As we explain, we conclude petitioner was not prejudiced because the jury's special circumstance finding establishes he is ineligible for resentencing as a matter of law.
A. The Special Circumstance Finding is Dispositive
Pursuant to section 1170.95, 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), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.) Here, the jury found true a special circumstance pursuant to section 190.2, subdivision (a)(1), which imposes a sentence of death or life without the possibility of parole for a murder that was "intentional and carried out for financial gain." (§ 190.2, subds. (a)(1), former subd. (b).) To find the special circumstance true, the jury was required to find either that petitioner was the actual killer, or that petitioner intentionally aided and abetted in the murder. (§ 190.2, subds. (a)(1), former subd. (b).) The true finding on the special circumstance therefore establishes the jury made the findings necessary to sustain a murder conviction under the law, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.).
As petitioner correctly points out, at the time petitioner was convicted, there was some uncertainty as to whether the special circumstance applied to an actual killer who did not harbor intent to kill. (See Carlos v. Superior Court (1983) 35 Cal.3d 131, 140-142 [holding intent to kill was required for both actual killer and aider and abettor]; overruled by People v. Anderson (1987) 43 Cal.3d 1104, 1142, 1147 [holding intent to kill was not required for actual killer], which in turn was superseded by statute as stated in People v. Letner and Tobin (2010) 50 Cal.4th 99, 163, fn. 20.) This uncertainty is irrelevant to our analysis because an actual killer is ineligible for resentencing pursuant to section 1170.95, regardless of whether he or she acted with intent to kill. (See People v. Tarkington (2020) 49 Cal.App.5th 892, 899 [actual killer was convicted on a theory that survives changes to §§ 188 and 189], abrogated on another ground by Lewis, supra, 11 Cal.5th at pp. 962-963; see also Gentile, supra, 10 Cal.5th at p. 842.)
Nevertheless, petitioner contends instructional error created the possibility the jury may not have found all necessary elements of the special circumstance to be true. Specifically, petitioner contends the special circumstance instructions were deficient, and the instructions on malice, conspiracy, aiding and abetting, and murder invited the jury to convict petitioner on a natural and probable consequences theory. Petitioner therefore argues we cannot rely on the jury's special circumstance finding to conclude the jury found petitioner was either the actual killer or acted with intent to kill.
We reject this proposition. Section 1170.95 provides a mechanism for resentencing individuals whose convictions are no longer valid due to changes to sections 188 and 189. (§ 1170.95, subd. (a)(3).) It does not provide a mechanism for challenging a jury's prior factual findings. (People v. Allison (2020) 55 Cal.App.5th 449, 461.) "The purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved." (Allison, at p. 461.) In other circumstances, this court has declined to utilize the section 1170.95 procedure to examine the record of conviction to determine whether a special circumstance finding was properly entered. (People v. Simmons (2021) 65 Cal.App.5th 739, 749, review granted Sept. 1, 2021, S270048.) Rather, this court has concluded that such findings are binding on the issues necessarily decided by the jury, unless the findings were invalidated on direct appeal or in a habeas proceeding. (Ibid.) Petitioner's special circumstance finding has not been invalidated on direct appeal or in habeas. The finding establishes that petitioner is ineligible for resentencing as a matter of law. He therefore was not prejudiced by the court's denial of his petition without the appointment of counsel.
B. The Special Circumstance Instructions Were Not Deficient
Even if we were inclined to look behind the jury's verdict, we disagree with petitioner that the jury instructions on the special circumstance were deficient in any way meaningful to this appeal.
The jury received two instructions regarding the special circumstance. One instruction, CALJIC No. 8.81.1, provided:
"To find that special circumstance, referred to in these instructions as murder for financial gain, is true, each of the following facts must be proved:
"1. That the murder was intentional, and
"2. That is was carried out for financial gain."
As petitioner correctly points out, this instruction could be construed to suggest the jury was required to find only that the direct perpetrator, and not an aider and abettor, intended the killing. However, the jury also was instructed with a modified version of CALJIC No. 8.80:
"If you find the defendant in this case guilty of murder of the first degree, you must then determine if murder was committed under the following special circumstance: murder for financial gain.
"[¶] . . . [¶]
"[]If defendant, Joe (NMN) Nunez Jr., was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of the murder in the first degree before you are permitted to find the alleged special circumstance of that first degree murder to be true as to defendant, Joe (NMN) Nunez Jr." (Italics added.)
Petitioner asserts that this instruction "did not . . . explicitly require an intent to kill." We disagree. If the jury determined petitioner was not the actual killer, this instruction expressly required the jury to find he intentionally aided, abetted, or otherwise assisted the actual killer in the commission of first degree murder. Petitioner does not suggest how an individual could intentionally aid and abet an actual killer in the commission of first degree murder without also intending to kill.
Nonetheless, petitioner contends that, because the special circumstance instruction did not define aiding and abetting, the jury was required to refer to CALJIC Nos. 3.00 and 3.01 to understand those terms. CALJIC No. 3.01 informed the jury:
"A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime."
CALJIC No. 3.00 informed the jury that one who aids and abets in the commission of a crime "with knowledge of the unlawful purpose of the person who directly and actively commits the crime" is equally guilty thereof.
We agree with petitioner that CALJIC Nos. 3.00 and 3.01, as given, did not require the jury to find intent to kill. (People v. Beeman (1984) 35 Cal.3d 547, 560-563.) However, CALJIC No. 8.80 supplied that requirement. We presume the jury is capable of understanding and correlating the court's instructions. (People v. Frandsen (2011) 196 Cal.App.4th 266, 278; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) It is not reasonably possible the jury would have ignored the requirement, found in CALJIC No. 8.80, that the special circumstance be applied only where the defendant intentionally aided and abetted in the commission of first degree murder, simply because that requirement was not reiterated in other, more general instructions. Indeed, in petitioner's direct appeal, we found the error in CALJIC No. 3.01 harmless on this same basis.(Nunez I, supra, F002058.)
We found the error harmless on two grounds: (1) the issue of intent was adversely decided against petitioner under other, properly given instructions, i.e., CALJIC No. 8.80, and (2) the evidence established petitioner's intent as a matter of law under the "modified Cantrell-Thornton exception." (Nunez I, supra, F002058, underlining omitted, italics added, citing People v. Croy (1985) 41 Cal.3d 1, 12-14.) As petitioner points out, the modified Cantrell-Thornton exception was later supplanted by the harmless beyond a reasonable doubt standard as the governing standard of prejudice for this type of error. (People v. Dyer (1988) 45 Cal.3d 26, 64.) Notably, an instructional error may be harmless beyond a reasonable doubt if the issue was otherwise adversely decided against the defendant under other, properly given instructions. (People v. Aledamat (2019) 8 Cal.5th 1, 14-15; People v. Chun (2009) 45 Cal.4th 1172, 1204-1205; accord, Dyer, at p. 65.)
The jury was instructed that, if it determined petitioner was not the actual killer, it could find the special circumstance true only if petitioner intentionally aided and abetted the actual killer in the commission of first degree murder. The instruction supports the conclusion that petitioner is ineligible for resentencing as a matter of law.
C. Other Instructions on Accomplice Liability
Petitioner further contends that error or ambiguity in the instructions on aiding and abetting (CALJIC Nos. 3.00, 3.01), murder (CALJIC Nos. 3.31, 3.31.5, 8.10, 8.20), malice (CALJIC No. 8.11), and conspiracy (CALJIC Nos. 6.10, 6.11) invited the jury to render a guilty verdict under a natural and probable consequences theory. We acknowledge these instructions may have left open the possibility for petitioner to be convicted under an imputed malice theory subsequently eliminated by Senate Bill No. 1437 (2017-2018 Reg. Sess.). However, for the reasons stated above, the record establishes the jury did not find petitioner guilty under an imputed malice theory. Rather, under the special circumstance finding, it is clear the jury determined petitioner was either the actual killer or aided and abetted in the murder with intent to kill. He therefore is ineligible for resentencing as a matter of law. Any ambiguity in the instructions regarding aiding and abetting, murder, malice, or conspiracy does not undermine this conclusion.
V. Denial of Petition with Prejudice
Petitioner asserts his petition should have been denied without prejudice. He first contends procedural defects in the petition should have been resolved by way of a denial without prejudice. However, the trial court did not deny the petition based solely on procedural defects but also on the merits.
Petitioner also notes issues relevant to his petition remained undecided by our Supreme Court at the time of the trial court's ruling. However, the issues he points to have now been resolved in a way that does not aid petitioner. (Lewis, supra, 11 Cal.5th 952; Sen. Bill No. 775 (2020-2021 Reg. Sess.); Stats. 2021, ch. 551, § 2.) Rather, petitioner remains ineligible for resentencing as a matter of law for the reasons stated above. A denial without prejudice would serve no purpose. Absent a change in law, petitioner is properly foreclosed from relitigating the issues decided in the trial court and in this appeal.
VI. Corrections to Judgment of Commitment and Sentence
The trial court's January 12, 1983 judgment of commitment and minute order lists the offense in count I as "[c]onsp[iracy] to commit murder with special circ." As the People agree, the special circumstance allegation applies only to the murder charged in count II. (See People v. Beck and Cruz (2019) 8 Cal.5th 548, 665 [discussing application of multiple murder special circumstance to conspiracy conviction].) The words "special circ." must be struck from the judgment of commitment and sentencing minute order. We will remand for the trial court to make this correction.
Additionally, the trial court did not orally impose sentence on count I at the sentencing hearing. The judgment of commitment and sentencing minute order reflects that concurrent terms of life without the possibility of parole were imposed on each of counts I and II. This court similarly stated, in petitioner's direct appeal, that petitioner was sentenced to concurrent terms of life without the possibility of parole on counts I and II. (Nunez I, supra, 183 Cal.App.3d at p. 217.) As the People now agree, the sentence of life without the possibility of parole on count I was unauthorized. Rather, the applicable term for the conspiracy charged in count I was 25 years to life. (§§ 182, subd. (a), 190, subd. (a).) "When a court pronounces a sentence which is unauthorized by the Penal Code, that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the court." (People v. Massengale (1970) 10 Cal.App.3d 689, 693 (Massengale); see People v. Smith (2001) 24 Cal.4th 849, 852 [unauthorized sentence may be corrected any time where the error is"' "clear and correctable"' "].)
The parties disagree as to whether we should order the punishment on count I stayed pursuant to section 654, or whether we should remand for the trial court to correct the sentence and determine the applicability of section 654 in the first instance. More specifically, the People acknowledge the sentence on count I should have been imposed and stayed, but argue that remand is required because it is impossible to reconcile the conflict between the oral pronouncement of sentence and the judgment of commitment.
Section 654 recently was amended. (See Assem. Bill. No. 518 (2021-2022 Reg. Sess.); Stats. 2021, ch. 441, § 1.) To the extent the parties believe the amendments may apply to the corrected sentence, they may raise their arguments on remand.
When an unauthorized sentence "is discovered while the defendant's appeal is pending, the appellate court should affirm the conviction and remand the case for a proper sentence." (Massengale, supra, 10 Cal.App.3d at p. 693.) This remand procedure is particularly warranted where, as here, the issue is presented on appeal from a postconviction petition involving a limited record of the criminal proceedings. While there is no dispute that section 654 bars multiple punishment for a conspiracy and the substantive offense which was its object (People v. Ramirez (1987) 189 Cal.App.3d 603, 615), the question of whether this bar is factually applicable in a given case is a determination for the trial court (People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4; see People v. Beck and Cruz, supra, 8 Cal.5th at pp. 665-666). We decline to make this determination on appeal in the circumstances presented here, and instead will remand for the trial court to impose a proper sentence in the first instance.
Finally, petitioner contends he is entitled to a calculation of custody credit for all time actually served on count I. He argues he is entitled to a recalculation of presentence credit on count I if he is resentenced on count II pursuant to section 1170.95. He further argues that, whether or not he is resentenced on count II, he is entitled to a calculation of custody credit on count I when that sentence is corrected. However, petitioner's sentence has not yet been corrected and his arguments are premature. Petitioner may raise these arguments in the trial court upon correction of the sentence.
DISPOSITION
The October 19, 2020 order denying petitioner's section 1170.95 petition for resentencing with prejudice is affirmed. The matter is remanded for the trial court to correct the judgment of commitment and sentencing minute order to remove the reference to the special circumstance on count I, and to correct petitioner's sentence. The court shall forward a corrected abstract of judgment to the appropriate authorities.
[*] Before Levy, Acting P. J., Poochigian, J. and Detjen, J.