Opinion
F085379
11-16-2023
THE PEOPLE, Plaintiff and Respondent, v. VALENTINE JOHN ORNELAS, Defendant and Appellant.
Solomon Wollack, 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, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County, No. VCF344700B, Antonio A. Reyes, Judge.
Solomon Wollack, 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, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
In 2022, appellant Valentine John Ornelas pleaded no contest to a charge of voluntary manslaughter (Pen. Code, § 192, subd. (a)). He also entered pleas to other felonies. Pursuant to the plea agreement, the trial court sentenced appellant to prison for a determinate term of 30 years.
All future statutory references are to the Penal Code unless otherwise noted.
About five months after he was sentenced, appellant filed a petition for resentencing in the superior court. The court summarily denied it. Appellant claims that the court erred. We conclude that error did not occur and any presumed error is harmless. We affirm the court's order.
BACKGROUND
In 2016, appellant was indicted by the grand jury. In part, it was alleged that he had murdered a person in violation of section 187, subdivision (a). The indictment further alleged that this was a special circumstance murder (§ 190.2, subd. (a)(22)) because appellant had killed the victim while appellant was an active participant in a criminal street gang, and the murder was carried out to further the gang's activities.
Appellant's matter never went to trial. In 2022, he pleaded no contest to a reduced charge of voluntary manslaughter. Appellant also entered no contest pleas to other felony charges. As part of his plea, appellant agreed to waive his right to appeal.
Appellant entered his no contest pleas pursuant to People v. West (1970) 3 Cal.3d 595. The parties did not stipulate to a factual basis for appellant's no contest pleas. As such, this record does not demonstrate under what theory the prosecution would have sought to establish appellant's liability for murder or voluntary manslaughter.
About five months after he was sentenced, and acting in pro. per., appellant filed a form petition in the superior court seeking to be resentenced. Appellant requested the assistance of legal counsel. Appellant asserted he was entitled to be resentenced because the law regarding murder had been amended in 2019. The following day, the trial court denied the petition for resentencing. The court wrote that appellant had changed his plea after the current law had gone into effect, and appellant had waived his appellate rights.
In December 2022, appellant filed the present appeal.
DISCUSSION
I. The Trial Court did not Err in Summarily Denying the Petition for Resentencing and any Presumed Error is Harmless.
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.). This amended both 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. (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) Senate Bill No. 1437 also added section 1170.95, now renumbered as section 1172.6. This created a procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. (§ 1172.6, subd. (a); Strong, at p. 708; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
In general, the following three conditions are required for a person to seek resentencing under section 1172.6:
(1) A complaint, information or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of murder liability that is now invalid (§ 1172.6, subd. (a)(1));
(2) Following a trial or the acceptance of a plea offer in lieu of a trial, the petitioner was convicted of manslaughter, murder, or attempted murder (§ 1172.6, subd. (a)(2)); and
(3) The petitioner could not presently be convicted of murder or attempted murder "because of changes" brought by Senate Bill No. 1437 (§ 1172.6, subd. (a)(3)).
An offender seeking resentencing must file a petition in the sentencing court and serve it on statutorily enumerated persons. Among other requirements, the petition must include a declaration from the petitioner that he is eligible for relief based on the three conditions summarized above. (§ 1172.6, subd. (b)(1)(A)-(C).)
Once a petition meets the initial filing requirements, a briefing schedule is set. (§ 1172.6, subd. (c).) After the parties have had an opportunity to submit briefs, the trial court must hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing for relief, the court must issue an order to show cause and hold an evidentiary hearing. The prosecution then bears the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder (or its attempt) under the law as amended by Senate Bill No. 1437. (Ibid.; see also People v. Wilson (2023) 14 Cal.5th 839, 869.)
Our high court holds that, when a petitioner files a facially sufficient petition, the trial court must appoint counsel to represent the petitioner. The trial court may consider the record of conviction to determine whether the petitioner makes a prima facie showing only after the appointment of counsel and the opportunity for briefing has occurred. (Lewis, supra, 11 Cal.5th at p. 957.) At the prima facie hearing, the court must take the petitioner's factual allegations as true. However, if the record contains facts refuting the allegations made in the petition, the court may deny the petition without issuing an order to show cause. (Id. at p. 971.)
In the present matter, appellant claims that the court's summary denial was in error. He notes that his indictment was filed in 2016, which permitted the prosecution to establish murder based on now invalid theories of imputed malice. He maintains that, because he filled out the boilerplate petition correctly and he requested the appointment of counsel, the trial court was obligated to appoint him legal counsel and permit briefing to occur regarding resentencing. Appellant asks us to reverse the court's order, and to remand this matter with instructions for counsel to be appointed and further proceedings to occur.
We reject appellant's arguments and hold that the trial court did not err. In any event, any presumed error is harmless.
A. The trial court did not err.
We independently review the trial court's ruling. (People v. Pickett (2023) 93 Cal.App.5th 982, 989.) In analyzing section 1172.6, our goal is to effectuate legislative intent. (Lewis, supra, 11 Cal.5th at p. 961.) We must avoid a statutory construction that would produce absurd consequences, which we presume the Legislature did not intend. (People v. Mendoza (2000) 23 Cal.4th 896, 908.)
Section 1172.6 states that resentencing should occur when the petitioner could not presently be convicted of murder or attempted murder "because of changes" to section 188 or 189. (§ 1172.6, subd. (a)(3).) Various courts have already commented that the intent of this resentencing statute is to provide relief to offenders who could not be convicted of murder under the current law. (People v. Guillory (2022) 82 Cal.App.5th 326, 334.) In other words, section 1172.6 "provides a procedure whereby persons convicted of murder under a now-invalid theory may petition to vacate their conviction." (People v. Garcia (2022) 82 Cal.App.5th 956, 965.) Our high court has stated that this procedure was designed to provide retroactive relief to defendants who were, or who could have been, convicted of murder (or its attempt) under the prior law. (Lewis, supra, 11 Cal.5th at p. 957.)
In his petition for resentencing, appellant alleged he could not be convicted of murder or attempted murder "because of changes" to the law. This quoted phrase demonstrates that appellant's petition was properly denied without counsel first being appointed. Appellant's change of plea occurred in 2022, which was over three years after the law was amended regarding murder. Appellant entered his change of plea with the advice and consent of legal counsel. When he entered his change of plea in 2022, the now invalid theories of murder liability had already been eliminated. As such, it is immaterial that appellant's indictment was filed in 2016 because, in the interim, appellant received the benefits of Senate Bill No. 1437.
The trial court was justified in summarily denying appellant's petition. Appellant does not qualify for resentencing under section 1172.6. He is not the type of defendant this retroactive procedure was intended to benefit. Any other interpretation of this statute would lead to absurd results. Consequently, the court did not err, and this claim fails. In any event, however, we also hold that any presumed error is harmless.
Because appellant is not eligible for resentencing, we do not address his argument that his waiver of his right to appeal did not preclude him from filing a petition for resentencing.
B. Any presumed error is harmless.
The standard from People v. Watson (1956) 46 Cal.2d 818 is used in this situation to analyze prejudice. (Lewis, supra, 11 Cal.5th at pp. 957-958.) When a resentencing petition is denied before an order to show cause issues, the petitioner has the burden to show that, had counsel been appointed, it is reasonably probable the petition would not have been summarily denied without an evidentiary hearing. (Lewis, at p. 974.) In other words, we ask whether it is reasonably probable appellant would have obtained a more favorable result had the trial court appointed him legal counsel. (Ibid.)
Appellant notes that, because this case settled before trial, this record does not demonstrate under what theory he was liable for this murder. Appellant further notes that the probation report summarizes the facts of this murder, but that summary was taken from law enforcement reports and it is inadmissible hearsay. He contends that, once counsel is appointed for him, the prosecutor will have ample opportunity to present evidence or arguments to establish that he can be convicted of murder under a currently viable legal theory.
We reject appellant's arguments and we agree with respondent that any presumed error is harmless. Appellant was not convicted under the prior law. Instead, he opted to avoid a jury trial and he pleaded no contest in 2022 to a charge of voluntary manslaughter. At the time he pleaded no contest, appellant could not have been convicted of murder (or a lesser included charge) based on a now invalid theory of imputed malice. Therefore, even if the trial court had appointed counsel to represent appellant in his petition for resentencing, it is not reasonably probable the court would have subsequently issued an order to show cause and proceeded to an evidentiary hearing. (See § 1172.6, subd. (c).) Prejudice is not shown and this claim is without merit.
DISPOSITION
The trial court's order denying the resentencing petition is affirmed.
WE CONCUR: POOCHIGIAN, J., DE SANTOS, J.