Opinion
B303150
01-24-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY RAMIREZ PARDO, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. KA034850 Rogelio G. Delgado, Judge. Reversed and remanded with instructions.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
WEINGART, J.
In 2019, Johnny Ramirez Pardo filed two petitions pursuant to former Penal Code section 1170.95 by which he sought resentencing relief relating to convictions for first degree murder and attempted murder. The trial court denied Pardo's petitions at the prima facie stage, observing this court affirmed a special circumstance finding as to the first degree murder conviction in a May 30, 2000 direct appeal opinion, and that former section 1170.95 did not apply to attempted murder. In 2020, we affirmed this order. Our opinion rejected Pardo's arguments that the special circumstance finding was invalid under the Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) and that former section 1170.95 extended to attempted murder convictions. (People v. Pardo (Sept. 30, 2020, B303150) [nonpub. opn.].)
All unspecified statutory references are to the Penal Code. Pardo's petition, and our prior opinion, were based on the original version of former section 1170.95, effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.) Since that time, the Legislature amended the statute (see Stats. 2021, ch. 551, § 2) and renumbered it as section 1172.6 (Stats. 2022, ch. 58, § 10). In this opinion, reference to "former section 1170.95" is to the original 2019 version.
The Supreme Court granted review. On October 19, 2022, the Supreme Court transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong), People v. Lewis (2021) 11 Cal.5th 952 (Lewis), and Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551) (Senate Bill 775). In supplemental letter briefs, both Pardo and the Attorney General agree the matter should be reversed and remanded. Both further agree that the trial court should conduct an evidentiary hearing under section 1172.6, subdivision (d) as to the murder conviction.
The parties disagree on how to proceed regarding the attempted murder conviction. The Attorney General argues the trial court first should determine whether Pardo has demonstrated a prima facie case for relief as to the attempted murder conviction. Pardo argues he has made a prima facie showing because the trial court instructed the jury it could convict him of attempted murder under the natural and probable consequences doctrine and nothing in the record shows he is ineligible for resentencing as a matter of law. He argues that upon remand the trial court should conduct an evidentiary hearing under section 1172.6, subdivision (d) on the attempted murder conviction.
Because Pardo has made a prima facie showing as a matter of law as to both the murder and attempted murder convictions, we reverse and remand the matter for the trial court to conduct an evidentiary hearing under section 1172.6, subdivision (d) as to both convictions.
BACKGROUND
A. The Crime, Trial, and Sentencing
We summarize the facts from our opinion on Pardo's direct appeal only as necessary to provide context for the charges and the counts of conviction. In 1997, shots were fired at Edgar Leiva from a car in which Pardo was a passenger. Leiva (who survived the shooting) claimed the shots were fired from the location where Pardo was sitting. Another passenger in the car was Robert Ramirez. Moments before the shooting, Ramirez had beaten Leiva; at the time of the shooting, Ramirez was sitting in the car's back seat. Pardo told the police that the car's driver, Marcelo Gabriel Baeza, shot Leiva. Six days after Leiva was shot, gunshots were heard at a park, where police officers later found the body of Carmelo Gregorio. During an interview with police, Pardo claimed he lured Gregorio to the park where Baeza and Ramirez were waiting. Pardo suggested that Baeza shot Gregorio for Gregorio's car. (People v. Pardo (May 30, 2000, B119940) [nonpub. opn.].)
According to the operative information, Pardo was charged with Leiva's attempted murder (count 1), Gregorio's murder (count 2), and carjacking (count 3). The information alleged that Gregorio was murdered during the commission of a carjacking within the meaning of the special circumstance statute, section 190.2, subdivision (a)(17). Further, in relation to counts 1, 2, and 3, the information alleged that Pardo personally used a firearm and that a principal was armed with a firearm. Baeza was also charged with Leiva's attempted murder (count 1) and accessory after the fact relating to Leiva's attempted murder (count 7).
The typewritten text of the information includes charges against Ramirez for Leiva's attempted murder (count 1) and accessory after the fact (count 7). However, handwritten notations strike through his name in both counts.
During closing argument, the prosecutor argued that Pardo was the shooter in both incidents or that he was just as culpable as either an aider and abettor or under the felony-murder rule. The prosecutor also argued the jury could find the special circumstance allegation was true if Pardo was either the shooter, intended to kill, or played a major role in the carjacking.
We have before us only a portion of the closing argument and jury instructions, which Pardo attached to his section 1172.6 petition.
The trial court instructed the jury that it could find Pardo guilty of attempted murder even if he did not have the intent to commit that particular crime if it found, inter alia, that attempted murder was a natural and probable consequence of the assault. Additionally, the trial court instructed the jury that to find Pardo guilty of murder, it must find "the killing was done with malice aforethought or occurred during the commission or attempted commission of a [c]arjacking," and provided further instructions about the felony-murder rule. The trial court also instructed the jury that in order to find true the special circumstance allegation, it must find that Pardo was the actual killer; with the intent to kill, aided and abetted in the commission of first degree murder; or was a major participant in the carjacking who acted with reckless indifference to human life.
The jury convicted Pardo of first degree murder, carjacking, attempted murder, and found true the special circumstance allegation and the allegation that a principal was armed. The jury found not true the allegation that Pardo personally used a firearm and the allegation that the attempted murder was willful, deliberate, or premeditated.
In a bifurcated trial, a jury also convicted Baeza of the attempted murder of Leiva and accessory to Leiva's attempted murder. (People v. Pardo, supra, B119940.).
After Pardo admitted certain prior convictions, the trial court sentenced Pardo to a total of two life terms without the possibility of parole plus 25 years. The court stayed the term on the carjacking.
B. Direct Appeal
On direct appeal, Pardo raised several challenges, including that substantial evidence did not support the special circumstance finding that he acted with reckless indifference to human life or that the attempted murder was the natural and probable consequence of Ramirez's assault of Leiva. Without disregarding the possibility that the jury could have found Pardo was the actual killer (notwithstanding its finding that he did not personally use a firearm) or aided and abetted with the intent to kill, this court concluded "there was ample evidence from which the jury could conclude that Prado was an active participant in the carjacking with reckless indifference to human life." We also stated, "the jury could reasonably have concluded the shooting was a natural and probable consequence of the beating, and that Prado had the requisite knowledge and committed the acts necessary to find him guilty of aiding and abetting Leiva's attempted murder." We affirmed Pardo's convictions.
C. Changes to the Law After Pardo's Conviction Became Final
In 2015 and 2016, in Banks and Clark, our Supreme Court clarified under what circumstances a defendant could be deemed a major participant in an underlying felony who acted with reckless indifference to human life.
In 2018, the Legislature passed Senate Bill No. 1437 (20172018 Reg. Sess.) (Senate Bill 1437) "to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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); see §§ 188, 189, subd. (e).)
Senate Bill 1437 also enacted former section 1170.95, creating a path for resentencing for persons convicted under the felony-murder rule or natural and probable consequences doctrine. Under former section 1170.95 as well as the current statute, a petitioner must first make a prima facie showing of eligibility for relief, including that the petitioner could not be convicted of first or second degree murder because of the changes to section 188 or 189. (§ 1172.6, subd. (a); former § 1170.95, subd. (a).) If the petitioner makes such a showing, then the trial court must issue an order to show cause and hold an evidentiary hearing at which the parties may submit additional evidence. The burden is on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. (§ 1172.6, subds. (c), (d); former § 1170.95, subds. (c), (d).)
D. Pardo's Petition for Resentencing
On January 28, 2019, Pardo petitioned the trial court for resentencing relief relating to his murder conviction. On June 7, 2019, via his court-appointed counsel, Pardo filed a supplemental petition seeking resentencing for his attempted murder conviction. The parties filed briefs with the trial court, attaching, inter alia, the information, portions of the People's closing argument, certain jury instructions, verdict forms, the abstract of judgment, and our direct appeal opinion.
The People filed an opposition on October 16, 2019, four months after Pardo filed his supplemental petition, but did not raise any specific arguments challenging Pardo's request for resentencing relief relating to his attempted murder conviction.
At a December 4, 2019 prima facie review hearing, the parties submitted on their briefs. The trial court denied Pardo's petitions as a matter of law. It observed, "[t]he appellate opinion affirming the petitioner's conviction and sentence asserts that the defendant was a major participant who acted with reckless indifference to human life" and that "attempted murder is not covered by this law."
Pardo then appealed. He argued the trial court erred because the special circumstance finding was made prior to the Supreme Court's guidance in Banks and Clark and because resentencing relief should extend to attempted murder. We rejected Pardo's arguments and affirmed the trial court's order, concluding that Pardo was ineligible for resentencing relief under former section 1170.95 as a matter of law and that the proper vehicle to challenge a special circumstance finding pursuant to Banks and Clark was a petition for writ of habeas corpus. (People v. Pardo, supra, B303150.) On December 9, 2020, the Supreme Court granted review of our opinion.
DISCUSSION
A. Changes to the Law as Pardo's Matter Was Pending With the California Supreme Court
While Pardo's matter was pending with the Supreme Court, that court issued Lewis, supra, 11 Cal.5th 952. Lewis clarified that after the appointment of counsel, the trial court could consider the record of conviction in determining whether the petitioner made a prima facie case for resentencing relief. (Id. at p. 971.) However, the prima facie inquiry is limited. "[A] trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Id. at p. 972.) At the prima facie stage,"' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] '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."' [Citations.]" (Id., at p. 971.)
Thereafter, the Legislature enacted Senate Bill 775, which amended former section 1170.95 (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022), and Assembly Bill No. 200 (2021-2022 Reg. Sess.), which renumbered section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10, eff. June 30, 2022) without further substantive changes to the statute. Among other things, the amendments expanded the statute's application to include persons convicted of attempted murder under the natural and probable consequences doctrine (§ 1172.6, subd. (a); 2022 version § 1170.95, subd. (a)); clarified that the trial court could consider the procedural history of a case recited in a prior appellate opinion (§ 1172.6, subd. (d)(3); 2022 version § 1170.95, subd. (d)(3)); and clarified that at the evidentiary hearing, "[a] finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1172.6, subd. (d)(3); 2022 version § 1170.95, subd. (d)(3).)
Also, while Pardo's matter was pending with the Supreme Court, that court issued Strong, supra, 13 Cal.5th 698. In Strong, the court explained that Banks and Clark "substantially clarified" and narrowed the meaning of the terms "major participant" and "reckless indifference to human life." (Strong, supra, at p. 721.) The Strong court found that the decisions in Banks and Clark "represent the sort of significant change that has traditionally been thought to warrant reexamination of an earlier-litigated issue" that the principle of issue preclusion would otherwise forbid. (Strong, supra, at p. 717.) As a result, Strong held that the trial court could not summarily deny a section 1172.6 petition on the ground that the jury made a preBanks and pre-Clark special circumstance finding. (Strong, supra, at p. 720.) Moreover, the court observed that based on Senate Bill 775's amendments, "a court's later sufficiency of the evidence review" does not supply a basis to reject an otherwise adequate prima facie showing. (Strong, supra, at p. 720.) Instead, the matter must proceed to an evidentiary hearing at which the Attorney General has the burden to prove, beyond a reasonable doubt, that the petitioner is ineligible for murder. (Ibid.)
B. The Trial Court Erred in Denying Pardo's Petitions at the Prima Facie Stage
In light of Lewis, Strong, and Senate Bill 775, we conclude the trial court erred in denying Pardo's section 1172.6 petitions at the prima facie stage.
In his first petition, Pardo alleged the jury convicted him under the felony-murder rule and he could not now be convicted of murder. The record of conviction does not demonstrate conclusively that these allegations are false, and thus, Pardo has made a prima facie showing for relief. (See Lewis, supra, 11 Cal.5th at p. 972.) At trial, the People pursued two murder theories: felony murder and that Pardo acted with malice aforethought. The record does not indicate under which theory the jury convicted Pardo, and it is possible that the jury convicted him under a felony-murder theory that is no longer permissible. Under Senate Bill 1437, a defendant may be convicted of felony murder only if he was the actual killer, acted with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life as described in section 190.2, subdivision (d). (§ 189, subd. (e).) Although section 190.2, subdivision (d) also describes the elements for a special circumstance showing, Strong clarified that a section 1172.6 petition cannot be denied at the prima facie stage based upon a pre-Banks/Clark special circumstance finding. (Strong, supra, 13 Cal.5th at p. 720.) Thus, the trial court here could not rely on the jury's special circumstance finding in denying Pardo's petition. (Ibid.) Nor could the trial court rely on our pre-Banks/Clark direct appeal opinion in which we affirmed the sufficiency of the evidence to support the jury's special circumstances finding (Strong, supra, at p. 720; see also § 1172.6, subd. (d)(3) [providing only that a trial court may consider the procedural history of a case recited in any prior appellate opinion]; 2022 version § 1170.95, subd. (d)(3) [same]) or engage in its own factfinding and weighing of evidence (Lewis, supra, at p. 972). Rather, as the Attorney General acknowledges, the trial court should have issued an order to show cause and proceeded to an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).)
As to the attempted murder conviction, the Attorney General argues it should be remanded for "proceedings under [section 1172.6,] subdivision (c),"-i.e., for briefing and a hearing to determine whether Pardo has made a prima facie showing of eligibility for resentencing relief. However, the record indicates, and the Attorney General concedes, that the trial court instructed the jury on the natural and probable consequences doctrine for attempted murder. Thus, the jury may have convicted Pardo of attempted murder under a theory that is no longer permitted under Senate Bill 1437. The Attorney General does not identify anything in the record that refutes the possibility that the jury relied on the natural and probable consequences doctrine in finding Pardo guilty of attempted murder. Nor does it explain why Pardo's murder and attempted murder should be treated differently upon remand. Accordingly, we conclude Pardo has demonstrated a prima facie showing of eligibility as a matter of law and that the attempted murder conviction should be remanded for further proceedings under section 1172.6, subdivision (d). (See Lewis, supra, 11 Cal.5th at pp. 971-972 [where the record of conviction does not refute the claims of eligibility in the former § 1170.95 petition, the petitioner has made a prima facie showing for relief].)
The Attorney General cites People v. Montes (2021) 71 Cal.App.5th 1001, wherein a different division of this court remanded an attempted murder conviction possibly premised on the natural and probable consequences doctrine for further proceedings under section 1172.6, subdivision (c). There, however, the trial court denied the former section 1170.95 petition without first permitting the parties to brief whether the petitioner established a prima facie case for relief. (Montes, supra, at pp. 1004, 1008.) In contrast, here, four months after Pardo filed his supplemental petition, the Attorney General filed its response, and Pardo filed its reply. Furthermore, the Attorney General twice requested and received extensions to file a response, noting in one instance that more time was required to review the district attorney's voluminous file and appellate court file before responding. Thus, unlike Montes, the parties here had an opportunity to brief the issue and another round of briefing and a prima facie argument is not necessary.
DISPOSITION
The order denying Pardo's petitions under former section 1170.95 is reversed, and the matter remanded. The trial court is directed to issue an order to show cause under subdivision (c) of section 1172.6. The trial court shall then hold an evidentiary hearing under section 1172.6, subdivision (d)(1) and (3), unless the parties waive the hearing and stipulate to Pardo's eligibility for resentencing (§ 1172.6, subd. (d)(2)).
We concur: ROTHSCHILD, P. J., BENDIX, J.