Opinion
B300741
08-07-2020
THE PEOPLE, Plaintiff and Respondent, v. SANDRO SYLVESTRE PEREZ, Defendant and Appellant.
Shannon Chase, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorneys General, Charles S. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA240900) APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Reversed and remanded. Shannon Chase, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorneys General, Charles S. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Sandro Sylvestre Perez in 2004 of two counts of first degree murder (Pen. Code, § 187, subd. (a)) under a felony-murder theory and a theory of natural and probable consequences. The jury also convicted him of one count of robbery (§ 211), one count of carjacking (§ 215, subd. (a)), two counts of kidnapping for carjacking (§ 209.5, subd. (a)), and one count of arson (§ 451, subd. (d)). The jury found true the special circumstances that the murders were committed during the commission of a kidnapping and robbery (§ 190.2, subd. (a)(17)). The jury also found true the special circumstance of multiple murders (§ 190.2, subd. (a)(3)).
Undesignated statutory references are to the Penal Code.
In 2019, defendant filed a petition for resentencing under section 1170.95, which provides that persons who were convicted under theories of felony murder or murder under the natural and probable consequences doctrine, and who could no longer be convicted of murder following the enactment of Senate Bill No. 1437 (S.B. 1437), may petition the sentencing court to vacate the conviction and resentence on any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).) The trial court summarily denied defendant's petition in a written memorandum, explaining that though defendant was convicted as an aider and abettor to felony murder and under the natural and probable consequences doctrine, defendant was ineligible for relief as a matter of law because the jury had found true the kidnapping- and robbery-murder special circumstances, which included findings that defendant intended to kill the victims or was a major participant who acted with reckless indifference to human life.
Defendant appealed from the trial court's order, and his appointed counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436. Following our review of the record of defendant's conviction, we requested that the parties file supplemental briefing addressing the impact of our colleagues' recent decision in People v. Torres (2020) 46 Cal.App.5th 1168 (Torres), review granted June 24, 2020, S262011. In that case, Division Five held that the trial court commits error by denying a section 1170.95 petition if it relies solely on a robbery-murder special circumstance finding made prior to People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). (Torres, supra, at p. 1173.) Defendant now contends that the trial court's summary denial of his petition should be reversed in light of Torres. The Attorney General asserts that Torres was wrongly decided, and that any error under Torres is harmless.
We reverse the trial court's order in light of Torres, and remand the matter to allow the trial court to determine whether defendant has made a prima facie showing that he falls within the provisions of section 1170.95. Should the court find defendant potentially eligible for resentencing, the trial court must appoint counsel and order briefing.
FACTUAL BACKGROUND
The Attorney General requested that we take judicial notice of the appellate record from defendant's prior appeal in People v. Perez (June 30, 2006, B181409) [nonpub. opn.] (Perez I).) We grant the request, and recite the factual and procedural background from our opinion in Perez I.
1. Prosecution Evidence
On February 2, 1998, defendant and five cohorts—Hilario Sierra, Luis Rodriguez, Maria Nunez, Jose Morales, and Jose Arce—drove together in a blue van to rob the residents of a house that Sierra, Rodriguez, and Nunez had robbed in the past. After parking the blue van down the street, the individuals watched as a father and son (the victims) got into a red van and drove away. The group followed, and when the red van stopped, Sierra, Rodriguez, and Morales got out of the blue van, ran over to the victims, and ordered them at gunpoint to get into the back of the red van.
Sierra told defendant to get out of the blue van and to drive the red van. According to Rodriguez, defendant did not want to be there. As defendant drove the red van, Rodriguez and Sierra demanded money from the father; Sierra threatened to shoot the father if he did not give them more money. When the father failed to do so, Morales began punching the son, and Sierra shot the father in the leg. After driving the victims to an ATM to withdraw money from the father's bank account, defendant drove the van onto the freeway. While defendant was driving, Sierra took two mats from the floor of the van, put them over the victims' heads, and shot them in the head multiple times.
Defendant and his companions decided to burn the red van with the victims inside. Defendant drove to a gas station. After Sierra filled a gas can with fuel, defendant drove to a freeway underpass, and the group set fire to the van.
Defendant fled to Mexico after the incident. In 2003, he was extradited back to the United States.
2. Defense Evidence
Defendant testified on his own behalf. Despite admitting his involvement, defendant asserted that he had complied with Sierra's demand to drive the red van because he was frightened. He also testified that he did not know Sierra and Rodriguez were armed until after he began driving the red van, and that he followed directions on where to drive. At some point, defendant heard Sierra say that someone would get killed if they did not cooperate. While driving to a bank, defendant heard a gunshot in the back of the van. After the shooting, defendant got out of the van, used the father's ATM card to withdraw money, and returned to continue driving the van.
Despite thinking they were going to release the victims, defendant heard several gunshots as he drove down the freeway, at which point he realized the victims had been killed. In response, defendant suggested destroying the evidence. After Sierra retrieved a container of gasoline, defendant drove to a freeway underpass and parked the van. After pouring gasoline on the van, Sierra set the van ablaze.
PROCEDURAL BACKGROUND
Defendant was charged by information with two counts of murder (§ 187, subd. (a), counts 1 & 2), one count of robbery (§ 211, count 3), one count of carjacking (§ 215, subd. (a), count 4), two counts of kidnapping for carjacking (§ 209.5, subd. (a), counts 5 & 6), and one count of arson (§ 451, subd. (d), count 7). As to both counts of murder, the information alleged the special circumstance that defendant was engaged in the commission of a kidnapping and a robbery (§ 190.2, subd. (a)(17)). As to the second count of murder, the information further alleged the special circumstance of multiple murder (§ 190.2, subd. (a)(3)). Defendant pleaded not guilty to each count and denied the special circumstance allegations.
Trial was by jury. As to counts 1 and 2, the jury was instructed on multiple theories of culpability for first degree murder, including felony-murder and aiding and abetting under the natural and probable consequences doctrine. The jury was also instructed on the kidnapping- and robbery-murder special circumstances on counts 1 and 2 as follows: "If you find the defendant in this case guilty of Murder of the first degree, you must then determine if one or more of the following special circumstances are true or not true: [¶] 1. Murder committed while the defendant was engaged in or was an accomplice in the commission of a Robbery or Kidnapping. [¶] . . . [¶] If you find that the defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstances to be true unless you are satisfied beyond a reasonable doubt that the defendant, with the intent to kill aided, abetted, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, or assisted in the commission of the crime of Robbery or Kidnapping, which resulted in the death of [either victim in Counts 1 and 2]."
By general verdict on October 4, 2004, the jury found defendant guilty as charged, found counts 1 and 2 to be murder of the first degree, and found true all of the special circumstance allegations. The verdict did not specify whether the jury found beyond a reasonable doubt that defendant intended to kill as an aider and abettor, or acted as a major participant with reckless indifference to human life.
The court sentenced defendant to two terms of life imprisonment without the possibility of parole, plus a consecutive term of five years for carjacking and one-third the middle term, or 8 months, for arson. The court imposed and stayed sentences on counts 3, 5, and 6. (§ 654.)
This court affirmed defendant's judgment of conviction in 2006. (Perez I, supra, at p. 1.) In doing so, we noted that the defendant participated in the crimes as an aider and abettor. (See id. at p. 18 ["without reference to the instructions regarding aiding and abetting, the clarifying instructions would have been incomplete and misleading given the state of the evidence regarding appellant's participation in the crime[s]"].)
Defendant filed numerous habeas petitions, all of which were denied.
The federal district court listed a complete procedural history of defendant's habeas petitions in Perez v. Frauenheim (C.D. Cal. Jan. 24, 2018) CV 16-6423 DOC (JCG) . In that proceeding, defendant unsuccessfully attempted "to apply Chiu and Banks to the facts of [his] case." (Id. at p. 4.) The court denied the habeas petition after determining "the jury reasonably found [defendant] to be a major participant who also acted with reckless indifference to human life" within the meaning of Banks. (Perez v. Frauenheim (C.D. Cal. Apr. 9, 2018) CV 16-6423 DOC (JCG) .)
On June 24, 2019, defendant filed a petition for resentencing pursuant to section 1170.95, claiming entitlement to relief because he was convicted of first degree murder under a felony-murder theory and the natural and probable consequences doctrine. Defendant requested that counsel be appointed on his behalf.
In a written memorandum of decision, the trial court summarily denied defendant's petition, concluding that defendant was ineligible for relief as a matter of law. The court explained that despite his first degree murder convictions as an aider and abettor of felony-murder and under the natural and probable consequences doctrine, defendant was ineligible for relief because the jury had found true the kidnapping- and robbery-murder special circumstances. Both special circumstances required the jury to find that defendant had intended to kill the victims or was a major participant who acted with reckless indifference to human life.
Defendant timely filed a notice of appeal from the order denying his petition.
DISCUSSION
Defendant's appointed counsel filed an opening brief under People v. Wende, supra, 25 Cal.3d 436, asking this court to review the record to determine whether any arguable issues exist. Following our review of the record of conviction in Perez I, we requested that the parties file supplemental briefing addressing the impact of our colleagues' recent decision in Torres, decided after the trial court's ruling. In light of that decision, defendant now contends the trial court's denial of his petition should be reversed because it relied on the kidnapping- and robbery-murder special circumstance findings made prior to Banks and Clark. We agree.
1. Governing Law
The legislature enacted S.B. 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); accord, § 189, subd. (e).)
S.B. 1437 also "added a crucial limitation to section 188's definition of malice for purposes of the crime of murder." (People v. Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted, S260493, Mar. 18, 2020.) Under the revised section 188, subdivision (a)(3), "'[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' [Citations.]" (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.) "As a result, the natural and probable consequences doctrine can no longer be used to support a murder conviction. [Citations.]" (Ibid.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who were convicted of felony-murder or murder under the natural and probable consequences doctrine, but who could not be convicted of murder following S.B. 1437's changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under section 1170.95 must include a declaration by the petitioner that he is eligible for relief under section 1170.95 based on all the requirements of subdivision (a), the superior court case number and year of the petitioner's conviction, and a request for appointment of counsel, should petitioner seek appointment. (§ 1170.95, subd. (b)(2).)
If the petition includes the required information, subdivision (c) of section 1170.95, prescribes "a two-step process" for the court to determine if it should issue an order to show cause. (Verdugo, supra, 44 Cal.App.5th at p. 327.) The court first "review[s] the petition and determine[s] if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).) The court then appoints counsel, if requested, and reviews the petition a second time after briefing by the parties to determine if petitioner has established a prima facie case for relief. (Ibid.; see Lewis, supra, 43 Cal.App.5th at p. 1140.) If the court concludes the petitioner has made a prima facie showing, it must issue an order to show cause. (§ 1170.95, subd. (c); Verdugo, supra, at p. 328.)
"Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts." (Verdugo, supra, 44 Cal.App.5th at p. 327, citing § 1170.95, subd. (d)(1).) The parties may rely on the record of conviction or present "new or additional evidence" to support their positions. (§ 1170.95, subd. (d)(3).)
2. Analysis
We conclude that in light of recent decisions, we must reverse the trial court's summary denial of defendant's section 1170.95 petition, because the jury's 2004 kidnapping- and robbery-murder special circumstance findings alone do not, as a matter of law, render defendant ineligible for relief. (Torres, supra, 46 Cal.App.5th at p. 1178.)
As amended by S.B. 1437, subdivision (e) of section 189 provides, inter alia, that participation in the perpetration or attempted perpetration of an enumerated felony (here, kidnapping and robbery) in which a death occurs renders a person liable for murder "only if one of the following is proven: . . . [¶] . . . [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted . . . or assisted the actual killer in the commission of murder in the first degree [or] [¶] (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."
Section 190.2, subdivision (d), in turn, provides that "every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets . . . or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." Section 190.2, subdivision (a)(17) lists kidnapping and robbery as qualifying felonies.
The special circumstance findings in this case indicate that the jury had found that defendant, "with the intent to kill aided, abetted, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, or assisted in the commission of the crime of Robbery or Kidnapping, which resulted in the death of [either victim in Counts 1 and 2]." (Italics added.) At first blush, these findings appear to be in agreement with the findings required for upholding a first (or second) degree murder conviction following the issuance of S.B. 1437. However, because the jury rendered its findings in 2004 (more than 10 years prior to the Banks and Clark decisions) by general verdict, defendant is not precluded from showing today that he could not be convicted of first (or second) degree murder as redefined by S.B. 1437. (Torres, supra, 46 Cal.App.5th at p. 1179.)
Torres explains: "[O]ur Supreme Court's decisions, clarifying what it means for an aiding and abetting defendant to be a 'major participant' in an underlying felony and to act with 'reckless indifference to human life,' construed section 190.2, subdivision (d) in a significantly different, and narrower manner than courts had previously construed the statute." (Torres, supra, 46 Cal.App.5th at p. 1179.) The Supreme Court in "Banks, supra, 61 Cal.4th 788, which elucidated the meaning of 'major participant,' was decided in 2015, and Clark, supra, 63 Cal.4th 522, which addressed the meaning of 'reckless indifference to human life,' was decided in 2016." (Ibid.)
Both Banks and Clark were decided more than a decade after the jury made its findings in defendant's case. Thus, when determining if defendant "could be convicted today of first degree murder, we cannot simply defer to the jury's pre-Banks and Clark factual findings that [defendant] was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time." (Torres, supra, 46 Cal.App.4th at p. 1179 [defendant's claim that the evidence presented against him failed to support robbery-murder special circumstance after Banks and Clark requires resolution of whether the facts as given "are legally sufficient in light of Banks and Clark"]; accord, In re Miller (2017) 14 Cal.App.5th 960, 979-980.)
The Attorney General contends this court should not follow Torres, but should instead follow People in Gomez (2020) ___ Cal.App.5th ___ . In that case, the petitioner appealed from the summary denial of her section 1170.95 petition and argued there was insufficient evidence to support the jury's pre-Banks and pre-Clark kidnapping and robbery special circumstance findings. (Id. at p. *7.) In rejecting the contention, the court of appeal noted that it had already upheld the special circumstance findings in a prior appeal from the judgment. (Id. at p. *10.) It also held that "the proper procedure for [the petitioner] to challenge her special circumstance findings based on clarification of the relevant law in Banks and Clark is to bring a petition for habeas corpus." (Ibid.)
Gomez is distinguishable in several respects. First, no court in this case has affirmed the special circumstance findings at issue post-Banks and Clark so as to establish law of the case. Second, defendant has sought relief in accordance with the procedure contemplated in Gomez. Defendant has filed at least one prior habeas petition addressing Chiu and Banks. The prior ruling on that habeas petition (and the rulings on other petitions) was not denied on the merits and may not serve as res judicata in future proceedings. (Torres, supra, 46 Cal.App.5th at p. 1180, fn. 4; Gomez v. Superior Court (2012) 54 Cal.4th 293, 305, fn. 6.) As discussed above and in Torres, Banks and Clark remain relevant for determining whether a kidnapping- and robbery-murder special circumstance finding that pre-dates those decisions renders a petitioner ineligible for section 1170.95 relief as a matter of law.
In Perez I, we affirmed defendant's conviction after rejecting his contentions that the trial court misinstructed the jury on specific intent and aiding and abetting, and committed reversible error by discharging a juror during deliberations. (Perez I, supra, at pp. 1, 4, 17.) --------
The Attorney General lastly argues that any error under Torres was harmless under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, because it is evident from defendant's record of conviction that his conduct satisfies the Banks and Clark tests for major participation and reckless indifference to human life. We disagree. Watson does not apply when a trial court erroneously concludes a petitioner is ineligible for relief as a matter of law at the first prima facie stage under section 1170.95. The court's role at this stage "is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner. [Citation.]" (Verdugo, supra, 44 Cal.App.5th at p. 329, italics added; see also ibid. [first prima facie stage "must also be different from the postbriefing prima facie showing . . . if only in the nature and extent of materials properly presented to the court in connection with the second prima facie step"].)
Thus, because it is possible that defendant was punished for conduct that is not prohibited by section 190.2 as currently understood after Banks and Clark, we conclude "that the trial court erred in ruling that the pre-Banks and Clark [kidnapping- and] robbery-murder special circumstance findings preclude [defendant] from relief as a matter of law." (Torres, supra, 46 Cal.App.5th at p. 1180.) We reverse and remand to the trial court to determine whether, considering the record of conviction, defendant is otherwise ineligible for relief as a matter of law, or is entitled to appointment of counsel and briefing in accordance with section 1170.95.
DISPOSITION
We remand the matter for the trial court to determine whether defendant has made a prima facie showing that he falls within the provisions of section 1170.95. If the trial court finds defendant is potentially eligible for resentencing under section 1170.95, it must appoint counsel and order briefing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.