Opinion
G057709
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. KARINA LISSETH PONCIO, Defendant and Appellant.
Mark Alan Hart, 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 Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 00CF3110) OPINION Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Mark Alan Hart, 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 Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Karina Lisseth Poncio appeals from an order denying her petition for resentencing under newly enacted subdivisions of Penal Code sections 188 and 190, which severely curtailed the application of the felony murder and natural and probable consequences doctrines in murder cases. Poncio was convicted in 2002 of first degree murder for driving the car involved in a fatal shooting of a rival gang member in another car. We affirmed the conviction in 2005 in an unpublished opinion.
All further statutory references are to the Penal Code.
People v. Alarcon and Poncio (Jan. 5, 2005, G031767) [nonpub. opn.].
In 2019, Poncio filed a petition under section 1170.95 for resentencing, claiming that she could not be convicted of first degree murder under the new subdivisions. She asked for court-appointed counsel during the process. The trial court summarily denied the petition, without a hearing or appointment of counsel, on the grounds that the petition did not present a prima facie case for relief.
Poncio has appealed on two grounds. She says she stated a prima facie case for relief, and the court erred in failing to appoint counsel and to hold a hearing.
We affirm the order denying Poncio's petition. She was not convicted of first degree murder on felony murder or natural and probable consequences grounds. She was convicted based on proof of her own intent to kill and to assist another in killing. Therefore she did not make a prima facie showing of eligibility for relief under section 1170.96. Because she was ineligible as a matter of law for relief, the court was not required to appoint counsel for her.
FACTS
We reiterate the underlying facts as set forth in our prior opinion. On May 5, 2000, Juan Villa, Juan Guillen and other members of the Alley Boys gang attended a party in Santa Ana. Villa and Guillen left to get more beer. When they did, Villa noticed a woman, Poncio, sitting in the driver's seat of a nearby car. Villa did not know who she was or that she was a member of a rival gang, Delhi. As he and Guillen began to drive away, Poncio pulled her car alongside theirs. Villa stopped to see what she wanted, but she did not say anything. Instead, [Jorge] Alarcon popped up from the floor of Poncio's back seat and started shooting at Villa and Guillen. Villa ducked down and drove off, but Poncio kept pace with him, and Alarcon kept firing until Villa pulled over. Villa suffered a gunshot wound to his left shoulder, and Guillen was fatally shot in the head during the attack.
The jury found Poncio guilty of first degree murder (§ 187, subd. (a)) and made several additional findings. The murder was committed by discharging a firearm from a motor vehicle. (§ 190.2, subd. (a)(21).) She killed the victim while an active participant in a criminal street gang. She committed the crime to benefit the gang. (§ 190.2, subd. (a)(22). ) She engaged in street terrorism. (§ 186.22, subd. (a).) We upheld the conviction, reversing only the sentence enhancement under section 12022.53.
In 2019, Poncio filed a form petition for resentencing under section 1170.95. She checked boxes alleging she was not the actual killer, she did not assist the actual killer with intent to kill, and she was not a major participant in the felony. She also checked the box asking the "court [to] appoint counsel for [her] during this re-sentencing process."
The court denied the petition without holding a hearing or appointing counsel. The court ruled that "[t]he petition does not set forth a prima facie case for relief under the statute. A review of court records indicates [Poncio] is not eligible for relief under the statute because [Poncio] does not stand convicted of murder or [Poncio's] murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors."
DISCUSSION
Poncio has asserted two grounds of error. First, analogizing to habeas corpus procedure, she says she stated a prima facie case for relief by checking the boxes denying that she was the killer, that she assisted the killer with the required intent, and that she was a major participant. She asserts that the trial court had to assume the truth of these allegations. Second, she believes the court erred by not appointing counsel immediately and holding a hearing.
Section 1170.95, subdivision (c), provides: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
We review issues of statutory interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
I. Prima Facie Showing
Poncio argues that she fulfilled the requirement of a prima facie showing by checking the appropriate boxes in the form. She asserts that the court may not go beyond the facts stated in the petition when it rules on eligibility. In other words, it may not examine the court records.
We address the second contention first. Whether the court may go beyond the petition itself and look at court records in currently the subject of review in our Supreme Court. People v. Verdugo (2020) 44 Cal.App.5th 320, review granted March 18, 2020, S260493 (Verdugo); People v. Cornelius (2020) 44 Cal.App.5th 54, review granted March 18, 2020, S260410 (Cornelius); and People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598 (Lewis) all raise this issue. In all three cases, the appellate court held that the trial court could consider the court records when it ruled on eligibility. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at p. 329; Cornelius, supra, 44 Cal.App.5th at p. 57.) Lewis and Verdugo went further, holding that the trial court could consider a prior appellate opinion from the defendant's direct appeal in making this determination. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at p. 333.)
Section 1170.95, subdivision (a), provides: "A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection 188 or 189 made effective January 1, 2019."
The first two subsections of section 1170.95, subdivision (a), refer to documents in the file. It would make no sense at all for the court to close its eyes to these documents (complaint, jury verdict, etc.) and instead rely entirely on the petitioner's characterization of them, especially when consulting them could quickly settle the eligibility question. Did the information allow the prosecution to proceed under a theory of felony murder? Was the petitioner convicted of first or second degree murder?
We agree with the courts who have held that the court could look to court records outside the petition when it made its initial ruling on eligibility.
As to what constitutes a prima facie showing, the court in People v. Tarkington (2020) 49 Cal.App.5th 892 (Tarkington) recently dealt with this question. After a thorough discussion of legislative history behind the amendments to sections 188 and 189 and the enactment of section 1170.95, the court explained that section 1170.95 sets up a two-step review process for the resentencing petition. The first step is a "'preliminary review of statutory eligibility for resentencing,' akin to the procedure employed in a Proposition 36 or Proposition 47 context. [Citations.]" (Id. at pp. 897-898.) During this review, "[t]he court must determine, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e., whether he was convicted of first or second degree murder based on a charging document that permitted the prosecution to proceed under the natural and probable consequences doctrine or a felony-murder theory. [Citation.] If not, the court can dismiss any petition filed by an ineligible individual. [Citation.]" (Id. at p. 898.)
It is perhaps unfortunate that the statute uses the term "prima facie showing" to refer to both steps.
If the court cannot determine ineligibility as a matter of law, the case proceeds to the next prima facie showing. It is at this stage that briefing occurs and counsel for the petitioner would be appointed if requested. "In this second prima facie evaluation, the court employs the familiar standard for issuance of an order to show cause in a habeas corpus proceeding. That is, the court must take petitioner's factual allegations as true and make a preliminary assessment regarding whether he or she would be entitled to relief if the factual allegations were proved. [Citations.]" (Tarkington, supra, 49 Cal.App.5th at p. 898.)
Poncio was convicted of first degree murder under section 189, subdivision (a), which includes "murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death" as first degree murder. The charging allegations make no mention of felony murder or natural and probable consequences as a basis for guilt. The jury also found true the special circumstances of shooting at a person in a vehicle and active participation in a street gang (§190.2, subd. (a)(21), (22)), both of which require intent to kill.
By contrast, natural and probable consequences liability "'is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.' [Citation.]" (People v. Chiu (2014) 59 Cal.4th 155, 164, superseded by statute on other grounds.) Felony murder liability applies to a person who aids and abets a felony in the course of which a murder is committed by others but who "'does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.' [Citations.]" (People v. Contreras (2013) 58 Cal.4th 123, 163.)
As the Tarkington court pointed out, sections 188 and 189 were amended so that murder liability would not be "'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.' [Citation.]" (Tarkington, supra, 49 Cal.App.5th at p. 896.) The Legislature further explained that "[i]t is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability." (Stats. 2018, ch. 1015, § 1, subds. (b), (d).) "Reform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual." (Id., subd. (e).) "A person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Id., subds. (f), (g).)
The jury found that Poncio had her own separate intent to kill. She drove the car used in the murder. She enabled Alarcon to get close to the victims to surprise them and to give him a better shot. She pursued the victims after they fled, allowing Alarcon to continue trying to kill them. She clearly "aided" and "abetted" the actual killer with intent to kill and was a "major participant" in the crime. (§ 189, subd. (e)(2), (3).) Her conviction rested neither on felony murder nor on the natural and probable consequences doctrine. She was ineligible for relief under section 1170.95 as a matter of law.
Section 189, subdivision (e), provides: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) 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 [s]ection 190.2." --------
II. Appointment of Counsel
Poncio argues that section 1170.95, subdivision (c), requires the trial court to appoint counsel at the very beginning of the petitioning process, before determining whether she made the first prima facie showing. Pending different instruction from our Supreme Court, we agree with the cases that have held otherwise.
Since its enactment, the question of when the statute requires the court to appoint counsel for a petitioner has arisen frequently. Is the appointment of counsel required before or after (and only if) the court determines whether the petitioner has made the first prima facie showing of eligibility? The three cases on review in the Supreme Court - Verdugo, Cornelius, and Lewis - all deal with this issue as well.
In accordance with other courts that have examined this question, we hold that the appointment of counsel is required only after the petitioner has cleared the first hurdle of a prima facie showing. (See Tarkington, supra, 49 Cal.App.5th at pp. 899-900, and cases cited therein.) "'It would be a gross misuse of judicial resources to require the issuance of an order to show cause or even appointment of counsel based solely on the allegations of the petition, which frequently are erroneous, when even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief.' . . . [Citation.]" (Lewis, supra, 43 Cal.App.5th at p. 1138.)
In this case, Poncio was convicted of first degree murder based on her intent. Her culpability was premised on her own actions and mens rea, not on the circumstance of having been in the vicinity intending something else when a murder was committed. The amendments of section 188 and 189 and the petitioning process of section 1170.95 were not enacted for her.
DISPOSITION
The order denying the petition is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.