Opinion
B311083
12-17-2021
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND RANGEL, III, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. KA050596. Bruce F. Marrs, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
STRATTON, ACTING P. J.
INTRODUCTION
Raymond Rangel III appeals the summary denial of his petition for resentencing under Penal Code section 1170.95. Section 1170.95 provides a procedure by which those convicted of murder can seek retroactive relief if changes to the murder statutes enacted in Senate Bill No. 1437 affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4; People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) In 2002, a jury found Rangel and co-defendant Daniel Louis Lopez guilty of first degree special circumstance murder while engaged in a robbery (§ 190.2, subd. (a)(17)). The jury also found true the special circumstance allegation that Lopez, but not Rangel, personally used a firearm causing the victim's death. Both defendants were sentenced to a minimum of life imprisonment without possibility of parole. Both appealed their convictions. On May 30, 2003, this court rejected all claims on appeal, including a challenge to the sufficiency of the evidence to support the jury's special circumstance findings, and affirmed the judgment in its entirety. (People v. Daniel Louis Lopez, Jr., et al (May 30, 2003, B158058) [nonpub. opn.].)
All further section references are to the Penal Code.
On April 17, 2020, Rangel filed a petition to vacate his conviction. He also asked for appointment of counsel. On May 5, 2020, the trial court directed the People to file an informal response. On May 22, 2020, the trial court appointed former trial counsel Ralph Rios to represent Rangel. On February 5, 2021, the trial court denied the petition, stating: "A defendant convicted of murder with felony murder of special circumstances is not, as a matter of law, eligible for resentencing pursuant to section 1170.95 because those elements of major participant and acting with reckless indifference to human life have already been established by a jury beyond a reasonable doubt." Rangel filed a timely notice of appeal.
In this appeal Rangel argues the trial court erroneously denied his 1170.95 petition because the true finding on the robbery-murder special circumstance allegation does not, as a matter of law, defeat his prima facie case and preclude eligibility for resentencing. He asserts he did not actually kill the victim and did not possess the requisite mental state to be guilty of murder as redefined by Senate Bill No. 1437. He argues the California Supreme Court decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) substantially changed the law on felony murder and he is entitled to an evidentiary hearing on his resentencing petition. He also argues he is entitled to a jury trial on the special circumstance allegation. We disagree and affirm the trial court's order.
FACTS
We recite the relevant facts from our prior opinion in this case. (People v Lewis (2021) 11 Cal.5th 952, 970-971 (Lewis) [court may rely on record of conviction, including appellate opinion, to determine whether a prima facie showing has been made].)
On June 28, 2021, we granted appellant's request that we take judicial notice of the records and files of his original appeal. On July 27, 2021, appellant filed a second request that we take judicial notice of Exhibit A attached to the motion (namely, jury instructions from the trial). We grant that request.
Bodyguard Sidney Hall was shot and killed at a bachelor party gone awry. Hall had been assigned escort and bodyguard duties for one of several exotic dancers performing at the party. When three unruly male guests began heckling and harassing the dancers, Hall ejected them. Words were exchanged, tempers flared, and in the end Hall sustained a single fatal wound from a gunshot fired by co-defendant Lopez. One of the exotic dancers, Torres, and her bodyguard, Santos, claimed they were robbed at gunpoint by two of the hecklers, identified as Rangel and Lopez, after Lopez shot Hall.
DISCUSSION
I. Senate Bill No. 1437
Effective January 1, 2019, Senate Bill No. 1437 was enacted 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); (Gentile, supra, 10 Cal.5th at p. 842.) Senate Bill No. 1437 amended sections 188 and 189 and added section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the amendments affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)
Under section 1170.95, a defendant may petition for resentencing if he or she was "convicted of felony murder or murder under a natural and probable consequences theory" and the following conditions are met: (1) a charging document 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 or second degree murder following trial or an accepted plea; and (3) the petitioner could not be convicted of first or second degree murder because of changes to sections 188 or 189 made by Senate Bill No. 1437. (§ 1170.95, subd. (a); Lewis, supra, 11 Cal.5th at pp. 959-960.)
Subdivision (c) of section 1170.95 sets forth the procedure after a complete petition is filed: "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."
If the court issues an order to show cause, it must hold a hearing to determine whether to vacate the murder conviction, recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided the new sentence is not greater than the initial sentence. (§ 1170.95, subd. (d)(1); see Lewis, supra, 11 Cal.5th at p. 960.)
II. Rangel Is Not Entitled To Resentencing
Here, the jury found Rangel guilty of first degree felony murder and found true the robbery-murder special circumstance in section 190.2, subdivision (a)(17). In doing so, the jury necessarily made one of these essential findings in accordance with the jury instructions it received from the court: Rangel was the actual killer; Rangel acted as an aider and abettor with intent to kill; or Rangel acted as a major participant in the underlying felony with reckless indifference to human life. Senate Bill No. 1437 amended section 189, subdivision (e) to require proof beyond a reasonable doubt of facts supporting one of these same three theories in order to find a defendant guilty of felony murder. Accordingly, we conclude the true finding for the felony murder special circumstance precludes relief even after the passage of Senate Bill No. 1437. (People v. Galvan (2020) 52 Cal.App.5th 1134, 1141, review granted Oct. 14, 2020, S264284 ["By finding a special circumstance allegation true, the jury makes precisely the same finding it must make in order to convict a defendant of felony murder under the new law. Because a defendant with a felony-murder special circumstance could still be convicted of murder, he is ineligible as a matter of law to have his murder conviction vacated."].)
Nevertheless, case law is currently split on whether this special circumstance finding precludes section 1170.95 resentencing as a matter of law. The dispute arises from the date of a defendant's conviction. If the jury's special circumstance finding predates Banks and Clark, which clarified the meaning of "major participant" and "reckless indifference to human life" in the section 190.2 special circumstance, some courts have held the jury's pre-Banks/Clark section 190.2 true finding does not preclude Senate Bill No. 1437 resentencing. (See, e.g., People v. Gonzalez (2021) 65 Cal.App.5th 420, review granted Aug. 18, 2021, S269792; People v. Secrease (2021) 63 Cal.App.5th 231, review granted June 30, 2021, S268862; People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011; People v. Law (2020) 48 Cal.App.5th 811, review granted July 8, 2020, S262490; People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954; People v. Harris (2021) 60 Cal.App.5th 939, review granted Apr. 28, 2021, S267802.)
Other courts take the view that a defendant cannot use a 1170.95 petition to bring a Banks/Clark challenge to a section 190.2 special circumstance finding; he or she must seek relief by way of a habeas corpus petition. (See, e.g., People v. Gomez (2020) 52 Cal.App.5th 1, review granted, Oct. 14, 2020, S264033; People v. Galvan, supra, 52 Cal.App.5th at p. 1137, review granted; People v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978; People v. Jones (2020) 56 Cal.App.5th 474, review granted Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th 449; People v. Nunez (2020) 57 Cal.App.5th 78, review granted Jan. 13, 2021, S265918.)
We find persuasive those cases holding a jury's section 190.2 true finding precludes section 1170.95 resentencing as a matter of law. As noted earlier, Rangel's jury found the robbery-murder special circumstance under section 190.2, subdivision (a)(17) to be true.
Our Supreme Court recently explained that Banks and Clark merely clarified the law. (In re Scoggins (2020) 9 Cal.5th 667, 674, (Scoggins).) Furthermore, Senate Bill No. 1437 did not change or amend the required elements to find true a special circumstance under section 190.2 subdivision (a)(17). Rangel's jury found the special circumstance true beyond a reasonable doubt. His challenge to the first degree murder conviction is not based on the changes made by Senate Bill No. 1437 to the murder statute under sections 188 and 189. Rather, his challenge is based on the clarification explained in Banks and Clark of what evidence sufficiently establishes "major participant" and "reckless indifference to human life." If Rangel seeks to challenge the sufficiency of the robbery-murder special circumstance findings, his remedy is to pursue extraordinary relief by way of habeas corpus.
Scoggins also noted that, where a decision does not announce a new rule of law but merely "clarifies the kind of conduct proscribed by a statute, a defendant whose conviction became final before that decision 'is entitled to post-conviction relief upon a showing that his [or her] conduct was not prohibited by the statute' as construed in the decision. [Citation.] 'In such circumstances, it is settled that finality for purposes of appeal is no bar to relief, and that habeas corpus or other appropriate extraordinary remedy will lie to rectify the error.'" (Scoggins, supra, 9 Cal.5th at pp. 673-674.)
We conclude Rangel's petition fails as a matter of law at the prima facie stage. The trial court properly denied his petition.
III. Rangel Is Not Entitled to a New Jury Finding on the Special Circumstance Allegations.
Rangel argues that accepting the original jury finding that the special circumstance allegations were true violates his constitutional right to due process, which requires that each element of a crime be proven to the jury beyond a reasonable doubt. (United States v. Gaudin (1995) 515 U.S. 506, 510.) We disagree. We are persuaded by and adopt the analysis of recent appellate decisions, which hold that Senate Bill No. 1437, including section 1170.95, is an act of lenity, which does not implicate the Sixth Amendment right to a trial by jury. (People v. Lopez (2020) 56 Cal.App.5th 936, 957-958, review granted Feb. 10, 2021, S265974; People v. James (2021) 63 Cal.App.5th 604, 609; People v. Howard (2020) 50 Cal.App.5th 727, 740; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156; People v. Perez (2018) 4 Cal.5th 1055, 1063-1064 [Prop 36].)
DISPOSITION
The order is affirmed.
We concur: WILEY, J., OHTA, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.