Opinion
G057637
07-15-2022
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN RENDON, Defendant and Appellant.
Stephen M. Lathrop, 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, Julie L. Garland and Susan Sullivan Pithey, Assistant Attorneys General, Amanda V. Lopez, Charles S. Lee and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 12CF1604 Kimberly Menninger, Judge. Reversed and remanded with directions.
Stephen M. Lathrop, 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, Julie L. Garland and Susan Sullivan Pithey, Assistant Attorneys General, Amanda V. Lopez, Charles S. Lee and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Adrian Rendon was convicted of conspiracy to commit murder, attempted murder, and carjacking. Defendant's petition for resentencing under Penal Code former section 1170.95 (now § 1172.6) was summarily denied because, under the law at that time, individuals convicted of attempted murder rather than murder were not eligible for relief under that statute. We affirmed the trial court's order denying resentencing.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). All further statutory references are to the Penal Code.
The Supreme Court granted defendant's petition for review and transferred the matter back to this court to reconsider it in light of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), which allowed persons convicted of attempted murder to seek resentencing under section 1172.6, and People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which held that unrepresented defendants must have appointed counsel and be given an opportunity for briefing before a trial court may consider the defendant's record of conviction before denying or granting a section 1172.6 petition. Both defendant and the Attorney General have filed supplemental briefs in this court.
We hold that counsel must be appointed for any requesting defendant who files a facially sufficient petition under section 1172.6; an attorney representing the defendant on another matter who assists the defendant in filing a section 1172.6 petition that requests appointment of counsel is not the defendant's counsel for purposes of the resentencing petition unless the trial court makes such an appointment.
Having augmented the appellate record with the record from defendant's appeal from his conviction and sentencing, we cannot say as a matter of law that defendant has not made a prima facie showing of eligibility for resentencing under section 1172.6. Therefore, we reverse the postjudgment order and remand this matter to the trial court to appoint counsel for defendant and consider whether, under the law as modified by Senate Bill 775, defendant is entitled to relief.
I
FACTS AND PROCEDURAL BACKGROUND
In our previous unpublished opinion in this case, we summarized the relevant facts as follows:
"[I]n the process of committing a carjacking, defendant's codefendant shot the victim in the head; the victim survived the attack. It is undisputed that defendant was not the shooter. Defendant claimed at trial that he was not part of a conspiracy to murder the victim, and that he did not know his codefendant had a gun or that he would shoot or try to kill the victim. [Citation.]
"Defendant was convicted of conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a) [count 1]), attempted murder (§§ 664, subd. (a), 187, subd. (a) [count 2]), and carjacking (§ 215, subd. (a) [count 3]). The trial court sentenced defendant to 25 years to life in prison on count 1; sentences of life with the possibility of parole after seven years on count 2 and five years determinate on count 3 were to run concurrent to the sentence on count 1, and were stayed pursuant to section 654. A panel of this court affirmed the judgment of conviction and remanded for further proceedings. [Citation.]
"Following the passage of Senate Bill No. 1437, defendant filed a petition for resentencing under [former] section 1170.95. The trial court summarily denied the petition: 'The petition does not set forth a prima face case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder.' Defendant filed a notice of appeal from the postjudgment order." (People v. Rendon (Aug. 19, 2020, G057637) [nonpub. opn.], fn. omitted.)
Based on the unambiguous language of the statute at that time, we affirmed the order denying defendant's petition for resentencing because he was convicted of attempted murder, not murder. (People v. Rendon, supra, G057637.) The Supreme Court granted review and deferred the matter for further action. (People v. Rendon, review granted Oct. 28, 2020, S264611.) The Supreme Court then transferred the case back to this court with directions to vacate our earlier decision and reconsider the matter in light of Senate Bill 775 and Lewis, supra, 11 Cal.5th 952.
II
DISCUSSION
A. Legal Framework
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) reformed the law relating to the felony-murder rule and the natural and probable consequences doctrine by amending section 188, subdivision (a)(3), to provide that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2.) The legislation also added the following to section 189: "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 Section 190.2." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also added a mechanism by which a defendant convicted of felony murder or murder under a natural and probable consequences theory could seek to have the conviction vacated. (Former § 1170.95, added by Stats. 2018, ch. 1015, § 4.) As originally enacted, the procedures to be followed were: "(c) 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. . . . 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. [¶] (d)(1) Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner . . . . [¶] (2) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated . . . . [¶] (3) At the hearing . . ., the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden . . . the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (Former § 1170.95, subds. (c) & (d).) As enacted by Senate Bill 1437, resentencing under former section 1170.95 was only available to those convicted of murder, not attempted murder.
Senate Bill 775 amended former section 1170.95 to allow persons convicted of manslaughter or attempted murder under the natural and probable consequences doctrine to seek relief from their convictions and resentencing under the statute, and to clarify that a person is entitled to an attorney upon the filing of a facially sufficient petition (Former § 1170.95, subds. (a), (b)(3), Stats. 2021, ch. 551, §2, eff. Jan. 1, 2022).
Senate Bill 775 made other amendments to former section 1170.95 that are not relevant to the issues presented by this case.
In Lewis, supra, 11 Cal.5th at page 957, the Supreme Court held: "[T]he statutory language and legislative intent of [former] section 1170.95 make clear that petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition [citation] and that only after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether 'the petitioner makes a prima facie showing that he or she is entitled to relief.' [Citation.]" The court also held that any error in failing to appoint counsel should be reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Lewis, at pp. 957-958.)
B. Failure to Appoint Counsel
Defendant argues that the trial court erred by failing to appoint counsel to represent him in connection with his resentencing petition. The Attorney General contends the trial court did not err because defendant was already represented by appointed counsel.
The resentencing petition was filed by counsel appointed to represent defendant in the underlying matter in a Franklin hearing. The petition specifically requested that the court appoint counsel for defendant for purposes of the resentencing process.
People v. Franklin (2016) 63 Cal.4th 261, authorizes an evidentiary hearing in the trial court to preserve evidence for a later youth offender parole hearing.
At the time the trial court ruled on the resentencing petition, defendant had not filed a facially sufficient petition under section 1172.6, and the trial court was not required to appoint counsel for him. Under the current state of the law, however, it would be error for the trial court on remand to rule on the petition without appointing counsel for defendant.
The Attorney General argues that any error would be harmless because it is not reasonably probable that defendant can obtain a more favorable result on remand. (Lewis, supra, 11 Cal.5th at pp. 957-958; People v. Watson, supra, 46 Cal.2d at p. 836.)
C. We Cannot say Unequivocally that Defendant is Ineligible for Relief Under Section 1172.6; Remand is Therefore Necessary.
In addition to attempted murder and carjacking, defendant was charged with and convicted of conspiracy to commit murder pursuant to section 182, subdivision (a)(1). The Attorney General argues that because the jury found defendant guilty of conspiracy to commit murder, it necessarily found that defendant acted with the intent to kill in committing attempted murder, thus defeating his petition for resentencing even under Senate Bill 775. "[A] conviction of conspiracy to commit murder requires a finding of intent to kill." (People v. Swain (1996) 12 Cal.4th 593, 607.) "'[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder.'" (People v. Beck and Cruz (2019) 8 Cal.5th 548, 641.)
The jury was instructed with CALCRIM No. 563, in relevant part, as follows:
"Defendants are charged in Count 1 with conspiracy to commit murder, in violation of Penal Code section 182. To prove that the defendants are guilty of this crime the People must prove that the defendants or co-conspirators intended unlawfully to kill; two, at the time of the agreement the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would intentionally and unlawfully kill; three, one of the defendants, or both of them, committed at least one of the following overt acts alleged to accomplish the killing: Overt act number one, on October 21st, 2011, Jose G. was approached as he sat in his car by two males, one of whom pointed a gun at him in Orange County; overt act number two, after Jose G. was ordered out of his car he was ordered to get into the back seat of his vehicle, but he refused, and one of the males shot him in the head when he refused to get in the car; overt Act number three, the other male got in the driver's seat and drove away in Jose G. 's vehicle; and four, at least one of these overt acts was committed in California."
However, the jury was also instructed with CALCRIM No. 402 regarding attempted murder as a natural and probable consequence of carjacking as follows:
"The defendants are charged in Count 3 with carjacking and in Count 2 with attempt murder. You must first decide whether the defendant is guilty of carjacking. If you find that the defendant is guilty of this crime, you must then decide whether he is guilty of attempt murder. Under certain circumstances a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time. To prove that the defendant is guilty of attempt murder, the People must prove that: One, the defendant is guilty of carjacking; two, during the commission of carjacking a co-participant in that carjack committed the crime of attempt murder; and three, under all the circumstances a reasonable person in the defendant's position would have known that the commission of an attempt murder was a natural and probable consequence of the commission of carjacking.
"A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. To decide whether the crime of attempt murder was committed, please refer to the separate instruction that I will give you on that crime.
"The People allege that the defendant originally intended to aid and abet the commission of carjacking. The defendant is guilty of attempt murder if the People have proved that the defendant aided and abetted carjacking, and that attempt murder was a natural and probable consequence of carjacking."
This instruction clearly states that defendant could be found guilty of attempted murder as a natural and probable consequence of carjacking. We therefore disagree with the Attorney General's argument that the guilty verdict on conspiracy to commit murder necessarily prevents defendant from obtaining relief under section 1172.6.
We will remand the matter to the trial court to appoint counsel for defendant and to make the determination in the first instance whether defendant has made a prima facie case for relief under section 1172.6.
III
DISPOSITION
The postjudgment order is reversed and the matter is remanded for further proceedings consistent with this opinion.
WE CONCUR: O'LEARY, P. J., MARKS, J. [*]
[*] Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.