Opinion
B302341
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL REYES, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA336008) APPEAL from an order of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Affirmed.
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Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Miguel Angel Reyes appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.95.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
Reyes's appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues on appeal and requesting that we independently review the record to determine if the lower court committed any error. On May 11, 2020, counsel sent a copy of the brief and the record to Reyes and informed him that he may file a supplemental brief within 30 days. On May 12, 2020, this court informed Reyes that he "may submit by brief or letter any grounds of appeal contentions, or argument which [he] wishes this court to consider." Reyes did not file a supplemental brief.
Pursuant to Wende, we have reviewed the record to determine whether there is any arguable issue and conclude there is none.
FACTUAL AND PROCEDURAL SUMMARY
In May 2005, Reyes was the driver of a car in which Luis Membreno rode in the back seat. Reyes drove the car up to where a group of three men were walking, and stopped. Membreno fired a shotgun from the back seat of the car, killing one of the men. Reyes then sped away.
In June 2009, a jury convicted Reyes and Membreno of first degree murder. The court sentenced Membreno and Reyes to prison terms of 50 years to life and 25 years to life, respectively. In October 2010, we affirmed the convictions in an unpublished opinion. (People v. Membreno et al. (Oct. 5, 2010, B216861) (Membreno).)
On January 16, 2019, Reyes filed a petition in the superior court for resentencing under section 1170.95 and requested the appointment of counsel. He alleged that (1) a complaint, information, or indictment had been filed against him that allowed the prosecution to proceed under a theory of felony murder or under the natural and probable consequences doctrine; (2) he was convicted pursuant to the felony murder rule or under the natural and probable consequences doctrine; and (3) he could not be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019. In particular, he alleged that he "was not the actual killer," he "did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree," and he "was not a major participant in the felony" or "did not act with reckless indifference to human life."
On January 24, 2019, the court appointed counsel for Reyes.
On August 12, 2019, the People filed written opposition to the petition. The People argued that Reyes was not eligible for relief under section 1170.95 because he was not convicted based on the natural and probable consequences theory or the felony murder rule; rather, he was convicted under the theory of directly aiding and abetting a willful, deliberate, and premeditated murder. The People supported this point with our 2019 opinion, in which we addressed Reyes's contention that a jury instruction, which stated that " '[e]ach principal, regardless of the extent or manner of participation is equally guilty,' " permitted "the jury to simply assume the perpetrator and the aider and abettor shared the same intent, willfulness and deliberation." (Membreno, supra, B216861, at pp. 14-15 & fn. 5.) Any error in giving the instruction, we held, was harmless "beyond a reasonable doubt." (Id. at p. 14.)
The People had requested additional time to file an opposition to the petition based on the need to obtain the record of the underlying conviction from the trial court and the Court of Appeal. --------
Based on the "totality of the instructions," we explained, "the jury understood that it had to determine Reyes's guilt of first degree murder based on his own mens rea, not that of Membreno. For example, early in its instructions the court told the jury to 'consider the instructions as a whole and each instruction in light of all the others.' Immediately after giving the 'equally guilty' instruction the court instructed the jury: 'A person aids and abets the commission of a crime when he: . . . with knowledge of the unlawful purpose of the perpetrator, and . . . with the intent or purpose of committing or encouraging or facilitating the commission of the crime, . . . by act or advice, aids, promotes, encourages or instigates the commission of the crime.' The [trial] court further instructed the jury that '[a]ll murder which is perpetrated by any kind of willful, deliberate, and premeditated killing with express malice aforethought is murder of the first degree[.]' Taken together these instructions told the jury that to convict a defendant as an aider and abettor it not only had to find that the defendant had knowledge of the criminal purpose of the direct perpetrator of the offense, but that it also had to find that the defendant shared that purpose or intended to commit, encourage or facilitate the commission of the crime which means the aider and abettor also acted willfully, deliberately and with premeditation." (Membreno, supra, B216861, at pp. 15-16.)
We further explained: "Alternatively, the court instructed the jury that '[m]urder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside the vehicle, when the perpetrator specifically intended to inflict death, is also murder in the first degree.' The court added that '[t]he essential elements' of a drive-by murder include: '[a] person committed the crime of murder [and that person] specifically intended to kill a human being.' Again, these instructions, together, told the jury that Reyes had to know that Membreno intended to commit a drive-by shooting with the intent to kill and that Reyes drove the car with the intent of 'encouraging or facilitating the commission of the crime' that Membreno intended to commit." (Membreno, supra, B216861, at p. 16.)
We concluded: "Here the evidence of Reyes's requisite knowledge—the shooter's intent—was very strong. According to the undisputed evidence, there were only two occupants of the Town Car: the driver and the shooter. The shooter was in the back seat behind the driver where he had a clear shot through either rear window. The shooter was not holding a small pistol that could be easily concealed but a large and heavy rifle-length 12 gauge shotgun, a weapon that Reyes, as the driver, could hardly have missed when the shooter entered the car. The [car Reyes drove] turned onto [the street where the victim was walking] just as [the victim] and his companions entered [a] liquor store. As they left the store and started to walk home, the [car Reyes drove] made a U-turn, pulled alongside of them and stopped. This gave the shooter a level, steady platform from which to fire the shotgun. As soon as the shooter fired the fatal shot, the . . . [c]ar sped away. This evidence shows beyond a reasonable doubt that Reyes acted with full knowledge of the shooter's purpose to kill [the victim] or one of his companions and intended to aid the shooter in accomplishing that purpose." (Membreno, supra, B216861, pp. 16-17.)
In opposing Reyes's section 1170.95 petition, the People also argued that section 1170.95 was unconstitutional on various grounds.
Reyes, through counsel, filed a reply to the opposition, which was focused on the constitutionality of section 1170.95. With respect to the merits, Reyes argued that the People have the burden of proving his ineligibility under section 1170.95 and, if the court finds Reyes eligible for relief, the court should vacate his conviction and resentence him. Reyes did not raise any factual issue.
During a hearing on Reyes's petition on October 29, 2019, Reyes's counsel and the prosecutor presented argument. The court rejected the People's argument that section 1170.95 was unconstitutional. The court, however, denied the petition, explaining that, because "the theory of prosecution in this matter [was] neither natural and probable consequences nor felony murder, . . . the change in the law does not affect . . . Reyes; and therefore, he has failed to make a prima facie case that he could not have been convicted of murder under the new law."
Reyes timely appealed.
DISCUSSION
Under section 1170.95, generally, a person convicted of murder is eligible to have his or her sentence vacated and to be resentenced: (1) if defendant was convicted based on a natural and probable consequences theory, or (2) if defendant was convicted under the felony murder rule, the defendant was not the actual killer, did not directly aid and abet the actual killer, and was not a major participant in the felony who acted with reckless indifference to human life. (People v. Verdugo (2020) 44 Cal.App.5th 320, 325-326, review granted Mar. 18, 2020, S260493; Stats. 2018, ch. 1015, § 1, subd. (f).)
A defendant is not entitled to relief when the record of conviction, including the Court of Appeal's opinion resolving the defendant's direct appeal, establishes that the defendant was convicted of murder because he was a direct aider and abettor of the actual killer. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-1139, review granted Mar. 18, 2020, S260598.) The court can deny relief without holding an evidentiary hearing if the defendant fails to make a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c).)
The facts regarding the underlying crime are not disputed. As set forth above, the trial court reviewed Reyes's petition and had before it our opinion resolving Reyes's direct appeal. That opinion establishes that Reyes was convicted of murder because he was a direct aider and abettor of the actual killer, not based on a natural and probable consequences theory or the felony murder rule.
Based on our review of the record and the applicable law, we are satisfied that Reyes's counsel has fully complied with his responsibilities and that no arguable appellate issue exists. (Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106, 110.)
DISPOSITION
The order denying Reyes's petition for resentencing is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
BENDIX, J.