Opinion
E075761
01-25-2022
THE PEOPLE, Plaintiff and Respondent, v. DAVID RUBEN URIBE, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIF123822 John D. Molloy, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant David Ruben Uribe appeals the Riverside County Superior Court's summary denial of his petition for resentencing made pursuant to section 1170.95 of the Penal Code. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
1. The circumstances leading to defendant's conviction
The background leading up to defendant's petition for resentencing is taken from our opinion issued on his appeal from the judgment. (People v. Uribe (Mar. 13, 2013, E053314) [nonpub. opn.] (Uribe I).)
The events resulting in the murder of David (the victim) began in January 2003 when the victim and a friend went to the home of a Dodd Street gang member, Jason Lucero, to complete a drug deal. Jason robbed the friend. Three months later, Jason and two other Dodd Street gang members went to the victim's home and shot at him. The victim fired back, shooting Jason four times. Jason survived and was charged with attempted murder. At the trial, the victim testified against Jason, who was convicted and sentenced to 57 years to life.
Defendant and Jason's grandson, Nathan Lucero, both Dodd Street gang members, were friends with Lindsey. Lindsey was also a friend of the victim. She lived in a trailer on a ranch in Mira Loma, which was a hub of drug dealing and drug use. After the victim testified against Jason, he came to the ranch twice when Nathan and defendant were present, and Lindsey would escort the victim off the premises. Thereafter, the victim would call Lindsey before coming over, and she would alert him if it was not a good time to visit.
One evening in February 2006, the victim and a friend went to Lindsey's home. The friend was concerned about visiting because the victim had testified against Jason, but the victim had called ahead and then assured the friend it would be "cool." Defendant, Nathan, and several other men were at Lindsey's house, but she was not home when Nathan answered her telephone. Defendant took the phone from Nathan, and when the caller asked for Lindsey, defendant said she was home and held up the phone to a woman who was present, instructing her to tell the caller to come by. Not more than 15 minutes after that call, a car pulled up and the victim walked into the trailer. When he saw the men there, he turned and ran out of the trailer with Nathan and defendant in pursuit. Within seconds, gunfire erupted. The victim was shot multiple times in the back and died from those wounds the following day. The evidence is not clear who fired the gun, but Nathan had earlier showed off a revolver of the same type as that used to kill the victim.
A jury convicted defendant and Nathan of active participation in a criminal street gang (§ 186.22, subd. (a)) and first degree murder (§ 187, subd. (a)), finding that the latter was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), that a principal violated section 186.22, subdivision (b), and a principal personally discharged a firearm causing death (§ 12022.53, subd. (e)), that the victim was a witness to a crime and was intentionally killed in retaliation for his testimony (§ 190.2, subd. (a)(10)), that the victim was killed by means of lying in wait (§ 190.2, subd. (a)(15)), and that the victim was killed while defendants were active participants in a criminal street gang (§ 190.2, subd. (a)(22)). Both were sentenced to prison for life without the possibility of parole, plus 25 years to life. Defendant and Nathan appealed.
On appeal, we agreed with defendant's and Nathan's arguments that the gang substantive offense as well as the gang enhancements and the gang special circumstances were not supported by sufficient evidence. We reversed those findings and the stayed sentences for the substantive offense, providing that if the People elected not to retry defendants for the gang enhancements or if the trial court determined that retrial was barred, we would strike the stayed sentences for the section 186.22, subdivision (b) enhancements and strike the 25 year-to-life sentences for the section 12022.53, subdivision (e) enhancements. We otherwise affirmed the judgments. (Uribe I, supra, E053314.)
2. Defendant's petition for resentencing
On January 1, 2019, Senate Bill No. 1437 became effective. (Stats. 2018, ch. 1015.) That measure amended sections 188 (defining malice) and 189 (defining degrees of murder) to limit the reach of the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, §§ 2, 3.)
In January 2020, defendant filed a petition pursuant to section 1170.95 seeking resentencing under the new laws.
Upon receipt of the petition, the trial court clerk set the matter for a status conference. Although the record does not contain a formal order of appointment of counsel, defendant was represented by the public defender.
Defendant was not present but was represented by counsel at the August 28, 2020 status hearing. The People argued the jury's special circumstances findings of murder of a witness and lying in wait foreclosed relief for defendant because those findings required the jury to conclude defendant intended to kill the victim. The court agreed and dismissed the petition. Defendant appealed.
DISCUSSION
Defendant argues the trial court erred when it dismissed his petition because the jury's special circumstances findings do not preclude him from obtaining relief under section 1170.95. He also contends remand is required because he had a statutory right to submit a brief after his counsel was appointed and his right to due process was violated because no such briefing was ever filed. We find defendant was ineligible for relief as a matter of law and affirm.
1. Senate Bill No. 1437 limits the scope of the felony-murder rule and provides a procedure for recall of certain sentences
In 2018, the Legislature eliminated natural and probable consequences liability for murder and narrowed the scope of the felony-murder rule by passage of Senate Bill No. 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) The bill substantively amended sections 188 and 189 to ensure liability for murder would be limited to persons who (i) are the actual killer, (ii) are not the actual killer but, with the intent to kill, the person aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or (iii) are a major participant in the underlying felony and acted with reckless indifference to human life as described in section 190.2, subdivision (d). (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
The bill also added section 1170.95. (Added by Stats. 2018, ch. 1015, § 4 (Sen. Bill No. 1437), effective January 1, 2019; amended by Stats. 2021, ch. 551, § 2 (Sen. Bill No. 775), effective January 1, 2022.) That provision establishes the procedure for persons previously convicted of felony murder or of murder under a natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, to petition to have their sentence vacated and to be resentenced if they could not be convicted under the law as amended. (Lewis, supra, 11 Cal.5th at p. 959.)
To obtain relief, a petitioner must file a petition in the sentencing court and aver: (i) the complaint, information, or indictment filed against the petitioner allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime or attempted murder under the natural and probable consequence doctrine; (ii) the petitioner was convicted of murder, attempted murder, or manslaughter after a trial or after accepting a plea offer in lieu of a trial in which the petitioner could have been convicted of murder or attempted murder; and (iii) the changes made by Senate Bill No. 1437 to sections 188 and 189 would now foreclose petitioner from being convicted of murder or attempted murder. (§ 1170.95, subd. (b)(1); Lewis, at pp. 959-960.) Petitioner is also required to state whether appointment of counsel is requested. (§ 1170.95, subd. (b)(1)(C); Lewis, at p. 960.)
If the petition complies with the aforementioned requirements, the court must appoint counsel if the petitioner has requested one. (§ 1170.95, subd. (b)(3); Lewis, at pp. 962-963.) The prosecutor must file and serve a response to the petition within sixty days after the petition was served, and the petitioner may file and serve a reply within 30 days after the prosecutor's response is filed. (§ 1170.95, subd. (c); Lewis, at p. 961.) If the court determines the petitioner made a prima facie showing of entitlement to relief, it must issue an order to show cause and hold a hearing to decide whether it should proceed to vacate the conviction and recall petitioner's sentence for resentencing. (Lewis, at p. 961.) If the court declined to issue an order to show cause, it is to provide a statement fully setting forth its reason for doing so. (§ 1170.95, subd. (c).)
The court's determination will necessarily be informed by the record of conviction, allowing it to distinguish petitions with potential merit from those that are clearly lacking in merit. (Lewis, supra, 11 Cal.5th at pp. 970-971.) Although the court may not engage in factfinding involving the weighing of evidence or exercise of its discretion, it may consider the record of conviction, including the court's own documents and the reviewing court's opinion if an appeal was taken from the judgment. (Id. at pp. 971-972.) If the record of conviction contains facts refuting the petition's allegations, then the court is justified in making a finding that the petition does not pass prima facie muster. (Id. at p. 971.)
We review a trial court's determination whether a petition has made a prima facie showing using a de novo standard because it is predominately a legal question, requiring us to apply the section 1170.95, subdivision (c) standard governing prima facie entitlement to relief. (People v. Arias (2021) 66 Cal.App.5th 987, 999, review granted Sep. 29, 2021, S270555.) In applying that standard here, we accept the petition's facts as true but evaluate them in light of facts readily ascertainable from the record of conviction, including our opinion in Uribe I, supra, E053314 . (Arias, at p. 999.)
Rule 8.1115(e)(1) of California Rules of Court permits us to rely on appellate opinions as persuasive authority while review by the Supreme Court is pending.
2. Defendant is ineligible for resentencing as a matter of law
At the status conference hearing, the trial court dismissed defendant's petition based upon the People's representation that defendant was convicted of murder of a witness and lying in wait special circumstances, which required the jury to find defendant had the intent to kill. Defendant argues the dismissal was error because the special circumstances findings do not render him ineligible for relief. We disagree and affirm.
As explained ante, persons who were convicted of first degree murder are not eligible for relief pursuant to section 1170.95 unless (i) the information filed against them allowed the prosecution to proceed under a theory of felony murder or a murder due to natural and probable consequences, and (ii) the changes made by Senate Bill No. 1437 to sections 188 and 189 would now foreclose them from being convicted of first or second degree murder. (§ 1170.95, subd. (b)(1); Lewis, at pp. 959-960.) Those requirements are not met here.
Contrary to the averment in defendant's petition, the record of conviction establishes he was not convicted of felony murder or murder under a natural and probable consequences theory. Count 1 of the amended information, which set forth the murder charge upon which the People proceeded and that was found true by the jury, did not include an allegation that would permit prosecution under either the felony-murder rule or natural and probable consequences theory. Rather, defendant was charged with and convicted of killing the victim with deliberation, premeditation, and malice aforethought, and two special circumstances (killing a witness in retaliation for his testimony in a criminal proceeding and lying in wait), which required the jury to find defendant intended to kill the victim. (§ 190.2, subd. (a)(10), (a)(15); see 1 CALCRIM 725, 728.) Because defendant was not convicted under either a theory of felony murder or natural and probable consequences, he is not eligible for relief under section 1170.95. (§ 1170.95, subd. (a); People v. Mancilla (2021) 67 Cal.App.5th 854, 866-867.)
Nor does defendant meet the requirement that he could not now be convicted of first or second degree murder on account of Senate Bill No. 1437's amendments to sections 188 or 189 effective January 1, 2019. (§ 1170.95, subd. (a).) When defendant was convicted and sentenced, subdivision (a) of section 189 provided in relevant part that all murder perpetrated by means of lying in wait or by any other kind of willful, deliberate, premeditated killing is murder of the first degree. Senate Bill No. 1437 did not change that portion of the statute. Also unaffected by the amendments made pursuant to the bill are the special circumstances of intentional killing of a witness and lying in wait set forth in 190.2, subdivision (a)(10) and (a)(15). Accordingly, defendant is foreclosed as a matter of law from obtaining relief because he could be convicted of murder even after the Senate Bill No. 1437 amendments to sections 188 and 189. (§ 1170.95, subd. (a)(3).)
Defendant argues the true findings on the special circumstances do not make him ineligible for section 1170.95 resentencing as a matter of law and, therefore, he should have been permitted to file a brief in an attempt to make a prima facie showing he is entitled to relief. In support of that claim, he quotes at length from three opinions: People v. Torres (2020) 46 Cal.App.5th 1168, 1179-1189 (Torres), review granted June 24, 2020, S262011; People v. Smith (2020) 49 Cal.App.5th 85, 93 (Smith), review granted July 22, 2020, S262835; and People v. York (2020) 54 Cal.App.5th 250, 257, 258 (York), review granted November 18, 2020, S264954. In a letter to this court dated May 10, 2021, he adds an additional citation in an effort to support his claim, People v. Secrease (2021) 63 Cal.App.5th 231 (Secrease), review granted June 30, 2021, S268862.
None of the cases defendant cites are apposite. They address the question whether felony-murder special circumstances made pursuant to section 190.2, subdivision (a)(17), which is predicated on a jury's determination that defendant was a "major participant" who acted with "reckless indifference to human life," is sufficient to preclude relief under section 1170.95. (Torres, supra, 46 Cal.App.5th at pp. 1172-1173; Smith, supra, 49 Cal.App.5th at pp. 87-88; York, supra, 54 Cal.App.5th at pp. 257-258; Secrease, supra, 63 Cal.App.5th at p. 241.) This case does not involve application of the felony-murder special-circumstance rule.
In view of our conclusion that defendant is not eligible for relief as a matter of law, there is no need to address his argument calling for remand of this matter to permit him an opportunity to file a brief in the sentencing court to establish eligibility. To the extent the sentencing court erred in not requiring the People to submit an opposition to defendant's petition pursuant to subdivision (c) of section 1170.95, thereby triggering an opportunity for defendant to respond, the error was harmless. (People v. Mancilla, supra, 67 Cal.App.5th at p. 859 [when record of conviction establishes a defendant is ineligible for resentencing pursuant to 1170.95, then any errors committed by the trial court are harmless].)
DISPOSITION
The judgment is affirmed.
We concur FIELDS J., MENETREZ J.