Opinion
D080793
08-17-2023
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann, and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Riverside County, No. INF1401734 Judith C. Clark, Judge.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann, and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, ACTING P. J.
In 2017, a jury convicted Monica Hernandez Benavidez of second degree murder (Pen. Code, § 187, subd. (a)), as a result of her driving under the influence of alcohol and with implied malice. The jury also convicted Benavidez of gross vehicular manslaughter (§ 191.5, subd. (a)) and driving under the influence of alcohol causing bodily injury (Veh. Code, § 23153, subd. (a)). In addition, Benavidez pled guilty to driving on a suspended license (Veh. Code, § 14601.2, subd. (a)).
All further statutory references are to the Penal Code unless otherwise stated.
The court sentenced Benavidez to prison for an indeterminate term of 15 years-to-life plus an additional ten years to run consecutively. Benavidez appealed and this court affirmed the judgment in an unpublished opinion. (People v. Benavidez (Jan. 30, 2019, D074582).)
Pursuant to the People's unopposed request for judicial notice, we take judicial notice of the following portions of the prior record of appeal, in case No. D074582: our unpublished opinion (People v. Benavidez, supra, D074582) and pages 465-496 of volume 2 of the clerk's transcript (which consists of jury instructions given at Benavidez's trial).
In 2022, Benavidez filed a petition for resentencing under section 1172.6 (formerly section 1170.95). The court appointed counsel but did not solicit briefing from the prosecutor. At the hearing on Benavidez's petition, based on the representations of both the prosecutor and Benavidez's counsel, the court denied the petition.
Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10) renumbered section 1170.95 to 1172.6, effective June 30, 2022.
Benavidez appeals contending the court's failure to solicit briefing from the prosecutor and the failure of the court to review the record of conviction, or at least identify the portions of the record of conviction it reviewed, denied her due process under the United States and California constitutions. Benavidez thus asserts we should remand for a new hearing. We disagree.
As we will explain, even if we assume the trial court erred below, Benavidez cannot show she was prejudiced. She was the actual killer; therefore, she in not entitled to relief under section 1172.6. (See People v. Carr (2023) 90 Cal.App.5th 136, 146 (Carr); People v. Roldan (2020) 56 Cal.App.5th 997, 1004-1005 (Roldan).)
DISCUSSION
Legal Principles
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 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 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).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill 1437 did this by amending section 188, which defines malice, and section 189, which defines the degrees of murder. (Stats. 2018, ch. 1015, §§ 2 &3.) Amended section 188 states: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Amended section 189 states: "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. [¶] [or] (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).)
Senate Bill 1437 also established resentencing relief for eligible defendants. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 707-708.) Under subdivision (a), "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition" with the sentencing court to have his or her 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 Section 188 or 189 made effective January 1, 2019" under Senate Bill 1437.
A petition for relief must contain: (1) a declaration by the petitioner that he or she is eligible for relief under section 1172.6; (2) the superior court case number and year of petitioner's conviction; and (3) whether the petitioner requests counsel. (§ 1172.6, subd. (b)(1)(A)-(C).) If the petitioner requests counsel, the trial court must appoint one. (See People v. Lewis (2021) 11 Cal.5th 952, 970 (Lewis); § 1172.6, subd. (b)(3).)
Within 60 days after service of a sufficient petition, "the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the prosecutor's response is served.... After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) The court may deny a petition without an evidentiary hearing where the record establishes the petitioner is ineligible as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 970-972.)
If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).)
On October 5, 2021, the Governor signed Senate Bill No. 775 (Senate Bill 775) into law, and its amendments to section 1172.6 became effective on January 1, 2022. None of the changes under Senate Bill 775 are relevant to the instant action.
Analysis
Under People v. Watson (1981) 30 Cal.3d 290 (Watson), implied malice can be inferred, in an appropriate case, when the defendant unintentionally killed someone while driving while intoxicated. (Id. at pp. 300-301.)" 'One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.'" (Ibid.) "Implied malice murder involving drunk driving is now 'colloquially known as a Watson murder.' [Citation.]" (People v. Alvarez (2019) 32 Cal.App.5th 781, 785, fn. 2.) It is undisputed that the jury convicted Benavidez of a Watson murder.
Below, Benavidez filed a petition complying with the requirements of section 1172.6, subdivision (b). The trial court appointed Benavidez counsel. However, the prosecutor did not file a written response to the petition. The court, nevertheless, held a hearing on the petition where the prosecutor and Benavidez's counsel both appeared.
At the hearing, the prosecutor stated:
"It's our position that this petition should be denied. I sent counsel over the jury instruction[s] and the prior Appellate opinion [i]n this case. The defendant was convicted in 2017 of a Watson murder, along with gross vehicular manslaughter and DUI, sentenced to 15 to life. So based upon the fact that she was the actual killer and the fact that no jury instructions that would qualify her for [1172.6] relief were given, we'd ask the Court to deny the petition."
Benavidez's counsel then responded:
"I did speak with Ms. Benavidez in this matter.... I did review the case with her. She is objecting to the denial of her petition. The only thing I would note for the Court is that I do acknowledge this is a Watson murder. Intent or malice is implied in this case, and I would object to the dismissal or the denial of the petition."
The court denied the petition, explaining, "Based on the representations here made to this Court, the nature of the charges, and the basis of the prosecution, the petition is denied."
Here, Benavidez claims her due process rights under the Fourteenth Amendment of the United States Constitution as well as her rights under the California Constitution were violated because the requirements of section 1172.6, subdivision (c) were not met. Specifically, she notes that the prosecutor did not file a written response to the petition. Also, she claims the trial court did not consider her record of conviction before denying her petition.
The record is less than clear regarding what the trial court considered in denying Benavidez's petition. The court referenced both "the nature of the charges" and "the basis of the prosecution" in denying the petition. And the record before us includes various charging documents, a minute order of the sentencing hearing, the abstract of judgment, and the petition for resentencing. Thus, it is possible that the trial court considered some of these documents at the hearing on Benavidez's petition. That said, we shall assume that the trial court did not consider any of these documents in denying the petition.
We observe that Benavidez spends the lion's share of her opening brief arguing that her due process rights were violated. For purposes of our analysis here, we shall assume her due process rights were violated and determine whether the trial court's error "was harmless beyond a reasonable doubt." (Chapman v. California (1967) 386 U.S. 18, 24; cf. People v. Davis (2005) 36 Cal.4th 510, 532 [applying harmless error standard to defendant's absence from proceeding].)
Here, it is clear that any error below was harmless beyond a reasonable doubt. It is undisputed that Benavidez was convicted of a Watson murder.
At her trial, the jury was not instructed on aiding and abetting, felony murder, or liability based on the natural and probable consequences of the acts of another. The record of conviction establishes that she was the actual killer. And California courts have consistently held that defendants convicted of a Watson murder are not eligible for relief under section 1172.6. (Carr, supra, 90 Cal.App.5th at p. 146; Roldan, supra, 56 Cal.App.5th at pp. 1004-1005.)
Surprisingly, Benavidez argues that Roldan, supra, 56 Cal.App.5th 997, supports her position here. It does not. We acknowledge that our high court granted review of Roldan and subsequently dismissed the review after issuing its opinion in Lewis, supra, 11 Cal.5th 952. In doing so, the court stated Roldan "is non-citable and nonprecedential 'to the extent it is inconsistent with' our decision in Lewis." (People v. Roldan (Dec. 22, 2021, S266031).) In Roldan, the appellate court concluded that the right to counsel under section 1172.6 did not attach until the petitioner makes a prima facia showing of eligibility under the statute. (Roldan, at p. 1005.) In Lewis, the California Supreme Court disagreed, concluding that counsel be appointed upon the filing of a facially sufficient petition. (Lewis, at p. 970.) However, Lewis did not address whether a defendant convicted of a Watson murder is eligible for relief under section 1172.6. Moreover, we read nothing in Lewis that alters our harmless error analysis here.
We agree that the better approach under section 1172.6, subdivision (c), in denying a petition at the prima facia stage, involves the prosecutor filing a written response to a petition and providing the court with the applicable portions of the record of conviction refuting, as a matter of law, that the petitioner is entitled to relief. The court then may state, on the record, which portions of the record of conviction support the denial. In this matter, the attorneys truncated this approach by agreeing that Benavidez was convicted of a Watson murder. At that point, despite Benavidez's counsel's objection to the dismissal of petition, the parties essentially agreed that the record of conviction indicated that Benavidez was not entitled to relief as she was the actual killer. (See Carr, supra, 90 Cal.App.5th at p. 146; Roldan, supra, 56 Cal.App.5th at pp. 1004-1005.) Although nothing in this opinion should be read as relieving the prosecution or the court of complying with the requirements of section 1172.6, subdivision (c), on the record before us, any procedural shortcomings that may exist are harmless beyond a reasonable doubt.
DISPOSITION
The order denying the petition for resentencing under section 1172.6 is affirmed.
WE CONCUR: BUCHANAN, J. CASTILLO, J.