Opinion
E072781
07-16-2020
THE PEOPLE, Plaintiff and Respondent, v. TONY MARTINEZ CARRERA, Defendant and Appellant.
Daniel J. Kessler, 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, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF150270) OPINION APPEAL from the Superior Court of Riverside County. John D Molloy, Judge. Affirmed. Daniel J. Kessler, 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, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Tony Martinez Carrera guilty of first degree murder (Pen. Code, § 187, count 1) and robbery (§ 211, count 2). The jury also returned a true finding on the special circumstance allegation under section 190.2, subdivision (a)(17)(A), that the murder was committed while engaged in the commission of a robbery. The jury found not true the allegation that defendant personally used a deadly and dangerous weapon to commit the murder. (§§ 12022, subd. (b)(1) & 1192.7, subd. (c)(23).) A trial court sentenced him on the first degree murder conviction with the special circumstance finding to life without the possibility of parole. The court stayed the sentence on count 2 pursuant to section 654. Defendant filed a petition for resentencing under section 1170.95, which the court denied.
All further statutory references will be to the Penal Code, unless otherwise noted.
Defendant filed a timely notice of appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On our own motion, we take judicial notice of our prior nonpublished opinion in People v. Carrera (May 7, 2013, E053997). (Evid. Code § 452, subd. (d).) This brief factual summary is based on the facts stated in our prior opinion.
Defendant and his cohort, R.P., met Daniel Coronado (the victim) at a fast food restaurant one night. The three of them drove off in defendant's car to go to a party. Defendant was driving, the victim was in the front passenger's seat, and R.P. was in the backseat, behind the victim. R.P. said he needed to go to the bathroom, so defendant began to pull over. Without provocation, R.P. began to strangle the victim with a rope. Defendant pulled the car over, and R.P. and the victim got out of the car. R.P. then struck the victim on the head with a hammer several times. Defendant dragged the victim's body and left it on a dirt field. R.P. took the victim's wallet and car keys. R.P. got back in defendant's car and told him to drive away. Defendant later informed the police that R.P. told him he was going to rob the victim with a knife at the party. (People v. Carrera, supra, E053997.)
At trial, a pathologist testified that an autopsy showed the victim had suffered at least 10 separate impact injuries to his skull. The coroner stated his opinion that the victim died from blunt-force trauma to the head, and the wounds appeared to have been inflicted by a claw hammer. (People v. Carrera, supra, E053997.)
On June 7, 2011, the jury found defendant guilty of murder in the first degree (§ 187, subd. (a)) in count 1 and found true the allegation that he committed the murder during the commission of a robbery (§ 190.2, subd. (a)(17)(A)); however, the jury found not true the allegation that he personally used a deadly and dangerous weapon (§ 12022). The jury also found him guilty of robbery (§ 211) in count 2.
On August 3, 2011, the trial court sentenced defendant to life without the possibility of parole on count 1 and stayed his sentence on count 2 under section 654.
Defendant filed an appeal and alleged multiple claims. On May 7, 2013, this court affirmed defendant's convictions. (People v. Carrera, supra, E053997.)
On May 10, 2016, defendant filed a petition for writ of habeas corpus in the California Supreme Court (case No. S234428). Defendant alleged that the evidence was insufficient to support the section 190.2, subdivision (d) special circumstance finding under Tison v. Arizona (1987) 481 U.S. 137, Enmund v. Florida (1982) 458 U.S. 782, and People v. Banks (2015) 61 Cal.4th 788 (Banks). The Supreme Court denied the petition on June 29, 2016. (Request for Jud. Notice, Attachments A & B.)
We reserved ruling on the People's request for judicial notice, filed on November 6, 2019, for consideration with this appeal. The People requested this court to take judicial notice of four petitions for writ of habeas corpus previously filed by defendant and the disposition orders denying those petitions, specifically, in California Supreme Court case Nos. S234428 and S253253; case No. E071424 from this court; and Riverside Superior Court case No. RIC1807243. We hereby grant the request. (Evid. Code, §§ 452, subd. (d) & 459.)
On April 18, 2018, defendant filed a petition for writ of habeas corpus in the Riverside Superior Court (case No. RIC1807243), alleging the evidence was insufficient to support the section 190.2, subdivision (d) special circumstance finding under Banks, supra, 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 (Clark). The court found that defendant failed to state a prima facie case and denied the petition on September 18, 2018. (Request for Jud. Notice, Attachments G & H.)
On October 10, 2018, defendant filed a petition for writ of habeas corpus in this court (case No. E071424), again alleging the evidence was insufficient to support the section 190.2, subdivision (d) special circumstance finding pursuant to Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. This court denied the petition on December 18, 2018. (Request for Jud. Notice, Attachments E & F.)
On December 28, 2018, defendant filed a petition for writ of habeas corpus in the California Supreme Court (case No. S253253), once again alleging he was entitled to relief under Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. The Supreme Court denied the petition on May 22, 2019, under In re Miller (1941) 17 Cal.2d 734, 735 (courts will not entertain habeas corpus claims that are repetitive). (Request for Jud. Notice, Attachments C & D.)
On February 11, 2019, defendant filed a petition for resentencing under section 1170.95 in the superior court and requested the court to appoint counsel to assist him. The People filed a response, arguing that Senate Bill No. 1437 was unconstitutional and that defendant's petition should be summarily denied because the jury's true finding on the robbery-murder special circumstance meant that he could not make a prima facie showing for relief under section 1170.95. The court set a status conference for April 26, 2019.
On April 10, 2019, defendant filed a request for a 60-day extension to file a reply to the People's response.
At the status conference hearing on April 26, 2019, a deputy public defender represented defendant and requested a stay until August 16, 2019. The People informed the court that a jury found the robbery-murder special circumstance true and that the jury was given CALCRIM 703, meaning that it was required to find that defendant had the intent to kill or was a major participant who acted with reckless indifference to human life. Defense counsel said he had not reviewed the record yet. The court dismissed the petition and noted that the defense was objecting "for the record."
ANALYSIS
Any Error Was Harmless
Defendant argues that the court erred in summarily denying his section 1170.95 petition because his case presented a factual question as to whether his conduct was sufficient to prove liability for murder under amended section 189, subdivision (e). He specifically contends the jury's true finding on the felony-murder special circumstance (§ 190.2, subd. (a)(17)(A)) did not automatically render him ineligible for relief, since his trial occurred before the California Supreme Court clarified the definitions of "major participant" and "reckless indifference" in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 (collectively, Banks and Clark). He further claims that the court deprived him of his right to effective counsel and, had it granted his request for an extension of time to reply to the People's opposition, there is a reasonable probability his counsel could have convinced the court to find he was entitled to relief. We agree that the court erred in summarily denying his petition based on the jury's true finding on the robbery-murder special circumstance. However, we conclude that any error was harmless. Furthermore, we disagree that there is a reasonable possibility his counsel could have convinced the court he was entitled to relief pursuant to Banks and Clark.
A. Relevant Law
On September 30, 2018, the Governor signed Senate Bill No. 1437. (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723.) "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (Id. at pp. 722-723.) "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 the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' " (Id. at p. 723.)
"Section 1170.95 permits those 'convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . .' [Citation.] An offender may file a petition under section 1170.95 where all three of the following conditions are met: '(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[;] [¶] [and] (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.' [Citation.] A trial court receiving a petition under section 1170.95 '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.' [Citation.] If the petitioner has made such a showing, the trial court 'shall issue an order to show cause.' [Citation.] The trial court must then hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been [sic] sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' " (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417 (Gutierrez-Salazar); see § 1170.95.)
B. The Court's Error Was Harmless
Defendant argues that the court erred in summarily denying his petition based on the jury's true finding on the robbery-murder special circumstance, and we agree. However, we conclude that any error was harmless since the evidence is sufficient to support a finding that he was a major participant who acted with reckless indifference to human life under Banks and Clark.
Errors in the adjudication of retroactive statutory resentencing provisions are reviewed for harmless error. (People v. Johnson (2016) 1 Cal.App.5th 953, 968 [Applying People v. Watson (1956) 46 Cal.2d 818 standard of reversal only where the defendant can establish prejudice from trial court's error]; People v. Law (2020) 48 Cal.App.5th 811 (Law) [summary denial of section 1170.95 petition reviewed for harmless error].)
The trial court instructed the jury with CALCRIM No. 703, which provides that, in order to prove the special circumstance true for a defendant who is not the actual killer, the People must prove beyond a reasonable doubt that the defendant either acted with the intent to kill, or "the People must prove all of the following: [¶] 1. The defendant's participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND [¶] 3. When the defendant participated in the crime, he acted with reckless indifference to human life." The jury found defendant guilty of first degree murder with the felony-murder-robbery special circumstance.
Subsequently, in Banks, supra, 61 Cal.4th 788, 803, the California Supreme Court articulated several factors to aid in determining whether a defendant who lacked the intent to kill may qualify as a major participant for purposes of a special circumstance finding. These factors consist of the following: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Ibid., fn. omitted.)
The following year in Clark, supra, 63 Cal.4th 522, the court "announced related considerations relevant to determining whether a defendant acted with 'reckless indifference to human life.' " (In re McDowell (2020) 45 Cal.App.5th 921, 927 (McDowell).) "The court applied a slightly modified version of the Banks factors to assess mens rea, including (1) the defendant's knowledge that weapons would be used and/or his personal use of weapons; (2) the defendant's physical presence at the scene and his opportunity to restrain the killer or aid the victim; (3) the duration of the felony; (4) the defendant's knowledge of his accomplice's propensity to kill; and (5) the defendant's efforts to minimize the risk of violence in the commission of the felony." (Id. at p. 929; see Clark, supra, 63 Cal.4th at pp. 618-622.) We note that "[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient." (Banks, supra, 61 Cal.4th at p. 803; see Clark, supra, 63 Cal.4th at p. 618.)
The court in People v. Torres (2020) 46 Cal.App.5th 1168, recently held in a similar situation "that the trial court erred in ruling that the pre-Banks and Clark robbery-murder special-circumstance findings preclude [the defendant] from relief as a matter of law." (Id. at p. 1180.) That court reasoned that "in determining if [the defendant] could be convicted today of first degree murder, we cannot simply defer to the jury's pre-Banks and Clark factual findings that [the defendant] was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time." (Id. at p. 1179.) A "'[d]efendant's claim that the evidence presented against him failed to support [a] robbery-murder special circumstance [finding made prior to Banks and Clark] . . . is not a "routine" claim of insufficient evidence.' [Citation.] The 'claim does not require resolution of disputed facts; the facts are a given.' [Citation.] The question is whether they are legally sufficient in light of Banks and Clark." (Ibid.) Thus, that court reversed the denial of the defendant's petition and remanded "the matter to allow the trial court to determine whether [defendant] has made a prima facie showing that he falls within the provisions of section 1170.95." (Id. at p. 1180.)
More recently, in Law, supra, 48 Cal.App.5th 811, this court held that, because the defendant was convicted before Banks and Clark, he was entitled to a determination of whether the trial evidence was sufficient to support the section 190.2 special circumstances finding under the principles articulated in those cases. (Id. at p. 821.) We further concluded that whether there was sufficient evidence that a defendant was a major participant in a robbery who acted with reckless indifference to human life was a question we could decide on appeal. (Id. at p. 822.) Thus, we considered the facts from the unpublished opinion we issued in 2008. We decided that "[a]lthough the trial court erred by concluding the special circumstance finding, on its own, rendered Law ineligible for relief—that is, the court erred by failing to determine whether Law qualified as a major participant who acted with reckless indifference to human life under Banks and Clark—we conclude the error was harmless because the record demonstrates the answer to that question is yes." (Id. at p. 825.)
We acknowledge the court in People v. Smith (2020) 49 Cal.App.5th 85, 95, concluded that it could not conduct its own assessment of the trial evidence to determine whether the defendant was a major participant and acted with reckless indifference to human life, thereby disagreeing with our reasoning in Law, supra, 48 Cal.App.5th at p. 822. However, we choose to follow our own precedent. --------
Here, the record shows that defendant willingly participated in a robbery. He and his cohort planned on robbing the victim at a party. Defendant drove the victim in his car, along with his cohort. His cohort started strangling the victim, and defendant pulled the car over. His cohort and the victim got out of the car, and his cohort struck the victim with a hammer, while defendant watched. His cohort took the victim's wallet and car keys. (People v. Carrera, supra, E053997.) Although defendant did not strangle or strike the victim with the hammer, he watched without intervening. Being at the scene, he could have tried to stop his cohort's violent behavior or help the victim once he had been struck with the hammer. Defendant did neither. Rather, he dragged the victim's body to a dirt field and left him there. Defendant and his cohort then fled the scene, with defendant driving. (Ibid.) We conclude that this conduct qualified defendant as a major participant who acted with reckless indifference to human life, under Banks and Clark.
Therefore, although the trial court erred by ruling the special circumstance finding, on its own, rendered defendant ineligible for relief, we conclude the error was harmless since the record demonstrates he was a major participant who acted with reckless indifference to human life under Banks and Clark. As a result, the denial of his petition was ultimately proper. (See Law, supra, Cal.App.5th at p. 825.)
C. There is No Reasonable Possibility Counsel Could Have Convinced the Court He Was Entitled to Relief Pursuant to Banks and Clark
As to defendant's claim that, had the court granted his counsel's request for an extension of time to reply to the People's opposition, there is a reasonable possibility counsel could have convinced the court he was entitled to relief pursuant to Banks and Clark, we disagree for the reasons stated ante. We further note that, as the People point out, defendant has filed four habeas corpus petitions specifically raising the Banks/Clark issue. All four petitions were denied—one by the superior court, one by this court, and two by the California Supreme Court. (See Request for Jud. Notice.) We acknowledge that "the summary denial of a habeas corpus petition does not establish law of the case and does not have a res judicata effect in future proceedings." (Gomez v. Superior Court (2012) 54 Cal.4th 293, 305, fn. 6.) However, the Riverside County Superior Court did not summarily deny defendant's habeas corpus petition. Rather, it issued a denial order stating that it examined the habeas petition on its merits and determined that defendant failed to state a prima facie case for relief. (Request for Jud. Notice, Attachment H.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.