Opinion
E074943
03-29-2021
THE PEOPLE, Plaintiff and Respondent, v. ERICK MARTINEZ ENRIQUEZ, Defendant and Appellant.
Michael C. Sampson, 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, Senior Assistant Attorney General, and Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF120947) OPINION APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Michael C. Sampson, 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, Senior Assistant Attorney General, and Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
In 2009, petitioner Erick Martinez Enriquez was convicted of (among other things) first degree murder, on a felony-murder theory, with a burglary-murder special circumstance.
In 2019, he filed a petition to be resentenced under the then-recently amended version of the felony-murder statute. (See § 1170.95.) The trial court denied the petition; it ruled that the special circumstance finding conclusively established that he was not eligible for relief.
This and all further statutory citations are to the Penal Code.
Petitioner contends that this was error. It will take the bulk of this opinion for us to explain exactly what the issue is and how it arose in this case. Its resolution, however, is simple. Under a recently published opinion of this court, the trial court's ruling was correct. Hence, we will affirm.
I
FACTUAL, PROCEDURAL, AND LEGAL DEVELOPMENTS
A. The State of the Record.
Arguably petitioner has forfeited any review whatsoever by failing to provide us with an adequate record. (See People v. Roseberry (2020) 57 Cal.App.5th 543, 549.) The record is lacking many key documents. For example, we do not have the operative information, most jury instructions, the reporter's transcript of the trial, or most jury verdicts. We do not even have the resentencing petition that gives rise to the appeal.
At the People's request, we have taken judicial notice of two jury instructions and one jury finding. The instructions help a little. The jury finding, however, is not the special circumstance finding that is critical to this case.
In lieu of the absent documents, we rely on facts stated in our opinion in petitioner's direct appeal. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136 & fn. 7, review granted Mar. 18, 2020, S260598, and cases cited.)
B. The Tison Standard.
Under Tison v. Arizona (1987) 481 U.S. 137 (Tison), a person found guilty of murder on a felony-murder theory cannot constitutionally be sentenced to death unless he or she either (1) was the actual killer, (2) intended to kill, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (Id. at pp. 150, 158.)
In 1990, Proposition 115 amended section 190.2 so as to expressly incorporate this requirement of Tison and to make it applicable to life without the possibility of parole. (See now § 190.2, subds. (b), (c), (d).)
C. The Facts as Shown at Petitioner's Trial.
We summarize the facts as stated in our opinion in petitioner's direct appeal. (People v. Enriquez (Oct. 13, 2010), E049129 [nonpub. opn.].)
Petitioner purchased methamphetamine from Juan "Johnny" Seoane. As of 2004, they had a simmering dispute over one particular transaction. Defendant claimed Seoane owed him either money or methamphetamine; Seoane claimed it was defendant who owed him. At defendant's request, one Ramon Cebreros, Jr. went with him to Seoane's mobile home to get the money or the drugs. Cebreros brought a gun. Once again, petitioner and Seoane argued over the methamphetamine transaction. Suddenly, Cebreros shot Seoane once in the chest, killing him.
According to the probation report, petitioner suddenly "ducked down and out of the way" right before Cebreros "pulled out a gun and shot Seoane." Given the state of the record, we cannot tell whether evidence of this was presented at trial.
D. Petitioner's Conviction and Appeal.
Petitioner was charged with murder, with a burglary-murder special circumstance (§ 190.2, subd. (a)(17)(G)) and an armed principal enhancement (§ 12022, subd. (a)(1)).
In 2009, he was tried before a jury on a felony-murder theory. The jury was instructed, in accordance with Tison, that it could not find the special circumstance to be true unless petitioner either (1) was the actual killer, (2) intended to kill, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (CALCRIM No. 703.)
The jury found petitioner guilty of first degree murder. It also found the special circumstance and the enhancement to be true. Petitioner was sentenced to life without the possibility of parole plus one year.
In 2010, this court affirmed the judgment. In that appeal, petitioner did not challenge the burglary-murder special circumstance.
E. Banks and Clark .
In 2015 and 2016, the California Supreme Court issued two opinions relating to the meaning of "major participant" and "reckless indifference to human life."
First, in People v. Banks (2015) 61 Cal.4th 788 (Banks), the evidence showed that defendant Matthews acted as the getaway driver in a planned armed robbery, which turned into a murder when another participant shot a security guard. (Id. at p. 795.) Our Supreme Court held that, under Tison, this was insufficient evidence that he was a major participant (Banks, supra, at pp. 804-807) as well as insufficient evidence that he acted with reckless indifference to life. (Id. at pp. 807-811.) It disapproved cases holding that mere knowledge that one's accomplice in a robbery is armed is sufficient to establish reckless indifference to human life. (Id. at p. 809, fn. 8.)
In 2016, in People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme Court found insufficient evidence that the defendant acted with reckless indifference to human life. (Id. at pp. 614-623.) It specifically listed five factors that are potentially relevant to this inquiry. First, "[a] defendant's use of a firearm, even if the defendant does not kill the victim or the evidence does not establish which armed robber killed the victim, can be significant to the analysis of reckless indifference to human life." (Id. at p. 618.) Second, a defendant's physical presence at the scene, while not absolutely required, is relevant, as is the failure to render aid to a victim. (Id. at pp. 619-620.) Third, the duration of the felony is relevant. (Id. at pp. 620-621.) Fourth, it is relevant whether the defendant knows that an accomplice has a propensity to violence, especially lethal violence. (Id. at p. 621.) Fifth, it is relevant, although not controlling, that the defendant took steps to minimize the risk to human life. (Id. at pp. 621-622.)
F. Senate Bill No. 1437.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) SB 1437, among other things, amended section 189 so as to provide that the felony-murder rule (§ 189, subd. (a)) applies to a person only if:
"(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 . . . .
"[(4) T]he victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties." (§ 189, subds. (e), (f).)
SB 1437 also enacted section 1170.95, which allows a person who has been convicted of first or second degree murder under a felony-murder theory, but who could no longer be so convicted under SB 1437, to petition to have the conviction vacated. If the underlying felony was not charged, the conviction is reduced to the underlying felony, and the petitioner is resentenced. (§ 1170.95, subd. (e).) The petitioner also must be resentenced on any remaining counts. (§ 1170.95, subd. (a).)
G. Petition for Resentencing.
Petitioner filed a petition, in propria persona, for resentencing under section 1170.95. Counsel was appointed for him.
The People moved to dismiss the petition on the ground that the true finding on the special circumstance categorically barred any relief. The trial court granted the motion; thus, it denied the petition.
II
THE EFFECT OF THE SPECIAL CIRCUMSTANCE FINDING
Petitioner contends that the trial court erred by ruling that the jury's true finding on the special circumstance conclusively established that he was not eligible for resentencing. He argues that Banks and Clark significantly narrowed the definition of both "major participant" and "reckless indifference to human life," so that the jury's pre-Banks and Clark true finding does not establish that he comes within that definition.
Recently, however, in People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review granted January 27, 2021, S265854, this court rejected an identical contention. (Id. at pp. 482-485.) We held that "Banks and Clark did not change the law," and therefore "[a] special circumstance finding renders [a petitioner] ineligible for relief under section 1170.95 as a matter of law." (Id. at pp. 480-481.)
We readily acknowledge that there is a split of authority on this point. (Jones, supra, 56 Cal.App.5th at pp. 482-483.) Unless and until the Supreme Court tells us otherwise, however, we adhere to our opinion in Jones. Even though review in Jones has been granted, it remains persuasive (Cal. Rules of Court, rule 8.1115(e)) in this court.
Earlier, in People v. Law (2020) 48 Cal.App.5th 811, review granted July 8, 2020, S262490, we held: "[T]he trial court erred by concluding the special circumstance finding, on its own, rendered Law ineligible for relief [under section 1170.95] . . . ." (Id. at p. 825.) We follow Jones, rather than Law, because Jones is more recent. (In re Lane (1962) 58 Cal.2d 99, 105 ["It is an established rule of law that a later decision overrules prior decisions which conflict with it, whether such prior decisions are mentioned and commented upon or not."].)
As we suggested in Jones (Jones, supra, 56 Cal.App.5th at pp. 478-479, and cases cited), a person in petitioner's position is not wholly without a remedy. He or she can challenge prior special circumstance findings in a habeas proceeding. (See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 676-683.) We express no opinion as to whether, in petitioner's case, there might be some procedural bar to such a proceeding at this point.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFICIAL REPORTS
RAMIREZ
P. J. I concur: McKINSTER
J. MENETREZ, J., Concurring.
I concur in the judgment for the reasons stated in the majority and concurring opinions in People v. Jones (2020) 56 Cal.App.5th 474, review granted January 27, 2021, S265854, with which I continue to agree.
MENETREZ
J.