Opinion
A157905
01-19-2021
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO JOSEPH GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-080316-3)
This is an appeal from a trial court order denying defendant Alberto Joseph Garcia's petition for resentencing pursuant to Penal Code section 1170.95, a provision that allows a person convicted of murder under now invalidated theories of accomplice liability to seek resentencing (hereinafter, petition). (See Sen. Bill No. 1437 (2017-2018 Reg. Sess.) § 4 (SB 1437).) Defendant contends, and the People concede, the trial court applied the wrong standard of proof when denying his petition without issuing an order to show cause or affording him a hearing on the pertinent issue of whether he could have been convicted of murder under sections 188 and 189, as modified by SB 1437. We agree and therefore reverse the order and remand the matter to the trial court for further proceedings.
Unless otherwise stated all statutory citations are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
As the trial court did, we rely on the record of defendant's conviction, including our prior nonpublished decision affirming his conviction (People v. Garcia (Aug. 31, 2012, A126353)), to review the denial of his petition. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1137 ["the court could, and properly did, consider the record of defendant's conviction, including our prior opinion, in evaluating the sufficiency of the petition [for resentencing under § 1170.95]"], review granted, Mar. 18, 2020, S260598.) In the name of judicial efficiency, we focus only on those facts relevant to this appeal and refer the reader to our prior decision for a more complete recitation of the factual and procedural background of this case.
We grant defendant's request for judicial notice, filed January 14, 2020, of two documents (exhibits A, B) consisting of court records in this matter. (Evid. Code, § 452, subd. (d).) We deny his request for judicial notice of a third document (exhibit C) consisting of a legal memorandum relating to SB 1437 because it is not necessary to our resolution of this appeal.
Defendant was charged by information with the July 21, 2007, murder of David James Watson (hereinafter, victim). It was further alleged that during the commission of this murder, defendant personally used and intentionally discharged a firearm causing great bodily injury and death to the victim. (People v. Garcia, supra, A126353, at p. 1.)
A jury trial was held in February and March of 2009. During trial, the prosecution's theory of the case was that "defendant, his friend Joaquin Agredano, and Agredano's mother, Barbara Washburn, were involved in the murder of Watson." (People v. Garcia, supra, A126353, at pp. 1-2.)
Washburn, deemed an accomplice as a matter of law, testified that, in July 2007, she was living in a second-floor apartment in the East Bay with the victim, whom she described as her boyfriend. Washburn had known defendant, who was a friend of Agredano (her son) and the victim, for a few months. (People v. Garcia, supra, A126353, at p. 2.) On the night in question, Washburn and Agredano picked up defendant in Washburn's pickup truck to take him to a house in Concord before heading to San Francisco, where they visited a bar until closing time. During the evening, Washburn was upset and complained about how the victim treated her (as she had done before). Defendant expressed dislike for the victim, insisting he needed to talk to the victim because he did not like "what was going on." Eventually, the threesome returned to the East Bay and drove to the victim's apartment complex. (Id. at pp. 2-3.)
Witnesses gave differing accounts of what occurred before and after the threesome arrived at the victim's apartment. To briefly summarize, Felix Makinano, on felony probation at the time of trial, testified that, in July 2007, before the homicide, defendant and a man who resembled Agredano asked him to safeguard a green bag. After Makinano took possession of the bag, he looked inside and saw a black shotgun. A few days later, defendant returned to retrieve the bag with the man resembling Agredano and a woman. (People v. Garcia, supra, A126353, at pp. 4-5.)
Washburn testified that, on the night of the homicide, Agredano was present when defendant fired the shot that killed the victim. She, however, remained in the truck during the homicide. (People v. Garcia, supra, A126353, at p. 3.)
One of the victim's downstairs neighbors testified that she heard someone knocking on the victim's apartment door and a woman repeatedly saying, " ' "Open the door." ' " When no one answered, the neighbor heard the woman curse and go back downstairs. The neighbor looked out her window and saw what appeared to be a female sitting in the passenger seat of a truck. Several minutes later, the neighbor again heard two people (apparently a man and woman) ascend the stairs and both say, " ' "Open the door." ' " The neighbor then heard a kick to the door and, seconds later, several gunshots. After the gunshots, the neighbor heard a "loud female scream" followed by two sets of footsteps descending the stairs. (People v. Garcia, supra, A126353, at pp. 5-6.)
Jessica Dominquez, who was using methamphetamine heavily at the time of the murder and had been dating defendant for just a few weeks, testified that defendant told her " 'we shot [the victim] . . . .' " When she asked defendant what he meant by that, "he gave her 'a look as if [she] should have known what he meant by "we." ' " Although defendant never told her that he shot anyone or had a gun, Dominquez interpreted his words to mean " 'that he was the one to—.' " (People v. Garcia, supra, A126353, at p. 7.)
The jury was instructed on four separate murder theories: (1) defendant was the actual perpetrator or an aider and abettor in the commission of murder; (2) he aided and abetted assault with a deadly weapon and murder was a natural and probable consequence of the assault; (3) he aided and abetted brandishing a firearm and murder was a natural and probable consequence of this crime; and (4) he conspired to commit the crime of brandishing a firearm or assault with a deadly weapon and murder was perpetrated by a coconspirator in furtherance of that conspiracy and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy. (People v. Garcia, supra, A126353, at p. 9.)
On March 4, 2009, the jury convicted defendant of first degree murder but found not true the allegation that he personally used a firearm during the commission of the crime. The trial court sentenced defendant to a prison term of 25 years to life. (People v. Garcia, supra, A126353, at p. 1.)
On August 31, 2012, we affirmed the judgment with some modifications to the trial court's imposition of fees. (People v. Garcia, supra, A126353, at p. 27.) Defendant unsuccessfully petitioned the California Supreme Court for review of our decision. (People v. Garcia, supra, A126353, rev. denied Nov. 14, 2012, S205684.)
On December 18, 2015, the trial court granted defendant's petition for writ of habeas corpus and reduced his conviction from first degree to second degree murder in accordance with People v. Chiu (2014) 59 Cal.4th 155. On February 26, 2016, defendant was then resentenced to 15 years to life in prison.
On January 1, 2019, SB 1437 took effect, drastically changing liability for murder under the theories of felony murder and natural and probable consequences. SB 1437 also established a procedure under newly enacted section 1170.95 for eligible defendants to petition for resentencing.
In light of these legal changes, on January 2, 2019, defendant filed the instant petition, asserting that: (1) the prosecutor argued several theories of liability to the jury that indicated defendant was not the actual killer, including natural and probable consequences; (2) it is not clear from the record upon which theory the jury relied; and (3) the record reflects that he was not a major participant in the crime, had no intent to kill, and did not act with reckless indifference to human life. Defendant also argued that the court was collaterally estopped from relitigating the issue of his liability for second degree murder based on the trial court's finding in habeas proceedings that the record failed to reveal whether the jury relied upon a valid theory to convict him. Defendant thus requested a hearing to determine whether the court should vacate his murder conviction, recall his sentence, and resentence him on any remaining counts.
On June 27, 2019, after a round of briefing by the parties, the trial court denied defendant's petition, finding that he failed to make the requisite showing that he could not be convicted of second degree murder under the new law. The court further rejected defendant's collateral estoppel argument, concluding the trial court in the habeas proceedings applied a different standard of review. As such, the trial court declined to issue an order to show cause or to hold a hearing to adjudicate whether defendant was a major participant, had the intent to kill, or acted with reckless indifference to human life during the commission of the crime.
On July 12, 2019, defendant timely appealed.
DISCUSSION
Defendant contends on appeal that the trial court: (1) misapplied section 1170.95, subdivision (c) when denying his resentencing petition without issuing an order to show cause or holding an evidentiary hearing; and (2) is collaterally estopped from relitigating the issue of his culpability for second degree murder under the post-SB 1437 law based on the trial court's finding in his habeas proceedings that the record did not reveal whether the jury relied on an improper theory to convict him.
"The court 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. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
The California Supreme Court has granted petitions for review in several cases to consider issues relating to the nature and scope of section 1170.95, subdivision (c)'s procedure. (E.g., People v. Beaudreaux (Aug. 31, 2020, A159751) [nonpub. opn.], review granted Nov. 10, 2020, S264885; People v. Lewis, supra, 43 Cal.App.5th 1128, rev.gr.; People v. Verdugo (2020) 44 Cal.App.5th 320, review granted Mar. 18, 2020, S260493 (Verdugo).)
The People concede the first issue, acknowledging the trial court, when denying defendant's petition, misapplied section 1170.95, subdivision (c) by reviewing the record for substantial evidence rather than simply determining whether defendant made a prima facie showing.
Based on our independent construction of section 1170.95, subdivision (c), we agree with the parties that the trial court erred. (See Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 ["In interpreting a statute, our primary goal is to determine and give effect to the underlying purpose of the law"]; People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [statutory interpretation questions are reviewed de novo].) Our reasoning follows. I. The legal framework: SB 1437 and section 1170 .95.
SB 1437 was passed 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.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (People v. Lombardo (2020) 54 Cal.App.5th 553, 555-556.) To that end, SB 1437 amended the Penal Code in two significant ways: (1) The bill redefined malice under section 188 to require that the principal act with malice aforethought, such that malice may no longer be imputed to a person based solely on his or her participation in a crime (§ 188, subd. (a)(3)); and (2) the bill amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she "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)(3); see Verdugo, supra, 44 Cal.App.5th at p. 326, rev.gr.) In addition, the bill added section 1170.95 to provide a procedure by which a defendant convicted of felony murder or murder under a natural and probable consequence theory may petition to have the conviction vacated and to be resentenced on the remaining counts. (People v. Lombardo, at p. 557; § 1170.95, subd. (a).)
"Briefly, there are four main steps in the process. First, the defendant files a petition, which the trial court may deny without prejudice if it does not contain certain required information. (§ 1170.95, subd. (b).) Second, the court determines whether the defendant has made a prima facie showing of entitlement to relief. If so, it issues an order to show cause. (§ 1170.95(c).) Third, the court holds an evidentiary hearing to determine whether the murder conviction should be vacated. (§ 1170.95, subd. (d)(1), (3).) And finally, if the defendant is entitled to relief, the court recalls the sentence, vacates the conviction and any accompanying enhancements, and resentences the defendant. (§ 1170.95, subd. (d).)" (People v. Cooper (2020) 54 Cal.App.5th 106, 113-114, review granted Nov. 10, 2020, S264684 (Cooper).)
We are concerned here with the second step—whether defendant made a prima facie showing that he is entitled to relief such that the trial court should have issued an order to show cause and held an evidentiary hearing. (Cooper, supra, 54 Cal.App.5th at pp. 114-115, rev.gr.) To make this prima facie showing, a petitioner, in his or her petition, must attest under penalty of perjury that he or she is eligible for relief under section 1170.95, based on three prerequisites: (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) "[t]he 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) "[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).)
"If, accepting the facts asserted in the petition as true, the petitioner would be entitled to relief because he or she has met the requirements of section 1170 .95(a), then the trial court should issue an order to show cause. (§ 1170.95(c).) Once the trial court issues the order to show cause under section 1170.95(c), it must then conduct a hearing pursuant to the procedures and burden of proof set out in section 1170.95, subd. (d) unless the parties waive the hearing or the petitioner's entitlement to relief is established as a matter of law by the record. (§ 1170.95, subd. (d)(2).) Notably, following the issuance of an order to show cause, the burden of proof will shift to the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)" (People v. Drayton (2020) 47 Cal.App.5th 965, 980-981, italics added (Drayton).)
Several reviewing courts have read section 1170.95, subdivision (c) to require two separate reviews by the trial court in assessing whether a petitioner is entitled to an order to show cause, "one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95—that is, that the petitioner may be eligible for relief—and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at p. 328, rev.gr., italics added; see Drayton, supra, 47 Cal.App.5th at p. 975 ["section 1170.95(c) contemplates two separate assessments by the trial court of a prima facie showing: one focused on 'eligibility' for relief and the second on 'entitlement' to relief"].) Here, we are concerned with the second type of review, relating to defendant's entitlement to relief following a round of briefing by the parties. This review has been likened to the procedure for seeking an order to show cause in habeas corpus proceedings. (Verdugo, at p. 328, rev.gr.; see Cal. Rules of Court, rule 4.551(b).)
Specifically, similar to the habeas corpus procedure, the trial court should assume all facts stated in the petition are true when assessing the petitioner's prima facie showing in accordance with section 1170.95, subdivision (c). (Verdugo, supra, 44 Cal.App.5th at p. 328, rev.gr.; see People v. Perez (2020) 54 Cal.App.5th 896, 903-904, review granted Dec. 9, 2020, S265254 (Perez); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-1166.) Further, "[t]he trial court should not evaluate the credibility of the petition's assertions, but it need not credit factual assertions that are untrue as a matter of law—for example, a petitioner's assertion that a particular conviction is eligible for relief where the crime is not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in habeas corpus, if the record 'contain[s] facts refuting the allegations made in the petition . . . the court is justified in making a credibility determination adverse to the petitioner.' [Citation.] However, this authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subd. (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime)." (Drayton, supra, 47 Cal.App.5th at p. 980; accord, Perez, at pp. 903-904, rev.gr.; Nguyen, at pp. 1165-1166.)
We agree with this construction of section 1170.95, subdivision (c) and therefore apply it to our case. Accordingly, we must determine: (1) whether defendant made the requisite factual assertions of his entitlement to relief under section 1170.95, subdivision (a); and (2) if so, whether facts exist in the record that directly refute his assertions. If defendant made the requisite assertions and no facts exist to negate them as a matter of law, the parties are correct that the trial court's denial of his petition at this stage was erroneous. (See Drayton, supra, 47 Cal.App.5th at p. 980; see also People v. Lewis, supra, 43 Cal.App.5th at p. 1139, rev.gr.) II. The trial court misapplied section 1170 .95 , subdivision (c).
The People concede that defendant, in his petition, made the requisite prima facie showing that: (1) the prosecution proceeded at trial under a murder theory based on the natural and probable consequences doctrine; (2) defendant was convicted of first degree murder; and (3) defendant may not have been convicted of murder under the amended versions of sections 188 and 189, as he was not a major participant, had no intent to kill, and did not act in conscious disregard to human life. (§ 1170.95, subd. (a).) We agree that these factual assertions, accepted as true, suffice to make a prima facie showing that defendant is entitled to relief. (§ 1170.95, subd. (c).)
As reflected in our prior nonpublished decision, the jury in this case could have found defendant guilty as a principal in the commission of murder (either as a direct perpetrator or an aider and abettor), or the jury could have found him guilty only as an aider and abettor or conspirator under the natural and probable consequences doctrine. (People v. Garcia, supra, A126353, at pp. 11-12.) If the jury proceeded under the latter theory, the jury could have found defendant guilty of murder under the old law notwithstanding the fact that he did not harbor the intent to kill or act with reckless indifference to life. As we explained, based on the old law, " '[a]ider and abettor culpability . . . for a nontarget, or unintended, offense committed in the course of committing a target offense has a different theoretical underpinning than aiding and abetting a target crime. Aider and abettor culpability for the target offense is based upon the intent of the aider and abettor to assist the direct perpetrator [to] commit the target offense. By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime." (People v. Garcia, supra, A126353, at p. 12, italics added.)
Yet despite the ambiguities surrounding defendant's role in this homicide, the trial court found that he failed to make the necessary showing under section 1170.95, subdivision (a)(3) that he could not be convicted of second degree murder under the new law. In so finding, the court "adopt[ed] the standard of review applied at resentencing eligibility hearings; that is, based on evidence of reasonable, credible and solid value, whether a reasonable trier of fact could reach a guilty verdict on a charge [of] second degree murder under the new law," citing People v. Sledge (2017) 7 Cal.App.5th 1089, 1096 (eligibility hearing for resentencing under § 1170.18), and In re Bennett (2018) 26 Cal.App.5th 1002, 1118 (habeas corpus challenge to the sufficiency of the evidence to support a special circumstance finding). The court then denied defendant's petition based on facts in the record from which a reasonable juror could have found that: (1) "whoever shot Watson—whether it was [defendant] or Agredano— acted with implied malice" (§ 188, subd. (a)(2)); or (2) "[defendant], with the intent to kill, aided and abetted the actually [sic] shooter in the murder of Watson. (§ 188(a)(2).)"
As this order reflects, the trial court relied upon disputed evidence relating to defendant's state of mind and participation in the crime when denying his petition. This was erroneous. So long as defendant's proffered evidence could support a finding that he was not a major participant and lacked the requisite mens rea, the court should have issued an order to show cause and scheduled an evidentiary hearing without weighing the evidence. (Drayton, supra, 47 Cal.App.5th at p. 982 [noting that the question of whether petitioner acted with reckless indifference is a "multifaceted inquiry" and holding that when assessing petitioner's prima facie showing, "the trial court should not have evaluated and weighed the evidence but instead should have accepted petitioner's asserted facts as true"].) Had the court done so, the burden would have shifted to the prosecution to prove, beyond a reasonable doubt, that defendant is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) Moreover, defendant would not have been "confined to presenting evidence contained in the record of conviction . . . . Section 1170.95 provides 'the petitioner may rely on the record of conviction or offer new or additional evidence to meet [his] burden[].' (§ 1170.95, subd. (d)(3).)" (People v. Smith (2020) 49 Cal.App.5th 85, 95-96, fn. omitted.) It is only after holding an evidentiary hearing and considering all evidence presented by the parties that the trial court, sitting as trier of fact, should weigh the evidence and decide whether defendant is entitled to relief. (§ 1170.95, subd. (d)(3).)
Accordingly, the trial court erred by denying defendant's petition without issuing an order to show cause or holding an evidentiary hearing to adjudicate whether defendant is entitled to relief. (§ 1170.95, subds. (c), (d).) We therefore reverse and remand the matter for further proceedings.
Given this result, we need not address defendant's collateral estoppel argument.
DISPOSITION
The trial court order denying defendant's petition for resentencing under section 1170.95 is reversed. The matter is remanded with instructions to the trial court to issue an order to show cause and to hold an evidentiary hearing to adjudicate whether defendant is entitled to section 1170.95 relief.
/s/_________
Jackson, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.