Opinion
E079276
04-06-2023
THE PEOPLE, Plaintiff and Respondent, v. MARCOS CASEY GUILLEN, Defendant and Appellant.
Richard Schwartzberg, 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, Junichi P. Semitsu, Alan L. Amann and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF091205, Louis R. Hinoian, Judge. Affirmed.
Richard Schwartzberg, 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, Junichi P. Semitsu, Alan L. Amann and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
In 2002, a jury found defendant Marcos Casey Guillen guilty of first degree murder and found true a sentencing allegation that he personally and intentionally discharged a firearm and caused great bodily injury or death. The trial court sentenced him to state prison for 75 years to life. Twenty years later, defendant petitioned the superior court to vacate his murder conviction and resentence him under Penal Code former section 1170.95, a resentencing statute enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). In a nutshell, that bill limited the offense of murder under the felony-murder rule to defendants who: (1) are the actual killer; (2) are not the actual killer but who share the killer's intent to kill and aid and abet in the killing; or (3) are a major participant in a felony and who act with reckless indifference to human life. It also eliminated the offense of murder under the natural and probable consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 846, 848 (Gentile).)
All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
Pointing to the facts from this court's nonpublished opinion in defendant's direct appeal (People v. Guillen (July 10, 2003, E032099) [nonpub. opn.] (Guillen)) and to the jury instructions from defendant's trial, the prosecutor argued defendant was not entitled to relief. The trial court agreed defendant was not entitled to relief and summarily denied the petition. On appeal, defendant argues the trial court erred by relying on the facts from this court's prior opinion to conclude he was the actual killer, and this court must reverse and remand for the trial court to issue an order to show cause and conduct an evidentiary hearing on his petition. Even if we assume the trial court erred, it was harmless. As defendant concedes, his jury was not instructed on a now invalid theory, so his petition fails as a matter of law. The order summarily denying his petition is affirmed.
I. FACTS
We take the facts of the underlying offenses from this court opinion in defendant's direct appeal from the judgment. (Guillen, supra, E032099.)
By order dated December 12, 2022, this court granted the People's request to take judicial notice of the following: (1) this court's prior opinion in Guillen, supra, E032099, (2) the written jury instructions and signed verdict forms from the clerk's transcript in the prior appeal, and (3) the oral jury instructions, closing arguments of counsel, and recitation of the verdicts from the reporter's transcript in the prior appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); Cal. Rules of Court, rule 8.252(a).)
Defendant was at the apartment of his girlfriend, Veronica Chacon, on the evening of April 15, 2000. Michelle and Richard Marquez and Janette Diaz stopped by. They brought beer with them. Gilbert Sanchez was already there; he sat cleaning shoes on the living room floor. (Guillen, supra, E032099.)
At some point, everyone was in the living room. Some of the guests were drinking beer. Defendant was watching a movie. Richard complained, "[why] [w]e always got to watch these n----r movies?" Defendant became enraged; he challenged Richard, "[w]hat are you try[ing]to say, that I'm a n----r?" Defendant jumped up, whipped off his shirt, leaped over the coffee table, and began pummeling Richard. Sanchez joined in. (Guillen, supra, E032099.)
Michelle screamed at defendant and attempted to break up the affray. Chacon did nothing. When Michelle began hitting him, defendant broke off the attack and ran into Chacon's bedroom. (Guillen, supra, E032099.)
Richard stood up. Michelle urged him, "Let's go." Defendant went to the bedroom closet, retrieved a gun, and ran back into the living room, holding the cocked gun at his side. Angrily, he told the Marquezes that they "ha[d] seconds to get out." Attempting to defuse the situation, Michelle assured defendant, "No, no, we're sorry. It's okay. We're going to leave right now." Defendant glared at Michelle, saying, "you f---ing b---h. You hit me." Defendant struck Michelle in the face and then shot Richard. (Guillen, supra, E032099.)
Richard was felled by the shot and eventually died of his wounds. Michelle called 911 and attempted to minister to Richard. Defendant gathered his belongings and left the apartment, just as the police arrived. Moments later, defendant returned, with police in pursuit. According to Michelle, defendant quickly told Chacon to say "that it wasn't him, that he didn't do it." Michelle remonstrated with Chacon and defendant, however, that "[i]t was him. You did do it." Chacon's testimony was similar. She said defendant urged her, in Spanish, to give police a false name for him; defendant also made a slashing motion across his throat, which Chacon interpreted as a threat to her if she spoke to police. (Guillen, supra, E032099.)
Police responded to a disturbance call at Chacon's apartment at 1:09 a.m., on April 16, 2000. Officer Nieves saw two men, defendant and Sanchez, run from Chacon's apartment toward a car. Defendant and Sanchez were about to enter the car when Officer Nieves drew his weapon and told them to stop. Defendant stopped, raised his hands, and dropped something to the ground. Then defendant and Sanchez ran away, in different directions. (Guillen, supra, E032099.)
Officer Nieves pursued defendant as he ran upstairs, toward Chacon's apartment. Defendant burst in, followed by Nieves, who tackled him in the living room. Several people were in the apartment. Someone called out, "He's not the one." (Guillen, supra, E032099.)
Police officers returned to the car defendant had been about to enter. The car was stolen; the gun was recovered from the car. Inside Chacon's apartment, police seized a pair of shorts. A wallet with defendant's identification and a clear plastic baggie of methamphetamine were in the pocket of the shorts. (Guillen, supra, E032099.)
Defendant testified on his own behalf at trial. Defendant's version corroborated much of the prosecution's evidence. Defendant was watching a movie while Chacon and Richard talked and drank beer. Richard made several racial slurs, which defendant tried to ignore. Richard persisted, asking, "How come we're watching this n----r movie?" Defendant, offended, challenged Richard, asking "if he was calling me a n----r?" (Guillen, supra, E032099.)
Defendant acknowledged that he stood up, took off his shirt, and "moved toward" Richard. They engaged in mutual combat, until Michelle joined in. She struck defendant in the back. Defendant fell forward onto Richard but managed to break away, run to the bedroom, and retrieve his gun from the closet. Defendant told the guests to "get the f--- out." Defendant "racked" his gun, telling the others that they had "three seconds" to leave. (Guillen, supra, E032099.)
According to defendant, Michelle came toward him; he responded by hitting her with his left hand. Then Richard got up and put his hand in his pocket. Fearing an imminent attack, defendant shot Richard. Defendant gathered up his belongings and left. Outside, he met Sanchez, and the two walked to their (stolen) car. Defendant, seeing that the police had arrived, raced back to Chacon's apartment. Police arrested him there. (Guillen, supra, E032099.)
Defendant denied telling anyone to lie to the police or telling anyone not to say anything. He admitted, however, that the shorts the police seized were his, as were the wallet and methamphetamine found in the pocket. Defendant claimed he shot Richard as a "last resort," because he was in fear for his safety. A defense toxicologist opined, based on Richard's blood-alcohol level at the time of his death, that he had probably ingested 14 beers within the two hours preceding the shooting. (Guillen, supra, E032099.)
II. PROCEDURAL BACKGROUND
Inter alia, the People charged defendant with one count of willful and premeditated murder (§ 187, count 1) and alleged defendant personally and intentionally discharged a firearm and proximately caused great bodily harm or death (§ 12022.53, subd. (d), 1192.7, subd. (c)(8)). A jury found defendant guilty of first degree murder and found true the firearm allegation. The trial court sentenced defendant to the indeterminate state prison term of 50 years to life for the murder and a consecutive term of 25 years to life for the firearm allegation. This court affirmed the judgment on direct appeal (Guillen, supra, E032099), and the California Supreme Court denied defendant's petition for review (People v. Guillen, Sept. 17, 2003, S118273).
The trial court also sentenced defendant to a determinate term of 11 years in state prison for additional convictions and true findings on sentencing allegations that are irrelevant here.
In the same opinion, we denied defendant's petition for writ of habeas corpus. (In re Guillen on Habeas Corpus (July 10, 2003, E032921) [nonpub. opn.].)
On April 18, 2022, defendant filed a form petition for resentencing under former section 1170.95. The trial court appointed counsel for defendant. At a status conference conducted June 24, the district attorney orally moved for the trial court to deny the petition, to which defendant's attorney objected.
The prosecutor argued that the petition should be denied and directed the trial court's attention to this court's prior opinion and to the jury instructions that were available in the trial court's imaging system. "According to the opinion, the defendant testified on his own behalf at trial that the victim got up and put his hand in his pocket, fearing an imminent attack. 'Defendant shot Richard.'" The prosecutor argued defendant was ineligible for resentencing because the jury had not been instructed on theories of murder that were no longer valid. "No instructions on aiding and abetting. Natural and probable consequences and felony-murder instructions were not given." Defendant's attorney conceded that "everything the DA just said is accurate," and said, "I don't think this petition really qualifies, but I'll submit."
The trial court ruled defendant was "ineligible for relief under [former section] 1170.95" and denied the petition. Defendant timely appealed.
III. DISCUSSION
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "'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.'" (Gentile, supra, 10 Cal.5th at p. 849; see Stats. 2018, ch. 1015, § 1, subd. (f).) It did so by amending sections 188 and 189. And, relevant here, effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) expanded those reforms to eliminate the crime of 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." (§ 1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2.)
Senate Bill No. 1437 also enacted former section 1170.95 to permit defendants previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief if they could no longer be convicted of murder under the new law. (§ 1172.6, subd. (a); Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis); People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019 ...." (Strong, at p. 708.)
"When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Ibid.)
When determining whether a defendant who files a resentencing petition under section 1172.6 has made a prima facie showing of entitlement to relief, the trial court's initial inquiry is rather limited. "'"[T]he court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Lewis, supra, 11 Cal.5th at p. 971.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Ibid.) If the defendant has made a prima facie showing of entitlement to relief, "'the court shall issue an order to show cause.'" (Strong, supra, 13 Cal.5th at p. 708.)
The trial court "must hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill 1437. [Citation.] 'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Strong, supra, 13 Cal.5th at p. 709.) "Senate Bill 1437 relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2.' (Pen. Code, § 189, subd. (e)(3); see § 1172.6, subd. (a).)" (Id. at p. 710.)
"We independently review a trial court's determination on whether a petitioner has made a prima facie showing." (People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden).)
As the People assert in their respondent's brief, defendant's jury was not instructed on murder under either of the theories that were legislatively abrogated by Senate Bill Nos. 1437 and 775. Likewise, the People are correct that the prosecutor did not argue either of those now invalid theories to the jury during closing argument. Defendant concedes these points in his reply brief, but he argues "the issue remains that the trial court erred by relying on the appellate decision to deny eligibility in contrast to appellant's petition which alleged he was not the killer." But defendant did not clearly allege he was not the actual killer-he failed to check the box on his form petition that stated he had been convicted of felony murder, murder under the natural and probable consequences doctrine, or under another theory that imputed malice to him. And, although the prosecutor recited the substantive facts from this court's prior opinion to argue defendant was ineligible for relief, the record does not conclusively establish that the trial court relied on those facts to find defendant was the actual killer.
In any event, even if we were to conclude the trial court improperly considered the facts from this court's prior opinion, it was a pure matter of state law subject to the harmless error analysis under People v. Watson (1956) 46 Cal.2d 818. (See Lewis, supra, 11 Cal.5th at pp. 973-975.) Under that standard, error is reversible only if it resulted in a miscarriage of justice, meaning it is reasonably probable the defendant would have fared better in the absence of the error. (Watson, at p. 836; see Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
The courts have consistently held that a defendant is not entitled to relief under section 1172.6 as a matter of law, and the trial court may summarily deny the defendant's petition, "if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines ...." (Harden, supra, 81 Cal.App.5th at p. 52, citing People v. Daniel (2020) 57 Cal.App.5th 666, 677; accord, People v. Rivera (2021) 62 Cal.App.5th 217, 236-237, citing People v. Soto (2020) 51 Cal.App.5th 1043, 1055 ["The fact that a petitioner was not 'convicted of felony murder or murder under a natural and probable consequences theory' ([former] § 1170.95, subd. (a)) at trial may be conclusively determined if, for example, the jury did not receive instructions on either theory."].) In other words, even if the trial court had limited itself to the jury instructions, defendant's petition would have still failed to state a prima facie showing of entitlement to relief. Therefore, the error, if any, was harmless.
IV. DISPOSITION
The order denying defendant's petition is affirmed.
We concur: RAMIREZ P.J., CODRINGTON J.