Opinion
B324432
10-25-2023
THE PEOPLE, Plaintiff and Respondent, v. JORGE ESTRADA MARTINEZ, Defendant and Appellant.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, and Nikhil Cooper, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County, No. BA240842-01 Michael E. Pastor, Judge. Reversed and remanded with directions.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, and Nikhil Cooper, Deputy Attorney General, for Plaintiff and Respondent.
PERLUSS, P. J.
Jorge Estrada Martinez was convicted in 2008 of first degree felony murder with true findings that the murder had been committed while Martinez and his codefendant Jorge Flores Sandoval were engaged in the commission of an attempted robbery and that Martinez personally and intentionally discharged a firearm causing the death of the victim, Claro Cortes. In June 2019, without appointing counsel or conducting an evidentiary hearing, the superior court denied Martinez's petition for resentencing under Penal Code section 1172.6 (former section 1170.95), ruling Martinez was ineligible for relief because, based on the court's review of the record, including the evidence presented at trial, Martinez could still be convicted under the more limited felony-murder rule enacted by Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437).
Statutory references are to this code.
The superior court also ruled former section 1170.95 was unconstitutional, an argument not pursued on appeal or in subsequent proceedings by the People.
On appeal in People v. Martinez (Feb. 18, 2021, B300317) [nonpub. opn.] (Martinez III) we held any error in failing to appoint counsel for Martinez was harmless because the jury's finding that Martinez had intentionally discharged a firearm causing Cortes's death necessarily meant Martinez remained guilty of felony murder under amended section 189, subdivision (e)(1), as Cortes's "actual killer," and was ineligible for resentencing relief as a matter of law. The Supreme Court granted Martinez's petition for review (S267782), held the matter pending its decision in People v. Lewis (2021) 11 Cal.5th 952 and dismissed review once that decision had been issued.
In March 2022 Martinez filed a second petition for resentencing pursuant to section 1172.6. After appointing counsel and initially setting the matter for an evidentiary hearing, the court on July 27, 2022 denied the petition, ruling "it is collateral estoppel/res judicata when there is a decision of a California Supreme Court post-Lewis on a matter that has been held for the decision in [Lewis]."
We agree with Martinez that neither the Supreme Court's dismissal of his petition for review nor this court's decision in Martinez III precludes his March 2022 petition. Because the record of conviction does not establish Martinez's ineligibility for resentencing relief as a matter of law as section 1172.6 and section 189, subdivision (e)(1), are now interpreted, we reverse the order denying that petition and remand with directions to issue an order to show cause and to conduct further proceedings in accordance with section 1172.6, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. Martinez's Felony-murder Conviction
Martinez and Sandoval were jointly tried before separate juries solely on a theory of special-circumstance first degree felony murder-homicide committed while engaged in an attempted robbery. It was undisputed that Martinez and Sandoval, both armed with nine-millimeter semiautomatic handguns, entered a hardware store owned by Cortes and his wife, Elvia Cortes. As the result of an ensuing gun battle in the back portion of the store, Cortes and a customer were killed; and Sandoval was shot in the leg. The medical examiner testified Cortes died from multiple gunshot wounds.
Evidence at trial established three guns had been used during the incident: a nine-millimeter Beretta handgun recovered from the front passenger seat of the vehicle in which Martinez had been riding when he and Sandoval were detained by police; a nine-millimeter semiautomatic InterArms handgun found on the sidewalk outside that vehicle; and a .38 caliber semiautomatic pistol registered to Cortes, which was found inside the hardware store. Martinez testified he had been armed with the Beretta. A deputy medical examiner testified Cortes suffered six gunshot wounds, three of which were fatal. Only one bullet was recovered from Cortes's body. Ballistics testing revealed that seven shell casings recovered from the store came from the Beretta as did the single bullet recovered from Cortes's body. One shell casing from the InterArms firearm was discovered in a different part of the store, consistent with the shooters being in different locations. Six shell casings found in the store were fired from Cortes's gun. At the initial trial in Martinez and Sandoval's case the prosecutor conceded there was insufficient evidence the customer had been shot by either defendant as opposed to Cortes. The trial court granted a defense motion for judgment of acquittal on the count charging Martinez and Sandoval with that murder. We reversed the convictions of Martinez and Sandoval at their initial trial because the court had required the defendants to share one interpreter without a valid waiver of their right to individual interpreters. (People v. Martinez (Jan. 30, 2007, B174379) [nonpub. opn.] (Martinez I).)
The primary issue at trial was whether Martinez and Sandoval went to Cortes's store intending to rob it and, therefore, whether Cortes's death occurred during the attempted commission of a felony enumerated in section 189. Martinez testified he and Sandoval went to the store to collect $6,000 Cortes owed him for a drug transaction. He and Sandoval were armed for protection because they knew Cortes carried a gun. When Sandoval entered the store, he saw Cortes speaking with a customer in one of the back aisles and walked toward him. Martinez followed Sandoval into the store and approached Cortes's wife, who stood at the cash register. According to Martinez, he tried to tell Elvia he had come for the money Cortes owed him. While speaking to Elvia, Martinez heard shots and ran to the back of the store where he saw Cortes shooting at Sandoval. Martinez testified he fired at Cortes to protect his friend.
Contradicting Martinez's testimony, Elvia testified that Martinez, with a gun in his hand, approached her, told her it was a robbery and ordered her to open the cash register. Before she could open the register, shots were fired; and Martinez ran back toward Cortes, the customer and Sandoval. The People's felonymurder theory was supported not only by Elvia's testimony but also by statements made by Martinez and Sandoval during police interviews admitting they had entered the hardware store intending to rob it.
Martinez and Sandoval were each convicted of the first degree murder of Cortes and two counts of attempted robbery. Their juries found true the special allegations that the murder had been committed while Martinez and Sandoval were engaged in the commission of an attempted robbery; a principal was armed with a firearm during commission of the offenses; and Martinez and Sandoval had personally used and personally and intentionally discharged a firearm (§ 12022.53, subds. (b) &(c)). In addition, Martinez's jury found true the special allegation that he had personally used and intentionally discharged a firearm causing Cortes's death (§ 12022.53, subd. (d)). That additional firearm-use enhancement allegation was not presented to Sandoval's jury.
The court instructed Martinez's jury with CALJIC No. 17.19.5: "If you find the defendant guilty of one or more of the charged crimes, then you must determine whether he intentionally and personally discharged a firearm, and, if so, then whether, in addition, he caused death to another person, namely Claro Cortez [sic], during the commission of that crime. [¶] . . . [¶] A cause of death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act the death and without which the death would not have occurred." The Use Note to CALJIC No. 17.19.5 in 2008 provided, "'Proximate' appears in the statute but has since People v. Roberts, 2 Cal.4th 271, 6 Cal.Rpt.2d 276, 826 P.2d 274 (1992) been disfavored for jury instructions. It is suggested that it be deleted." (Use Note to CALJIC No. 17.19.5 (Spring 2008 ed.) p. 1373.)
On appeal we rejected Martinez and Sandoval's argument they were entitled to instructions on self-defense and second degree murder: "[T]he only relevant factual inquiry for the juries was whether Martinez and Sandoval entered the store with the intention of robbing it. Any killing that resulted from that conduct was first degree murder, whether or not the shots were fired in perceived self-defense.... Martinez and Sandoval were free to argue, and did in fact argue, they entered the store not to rob it but to collect the money Cortes owed them. Nonetheless, the juries found the special circumstance true as to both Martinez and Sandoval. In so doing, the jurors necessarily rejected the argument the killing was committed in self-defense." (People v. Martinez (June 22, 2009, B209063) [nonpub. opn.] (Martinez II).) After making minor modifications to the fines imposed and custody credits awarded, we affirmed the judgments as modified. (Ibid.)
2. Martinez's First Petition for Resentencing
In May 2019 Martinez, representing himself, filed a petition for resentencing under former section 1170.95 and requested the court appoint counsel. In his petition Martinez declared he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019; he did not, with the intent to kill, aid or abet the actual killer in the commission of murder in the first degree; and he was not a major participant in the underlying felony and did not act with reckless indifference to human life during the course of that felony. Martinez did not check the box on the preprinted form petition stating he "was not the actual killer."
The superior court summarily denied the petition on June 13, 2019. In its order the superior court ruled Martinez was ineligible for relief because, "based upon the totality of the evidence presented at trial and the overall court record[,] the petitioner was indeed a major participant who acted with reckless indifference"-a still-valid theory of felony murder after enactment of Senate Bill 1437.
We affirmed the order denying Martinez's petition for resentencing in Martinez III, supra, B300317, holding, even if it was error to determine whether Martinez had made a prima facie showing of eligibility for relief under former section 1170.95 without first appointing counsel, the error was harmless because the record of conviction-properly considered in determining whether a petitioner had made the required prima facie showing-established Martinez was ineligible for relief as a matter of law. In reaching that conclusion we explained we did not need to address whether the jury's special-circumstance finding, made many years prior to the Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, necessarily satisfied amended section 189, subdivision (e)(3)'s requirements for a felony-murder conviction, as the Attorney General argued. Instead, we agreed with the Attorney General's alternative argument that Martinez was ineligible for relief as a matter of law based on the jury's finding pursuant to section 12022.53, subdivision (d), that he had personally and intentionally discharged a firearm causing Cortes's death. Martinez, not Sandoval, we held, was Cortes's actual killer and, as such, was still guilty of felony murder under section 189, subdivision (e)(1).
We noted the issue when the right to appointed counsel arose in proceedings under former section 1170.95 was then pending before the Supreme Court in People v. Lewis, S260598.
As discussed, the Supreme Court granted Martinez's petition for review (S267782); held the matter pending its decision in People v. Lewis, supra, 11 Cal.5th 952; and on November 17, 2021, several months after filing Lewis, dismissed review pursuant to California Rules of Court, rule 8.528(b)(1). On November 19, 2021 we issued the remittitur in Martinez III.
3. Martinez's Second Petition for Resentencing
On March 8, 2022 Martinez, once again representing himself, filed a new petition for resentencing. His printed form petition, prepared for use after January 1, 2022, the effective date of Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), did not require Martinez to declare he was not Cortes's actual killer.
The superior court appointed counsel to represent Martinez and, after reviewing the petition and an opposition memorandum filed by the prosecutor arguing Martinez was ineligible for resentencing because of the jury's section 12022.53, subdivision (d), finding, found Martinez had made a prima facie showing of entitlement to relief and set the matter for an evidentiary hearing. However, at what appeared to be a status conference on July 27, 2022, after considering argument from the prosecutor and Martinez's appointed counsel concerning the significance of the superior court's denial of Martinez's first petition, this court's decision in Martinez III and the Supreme Court's order of November 17, 2021 dismissing Martinez's petition for review, the court denied the petition. Explaining its ruling, the court stated, "I hear loudly from where the petitioner is coming. I also look to the entire record in this case, and it seems to me it is collateral estoppel/res judicata when there is a decision of a California Supreme Court post-Lewis on a matter that has been held for the decision in People [v.] Lewis. The Supreme Court has spoken on the matter technically, whether I like it or not."
Martinez filed a timely notice of appeal.
DISCUSSION
1. Section 1172.6 Petitions for Resentencing
Under the ameliorative changes to the law relating to accomplice liability for murder effected by Senate Bill 1437, malice must be proved to convict a principal of murder except under the narrowed felony-murder rule set forth in revised section 189, subdivision (e), and may not be imputed based solely on an individual's participation in a crime (§ 188, subd. (a)(3)), thereby eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843; see People v. Reyes (2023) 14 Cal.5th 981, 984). As amended by Senate Bill No. 775, Senate Bill No. 1437's changes to the law of murder expressly apply to individuals convicted of attempted murder and voluntary manslaughter.
As revised by Senate Bill 1437, a conviction under the felony-murder rule is permitted only for a death occurring during the commission or attempted commission of a felony identified in section 189, subdivision (a), when the defendant was the actual killer (§ 189, subd. (e)(1)), aided or abetted the underlying felony with the intent to kill (§ 189, subd. (e)(2)), or was a major participant in the felony who acted with reckless indifference to human life (§ 189, subd. (e)(3)).
Section 1172.6 authorizes an individual convicted of murder under the felony-murder rule or murder or attempted murder based on the natural and probable consequences doctrine or any other theory under which malice is imputed based solely on that person's participation in a crime to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not now be convicted of murder or attempted murder under revised sections 188 and 189. The superior court may not engage in judicial factfinding or make credibility decisions before issuing an order to show cause pursuant to section 1172.6, subdivision (c), and conducting an evidentiary hearing pursuant to section 1172.6, subdivision (d), to determine whether the People have proved the petitioner is guilty of murder or attempted murder under current law. (People v. Lewis, supra, 11 Cal.5th at pp. 970-971.) However, when first evaluating whether the petitioner has carried the burden of making a prima facie showing of entitlement to relief, the superior court properly examines the record of conviction, "allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971; accord, People v. Williams (2022) 86 Cal.App.5th 1244, 1251.) "[I]f the record, including the court's own documents, contain[s] facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner." (Lewis, at p. 971, internal quotation marks omitted.)
We review de novo whether the superior court conducted a proper prima facie inquiry under section 1172.6, subdivision (c). (People v. Williams, supra, 86 Cal.App.5th at p. 1251; People v. Lopez (2022) 78 Cal.App.5th 1, 14; People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
2. The Supreme Court's Dismissal of Review Has No Legal Significance
A denial of a hearing by the Supreme Court-whether the initial denial of a petition for review or a subsequent dismissal of review previously granted-is not an expression of the opinion of the Supreme Court on the correctness of the judgment of the court of appeal or any discussion in the court of appeal opinion. (See Trope v. Katz (1995) 11 Cal.4th 274, 287, fn. 1; Vergara v. State of California (2016) 246 Cal.App.4th 619, 652a [statement of Cantil-Sakauye, C. J.] ["[A]n order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below. Rather, an order denying review presents only a determination that, for whatever reason, a grant of review is not appropriate at the time of the order"].)
As the Attorney General concedes, the superior court erred in ruling the Supreme Court's post-Lewis order dismissing review in Martinez III was a judgment precluding resentencing relief under principles of either issue or claim preclusion ("collateral estoppel/res judicata," as stated by the superior court). What that dismissal order did, the Attorney General correctly explains, was to leave our decision in Martinez III intact. (See Cal. Rules of Court, rule 8.528(b)(2) ["[w]hen the Court of Appeal receives an order dismissing review, the decision of that court is final and its clerk/executive officer must promptly issue a remittitur or take other appropriate action"].) And, the Attorney General continues, the superior court's order denying Martinez's second petition was proper even though the court's explanation for its ruling was technically incorrect because Martinez IIIs holding that Martinez was Cortes's actual killer and thus ineligible for resentencing relief under section 1172.6 is law of the case that bars resentencing relief.
The Advisory Committee Comment to rule 8.528(b)(2) states in part, "[A]fter the court decides a 'lead' case, its current practice is to dismiss review in any pending companion case (i.e., a 'grant and hold' matter under rule 8.512(c)) that appears correctly decided in light of the lead case and presents no additional issue requiring resolution by the Supreme Court or the Court of Appeal."
Although we reject Martinez's argument the Attorney General's law of the case argument has been forfeited because not asserted in the superior court (see In re Sheena K. (2007) 40 Cal.4th 875, 885 [forfeiture rule need not be applied by appellate court reviewing questions of law that do not require scrutiny of individual facts and circumstances, "a task that is well suited to the role of an appellate court"]; see also People v. Turner (2020) 10 Cal.5th 786, 807 ["'"a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason"'"]; People v. Smithey (1999) 20 Cal.4th 936, 972 [same]), we agree Martinez's second petition was not barred by our decision in Martinez III.
3. The Law of the Case Doctrine Does Not Bar Martinez's Second Petition
"Under the law of the case doctrine, when an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal. Absent an applicable exception, the doctrine requires both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong." (People v. Barragan (2004) 32 Cal.4th 236, 246 [cleaned up]; see Leider v. Lewis (2017) 2 Cal.5th 1121, 1127 ["The doctrine of law of the case deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case" (cleaned up)].) However, the doctrine is not applied "when an intervening decision has altered or clarified the controlling rules of law, or when the rule stated in the prior decision was '"a manifest misapplication" of the law resulting in "substantial injustice."'" (People v. Jurado (2006) 38 Cal.4th 72, 94; accord, People v. Gray (2005) 37 Cal.4th 168, 197; People v. Stanley (1995) 10 Cal.4th 764, 787; People v. Kocontes (2022) 86 Cal.App.5th 787, 820.)
These recognized exceptions to the law of the case doctrine apply here. Cases decided after Martinez III have held "the term 'actual killer' as used in the revised felony-murder rule of section 189, subdivision (e)(1) refers to someone who personally killed the victim and is not necessarily the same as a person who 'caused' the victim's death." (People v. Lopez, supra, 78 Cal.App.5th at p. 4; accord, People v. Vang (2022) 82 Cal.App.5th 64, 90 ["[t]o personally kill the victim is to directly cause the victim's death, not just to proximately cause it"]; cf. People v. Farfan (2021) 71 Cal.App.5th 942, 950-951 [a "successive" petition for resentencing under section 1172.6 is not procedurally barred when judicial interpretations of the statute afford the petitioner grounds for claiming eligibility for relief under the statute that were not previously available under other judicial interpretations].)
We agree with the Attorney General that, contrary to Martinez's argument, People v. Strong (2022) 13 Cal.5th 698 does not constitute an intervening change in law that would justify disregarding the law of the case doctrine in this appeal. Strong held a felony-murder special-circumstance conviction based on a finding pursuant to section 190.2, subdivision (a)(17), that the defendant had been a major participant in the underlying felony and had acted with reckless indifference to life that predated People v. Banks, supra, 61 Cal.4th 788 and People v. Clark, supra, 63 Cal.4th 522 did not necessarily preclude section 1172.6 eligibility. (Strong, at p. 721.) This court had already reached that same conclusion prior to the decision in Martinez III in People v. Harris (2021) 60 Cal.App.5th 939; and, more importantly, we stated in Martinez III, "We need not address the Banks/Clark issue in this case," affirming the superior court's denial of Martinez's first petition based on the actual killer provision of section 189, subdivision (e)(1), not the major participant provision in section 189, subdivision (e)(3). Similarly, Senate Bill No. 775 does not constitute an intervening change of governing law for purposes of Martinez's resentencing petition. That legislation extended the reach of Senate Bill 1437's ameliorative changes in the law of accomplice liability for murder to include attempted murder and voluntary manslaughter, permitted resentencing under section 1172.6 for individuals convicted of murder under any other "theory under which malice is imputed to a person based solely on that person's participation in a crime" (whatever that may be), codified the procedural requirements articulated in People v. Lewis, supra, 11 Cal.4th 952, and established evidentiary rules for hearings conducted after issuance of an order to show cause. It did not affect the requirements for proving an individual guilty of felony murder under section 189, subdivision (e)(1).
In People v. Vang, supra, 82 Cal.App.5th 64 our colleagues in the Third District considered on direct appeal the felonymurder conviction of a defendant with a long history of domestic violence whose wife jumped to her death from his moving car as he was kidnapping her (that is, after he had coerced her into his vehicle through force or fear when she tried to flee following an argument). (Id. at p. 69.) The defendant argued the trial court had improperly instructed the jury he was guilty of first degree felony murder if he "caused" his wife's death during the kidnapping because, after Senate Bill 1437's amendment to the felony-murder rule, he could be liable for felony murder only if the prosecution proved he was the "actual killer." The evidence, however, showed his wife had jumped from the vehicle on her own volition. Accordingly, the defendant contended, because there was no evidence he had directly caused her death, he was not the actual killer and not guilty of felony murder. (Ibid.)
The Vang court reviewed the legislative history of Senate Bill 1437 and emphasized that, after the bill had been amended (without explanation) to use the term "actual killer," rather than "personally committed the homicidal act," in section 189, subdivision (e)(1), the Senate Rules Committee still described the purpose of the legislation as revising the felony-murder rule to prohibit imputation of malice unless the person "'personally committed the homicidal act.'" (People v. Vang, supra, 82 Cal.App.5th at p. 87, citing Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.), as amended Aug. 20, 2018, p. 7.) The court then held, "In light of Senate Bill No. 1437's intent to impose punishment commensurate with the person's culpability, we conclude that the term 'actual killer' was intended to limit liability for felony murder-in cases where section 189, subdivision (e)(2) or (3) do not apply-to the actual perpetrator of the killing, i.e., the person (or persons) who personally committed the homicidal act. In other words, the intent was to conform California law to the 'agency theory' of felony-murder liability, under which criminal culpability is restricted to deaths directly caused by the defendant or an accomplice, as distinguished from the 'proximate cause' theory of felony murder, under which a defendant is responsible for any death that proximately results from the unlawful activity." (Id. at p. 88.)
Similarly, in People v. Lopez, supra, 78 Cal.App.5th 1 the court of appeal held a petitioner convicted of first degree felony murder with a robbery-murder special-circumstance finding had made a prima facie showing of eligibility for resentencing relief under section 1172.6 because it was possible the jury had reached its verdict without finding he was the victim's actual killer. (Id. at p. 4.) Reviewing the jury instructions from the petitioner's trial, the Lopez court concluded, "[B]y returning guilty verdicts and a true finding on the robbery-murder special circumstance, the jury necessarily found that defendant 'caused the death of another person' and 'did an act that caused the death of another person.' The jury necessarily found that the victim's death was the direct, natural, and probable consequence of defendant's act and the death would not have happened without the act." (Id. at p. 16.) But, the court explained, "The California Supreme Court has used the term 'personally killed' in referring to an actual killer's liability for felony-murder special circumstance" under section 190.2, subdivision (a)(17), and the legislative history of Senate Bill 1437 demonstrated the Legislature intended the revised felony-murder rule to include the same definition. (Lopez, at pp. 16-19.) Yet here, the court continued, "The jury might have found defendant, though not the actual killer, participated somehow in the home invasion robbery, and the victim's death was the direct, natural, and probable consequence of an act committed in the course of his participation." (Id. at p. 20.) Thus, the record of conviction did not establish the petitioner's ineligibility for resentencing relief as a matter of law. (Ibid.)
As Martinez observes, our holding in Martinez III that Martinez was ineligible for relief as a matter of law based on the section 12022.53, subdivision (d), finding that he had personally and intentionally discharged a firearm causing Cortes's death was made without the benefit of People v. Vang, supra, 82 Cal.App.5th 64 and People v. Lopez, supra, 78 Cal.App.5th 1- intervening decisions that clarified controlling law. But, unlike the Vang and Lopez courts of appeal, in Martinez III we failed to consider existing case law construing the term "actual killer" in the context of a felony-murder special-circumstance finding. (See, e.g., People v. Jennings (1988) 46 Cal.3d 963, 979 ["[a] felony-murder special circumstance is established even absent intent to kill, premeditation, or deliberation, if there is proof beyond a reasonable doubt that the defendant personally killed the victim in the commission or attempted commission of, and in furtherance of, one of the felonies enumerated in subdivision (a)(17) of section 190.2"]; People v. Garcia (2020) 46 Cal.App.5th 123, 152 ["[t]he actual killer is the person who personally kills the victim, whether by shooting, stabbing, or-in this case-taping his mouth closed, resulting in death by asphyxiation"].) Nor did we address the legislative history of Senate Bill 1437, which would have demonstrated the Legislature intended section 189, subdivision (e)(1), to incorporate this same, more limited definition of the term "actual killer"-a misapplication of the law potentially resulting in a substantial injustice to Martinez.
4. The Record of Conviction Does Not Establish as a Matter of Law That Martinez Personally Killed Cortes
The Attorney General urges us to affirm the denial of Martinez's petition even if it is not barred by our decision in Martinez III because, he contends, the record of conviction shows as a matter of law Martinez actually killed Cortes, even if the section 12022.53, subdivision (d), finding, in the abstract, would not necessarily include that determination. As the Attorney General explains, the prosecutor at trial argued to both juries that Martinez fired the fatal shots and Sandoval was an aider and abettor. And, he emphasizes, Martinez's defense counsel, while focusing in closing argument on whether Cortes's death occurred during the commission of an attempted robbery, acknowledged, "We know that Mr. Martinez shot Mr. Cortes." The Attorney General then asserts, "The separate juries concluded both appellant and Sandoval were guilty of felony murder, but only appellant's jury determined he shot and killed [Cortes]. . . . [¶] Under the circumstances of this case, the defense concession and the jury's true finding on the section 12022.53, subdivision (d) enhancement established that appellant was found to be the actual killer."
The Attorney General's reliance on the true finding on section 12022.53, subdivision (d), as to Martinez and the absence of a similar finding by Sandoval's jury to contend Martinez personally killed Cortes is misplaced (as was our discussion of that difference in Martinez III). The separate jury's verdict in Sandoval's case is not part of Martinez's record of conviction and not properly considered at the prima facie stage of a section 1172.6 proceeding. (See People v. Flores (2022) 76 Cal.App.5th 974, 988 [opinion affirming codefendant's conviction not part of petitioner's record of conviction].) Moreover, as part of the prosecutor's trial strategy, Sandoval's jury was not asked to consider a section 12022.53, subdivision (d), firearm-enhancement allegation. Thus, Sandoval's jury determined only that Sandoval had fired his semiautomatic weapon during the shootout at the hardware store, finding true the section 12022.53, subdivision (c), enhancement-a fact confirmed by the ballistics evidence-but made no finding whether he fired the fatal shots. And, of course, Martinez's jury did not consider whether Sandoval had caused Cortes's death, nor was it asked to decide whether Martinez had personally committed the homicidal act; it considered only, as instructed by CALJIC No. 17.19.5, whether Martinez's actions set in motion a chain of events that produced, as a direct consequence, Cortes's death.
As for Martinez's counsel's concession during closing argument, what he said was that Martinez shot Cortes. He did not say Sandoval had not also shot Cortes (who, as noted, suffered multiple gunshot wounds) and did not adopt the prosecutor's theory that Martinez fired the fatal bullet. Nor was it significant at the time of the joint trial in 2004 which defendant was the actual killer for purposes of the felony-murder rule. What was important, and thus what counsel discussed with the jury in his closing argument, was whether the prosecutor had proved the gun battle during which Martinez, Sandoval and Cortes all fired their weapons had occurred during an attempted robbery or while Martinez and Sandoval were trying to collect an unpaid drug debt.
Immediately after acknowledging that Martinez had shot Cortes, defense counsel asked the jury to consider whether "the shooting occur[red] because Mr. Martinez went there in order to collect money and that a gun, gunshots ensued, a gun battle inside. That is basically-because if you believe Mr. Martinez's testimony, then that inherently raises a reasonable doubt about whether or not there is an attempted robbery."
Martinez's jury rejected Martinez's more benign version of events. It also found he had fired his gun, hitting Cortes (as defense counsel conceded), and by doing so set in motion a chain of events that caused Cortes's death. It did not need to find-and the record of conviction provides no basis for us to conclude as a matter of law that it did find-that Martinez personally killed the victim.
As has been repeatedly recognized, the Legislature in section 1172.6 deliberately set a very low bar for establishing a prima facie case for relief. (See, e.g., People v. Lewis, supra, 11 Cal.5th at p. 972; People v. Lopez, supra, 78 Cal.App.5th at p. 20.) However strong the evidence of Martinez's role in Cortes's death may be, we are not permitted at the prima facie stage of the proceedings to weigh that evidence to conclude he is ineligible for resentencing relief. Such a determination is permissible only after an evidentiary hearing pursuant to section 1172.6, subdivision (d).
Martinez and the Attorney General agree, at least implicitly, that whether Martinez is still guilty of felony murder under section 189, subdivision (e)(3), as a major participant in the attempted robberies who acted with reckless indifference to human life can be determined only after an evidentiary hearing pursuant to section 1172.6, subdivision (d).
DISPOSITION
The July 27, 2022 postjudgment order denying Martinez's petition for resentencing is reversed. On remand the superior court is to issue an order to show cause and to conduct further proceedings in accordance with section 1172.6, subdivision (d).
We concur: SEGAL, J., FEUER, J.