Opinion
B298821
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. ARON MIRON, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA037024) APPEAL from an order of the Superior Court of Los Angeles County, Suzette Clover, Judge. Affirmed. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Aron Miron was convicted of three counts of second degree murder and other crimes in connection with a drunken driving incident and was sentenced to three consecutive terms of 15 years to life. Appellant filed a petition for resentencing under Penal Code section 1170.95. After reviewing appellant's record of conviction, the trial court found that he was not eligible for relief and summarily denied his petition without appointing counsel. Appellant challenges the summary denial of his petition and the trial court's failure to appoint counsel. We find no error and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
I. Convictions
An amended information filed on February 8, 2000 charged appellant with three counts of murder (§ 187, subd. (a)), three counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), and one count of driving under the influence (DUI) and causing injury (Veh. Code, § 23153, subd. (a)). The amended information further alleged, as to the manslaughter and DUI counts, that appellant suffered two prior convictions for DUI (Veh. Code, § 23152, subd. (a)). Appellant pled not guilty and proceeded to jury trial.
We summarized the facts adduced at appellant's trial in our opinion resolving his direct appeal, People v. Miron (Oct. 24, 2001, B142913) [nonpub. opn.]). Both appellant and respondent incorporate portions of that opinion into their briefs, and we take judicial notice of it.
As we summarized in our previous opinion, appellant attended a wedding reception on Tujunga Canyon Road on August 22, 1998. Appellant arrived in his car at approximately 7:30 p.m., with his girlfriend, Maria Martinez, and two others, Felix Alvarez and Maria Galindo Alvarez. Several wedding guests testified about appellant's apparent intoxication. One stated that he placed six beers on appellant's table when appellant arrived, even though appellant smelled of alcohol and was swaying when he and the others arrived. Another testified that she saw beer cans all over appellant's table at approximately 8:30 p.m. A third testified that she saw appellant and three other people walking down a dirt hill toward the parking lot at 9:00 p.m. Appellant was swaying and having difficultly standing; he appeared to be drunk.
At 10:30 p.m., Jesus Sandoval and three others were driving back from a mountain retreat when they saw appellant standing on the side of the road. Appellant was bloody and appeared to be injured. Sandoval stopped the car and appellant got in; he smelled of beer and appeared to be intoxicated. Appellant told Sandoval that he had been drinking in a park with his girlfriend when he was attacked. The attacker drove away in appellant's car with appellant's girlfriend. Appellant repeatedly asked Sandoval not to call the police. Sandoval dropped appellant off at a restaurant, from which appellant called his girlfriend's daughter, Veronica Meza. When Meza arrived at the restaurant, appellant smelled of alcohol and appeared to be extremely intoxicated. He responded only "yes" when Meza repeatedly asked him where her mother was.
Los Angeles Police Department officer Arno Clair arrived at the restaurant and observed that appellant had facial injuries and appeared intoxicated. Appellant told Clair that he had been attacked by two men near the intersection of Sunburst and Foothill Boulevard.
Appellant was transported to the hospital, where he told California Highway Patrol officer Manuel Rodriguez that he had been carjacked. He subsequently admitted that he had been involved in a car accident, but did not admit until later that he had been the driver. Appellant claimed he had a flat tire and denied consuming any alcohol. Later, he admitted to consuming four beers before driving.
Appellant's car was subsequently found in a drainage culvert off Little Tujunga Road. Martinez, Alvarez, and Galindo Alvarez were with the car. They had all been killed.
An accident reconstruction expert from the California Highway Patrol opined that appellant's car had been traveling at least 37 miles per hour when it went off the road. There were no skid marks. The expert opined that the driver of the car had been going too fast and made an unsafe turning movement. Appellant presented no evidence in his defense.
As relevant here, the court instructed the jury with CALJIC instructions defining homicide (CALJIC No. 8.00), murder (CALJIC No. 8.10), malice aforethought (CALJIC No. 8.11), second degree murder (CALJIC No. 8.31), and homicide—cause (CALJIC No. 8.55). The court further instructed "as a matter of law that if you find any of [the] counts to be murders they are in the second degree." (Modified CALJIC No. 8.70.) The court did not give any instructions on felony murder, aiding and abetting, or the natural and probable consequences doctrine.
The jury found appellant guilty on all seven counts. Appellant later admitted his priors. The trial court sentenced appellant to a term of 15 years to life on each of the murders, to run consecutively. The trial court imposed and stayed sentences of 15 years to life on each of the manslaughter counts, and imposed and stayed the high term of four years on the DUI count.
II. Direct Appeal
On direct appeal, we rejected appellant's contention that there was insufficient evidence of implied malice to support his second degree murder convictions. We also rejected his contention that the court erred in instructing the jury with CALJIC No. 17.41.1 regarding juror misconduct. We agreed with appellant and the Attorney General, however, that appellant should not have been convicted both of gross vehicular homicide while intoxicated and the lesser included offense of driving under the influence causing injury. We accordingly reversed his conviction on the DUI count but otherwise affirmed.
III. Section 1170.95 Petition
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), which "amend[ed] 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(f).) In addition to other amendments discussed more fully below, SB 1437 added section 1170.95, which establishes a procedure by which individuals convicted of murder under a felony murder theory or the natural and probable consequences doctrine can seek vacation of those convictions and resentencing. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677; see also People v. Lewis (2020) 43 Cal.App.5th 1128, 1134, review granted March 18, 2020, No. S260598 (Lewis).) The provisions of SB 1437 became effective on January 1, 2019.
The Supreme Court granted review in Lewis to consider two issues: "(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)." (Lewis, supra, S260598) .) The Supreme Court also granted review in People v. Cornelius (2020) 44 Cal.App.5th 54, review granted March 18, 2020, No. S260410 (Cornelius) and People v. Verdugo (2020) 44 Cal.App.5th 320, review granted March 18, 2020, No. S260493 (Verdugo). The Court deferred briefing in Cornelius and Verdugo pending its consideration and disposition of Lewis or further order. (Cornelius, supra, S260410; Verdugo, supra, S260493.)
On February 19, 2019, appellant, in propria persona, filed a form petition for resentencing under section 1170.95. The form petition has several boxes the petitioner may (or must) check. Appellant checked boxes indicating that his murder conviction was based upon the felony murder rule or the natural and probable consequences doctrine, he could not now be convicted of murder due to changes made to sections 188 and 189, and requesting that counsel be appointed for him "during this resentencing process." Appellant attached to his petition as exhibits a reporter's transcript of his June 8, 2000 sentencing hearing and a "Legal Status Summary" documenting his parole eligibility date and his receipt and loss of custody credit while incarcerated. The petition was received at the appropriate courthouse on April 16, 2019.
The trial court issued an order summarily denying appellant's petition on April 29, 2019. The court explained: "The record in this case has been reviewed by the Court. Petitioner does not appear to be eligible for relief under this new law. Penal Code section 1170.95 applies only where a murder conviction was predicated on vicarious liability pursuant to the felony murder rule or natural and probable consequences doctrine. Petitioner was convicted of three counts of second-degree implied malice murder. The Court of Appeal found ample circumstantial evidence to support the jury's verdicts, noting that Petitioner was driving recklessly while intoxicated with knowledge that driving after drinking was life threatening. The jury was instructed on an implied malice theory of murder only. [¶] Pursuant to Penal Code section 1170.95(b)(2), Petitioner has not demonstrated eligibility for relief. Therefore, the petition is denied without prejudice. Petitioner may file a new petition demonstrating eligibility for relief if he can establish his case falls within the scope of the new law." The trial court did not hold a hearing or appoint counsel.
Appellant timely appealed.
DISCUSSION
I. Legal Principles
The primary purpose of SB 1437 is to align a person's culpability for murder with his or her own actions and subjective mens rea. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To effectuate that purpose, SB 1437 amended sections 188 and 189. As amended, section 188, subdivision (a)(3) now provides that "in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Section 189 now provides that a participant in qualifying felonies during which a death occurs generally will not be liable for murder unless that person was (1) "the actual killer," (2) a direct aider and abettor in first degree murder, or (3) "a major participant in the underlying felony [who] acted with reckless indifference to human life." (§ 189, subd. (e).)
This limitation does not apply "when the 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, subd. (f).)
SB 1437 also added section 1170.95. Section 1170.95 permits a person convicted of murder on a charging document that allowed the prosecution to argue felony murder or the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and resentence on any remaining counts if the person could not be convicted of murder under sections 188 and 189 as amended by SB 1437. (§ 1170.95, subd. (a).) A petition for relief under section 1170.95 must include: "(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [¶] (C) Whether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1).) If any of this information is missing "and cannot be readily ascertained by the court," the court may deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section 1170.95, subdivision (c) prescribes "a two-step process" for the court to determine if it should issue an order to show cause. (Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must "review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).) If the petitioner has made this initial prima facie showing, he or she is entitled to appointed counsel, if requested. (Ibid.; Verdugo, supra, at p. 328; Lewis, supra, 43 Cal.App.5th at p. 1140.) The prosecutor must file a response, and the petitioner may file a reply. (§ 1170.95, subd. (c).) The court then reviews the petition a second time. If, in light of the parties' briefing, it concludes the petitioner has made a prima facie showing that he or she is entitled to relief, it must issue an order to show cause. (Ibid.; Verdugo, at p. 328; Lewis, at p. 1140.)
"Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts." (Verdugo, supra, 44 Cal.App.5th at 327, citing § 1170.95, subd. (d)(1).) At the hearing, the parties may rely on the record of conviction or present "new or additional evidence" to support their positions. (§ 1170.95, subd. (d)(3).)
We independently review whether the trial court properly interpreted and fulfilled its duty under the statute. (See Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 287 [questions of law are reviewed de novo]; cf. Verdugo, supra, 44 Cal.App.5th at p. 328, fn. 8 [appellate court's principal task in interpreting a statute is to determine Legislative intent and give effect to the law's purpose].)
II. Analysis
Appellant contends that "summary denial of his petition was error and he was entitled to appointment of counsel" because his petition asserted under penalty of perjury that the required conditions of section 1170.95 were met. He further contends that the trial court acted inconsistently with section 1170.95 by failing to use the term "prima facie case" and "going behind appellant's allegations to consider whether and how in further litigation they might be contradicted."
Every Court of Appeal to have considered the issue has held that in determining whether a petitioner has made a prima facie case for relief under section 1170.95, a trial court may look to documents that are part of the record of conviction or are otherwise in the court file. (See Verdugo, supra, 44 Cal.App.5th at 329 [documents in court file or record of conviction should be available to trial court in connection with first prima facie determination under subd. (c)]; Lewis, supra, 43 Cal.App.5th at 1138 [trial court may summarily deny petition without briefing or appointment of counsel if court file shows petitioner was convicted of murder without instruction or argument based on felony-murder rule or natural and probable consequences doctrine]; Cornelius, supra, 44 Cal.App.5th at pp. 57-58 [affirming summary denial of petition based on verdict, trial transcript, and prior appeal].) We agree with the analyses of our sister courts and reject appellant's contention that these cases were wrongly decided.
In Verdugo, the Court of Appeal observed that section 1170.95, subdivision (b)(2) allows a court to consider readily ascertainable documents that are in the court file or otherwise part of the record of conviction to ensure the petition meets the requirements of subdivision (b)(1). (Verdugo, supra, 44 Cal.App.5th at p. 329.) It reasoned that those same documents "should similarly be available to the court in connection with the first prima facie determination required by subdivision (c)." (Ibid.) We agree. A trial court evaluating whether a petitioner has made a prima facie showing in a section 1170.95 petition is not required to accept those allegations at face value and may also examine the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) However, the contents of the record of conviction defeat a prima facie showing only when the record "show[s] as a matter of law that the petitioner is not eligible for relief." (Lewis, at p. 1138; Verdugo, at p. 330; see also Cornelius, supra, 44 Cal.App.5th at p. 58.) This is true regardless of whether the trial court uses the term "prima facie case" in its analysis.
The record of conviction in this case demonstrates that appellant is not eligible for relief as a matter of law. The jury found that he, the sole principal in the crime, acted with malice aforethought. We previously affirmed that sufficient evidence supported that finding of implied malice. Moreover, it is clear that appellant was not convicted under a felony murder or natural and probable consequences theory. The jury was not instructed with those theories. Instead, it was instructed exclusively on implied malice, which remains a valid basis on which a murder conviction may be predicated.
Appellant argues that he was deprived of his opportunity to present "new or additional evidence" under section 1170.95, subdivision (d)(3). He asserts that "[n]either this Court nor the trial court can categorically state at this point, beyond a reasonable doubt, that any such evidence will not entitle appellant to resentencing." Lewis, supra, 43 Cal.App.5th at p. 1139 rejected an identical argument. Even if we assume, without deciding, that section 1170.95 permits a petitioner to present evidence from outside the record to contradict a fact established by the record of conviction, the evidence appellant included with his petition did no such thing. Moreover, whatever evidence counsel might present regarding the applicability of the felony murder rule or the natural and probable consequences theory, appellant would stand convicted as a principal who acted with malice aforethought. This excludes him from the statute.
Appellant finally contends that the trial court's "failure to appoint counsel for appellant is a separate but related error that requires reversal," because "[d]enial of even a statutory right to counsel is structural error that is not amenable to harmless-error analysis." The case he relies on in support of this proposition, People v. Fryhaat (2019) 35 Cal.App.5th 969 (Fryhaat), does not support his position. Fryhaat concluded structural error occurred because the defendant did not receive a hearing to which all movants were entitled under the statute at issue, section 1473.7. (See Fryhaat, supra, 35 Cal.App.5th at p. 978.) Furthermore, Fryhaat interpreted section 1473.7 to "provide the right to appointed counsel where an indigent moving party has set forth factual allegations stating a prima facie case for entitlement to relief under the statute." (Fryhaat, supra, 35 Cal.App.5th at p. 981.) That is the same standard that applies here, and appellant did not meet it.
DISPOSITION
The order of the trial court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. CURREY, J.