Opinion
F079997
05-19-2021
THE PEOPLE, Plaintiff and Respondent, v. CARLOS JESUS OSUNA, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Lewis A. Martinez, and Louis M. Vasquez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CMS3764C)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kings County. Robert S. Burns, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Lewis A. Martinez, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Detjen, J. and Peña, J.
-ooOoo-
INTRODUCTION
Defendant Carlos Jesus Osuna appeals the trial court's denial of his petition for resentencing pursuant to Penal Code section 1170.95. (Undesignated statutory references are to the Penal Code.) He asserts the court erred in summarily denying his section 1170.95 petition before appointing him counsel because his petition established a prima facie case for resentencing. He further contends the court's denial of his petition without appointing counsel violated his constitutional rights to due process and assistance of counsel.
We affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pled guilty to one count of "murder with malice" in violation of section 187, subdivision (a) in 2017.
In 2019, defendant submitted a petition for resentencing pursuant to section 1170.95, using a form prepared by Re:Store Justice, a cosponsor of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). He checked boxes stating a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine; he pled guilty or no contest to first or second degree murder in lieu of going to trial because he believed he could have been convicted of first or second degree murder at trial pursuant to the felony-murder rule or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box indicating he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony-murder doctrine, and a box stating, "I request that this court appoint counsel for me during this re-sentencing process." He did not attach or include any additional information or documents to his petition.
The trial court summarily denied the petition in July 2019, concluding defendant "is not entitled to relief as a matter of law." The court stated in its order:
"The court file in Case No. 14CMS3764C reflects that [defendant] was the actual killer and was not convicted under a theory of felony murder of any degree, or a theory of natural and probable consequences. There are no jury instructions for aiding and abetting felony murder, or natural and probable consequences."
DISCUSSION
Defendant challenges the denial of his petition for resentencing. We affirm the court's denial.
1. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[s] 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).) It amends section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it adds section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)
Accordingly, section 188 now provides that, "[e]xcept as stated in subdivision (e) of Section 189, 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), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, "All murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
Newly enacted section 1170.95 permits those "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts ...." (Id., subd. (a).) An offender may file a petition under section 1170.95 where all three of the following conditions are met:
"(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) The 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) The 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)(1)-(3).)A trial court receiving a petition under section 1170.95 "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." (§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial court "shall issue an order to show cause." (Ibid.) The trial court must then hold a hearing "to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been [sic] sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).)
2. Analysis
Defendant, who is represented by counsel on appeal, asserts the court erred in denying his 1170.95 petition before appointing him counsel because his petition established a prima facie case for resentencing. He contends he was only required to "delineate in his petition sufficient facts to meet the low threshold to make out a prima facie case. Once that was done, the court was obligated to appoint counsel." He argues the court's denial of his petition without granting his request for counsel violated his constitutional rights to due process and assistance of counsel. Notably, defendant does not challenge the court's conclusion the court file established he was the actual killer and, thus, categorically ineligible for relief. Instead, he states, "The facts are not part of the present appeal." The People respond defendant's appeal should be dismissed because defendant failed to provide a sufficient record for review. Alternatively, they assert the statute does not bar the court from examining the record of conviction, including the jury findings from the trial regarding special circumstance allegations or enhancements, the instructions detailing the theories of murder under which defendant was prosecuted, defendant's convictions on other counts in the same case that shed light on the circumstances of the murder, or holdings of a reviewing court related to the murder conviction. They assert the court correctly determined from defendant's court file he was the actual killer and not convicted under a theory of felony murder of any degree or under a natural and probable consequences theory.
Our sister courts have adopted conflicting interpretations of whether section 1170.95 requires a trial court to appoint a petitioner counsel immediately upon the filing of a petition for resentencing under section 1170.95. (Compare People v. Lewis (2020) 43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020, S260598 (Lewis) [court does not err by denying petition for resentencing without appointing petitioner counsel because duty to appoint counsel does not arise unless and until the court makes threshold determination petitioner "'falls within the provisions'" of statute] and People v. Verdugo (2020) 44 Cal.App.5th 320, 332-333, review granted Mar. 18, 2020, S260493 [petitioner was not entitled to appointment of counsel before initial prima facie review of eligibility for relief] with People v. Cooper (2020) 54 Cal.App.5th 106, 112, review granted Nov. 10, 2020, S264684 ["when a petitioner files a facially sufficient petition requesting counsel, ... the trial court must appoint counsel and give the parties an opportunity to submit briefing before denying the petition"]; People v. Daniel (2020) 57 Cal.App.5th 666, 673-674, review granted Feb. 24, 2021, S266336 [reiterating conclusion in Cooper that trial court must appoint counsel for a petitioner who files a facially sufficient petition before the court denies petition for failure to make prima facie showing of entitlement to relief].)
But here, we need not decide whether the trial court should have appointed defendant counsel after he filed his petition because we cannot conclude defendant was prejudiced by the lack of counsel. As the People note, defendant has not provided a statement of facts in his opening brief or any other evidence from which we can conclude the court erroneously determined he was categorically ineligible for relief as the actual killer who was not convicted under a theory of felony murder or under the natural and probable consequences doctrine. And we do not agree with defendant's contention that any alleged error by the trial court in failing to appoint counsel at this juncture was structural, requiring per se reversal. Rather, any alleged error by the trial court in failing to appoint defendant counsel after he filed a petition and prior to the issuance of an order to show cause is subject to review for harmless error. (See People v. Cooper, supra, 54 Cal.App.5th at p. 123, review granted [rejecting argument failure to appoint counsel after petition filing requires per se automatic reversal and instead concluding harmless error analysis applies]; People v. Daniel, supra, 57 Cal.App.5th at pp. 674-675, review granted [holding violation of statutory right to counsel upon filing a facially sufficient petition is not structural error, but instead "susceptible to review for prejudice"]; accord, People v. Law (2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020, S262490.)
Defendant's reliance upon People v. Rouse (2016) 245 Cal.App.4th 292 (Rouse) is misplaced. In Rouse, an incarcerated defendant filed a petition for resentencing pursuant to section 1170.18 after Proposition 47 reclassified theft of property valued at less than $950 as misdemeanor shoplifting. (Rouse, at pp. 294-295.) At the hearing on his petition, the defendant was not present or represented by counsel. (Id. at p. 296.) The court found the defendant's petition to be "well taken." (Ibid.) It permitted the People to amend the defendant's commercial burglary charge, granted the defendant's petition, vacated the original sentence, and resentenced the defendant. (Ibid.) The Second District Court of Appeal, Division Eight, concluded the defendant was entitled to the assistance of counsel at the resentencing hearing on his petition under section 1170.18, subdivision (a). (Rouse, at p. 301.) The court therefore reversed and remanded for a new resentencing hearing on that basis. (Ibid.)
The Rouse court did not consider whether a defendant's right to counsel attaches at some point before a resentencing hearing is held, as is at issue here. And we have found no cases, nor does defendant point us to any, that hold a court's failure to appoint a petitioner counsel before a hearing under section 1170.95 amounts to structural error. Thus, Rouse does not assist defendant.
Defendant also argues our court "should not determine harmless error in the first instance on appeal." In support, he asserts he "has a statutory right to a hearing in which the prosecutor bears the burden of proof beyond a reasonable doubt and in which [he] has the opportunity to present additional evidence," and "[t]hat hearing has not yet taken place." He asserts permitting our court to "find harmless error based on material in a court file, makes meaningless the statutory entitlement to present new evidence in support of the petition." We are not persuaded.
First, we note defendant only has a "statutory right to a hearing" under section 1170.95 if he has made a prima facie showing of entitlement to relief. (§ 1170.95, subds. (c)-(d).) Furthermore, other than in the case of structural error, it is the appellant's burden on appeal to establish error and prejudice. (See People v. Watson (1956) 46 Cal.2d 818, 834-837; accord, People v. Coley (1997) 52 Cal.App.4th 964, 972 ["An appellant has the burden to perfect the appeal and to show error and resulting prejudice"].) And here, defendant has not established prejudice "under any standard of review." (People v. Edwards (2020) 48 Cal.App.5th 666, 675, review granted July 8, 2020, S262481, citing Chapman v. California (1967) 386 U.S. 18, 24 [constitutional error] and People v. Watson, supra, at p. 836 [state law error]; see also People v. Daniel, supra, 57 Cal.App.5th at p. 678, review granted [applying harmless error standard under Watson]; People v. Law, supra, 48 Cal.App.5th at p. 826, review granted [applying harmless beyond a reasonable doubt standard under Chapman].) Rather, nothing in the record before us suggests the trial court's conclusion that defendant was categorically ineligible for relief was erroneous. Indeed, defendant himself does not argue the facts do not support such a determination. And, we presume the trial court's order is correct; any "error must be affirmatively shown." (People v. Giordano (2007) 42 Cal.4th 644, 666; accord, In re Julian R. (2009) 47 Cal.4th 487, 498-499 [noting the "'cardinal principle of appellate review': A '"'judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown'"'"]; People v. Stowell (2003) 31 Cal.4th 1107, 1114 ["where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order"]; In re Sade C. (1996) 13 Cal.4th 952, 994 ["An appealed-from judgment or order is presumed correct"].) Accordingly, because the record before us provides us no basis to conclude the trial court's order that defendant was categorically ineligible for relief was erroneous, we conclude any alleged error by the court in failing to appoint defendant counsel after he filed his petition was harmless.
We reject defendant's sole contention.
DISPOSITION
We affirm the court's order denying defendant's section 1170.95 petition for resentencing.