Opinion
F087008
06-25-2024
THE PEOPLE, Plaintiff and Respondent, v. CARLOS JESUS OSUNA, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, and William K. Kim, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County, No. 14CMS3764C Michael J. Reinhart, Judge.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, and William K. Kim, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2023, defendant Carlos Jesus Osuna petitioned the superior court, pursuant to section 1172.6 of the Penal Code for resentencing on his 2017 conviction for second degree murder. The superior court summarily denied the petition by written order filed on August 16, 2023, before appointing defendant counsel, finding defendant had previously filed a petition pursuant to former section 1170.95 that was denied on July 11, 2019.
Undesignated statutory references are to the Penal Code. Former section 1170.95 has been renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.
Defendant appeals from the superior court's August 16, 2023, denial of his petition for resentencing. Appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Counsel's Delgadillo/Wende brief further stated defendant requested counsel to raise specific issues for this court to address about the denial of his second petition, and defendant submitted his own letter brief and requested this court address certain issues.
Based upon the contentions raised by defendant and pursuant to our independent review of the record, we requested supplemental briefing from the parties pursuant to Government Code section 68081 regarding whether defendant's petition for resentencing was barred by the doctrine of issue preclusion; whether an exception to the doctrine applied; and whether the court prejudicially erred in failing to appoint defendant counsel before denying his section 1172.6 petition below.
We now reverse the court's order and remand for further proceedings consistent with this opinion.
PROCEDURAL HISTORY
In 2017, defendant pleaded no contest to one count of murder "with malice aforethought" in violation of section 187, subdivision (a). He was sentenced to a term of 15 years to life.
In 2019, defendant filed a form petition for resentencing pursuant to former section 1170.95 (now § 1172.6) in which 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 No. 1437 (2017-2018 Reg. Sess.). (People v. Osuna (May 19, 2021, F079997) [nonpub. opn.].) 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 he requested counsel be appointed for him during the resentencing process. (People v. Osuna, supra, F079997.) He did not attach or include any additional information or documents to his petition. (Ibid.)
The superior court denied the petition without holding a hearing or appointing defendant counsel, concluding defendant was "not entitled to relief as a matter of law." (People v. Osuna, supra, F079997.) In its written order it stated: "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." (People v. Osuna, supra, F079997.)
In his appeal from the order denying his first petition for resentencing, defendant argued he stated a prima facie case for relief and the court erred in failing to appoint him counsel in violation of his constitutional rights to counsel and due process. (People v. Osuna, supra, F079997.) Defendant did not challenge the court's conclusion the court file established he was the actual killer and, thus, categorically ineligible for relief, but instead he stated, "The facts are not part of the present appeal." (People v. Osuna, supra, F079997.)
We rejected defendant's challenges, concluding defendant had not established he was prejudiced by the lack of counsel and "nothing in the record ... suggests the trial court's conclusion that defendant was categorically ineligible for relief was erroneous." (People v. Osuna, supra, F079997.) Defendant filed a petition for review with the California Supreme Court that was granted and deferred pending finality of People v. Lewis (2021) 11 Cal.5th 952. (People v. Osuna, supra, F079997, review granted July 28, 2021, S269125.) The California Supreme Court subsequently dismissed review, remanded the matter to our court, and our court issued the remittitur on January 28, 2022. (People v. Osuna, S269125)
On June 22, 2023, petitioner filed another form petition for resentencing pursuant to section 1172.6. He checked boxes stating a charging document was filed against him that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine; he was convicted of murder, attempted murder, or manslaughter following a trial or he accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019. He also checked a box requesting that counsel be appointed to represent him. He did not attach any documentation or evidence to his petition for relief.
The court summarily denied the petition in a written order filed on August 16, 2023. The record does not reflect a hearing was held or that defendant was appointed counsel before the court denied the petition. In its order, the court stated it previously summarily denied defendant's 2019 petition for resentencing pursuant to former section 1170.95 and our court affirmed its order in case number F079997. It noted the California Supreme Court granted defendant's petition for review (No. S269125) and deferred it pending finality of People v. Lewis, supra, 11 Cal.5th 952. Thereafter, the California Supreme Court dismissed review and remanded the matter to our court, which filed the remittitur on January 28, 2022, affirming the denial of defendant's former section 1170.95 petition. It stated, "[f]or the foregoing reasons" the petition is denied.
DISCUSSION
I. Appellate Review and Delgadillo
In Delgadillo, the court held that a Wende analysis is not applicable to a trial court's order that denies a petition for postconviction relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 222.) Delgadillo held that instead of using the process outlined in Wende, appointed counsel and the appellate court should do the following: "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Delgadillo, at pp. 231-232.)
"If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.... If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned. [Citation.] ... While it is wholly within the court's discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal." (Delgadillo, supra, 14 Cal.5th at p. 232.)
As noted above, appellate counsel filed a brief pursuant to Delgadillo from the denial of defendant's petition. The brief also included counsel's declaration that defendant was advised he could file his own brief with this court. At the conclusion of her Delgadillo/Wende brief, counsel wrote that "[defendant] personally requests that this Court address the following:" (1) "Whether [defendant] was entitled to an evidentiary hearing on his petition pursuant to section 1172.6 on the basis of a nolo contendere plea, and the investigative reports (Conf. CT 51-412), which indicate the crime at issue was committed during the course of a robbery, and that another individual may have been the actual shooter?" and (2) "Whether appellant was entitled to appointment of counsel as to his second petition, which the trial court summarily denied without appointing counsel, citing it was duplicative of his first petition?"
After receiving counsel's Delgadillo/Wende brief, this court sent defendant an order, pursuant to Delgadillo, stating his counsel filed an opening brief pursuant to Wende that sets out the applicable facts and law but states the attorney was unable to find any arguable issues on appeal. It advised that the appeal may be dismissed as abandoned if defendant failed to submit a supplemental letter or brief within 30 days. Defendant filed a supplemental brief with this court in response to our Delgadillo order.
Based upon the contentions raised by defendant and pursuant to our independent review of the record, we requested and received supplemental briefing from the parties pursuant to Government Code section 68081 regarding whether defendant's June 22, 2023, petition for resentencing was barred by the doctrine of issue preclusion; whether an exception to the doctrine applied; and whether the court prejudicially erred in failing to appoint defendant counsel before denying his section 1172.6 petition below. We address these issues and, for the reasons stated, reverse the trial court's order and remand for further proceedings.
II. Applicable Law Regarding Section 1172.6
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (20172018 Reg. Sess.) (Senate Bill 1437) "to amend the felony murder rule and the natural and probable consequences doctrine ... 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); accord, People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) The bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, People v. Gentile (2020) 10 Cal.5th 830, 842843.) The bill amended the felony-murder rule by providing that a participant in a qualifying felony is liable for murder only if the victim was a peace officer in the performance of his or her duties, or the defendant was the actual killer, aided and abetted the actual killer in the commission of first degree murder with the intent to kill, or was a major participant in the felony and acted with reckless indifference to human life. (§ 189, subds. (e), (f); accord, Strong, at p. 708.)
Senate Bill 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons convicted of "felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, People v. Gentile, supra, 10 Cal.5th at p. 853.) Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and "if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner." (§ 1172.6, subd. (b)(1), (3).) The prosecutor "shall file and serve a response" within 60 days after service of a petition that meets the requirements of section 1172.6, subdivision (b), and the petitioner may serve a reply within 30 days after the prosecutor's response is served. (§ 1172.6, subd. (c).) "After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie showing that he or she is entitled to relief." (§ 1172.6, subd. (c); accord, Strong, supra, 13 Cal.5th at p. 708.) In determining whether the petitioner has made a prima facie showing, the court may rely on the record of conviction. (People v. Lewis, supra, 11 Cal.5th at pp. 970-971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
If the trial court determines the petitioner has met his or her prima facie burden, the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts. (People v. Gentile, supra, 10 Cal.5th at p. 853; accord, § 1172.6, subds. (c), (d)(1).) At this evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder ... under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1172.6 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, he would have obtained a more favorable result. (People v. Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Analysis
Defendant argues the doctrine of issue preclusion should not have barred consideration of his June 22, 2023, section 1172.6 petition for resentencing in light of intervening changes in the law and "equitable considerations." The People assert our finding in defendant's prior appeal that the failure to appoint defendant counsel with regard to his first petition "is conclusive." They further assert defendant had the opportunity to raise the argument that his plea was not an admission to a particular theory of liability during the prior proceedings, though he failed to do so. And, they contend, there have been no significant changes in the law affecting defendant as it was established law at the time of his prior petition that a guilty plea is simply an admission of the elements of a charge and not the theory of liability for the crime. They further contend, even if defendant's petition was not procedurally barred by the doctrine of issue preclusion, the failure to appoint him counsel was harmless because the record provides no basis to conclude his petition otherwise would not have been summarily denied.
Here, defendant's second petition for resentencing was similar in most respects to his first petition. And it appears the court denied the instant petition based upon its finding in the prior proceeding that defendant was categorically ineligible for relief; a finding that had since become final.
Notably, section 1172.6 does not expressly bar successive petitions. Courts analyzing the preclusive effect of prior section 1172.6 petitions have done so under the doctrine of issue preclusion, also known as collateral estoppel. (See, e.g., People v. Farfan (2021) 71 Cal.App.5th 942, 950-951; see generally Strong, supra, 13 Cal.5th at p. 715 ["In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel"]) "This common law doctrine is 'grounded on the premise that "once an issue has been resolved in a prior proceeding, there is no further factfinding function to be performed."'" (Strong, supra, at p. 715.) The doctrine "'"has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation."'" (Id. at p. 716.)
Issue preclusion bars relitigation of issues earlier decided "'only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.'" (Strong, supra, 13 Cal.5th at p. 716.) These threshold requirements for finding issue preclusion "are necessary" but "they are not always sufficient: "'"Even if the[] threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles" of promoting efficiency while ensuring fairness to the parties.'" (People v. Curiel (2023) 15 Cal.5th 433, 454; see Strong, supra, at p. 716; accord, People v. Farfan, supra, 71 Cal.App.5th at p. 950 ["[a]pplication of collateral estoppel is not automatic, but is subject to public policy considerations"].) "'[T]he public policies underlying collateral estoppel-preservation of the integrity of the judicial system, promotion of judicial economy and protection of litigants from harassment by vexatious litigation-strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.'" (Farfan, supra, at p. 950.)
Here, the court's August 16, 2023, order reflects it denied defendant's June 22, 2023, section 1172.6 petition based on the doctrine of issue preclusion. Notably, it appears the court denied the petition without first appointing defendant counsel. The court's failure to appoint defendant counsel before denying his petition, as required by the statute, was error. (See § 1172.6, subd. (b)(3) ["Upon receiving a petition in which the information required by this subdivision is set forth ..., if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner"].) It also appears the court failed to hold a hearing on defendant's petition before denying it as required by section 1172.6, subdivision (c).
Thus, we consider whether these errors were harmless. (See People v. Lewis, supra, 11 Cal.5th at p. 974 ["a petitioner 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing"'"].) For the reasons that follow, we conclude they were not. Rather, it is reasonably probable that if defendant had been afforded assistance of counsel and a hearing, his petition would not have been summarily denied based upon the doctrine of issue preclusion.
Since the court's ruling on defendant's prior petition in 2019, a significant amount of case law has issued interpreting section 1172.6. And, as the California Supreme Court recently explained, "'[A] judicial declaration intervening between the two proceedings may so change the legal atmosphere as to render the rule of collateral estoppel inapplicable.'" (Strong, supra, 13 Cal.5th at p. 717; see also People v. Farfan, supra, 71 Cal.App.5th at p. 951 ["judicial interpretations of section 117[2.6] may afford a petitioner grounds for claiming eligibility for relief under the statute that were not previously available under other judicial interpretations"].) Particularly relevant here, cases have issued holding that a plea to a generic allegation of murder does not render a defendant categorically ineligible for relief. (See, e.g., People v. Rivera (2021) 62 Cal.App.5th 217, 234; People v. Davenport (2021) 71 Cal.App.5th 476, 484-485.)
In Rivera, the trial court denied the defendant's petition for relief under former section 1170.95, concluding the defendant had failed to make a prima facie showing of eligibility for relief because he "'entered a plea to second degree murder with malice' and nothing in the record of conviction supported the conclusion that the murder was 'anything other than an intentional killing in which [he] harbored such malice.'" (People v. Rivera, supra, 62 Cal.App.5th at pp. 223-224.) Specifically, the defendant pleaded "[n]o contest" in response to the court's question: "'[W]hat is your plea to Count 1, that on or about October 5, 2012, you did willfully, unlawfully[,] and with malice aforethought murder [the victim] ... in violation of ... section 187(a), a felony?'" (Id. at p. 225.) The appellate court reversed the court's finding, holding "a defendant who entered a plea to murder 'with malice aforethought' is not categorically incapable of making a prima facie showing of eligibility for relief under [former] section 1170.95, subdivision (c) . . . because such a plea is not necessarily an admission that the crime was committed with actual malice." (Id. at p. 224.) It reasoned, "before Senate Bill No. 1437 malice could be imputed to a defendant under the felony-murder rule or the natural and probable consequences doctrine, meaning that the person did not need to harbor express or implied malice to be convicted of second degree murder. And given that the allegation that a murder was committed 'willfully, unlawfully, and with malice aforethought' is a generic charge permitting the prosecution to proceed on any theory of murder, we cannot conclude that by admitting to the murder as charged [the defendant] admitted that he acted with actual malice, . . . just that the element of malice was satisfied." (Rivera, at p. 234.) The Rivera court noted that the defendant "made no admissions related to the murder other than pleading no contest to the count as charged," though "[i]n some cases, the record may reveal that a defendant admitted more than the elements of the offense charged, and such additional admissions may preclude relief under section 1170.95." (Ibid.)
Here, the record of the plea colloquy reflects, as in Rivera, defendant "made no admissions related to the murder other than pleading no contest to the count as charged." (People v. Rivera, supra, 62 Cal.App.5th at p. 234.) The parties stipulated the preliminary hearing transcripts provided a factual basis for defendant's plea. Then, after defendant was advised of the implications of his plea, the following exchange took place:
"THE COURT: Sir, how do you plead as to Count 1, that on or about September 16th, 2014, you did commit a felony, namely, a violation of .. Section 187(a), in that you did unlawfully and with malice aforethought murder Oscar [Ocampo], a human being? How do you plead to that? [¶] ... [¶]
"THE DEFENDANT: No contest, your Honor."
While it is true, as the People assert, that the law at the time of defendant's prior petition established defendant's no contest plea only admitted the elements of second degree murder, it was not necessarily clear at that time that the referenced plea colloquy did not render a defendant categorically ineligible for relief under section 1172.6. Indeed, our review of the record provided in this appeal, which includes the charging documents and plea colloquy-which were not provided in the prior appeal-does not reveal that defendant was otherwise categorically ineligible for relief as a matter of law. To the contrary, the charging documents make clear defendant was one of four codefendants who were charged with murder during the course of a robbery, attempted robbery, and burglary pursuant to section 190.2. Thus, we can discern no basis for the trial court's prior finding that the record established as a matter of law that defendant was the actual killer beyond the statements in the plea colloquy.
Notably, in its order on defendant's prior petition, the court stated, "There are no jury instructions for aiding and abetting felony murder, or natural and probable consequences." However, because this was a plea case, we cannot conclude the absence of such instructions sheds any light upon the theories under which defendant could have been prosecuted.
Accordingly, we conclude it is reasonably probable defendant could have achieved a more favorable result had counsel been appointed for him at the prima facie stage and a hearing held so that he could have raised this argument below-that developments in the case law since his first petition establish he is not categorically ineligible for relief. (See Strong, supra, 13 Cal.5th at p. 716 ["Even when the threshold requirements for issue preclusion are met, one well-settled equitable exception to the general rule holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue"].)
Accordingly, we conclude a remand is appropriate. On remand, defendant should be appointed counsel and further proceedings should be held pursuant to section 1172.6, subdivision (c).
DISPOSITION
The August 16, 2023, order denying defendant's section 1172.6 petition is reversed and the matter is remanded to the trial court for further proceedings consistent with section 1172.6, subdivision (c).
[*]Before Hill, P. J., Detjen, J. and Pena, J.