Filed 3/18/22 P. v. Reaza CA4/2

Opinion following transfer from Supreme Court

See concurring opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed in part, reversed in part, and remanded with directions.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Quisteen S. Shum and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Ronnie Cruz Reaza, filed a petition for resentencing pursuant to Penal Code section 1170.95,[1] which the superior court summarily denied. On appeal, defendant contended the court erred in summarily denying his petition without affording him the opportunity to file a reply to the People’s opposition. We affirmed.

On December 22, 2021, the California Supreme Court ordered the matter transferred to this court with directions to vacate our decision and reconsider the matter in light of Senate Bill No. 775 (Stats. 2021, ch. 551). On December 29, 2021, we vacated our opinion and provided that any party could file a supplemental brief within 15 days.

Defendant continues to maintain that the court erred in denying his petition as to his murder conviction. As to his attempted murder conviction, defendant contends the matter must be reversed due to the amendments to section 1170.95 rendered by Senate Bill No. 775. We affirm in part, reverse in part, and remand the matter for reconsideration.

I. FACTUAL AND PROCEDURAL BACKGROUND^[2]

Defendant was the driver in a drive-by shooting committed with a shotgun; one person was killed and another injured. Officers recovered a shotgun in a vehicle driven by someone who testified that defendant had given him the shotgun. The witness testified defendant told him to keep the shotgun because they had used it to shoot at rival gang members. Defendant admitted to police that he drove the vehicle that night and that his passenger had fired shots at the victims; however, defendant denied knowing in advance that his passenger intended to shoot. (People v. Reaza, supra, E038773.)

On October 21, 2004, the People charged defendant by felony information with murder (§ 187, subd. (a), count 1), attempted murder (§§ 664, 187, subd. (a), count 2), personally discharging a firearm from a moving vehicle (§ 12034, subd. (c), count 3), personally discharging a firearm at an inhabited dwelling house (§ 246, count 4), and being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 5). As to the count 1 offense, the People further alleged that the murder was intentional and perpetrated by the discharge of a firearm at another person from a motor vehicle (§ 190.2, subd. (a)(21)); that defendant intentionally killed the victim to further the criminal activities of a criminal street gang while an active participant in a criminal street gang (§ 190.2, subd. (a)(22)); and that a principal personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)).

As to the count 2 offense, the People additionally alleged that a principal personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)) and that defendant committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)). As to counts 1 through 4, the People alleged that defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b).) Finally, the People alleged defendant had suffered a prior strike conviction. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)

The court instructed the jury with aiding and abetting principles (CALJIC No. 3.01) and the natural and probable consequences doctrine (CALJIC No. 3.02). The court gave the jury “special” instructions that “[a]iding and abetting the perpetrator of a specific intent crime requires that the defendant share the specific intent of the perpetrator. However, an aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the preparator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” “If you find the defendant guilty of Murder as charged in Count 1, or Attempted Murder as charged in Count 2, as an aider and abettor, you need not find the defendant personally premediated and deliberated, provided you find that the shooter did premediate and deliberate.” The court also instructed the jury with CALJIC 8.81.22 on the requirements for finding true the intentional killing by an active street gang member special circumstance: “it must be proved: [¶] 1. The defendant intentionally killed the victim . . . .”

During closing argument, the prosecutor told the jury defendant was not the shooter. The prosecutor also discussed the natural and probable consequences doctrine: “But an aider and abettor need not deliberate and premediate. Basically, if the person who commits the actual killing premediated and deliberated, and therefore, it’s first-degree murder, and the defendant aided and abetted a premediated and deliberate murder, a first-degree murder, he is also liable for first-degree murder as an aider and abettor. He is liable for exactly the same crime as the person who pulls the trigger.”

The jury found defendant guilty on all charges, including first degree murder in count 1, and found all enhancement allegations true.[3] The court sentenced defendant to life in prison without the possibility of parole; a consecutive term of 25 years to life; a consecutive sentence of life with the possibility of parole, with a minimum parole eligibility term of 30 years; a consecutive term of 25 years to life; a consecutive term of 30 years to life; and a consecutive term of 16 years four months. (People v. Reaza, supra, E038773.)

On appeal, defendant contended that the jury improperly convicted him of discharging a firearm at another person from a vehicle, that insufficient evidence supported the gang enhancements, and that the court improperly imposed various aspects of his sentence. In an opinion filed October 11, 2006, this court affirmed the judgment but ordered the determinate term vacated; the cause remanded for resentencing; ordered the court to stay sentence on count 3, including the enhancement; and ordered the court to strike the parole revocation fine. (People v. Reaza, supra, E038773.)

On January 7, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. On March 8, 2019, the People filed a response in which they argued, in part, that defendant was ineligible for relief because he aided and abetted the offenses with the intent to kill. The People noted that the jury had found true two special circumstance findings that required an intent to kill: shooting from a motor vehicle (§ 190.2, subd. (a)(21)) and the first degree murder with an active participation in a criminal street gang special circumstance (§ 186.22, subd. (a)(22)).[4]

At the hearing on April 19, 2019, the public defender noted, “We have not filed a reply. We ask for a 90-day stay.” The court ordered the matter stayed. However, the People asked to be heard, to which the court acquiesced. The People noted that the jury had found true two special murder circumstances requiring that defendant had intended to kill the victim. The court summarily denied the petition.

II. DISCUSSION

Defendant contends the court erred in summarily denying his petition. He maintains that “[g]iven the prosecutor’s argument and reliance on natural and probable consequences, it is without a doubt that the jury could have based appellant’s conviction on the natural and probable consequences doctrine,” thereby entitling him to file a reply to the People’s response and, thereafter, requiring an evidentiary hearing. Defendant also contends that the court erred in failing to indicate its reasons for denying the petition or indicating upon what records it relied. Defendant additionally maintains we must reverse and remand the matter for reconsideration as to his attempted murder conviction due to the amendments rendered by Senate Bill No. 775 (2021-2022 Reg. Sess.).

We again hold that any error in denying defendant’s petition as to his murder conviction was harmless due to the jury’s true finding on the gang special murder circumstance. We reverse and remand the matter for reconsideration on his attempted murder conviction.

A. Legal Background.

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats 2018, ch. 1015, § 1, subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).^[5]

“Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: ‘(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.’ [Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of another petition.’” (Lewis, supra, 11 Cal.5th at pp. 959-960.)

“Where the petition complies with [section 1170.95,] subdivision (b)’s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief.” (Lewis, supra, 11 Cal.5th at p. 960.) “[O]nly after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether ‘the petitioner makes a prima facie showing that he or she is entitled to relief.’” (Lewis, at p. 957, first italics in original, second and third italics added.)

A court may rely on the record of conviction in determining whether a prima facie showing has been made. (Lewis, supra, 11 Cal.5th at p. 970.) “The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” (Id. at p. 971.) “While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘“the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.”’” (Ibid.)

“‘However, if 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, supra, 11 Cal.5th at p. 971.) “Appellate opinions . . . are generally considered to be part of the record of conviction.” (Id. at p. 972.) “In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’” (Ibid.) “In sum, the parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under [section 1170.95,] subdivision (c).” (Ibid.)

B. First Degree Murder Conviction.

In this case, the trial court erred in denying the petition without permitting defendant to file a reply to the People’s response. (Lewis, supra, 11 Cal.5th at p. 957.) However, the Lewis court announced a harmless error standard when a trial court deprives a defendant of his statutory rights under section 1170.95: “[W]e conclude that the deprivation of [the defendant’s] right to counsel under subdivision (c) of section 1170.95 was state law error only, tested for prejudice under People v. Watson (1956) 46 Cal.2d 818.” (Lewis, at pp. 957-958.) “[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.”’” (Id. at p. 974.) We presume that standard would also apply to the deprivation of defendant’s statutory right to file a reply brief. Thus, defendant has the burden of showing that it is reasonably probable that if he had been afforded the right to file a reply brief, his petition would not have been summarily denied.

“In finding [a] felony-murder special circumstance true, [a] jury necessarily [finds] appellant either acted with intent to kill or was a major participant . . . who acted with reckless indifference to human life. This finding establishes that appellant is ineligible for section 1170.95 relief as a matter of law.” (People v. Farfan (2021) 71 Cal.App.5th 942, 947; accord People v. Nunez (2020) 57 Cal.App.5th 78, 91, review granted Jan. 13, 2021, S265918; accord People v. Jones (2020) 56 Cal.App.5th 474, 482{Fourth Dist., Div. Two}, review granted Jan. 27, 2021, S265854 [“A defendant with a special circumstance finding under section 190.2, subdivision (d) is not eligible for relief under section 1170.95 as a matter of law.”]; accord People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978 [true finding on burglary special murder circumstance rendered defendant ineligible for § 1170.95 relief]; accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1140-1141, review granted Oct. 14, 2020, S264284 [any murder special circumstance finding under § 190.2, subd. (a)(17) renders a defendant ineligible for § 1170.95 relief as a matter of law]; cf. People v. Gomez (2020) 52 Cal.App.5th 1, 15, review granted Oct. 14, 2020, S264033 [the jury’s true findings on robbery and kidnapping special circumstance allegations rendered defendant ineligible for § 1170.95 relief as a matter of law]; contra, People v. Smith (2020) 49 Cal.App.5th 85, 94, review granted July 22, 2020, S262835 [a jury’s special circumstance finding does not preclude § 1170.95 eligibility as a matter of law]; accord People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v. Secrease (2021) 63 Cal.App.5th 231, 254, review granted June 30, 2021, S268862.)

Here, the jury found defendant guilty of first degree murder and found true an intentional killing by an active street gang member special circumstance. As the People both in the proceedings below and on appeal argue, the jury’s verdict and special findings required that the jury conclude that defendant intended the death of the victim. As the jury was instructed, it could not find the intentional killing by an active street gang member special circumstance true unless it found that defendant intended to kill the victim (§ 190.2, subd. (a)(22) [“The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . .”].) Such a finding, even under current law, would render defendant ineligible for relief as a matter of law because the jury’s findings establish that defendant was a direct aider and aider of the murder. Thus, the court’s error was harmless because even if permitted to file a reply brief, defendant could not prove it is reasonably probable his petition would not have been summarily denied as to his murder conviction.

In rendering its decision, we presume the court relied upon the copy of the opinion in the People’s response and the People’s argument at the hearing made immediately before its ruling. We also presume its reasoning for denying the petition was based upon the People’s statement immediately before the court rendered its ruling: that the special circumstance findings reflected the jury’s determination that defendant intended to kill. Thus, the court properly denied defendant’s petition with respect to the count 1 offense.

C. Attempted Murder Conviction.

The parties agree that the amendments to section 1170.95 rendered by Senate Bill No. 775 expressly afford those convicted of attempted murder relief under certain circumstances. Thus, they maintain we must reverse and remand the matter for reconsideration on defendant’s attempted murder conviction by the court below. We agree.

Senate Bill No. 1437 (2017-2018 Reg. Sess.) added section 1170.95 (Stats. 2018, ch. 1015, § 4), setting forth the procedure by which a “person convicted of felony murder or murder under a natural and probable consequences doctrine . . . may 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.” (Former § 1170.95, subd. (a).) Prior to the enactment of Senate Bill No. 775, the Courts of Appeal were split on whether Senate Bill No. 1437 applied to attempted murder.

Senate Bill No. 775 resolved the split of authority by amending section 1170.95 to expressly afford relief to persons convicted of attempted murder in certain circumstances. Senate Bill No. 775’s amendments to section 1170.95 became effective January 1, 2022.

The merits of defendant’s petition on the attempted murder conviction have not been reviewed by the trial court, a necessary predicate to our review of its decision. In light of the amendments, we will remand the matter to the trial court for further proceedings pursuant to section 1170.95. At the hearing, the court may determine if an order to show cause should issue pursuant to section 1170.95, subdivision (c), and, if so, the parties may introduce additional evidence as contemplated by subdivision (d).

III. DISPOSITION

The order denying defendant’s petition is affirmed in part, reversed in part, and the matter is remanded for reconsideration on defendant’s conviction for attempted murder.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

I concur:

RAMIREZ

P. J.

[People v. Reaza, E074012]

RAPHAEL, J.

I respectfully concur in the judgment.

The Supreme Court has transferred this matter back to us to reconsider in light of Senate Bill No. 775 (Stats. 2021, ch. 551). That bill provides no cause for us to reconsider our reasoning affirming the denial of defendant and appellant Ronnie Cruz Reaza’s Penal Code section 1170.95 petition as to his first-degree murder conviction.1 As we concluded in our earlier opinion, the trial court properly denied Reaza’s petition challenging that conviction.

Today’s opinion, however, changes our reasoning in affirming the denial as to that first-degree murder conviction, and I disagree with that change. The majority opinion now asserts that it is following a disputed line of cases that require a defendant—before challenging some murder convictions based on a felony murder theory—to succeed on a habeas petition challenging a jury’s finding of a felony murder special circumstance under section 190.2, subdivision (a)(17). (Maj. opn., ante, at pp. 10-11.)

That line of cases, however, applies uniquely to findings on the felony murder special circumstance, in situations where the law governing that finding was clarified by People v. Banks (2015) 61 Cal.4th 788 after the finding was made. Because Banks clarified the kind of conduct proscribed by statute, a pre-Banks special circumstance finding presents a rare situation where a collateral attack on the sufficiency of evidence is permissible, even if not raised on direct appeal. (People v. Scoggins (2020) 9 Cal.5th 667, 673-674.) Courts that follow this disputed line of cases conclude that because “a petition for a writ of habeas corpus is the appropriate vehicle” to set aside the felony murder special circumstance, the defendant must do so to be “in a position to successfully petition under section 1170.95 to vacate [the] murder conviction.” (People v. Gomez (2020) 52 Cal.App.5th 1, 17.) Such courts deny a section 1170.95 challenge to a felony murder conviction if a habeas challenge to the special circumstance is not successful first.

Regardless of the validity of this reasoning, it is inapplicable here. No felony murder theory was at issue in Reaza’s case. The felony murder special circumstance could not apply, and no such finding was made. Our Supreme Court will address the merits of cases that the majority relies on in People v. Strong (2020) review granted March 10, 2021, S266606 [2021 Cal.Lexis 1701]. The outcome of Strong, however, does not matter to cases, like this one, that do not involve a felony murder theory and a section 190.2, subdivision (a)(17) special circumstance finding.

Instead, at issue here is whether the jury convicted Reaza of directly aiding and abetting a murder, a permissible theory of conviction under current law. The alternative would be that the jury convicted him under the natural and probable consequences doctrine, now an impermissible murder theory. The latter would be so if the jury found that Reaza aided and abetted only his passenger’s crime of shooting at an inhabited dwelling, with the death being a natural and probable consequence of that crime.

In finding that certain special circumstances applied, however, the jury found that Reaza had the intent to kill. It is not logically possible for the jury to have found that Reaza—having an intent to kill—aided the crime of shooting at a building, but did not aid the crime of murdering someone with the same shot. That is, because the jury found Reaza had the intent to kill when he aided his passenger in firing shots, the jury necessarily found that Reaza directly aided the crime of murder his passenger committed with those shots. This is the reason for affirming the denial of the section 1170.95 challenge to Reaza’s first-degree murder conviction. The changes to our murder laws do not affect the conviction of someone convicted of directly aiding and abetting a murder.

In contrast, Senate Bill No. 775 provides reason for us to remand for the trial court to consider a section 1170.95 challenge to Reaza’s attempted murder conviction, as such a challenge was not previously available. As the People agree to a remand to have the trial court address the attempted murder conviction in the first instance, I agree with the portion of the opinion remanding the matter.

RAPHAEL

J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] By order dated December 31, 2019, we took judicial notice of the record in defendant’s appeal from the original judgment. (People v. Reaza (Oct. 11, 2006, E038773) [nonpub. opn.]; see Evid. Code, § 459.)

[3] Defendant admitted suffering the prior strike conviction.

[4] The People attached a copy of this court’s opinion in People v. Reaza, supra, E038773, to their response.

[5] The Legislature amended section 1170.95 to, in part, apply to convictions for attempted murder. (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) “The amendment also codifies certain holdings in Lewis . . . .” (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2.)

1 Further undesignated statutory citations are to the Penal Code.