Filed 4/7/22 P. v. Valenzuela CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
JAIME VALENZUELA,
Defendant and Appellant.
| H048232 (Santa Clara County Super. Ct. No. CC113675) |
I. INTRODUCTION
In 2003, a jury convicted defendant Jaime Valenzuela of second degree murder (Pen. Code, § 187)[1] under alternate aiding and abetting theories including the natural and probable consequences doctrine. The jury also found 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)(1)). The superior court sentenced defendant to 15 years to life consecutive to a 10-year determinate term for the gang enhancement. In 2004, this court affirmed the judgment in case No. H025810.[2]
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95, which was enacted by the Legislature through its passage of Senate Bill No. 1437 (2017‑2018 Reg. Sess.) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4.) As relevant here, section 1170.95 allows individuals convicted of murder under the natural and probable consequences doctrine to petition the superior court to vacate the conviction under recent changes to the law that eliminated natural and probable consequences liability for murder as it applies to aiders and abettors. After appointing defendant counsel and receiving briefing from the parties, the superior court denied the petition, finding that defendant had failed to state a prima face case for relief.
Defendant appeals from the denial of his section 1170.95 petition, contending that the superior court applied the incorrect standard at the prima facie stage of the proceedings. The Attorney General concedes that the superior court erred by weighing the facts underlying defendant’s conviction to deny the petition at the prima facie stage and that the matter should be remanded for an evidentiary hearing.
For reasons that we will explain, we conclude that defendant stated a prima facie case for relief under section 1170.95. We will therefore reverse the superior court’s order and remand the matter for the issuance of an order to show cause and an evidentiary hearing.
II. FACTUAL AND PROCEDURAL BACKGROUND
- Factual Background
In August 1998, Jose “Beto” Ortega, a West Side Mob (WSM) associate, and Joseph “Popeye” Sousa, a WSM member, were murdered near the Alma Avenue DMV office in San Jose by a Sur Santos Pride (SSP) member. When defendant and two other Hispanic males were stopped by officers on September 3, 1998, defendant was wearing a white T‑shirt that said, “In loving memory of Popeye and Beto.” A photograph showed Benjamin Ortiz, an admitted WSM associate, and WSM member Benjamin Heath at Ortega’s gravesite sometime after Ortega’s burial. Other photographs showed defendant and Heath by the same gravesite, and defendant, Heath and others making WSM gang hand signs.
Around 10:00 p.m. on June 17, 2001, defendant was driving a Ford Expedition with Ortiz in the front passenger seat near the Alma Street DMV office when some people in a black Camaro threw bottles at the Expedition, breaking the driver-side rear window and causing a dent. Ortiz believed that a Sureño gang member was an occupant of the Camaro; Ortiz told officers that an occupant had yelled out “puro sur.” Defendant became angry. He dropped Ortiz off at Ortiz’s nearby Cottage Grove Avenue home and drove away. Later that night, Heath came to Ortiz’s home holding a heavy, bloody towel. Heath was bleeding and said that he had stabbed somebody. He asked Ortiz to clean him up and to throw away the bloody towel. Heath’s right hand had a deep cut, and Ortiz cleaned Heath up and gave him a new towel. After Heath left, Ortiz threw the heavy, bloody towel in a storm drain.
Francisco T., a 14-year-old SSP member, had spent much of June 17, 2001, with Marcelino Lopez. Marcelino was the younger brother of Guillermo Lopez, another SSP member, and looked like his brother but was not himself a SSP member. Around 10:30 p.m., Francisco and Marcelino were walking near the corner of Almaden Avenue and Duane Street, both wearing navy blue sweaters, when defendant pulled his Expedition over at the corner and drove up on the sidewalk. The front passenger window was down and the back passenger window was halfway down. Nobody from inside the car said anything to Francisco and Marcelino, but Francisco told Marcelino to run because he knew something was going to happen. A man got out of the front passenger seat of the Expedition, ran over to Marcelino, and started stabbing him in the torso.
Francisco was running toward the market on Union Street when he looked back at the Expedition. The passenger door was open and the dome light was on. Defendant was in the driver’s seat of the Expedition looking toward the assault. Francisco could see several people in the back seat of the Expedition looking at him, so he was worried that somebody else would get out of the car, but he ran back to try to help Marcelino. One of the back seat passengers said, “[H]urry up, let’s go.” The assailant returned and got into the Expedition, and defendant drove off.
Marcelino ran toward the Union Street market and Francisco followed him. When Marcelino got to the market he asked for an ambulance and then collapsed. Officers and paramedics arrived in about five minutes. Francisco was removed to a police car and Marcelino was pronounced dead at the scene. Marcelino had received multiple stab wounds to his head, chest, right arm, and left hand, and the broken-off tip of a knife was found embedded in a wound in the back of his head.
Francisco provided officers with descriptions of the people and car involved in the assault. Officers found an Expedition early the next morning, parked nearby on Austin Court near Sanborn Avenue. The Expedition had dents and a broken window, and was registered to Jaime Valenzuela, Sr., at a Sanborn address. Around 3:00 a.m., officers transported Francisco to the area, where he identified the Expedition as the car involved in the stabbing incident.
Defendant was taken into custody after leaving the Sanborn address and Ortiz was taken into custody shortly thereafter at his Cottage Grove Avenue home. Ortiz had a bloodstain on his right palm, but had no open wounds that could have been the source of the bloodstain. Officers recovered a bloodstained towel from a storm drain at the corner of Sanborn and Cottage Grove Avenues, but did not recover the knife used in the assault. Swabs of bloodstains found inside the front passenger-seat area of the Expedition, a swab of the bloodstain on Ortiz’s hand, and the bloody towel were analyzed for DNA. A criminalist opined that one man was the source of all of the blood, but excluded Marcelino, Ortiz, and defendant as the source.
Defendant admitted to an investigating officer that he was the driver of the Expedition when its window was broken. He denied knowing about a later stabbing, but stated that his passenger had unexpectedly jumped out of the vehicle near Almaden Avenue and Duane Street. Defendant then saw the passenger “beating somebody up.” The passenger got back into the Expedition after a few seconds and the other person ran away. Defendant refused to name the passenger.
Francisco identified Heath in a photo lineup as Marcelino’s assailant. Defendant denied that Heath was the assailant. Heath had not been seen since the day of the stabbing.
- Procedural History
- Trial Proceedings and Direct Appeal
Defendant was charged with murder (§ 187), and it was alleged 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)(1)).
At trial, the jury was instructed on alternate theories of aiding and abetting liability, including the natural and probable consequences doctrine. After deadlocking on first degree murder, the jury convicted defendant of second degree murder and found the gang allegation true. The superior court sentenced defendant to 15 years to life consecutive to a determinate 10-year term.
Defendant contended on appeal that (1) the evidence was insufficient to support the conviction, (2) the trial court abused its discretion in allowing the prosecution to present a detailed history of the Norteño and Sureño gangs, (3) trial counsel rendered ineffective assistance by failing to request an instruction on simple assault as an alternative target crime, and (4) defendant’s conviction under the natural and probable consequences doctrine with the target crime of assault with a deadly weapon violated the equal protection clause. This court affirmed the judgment.
- Section 1170.95 Proceedings
In 2019, defendant filed a section 1170.95 petition in the superior court. As relevant here, the petition stated that “[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine”; “[a]t trial, [he] was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine”; and he “could not now be convicted of 1st or 2nd degree murder because of changes made to . . . § § 188 and 189, effective January 1, 2019.” Defendant requested counsel.
The superior court appointed defendant counsel. The prosecution filed written briefing opposing the petition, contending that Senate Bill 1437 is unconstitutional and that defendant had failed “[to] meet his burden to show that he ‘could not be convicted of first- or second-degree murder because of changes to Section[s] 188 or 189 made effective January 1, 2019,’ ” as “the evidence clearly supports that a reasonable jury could conclude beyond a reasonable doubt that [defendant] aided and abetted the malice murder of Marcelino Lopez.” Defendant filed a reply, asserting that the petition stated a prima facie case for relief, the prosecution misstated his prima facie burden, and the record established that he was convicted under alternate aider and abettor theories, including the now defunct natural and probable consequences doctrine. Defendant also countered the prosecution’s claim that Senate Bill 1437 is unconstitutional.
At the hearing on the petition, the superior court stated that a prima facie showing “has to be about the facts” and observed that the perpetrators “got together. They decided to go out and commit this crime, and they all went and did it. They got in a car and they went out and they found this rival gang member. [Defendant] drove up onto the sidewalk to block him in, letting Heath jump out of the car and stab him while [defendant] looked around, by the witness’s testimony, and then Heath got back in the car and [defendant] drove away.”
Defendant responded to the court’s statements by highlighting conflicting trial evidence regarding whether he was looking around, whether anyone saw a knife before the passenger jumped out of the car, and whether the occupants of the car were aware that the passenger was stabbing, rather than boxing with, the victim. Defendant asserted, “[W]hat I am trying to do by discussing . . . that part of the trial testimony is to show that there is a dispute as to what the facts are here. There is a dispute as to whether the facts show malice.” Defendant argued, “And if there is a [factual] dispute, that can only be settled in an evidentiary hearing.”
The superior court denied the petition, finding that Senate Bill 1437 is constitutional but that defendant had failed to establish a prima facie case that he “could not be convicted of first or second degree murder because of the changes in Section[s] 188 and 189.”
III. DISCUSSION
- Statutory Framework and the Standard of Review
The Legislature enacted 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 of the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended sections 188 and 189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018, ch. 1015, §§ 2-3.)
The Legislature amended section 188 by adding subdivision (a)(3), which provides: “Except 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.” (Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3).) And section 189, subdivision (e) now limits liability for murder to a person who was either the actual killer or, though not the actual killer, acted “with intent to kill” and “aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer” in the commission of first degree murder, or 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.” (Stats. 2018, ch. 1015, § 3; § 189, subd. (e).)
In addition to the amendments to sections 188 and 189, Senate Bill 1437 added section 1170.95. (Stats. 2018, ch. 1015, § 4.) As relevant here, section 1170.95 allows “[a] person convicted of . . . 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” to petition the sentencing court to vacate the murder conviction and be resentenced on any remaining counts. (§ 1170.95, subd. (a).) All of the following conditions must apply to warrant section 1170.95 relief: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of . . . 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”; “(2) The petitioner was convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder”; and “(3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
A section 1170.95 petition is required to include: “(A) A declaration by the petitioner that the petitioner 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. [And] [¶] (C) [w]hether the petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1).) “pon the filing of a facially sufficient petition,” the statute “requir[es] that counsel be appointed.” (People v. Lewis (2021) 11 Cal.5th 952, 970 (Lewis).) “[T]hen the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Id. at p. 960.)
If the court finds that a prima facie showing has been made, it issues an order to show cause and holds a hearing “to determine whether to vacate the murder . . . conviction and to recall the sentence and resentence the petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) The burden of proof at the hearing is on the prosecution “to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Id., subd. (d)(3).) Both parties may rely on the record of conviction or present new or additional evidence at the hearing. (Ibid.) Alternatively, “[t]he parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have [his or her] murder . . . conviction vacated and for resentencing.” (Id., subd. (d)(2).)
We determine questions of statutory interpretation de novo. (See Lewis, supra, 11 Cal.5th at p. 961.) Whether the superior court properly denied defendant’s section 1170.95 petition for failure to state a prima facie case for relief involves multiple standards of review. We review the court’s factual findings for substantial evidence and the court’s application of those facts to section 1170.95 de novo. (See People v. Drayton (2020) 47 Cal.App.5th 965, 981 (Drayton), overruled in part on another ground in Lewis, supra, 11 Cal.5th at pp. 962-970.)
- Analysis
In Lewis, the California Supreme Court recently held that a superior court must appoint counsel “upon the filing of a facially sufficient petition” and that the court may consider the record of conviction in determining whether a defendant has stated a prima facie case for section 1170.95 relief. (Lewis, supra, 11 Cal.5th at p. 970.)
Importantly, the court explained that “[w]hile the [superior] 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.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ [Citation.] ‘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.” ’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 971.) The court cautioned that “n reviewing any part of the record of conviction at [the prima facie stage], a [superior] court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ [Citation.] As the People emphasize, the ‘prima facie bar was intentionally and correctly set very low.’ ” ([i]Id. at p. 972.)
Here, as the parties agree, the superior court failed to “ ‘ “take[] [defendant’s] factual allegations as true and make[] a preliminary assessment regarding whether [he] would be entitled to relief if his . . . factual allegations were proved.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) Instead, the court “engage[d] in ‘factfinding involving the weighing of evidence.’ ” (Id. at p. 972.) Despite evidence in the record to the contrary, the court found that the perpetrators decided beforehand to commit the offense and “they all went and did it. . . . [Defendant] drove up onto the sidewalk to block [the victim] in, letting Heath jump out of the car and stab him while [defendant] looked around, by the witness’s testimony, and then Heath got back in the car and [defendant] drove away.” At the prima facie stage, it was improper for the court to “ ‘reject [defendant’s] factual allegations on credibility grounds without first conducting an evidentiary hearing.’ ” (Id. at p. 971.)
Accordingly, we will reverse the superior court’s order determining that defendant failed to establish a prima facie case for relief under section 1170.95. We will remand the matter for the issuance of an order to show cause and a hearing on defendant’s section 1170.95 petition. (See Drayton, supra, 47 Cal.App.5th at pp. 982-983; § 1170.95, subds. (c), (d).) We express no opinion regarding defendant’s entitlement to relief following the hearing.
IV. DISPOSITION
The superior court’s order denying defendant’s Penal Code section 1170.95 petition is reversed. The matter is remanded to the superior court with directions to issue an order to show cause (Pen. Code, § 1170.95, subd. (c)) and hold a hearing on the petition (Pen. Code, § 1170.95, subd. (d)).
[u]
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
GREENWOOD, P.J.
DANNER, J.
People v. Valenzuela
H048232
[1] All further statutory references are to the Penal Code.
[2] We rely on this court’s opinion in case No. H025810 for procedural and factual background information. The opinion was attached as an exhibit to defendant’s briefing below and is part of the record on appeal.
