Filed 3/1/22 P. v. Navarro CA5

Opinion after vacating opinion filed 12/8/21

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

Brad Kaiserman, 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, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In 2013, defendant Alfredo Navarro was convicted of first degree murder (Pen. Code,[1] § 187, subd. (a)). The jury found true the allegation that the murder was committed while he was engaged in or was an accomplice in the commission of a kidnapping (§ 190.2, subd. (a)(17)).[2] Defendant was sentenced to life without the possibility of parole. In 2019, he filed a petition for resentencing pursuant to section 1170.95, which was denied. On appeal, defendant contends: (1) “the trial court erroneously relied upon the special circumstance finding of kidnapping with intent to kill in determining that [he] did not satisfy the prima facie case for section 1170.95 resentencing”; and (2) he “is entitled to a new hearing because he was not present at the hearing on his petition.” (Boldface & capitalization omitted.) We reject these claims and affirm the denial.[3]

BACKGROUND

In July 2019, defendant filed a petition requesting resentencing pursuant to section 1170.95. He marked the following checkboxes:

“1. A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.

“2a. At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine; [¶] . . . [¶]

“3. I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019. [¶] . . . [¶]

“5. (If applicable) I was convicted of 1st degree felony murder and I could not now be convicted because of changes to Penal Code § 189, effective January 1, 2019, for the following reasons (all must apply):

“I was not the actual killer.

“I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree.

“I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony.

“The victim of the murder was not a peace officer in the performance of his or her duties, or I was not aware that the victim was a peace officer in the performance of his or her duties and the circumstances were such that I should not reasonably have been aware that the victim was a peace officer in the performance of his or her duties. [¶] . . . [¶]

“7. (If applicable) There has been a prior determination by a court or jury that I was not a major participant and/or did not act with reckless indifference to human life under Penal Code § 190.2(d). Therefore, I am entitled to be re-sentenced pursuant to § 1170.95(d)(2).” (Boldface omitted.)

Following an August 28, 2020 hearing at which defendant was not present, the court found defendant ineligible for relief as a matter of law given that the jury found true the kidnapping-murder special circumstance allegation.

DISCUSSION

1. Relevant law

“Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [2017-2018 Reg. Sess.] ‘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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis), quoting Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Prado (2020) 49 Cal.App.5th 480, 487 [“Through the passage of Senate Bill [No.] 1437 the Legislature effectively eliminated the natural and probable consequences doctrine as it relates to murder convictions, and reduced the scope of the felony-murder rule.”]; see also § 188, subd. (a)(3) [“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.”]; § 189, subd. (e) [“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.”].)

Senate Bill No. 1437 (2017-2018 Reg. Sess.) also “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.” (Lewis, supra, 11 Cal.5th at p. 959.) “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.’ ” (Lewis, supra, at pp. 959-960, quoting § 1170.95, former subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A).) “Additionally, the petition shall state ‘[w]hether the petitioner requests the appointment of counsel.’ ” (Lewis, supra, at p. 960, quoting § 1170.95, subd. (b)(1)(C).) “If a petitioner fails to comply with [section 1170.95,] subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of another petition.’ ” (Lewis, supra, at p. 960, quoting § 1170.95, subd. (b)(2).) “Where the petition complies with [section 1170.95,] subdivision (b)’s three requirements,^[[4]^] then the court proceeds to [section 1170.95,] subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief.” (Lewis, supra, at p. 960, quoting § 1170.95, former subd. (c).)

Section 1170.95, former subdivision (c) provided:

“The court 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. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.”

In Lewis, the California Supreme Court held:

“[T]he prima facie inquiry under [section 1170.95, former] 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; see 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.’ ”].)

“If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then 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 in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ ” (Lewis, supra, 11 Cal.5th at p. 960, quoting § 1170.95, former subd. (d)(1).) “The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (§ 1170.95, former subd. (d)(3).) “At the hearing stage, ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’ ” (Lewis, supra, at p. 960, quoting § 1170.95, former subd. (d)(3).)

In October 2021, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.), which amended section 1170.95. (Stats. 2021, ch. 551, § 1 et seq.) Effective January 1, 2022, section 1170.95 now provides that “[a] person 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” may file a petition to have that conviction vacated under certain circumstances. (§ 1170.95, subd. (a), italics added; see People v. Langi (2022) 73 Cal.App.5th 972, 978 [Senate Bill No. 1437 “transformed the law of accomplice liability for murder” and Senate Bill No. 775 “expanded the scope of those changes”].) The newly amended statute also “[c]odifies the holdings of . . . Lewis . . . regarding petitioners’ right to counsel and the standard for determining the existence of a prima facie case” (Stats. 2021, ch. 551, § 1, subd. (b); see § 1170.95, subds. (b)(3), (c)) and “addresses the evidence a court may consider at a resentencing hearing” (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2; see § 1170.95, subd. (d)(3)).

2. Analysis

Defendant contends that the court erroneously denied his petition on the basis of the jury’s kidnapping-murder special-circumstance finding. We disagree. As mentioned, “ ‘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 record on direct appeal demonstrates that the court instructed the jury as follows:

“If you find a defendant guilty of first degree murder, you must also decide whether the People have proved that one or more of the special circumstances is true.

“The People have the burden of proving each special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved.

“You must return a verdict form stating true or not true for each special circumstance on which you all agree. In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree. You must consider each special circumstance separately, and you must consider each special circumstance separately for each defendant.

“If you decide that a defendant is guilty of first degree murder but was not the actual killer, then when you consider the special circumstances of kidnapping, torture, or active participation in a criminal street gang, you must decide whether the defendant acted with the intent to kill.

“In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove that the defendant acted with the intent to kill.

“If a defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with the intent to kill for the special circumstances of kidnapping, torture, or active participation in a criminal street gang to be true. If the People have not met this burden, you must find these special circumstances have not been proved true for that defendant. [¶] . . . [¶]

“The defendants are charged with a special circumstance of intentional murder while engaged in the commission of kidnapping in violation of Penal Code Section 190.2(a)(17).

“To prove that this special circumstance is true, the People must prove that: 1, the defendant committed kidnapping; 2, the defendant intended to commit kidnapping; 3, the defendant did an act that was a substantial factor in causing the death of another person; 4, the defendant intended that the other person be killed; and 5, the act causing the death and the kidnapping form part of one contin[uous] transaction.” (Italics added.)

As conveyed by these instructions, the “intent to kill kidnapping” special circumstance “requires intent to kill and cannot be proven by reckless indifference to human life by a major participant in the kidnapping.” (People v. Odom (2016) 244 Cal.App.4th 237, 256-257.) Since the jury found true the allegation, it necessarily concluded that defendant intended that the victim be killed. (See People v. Fayed (2020) 9 Cal.5th 147, 192 [“We presume the jury followed the trial court’s instruction absent evidence to the contrary.”].) This directly controverts assertions in defendant’s petition that he “could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019” and “did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree.” Therefore, the court’s determination that defendant failed to make a prima facie showing for relief was correct.

Regarding defendant’s claim that he was deprived of his right to be present at the August 28, 2020 hearing, any purported error was harmless because the record establishes that he is ineligible for resentencing under section 1170.95 as a matter of law. (See People v. Simmons (2021) 65 Cal.App.5th 739, 742, 746, 749-750, review granted Sept. 1, 2021, S270048.)

DISPOSITION

The order denying defendant’s petition for resentencing pursuant to section 1170.95 is affirmed.

* Before Hill, P. J., Detjen, J. and Smith, J.

[1] Subsequent statutory citations refer to the Penal Code.

[2] The jury also found true the allegations that (1) the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)); (2) defendant intentionally killed the victim while being an active participant in a criminal street gang and the murder was carried out to further the activities of the gang (id., subd. (a)(22)); (3) the murder was committed for the benefit of, at the direction of, or in association with the gang (§ 186.22, subd. (b)(1)(C)); (4) a principal in the commission of the murder personally and intentionally discharged a shotgun and proximately caused the victim’s death (§ 12022.53, subds. (d) & (e)(1)); and (5) a principal in the commission of the murder personally and intentionally discharged a handgun and proximately caused the victim’s death (id., subds. (c) & (e)(1)). On direct appeal, we vacated these findings. (People v. Navarro (Jan. 13, 2017, F068452) [nonpub. opn.].)

[3] Our opinion was originally filed on December 8, 2021. On February 8, 2022, one day after the remittitur was issued, defendant filed a motion to recall remittitur and reissue the opinion. The People did not object and we granted the motion. The reissued opinion considers amendments to section 1170.95 that took effect on January 1, 2022. (See People v. Porter (2022) 73 Cal.App.5th 644, 651-652.)

[4] “The petition shall include all of the following: [¶] (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)(A)-(C).)