Filed 3/21/22 P. v. Martinez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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In August 2011, a jury found defendant Christina Martinez guilty of first degree murder, robbery, and burglary and found true robbery-murder and burglary-murder special circumstances. On appeal, this court affirmed defendant’s murder conviction but vacated the robbery and burglary convictions because the charges were untimely brought. In January 2019, defendant petitioned the trial court for resentencing under Penal Code section 1170.95[1] based on changes made to the felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The trial court denied defendant’s petition at the prima facie stage, finding the record established defendant was ineligible for resentencing on multiple grounds. On appeal, defendant argues the trial court erred in summarily denying her petition. We disagree and affirm.

FACTUAL AND PROCEDURAL HISTORY

The relevant facts are taken from our unpublished opinion following defendant’s direct appeal. (People v. Hammons (Jan. 12, 2015, C069317) [nonpub. opn.] (Hammons).)[2] In July 2004, defendant participated in a home invasion robbery and burglary with her boyfriend and codefendant, Robert Lee Hammons, and two teenage boys. During the robbery, Hammons encountered a man who lived in the home and beat him to death with a steering wheel locking device known as “the Club,” which Hammons took from the victim’s couch. One teenage accomplice testified that as the victim lay unconscious on the ground, defendant grabbed speaker wire and stood watch over his body, prepared to choke him if he revived.

Defendant was tried by jury in August 2011. The jury found defendant guilty of first degree murder based on a felony-murder theory (§ 187, subd. (a)); first degree robbery while acting in concert (§§ 211, 213, subd. (a)(1)(A)); and first degree burglary (§ 459). It also found true the special-circumstances allegations of killing while engaged in a robbery and burglary. (§ 190.2, subd. (a)(17).) The trial court sentenced defendant to life without possibility of parole for the murder with special circumstances. It imposed and stayed terms for robbery and burglary under section 654. On appeal, we vacated defendant’s convictions for robbery and burglary because they were brought after the statute of limitations had run. We affirmed the judgment in all other respects. The Supreme Court denied defendant’s petition for review. (Hammons, supra, C069317, review denied Apr. 15, 2015, S224378.)

On April 20, 2016, the California Supreme Court summarily denied defendant’s petition for writ of habeas corpus.

In December 2018, Governor Edmund G. Brown Jr., partially commuted defendant’s sentence to a total of 13 years to life, based on defendant’s “exemplary conduct in prison” and her “efforts to put the impacts of her prior abuse [from childhood and from Hammons] behind her.”

On January 17, 2019, defendant filed a form petition for resentencing under section 1170.95 in propria persona. Her declaration stated that she was prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine and that she could not now be convicted of murder because of the changes made to sections 188 and 189. She also erroneously stated that she pleaded guilty or no contest to murder. Defendant requested appointment of counsel.

The trial court appointed counsel and set a briefing schedule. Following briefing, but without holding a hearing, the trial court denied the petition in a written order finding that defendant failed to make the required prima facie showing. Specifically, it noted the split in appellate authority regarding whether a true finding on felony-murder special circumstances alone defeats a section 1170.95 petition in light of People v. Banks (2015) 61 Cal.4th 788, 798 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). It stated that even if it followed the line of cases requiring a court to independently review the evidence to determine if she could still be convicted of murder under the amended section 189, subdivision (e), defendant’s petition fails because the evidence in the record of conviction supports a finding that defendant was a major participant in the burglary and robbery who acted with reckless indifference to human life. The trial court further found (1) the evidence supports a finding defendant aided and abetted the victim’s murder; (2) the record demonstrates that defendant would still be convicted of murder as a matter of law under Banks and Clark; and (3) defendant proffered no new evidence warranting an evidentiary hearing.

Defendant timely appealed the denial of her petition. On August 18, 2020, while defendant’s petition for resentencing was pending, the federal district court adopted the magistrate judge’s recommendation to deny defendant’s federal habeas petition (28 U.S.C. § 2254). (Martinez v. Johnson (E.D.Cal. Aug. 18, 2020, No. 2:16-cv-1302 MCE AC) 2020 WL 4793992.)

DISCUSSION

I

Section 1170.95 Petition

Defendant argues the trial court was required to issue an order to show cause because her petition established a prima facie showing of eligibility under section 1170.95. She contends that to the extent the trial court denied her petition on the special- circumstance finding, the trial court erred because in Banks and Clark, decided after her trial, our Supreme Court modified the analysis for “major participant” and “reckless indifference to human life.” Defendant further argues that the trial court erred by engaging in judicial factfinding at the prima facie stage. In supplemental briefing, defendant also contends that in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), the trial court erred in relying on the facts in our prior appellate opinion and evidence from trial and argues that the “substantial evidence test” is inappropriate at the prima facie stage. Defendant avers that the proper remedy is to remand the cause to the trial court to issue an order to show cause. Alternatively, defendant seeks a new jury trial based on the new definition of “major participant” and “reckless disregard for human life” required by Banks and Clark. We conclude the trial court properly denied the petition.

A. Legal background

Senate Bill 1437, effective January 1, 2019, was enacted to amend the felony-murder rule and eliminate the natural and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275.) To that end, Senate Bill 1437 amended sections 188 and 189 and added section 1170.95.

Section 189, subdivision (e) now limits the circumstances under which a person may be convicted of felony murder. As relevant here, a participant in the perpetration or attempted perpetration of a felony listed in subdivision (a), defining first degree murder, in which a death occurs, is liable for murder if 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. (Stats. 2018, ch. 1015, § 3.)

Senate Bill 1437 also added section 1170.95 to delineate the resentencing petition process for a “person convicted of felony murder or murder under a natural and probable consequences doctrine or other theory . . . .” (§ 1170.95, subd. (a).) Once a defendant submits a petition and the court performs an initial review for missing information and appoints counsel for defendant, subdivision (c) of section 1170.95 provides: “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 case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.”

B. Eligibility for relief with special circumstances present

Section 190.2, subdivision (d) provides that for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life.” (§ 190.2, subd. (d); Banks, supra, 61 Cal.4th at p. 798.) Thus, on its face, a special-circumstance finding satisfies the requirements for accomplice murder liability even after Senate Bill 1437. (§ 189, subd. (e).)

Here, because the jury found the special-circumstances finding true, the jury necessarily found that defendant was, at a minimum, a major participant who acted with reckless indifference to human life. This means she could still be found guilty of felony murder even after Senate Bill 1437, rendering her ineligible for resentencing as a matter of law.

Defendant nonetheless argues that the jury’s special-circumstance findings are not entitled to any weight because, since her conviction, the Supreme Court clarified the analysis as to who qualifies as a major participant acting with reckless indifference to human life in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. Defendant claims that because the jury did not consider the facts of her case under Banks and Clark, the special-circumstance findings cannot render her ineligible for relief as a matter of law. Instead, her petition must advance to an evidentiary hearing for such a review. The People respond that because the jury’s special-circumstance findings established all of the facts necessary for a conviction under the newly amended law, and because a habeas corpus petition is the proper procedure to challenge that finding, the trial court did not err in denying defendant relief as a matter of law. We agree with the People.

As both parties acknowledge, there is a split of authority on whether a true felony-murder special-circumstance finding under section 190.2, subdivision (a)(17) should preclude a defendant from making a prima facie showing of entitlement to relief if that finding predated the decisions in Banks and Clark or whether such a defendant must first seek relief through a habeas corpus petition before filing a section 1170.95 petition. (Compare, e.g., People v. Galvan (2020) 52 Cal.App.5th 1134, review granted Oct. 14, 2020, S264284; People v. Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14, 2020, S264033; People v. Allison (2020) 55 Cal.App.5th 449 (Allison) [concluding the special-circumstance finding renders a petitioner ineligible for relief as a matter of law and defendants seeking relief on the basis of Banks/Clark must do so through habeas corpus], with People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835; People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review granted June 24, 2020, S262011, abrogated on other grounds in Lewis, supra, 11 Cal.5th 963; People v. Secrease (2021) 63 Cal.App.5th 231, review granted June 30, 2021, S268862 [reaching the opposite conclusion].) Our Supreme Court now has this question under consideration, having granted review of the nonpublished opinion in People v. Strong (Dec. 18, 2020, C091162) on March 10, 2021, S266606.

Until we receive further guidance from the California Supreme Court, we find Galvan and Allison more persuasive on this issue than the cases to the contrary. We therefore reject defendant’s attempts to challenge these factual findings through the process under section 1170.95. The statute clearly indicates that eligibility for relief under section 1170.95 is contingent upon a defendant showing she “could not presently be convicted of murder” due to changes to sections 188 or 189, not based on clarifications to the law made in Banks and Clark. (§ 1170.95, subd. (a)(3); People v. Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; Allison, supra, 55 Cal.App.5th at pp. 456-457.) As explained in Allison, “[n]othing in the language of section 1170.95 suggests it was intended to provide redress for allegedly erroneous prior factfinding. In particular, subdivision (a)(3) of section 1170.95 says nothing about erroneous prior findings or the possibility of proving contrary facts if given a second chance. Rather, it requires that the petitioner could not be convicted of murder because of the changes to sections 188 and 189, not because a prior fact finder got the facts wrong. The purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.” (Allison, at p. 461, italics omitted.)

Because the jury’s true findings on the special circumstances preclude defendant from showing that she could not now be convicted of first degree felony murder following the changes brought about by Senate Bill 1437, the trial court did not err in determining she was ineligible for relief.

C. Procedural compliance

Next, as defendant notes in her supplemental briefing, our Supreme Court issued Lewis, supra, 11 Cal.5th 952 and the Legislature passed Senate Bill 775 while defendant’s appeal was pending, which, in part, clarify procedural requirements for the trial court’s review of a section 1170.95 petition. However, these evolutions in the law do not alter our conclusion here.

As is relevant here, Lewis holds that section 1170.95 requires a single prima facie showing and appointment of counsel upon request at the prima facie stage. (Lewis, supra, 11 Cal.5th at pp. 962-963.) It further provides that trial courts may “rely on the record of conviction in determining whether that single prima facie showing is made,” noting that prior appellate opinions in a defendant’s case “are generally considered to be part of the record of conviction.” (Id. at pp. 970, 972.) If the record of conviction establishes the petition lacks merit, the trial court may deny the petition without conducting further proceedings. (Id. at p. 971.)

Senate Bill 775, in turn, amended section 1170.95’s procedural requirements to (1) codify the holdings of Lewis, supra, 11 Cal.5th 952 to statutorily require the appointment of counsel at the prima facie review stage if requested along with an opportunity for briefing; (2) provide for a hearing at the prima facie stage; (3) affirm the standard of proof at the order to show cause hearing is proof beyond a reasonable doubt; and (4) clarify what evidence a court may consider at that hearing. (§ 1170.95.) Senate Bill 775 was effective January 1, 2022. We agree with defendant, and the People do not dispute, that Senate Bill 775 is applicable to defendant’s case, which was not final on appeal as of the effective date of the statute. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308.)

Here, consistent with Lewis and Senate Bill 775, the trial court appointed counsel, received briefing, and conducted a single prima facie review, finding defendant ineligible for relief based on the record of conviction.[3] Although defendant did not receive a hearing at the prima facie stage, which Senate Bill 775 now requires (§ 1170.95, subd. (c)), this procedural error does not mandate reversal. Instead, we review the trial court’s failure to hold a hearing under a Watson harmless error analysis. (Lewis, supra, 11 Cal.5th at p. 973-974; see also People v. Watson (1956) 46 Cal.2d 818, 836.) In this case, the jury’s special-circumstances finding refutes defendant’s assertion that she was not an aider and abettor with intent to kill and was not a major participant in the felony who acted with reckless indifference to human life. These jury findings remain a part of the record of conviction unless vacated through habeas corpus procedure. Defendant is therefore ineligible for relief as a matter of law, regardless of whether the trial court conducted a prima facie hearing.

DISPOSITION

The trial court’s denial of defendant’s section 1170.95 petition is affirmed.

KRAUSE , J.

We concur:

BLEASE , Acting P. J.

RENNER , J.

[1] Undesignated statutory references are to the Penal Code.

[2] We construed defendant’s request for judicial notice as a motion to incorporate by reference the record in her direct appeal and our corresponding opinion, and granted the motion.

[3] To the extent any portion of the trial court’s analysis went beyond its authority at the prima facie stage, its reliance on the jury’s special-circumstance finding standing alone was sufficient to justify the denial, and we will affirm a judgment correct on any legal basis. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269 [“There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct”].)