Filed 5/23/22 P. v. Flores-Ventura CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Madera County. James E. Oakley, Judge.

David Y. Stanley, under appointment by the Court of Appeal, Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 2013, appellant Jose Antonio Flores-Ventura was convicted by jury of first degree murder (Pen. Code,[1] § 187, subd. (a)) and attempted first degree murder (§§ 664, 187, subd. (a)). In addition, the jury found true a special circumstance alleging the murder was committed during the commission of a robbery. (§ 190.2, subd. (a)(17).) He was sentenced to a prison term of life without the possibility of parole plus a term of life with the possibility of parole.

In 2019, following the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), Flores-Ventura filed a section 1170.95 petition for resentencing seeking to vacate his murder conviction. Following the appointment of counsel, submission of briefs by the parties, and a contested hearing, the court denied Flores-Ventura’s petition. On appeal, Flores-Ventura contends the trial court erred in denying his petition, and that the error is reversible. We affirm.

PROCEDURAL HISTORY

In 2013, Flores-Ventura was convicted of first degree murder (§ 187, subd. (a); count 1), with special circumstances found true (§ 190.2, subd. (a)(15), (a)(17)), and attempted first degree murder (§§ 664, 187, subd. (a); count 2). He was sentenced to a term of life without the possibility of parole plus a term of life with the possibility of parole.

On appeal from the conviction in People v. Flores et al. (June 24, 2015, F067554 [nonpub. opn.]), this court affirmed Flores-Ventura’s judgment.

On February 14, 2019, Flores-Ventura, in pro per, filed a petition for resentencing in the superior court pursuant to Senate Bill No. 1437. The court appointed Flores-Ventura counsel. The People filed a motion to deny the petition.

On October 2, 2019, the court declared that it would issue an order to show cause (OSC), and that it would prepare the OSC. The court and the parties set a hearing on the OSC. Flores-Ventura subsequently filed an opposition to the prosecutor’s motion to dismiss and the prosecution filed a reply.

On February 11, 2021, following argument by the parties, the court denied Flores-Ventura’s petition. The court observed that the jury had found true a special allegation finding Flores-Ventura had murdered the victim while he was engaged in the commission of a robbery. However, notwithstanding the jury’s true finding on the special allegation, the court concluded, beyond a reasonable doubt, that Flores-Ventura was a major participant who acted with reckless indifference to human life during the commission of the robbery.

On March 2, 2021, Flores-Ventura filed a timely notice of appeal.

FACTS

The Underlying Crime

The following statement of facts is taken from this court’s opinion in People v. Flores et al., supra, F067554.[2]

Dairy Shootings

On January 19, 2008, Sergio Ventura, Salvador Gutierrez Martinez, and Alberto Ivan Narvaez-Torres, were working the late nightshift at the Coelho Farms dairy in Chowchilla. It was Narvaez-Torres’s first night on the job.

As the three men worked in the milking barn, two men rushed in and one of them initially fired two gunshots. The shooter was wearing a multicolored sweater and a yellow bandana. The shooter used a rifle with a piece of cloth tied on to catch the shell casings as they were ejected from the gun. The second assailant carried a shotgun but did not fire any shots.

Ventura explained that Narvaez-Torres was shot and dropped to the ground. A bullet grazed Ventura in the head. Ventura initially tried to run away, saw someone else had entered the barn, and realized he could not escape. Ventura dropped to the ground and played dead. Narvaez-Torres was making noises until the shooter shot him again.

Right after Narvaez-Torres stopped making any sounds, Ventura could feel the assailants searching his pants pockets. Referring to Ventura, one of the assailants said to the other that “[t]his dude, he doesn’t have anything.” When Martinez, the third dairy worker, saw a gun and heard gunshots, he ran out of the barn, got a tractor, and went to Tim Coelho’s home.

Coelho’s home is about a quarter of a mile from the dairy barn. When Martinez and Coelho returned to the barn, they found Narvaez-Torres not breathing, with a pool of blood behind his head. A spent bullet was found in the barn. During the autopsy of Narvaez-Torres, one bullet was recovered from the victim’s brain and another was recovered from his vertebrae. The bullets recovered from Narvaez-Torres were .22-caliber.

Ventura explained that Flores-Ventura was his cousin and was familiar to him. Flores-Ventura had previously worked at the dairy, but stopped doing so months prior to the shooting. Ventura saw the assailants at trial and identified Flores-Ventura. Ventura viewed a video of the shooting and testified that it accurately depicted the events that occurred that night.

According to Coelho, Flores-Ventura had worked at the dairy until August 2007. Coelho fired Flores-Ventura because he was tardy to work and failed to show up to work a couple of times.

Soon after the shooting, [Jesus Reynoso] Flores told his friend Miguel Guillen that he had gone with Flores-Ventura to the dairy in Flores’s car. They went to the dairy because someone owed Flores-Ventura money. Flores told Guillen he shot the guy who was killed with a .22-caliber rifle. When Guillen asked Flores why he did it, Flores said “he had to.” Flores also told Guillen they got $10 from the victims and he later buried or burned the rifle.

The Trial Court’s Ruling on Flores-Ventura’s Petition for Resentencing

On October 2, 2019, the trial court declared it would issue an OSC. Although a typewritten OSC does not appear within the appellate record, an evidentiary hearing was held on Flores-Ventura’s petition on February 11, 2021.

At the beginning of the hearing, the trial court made the following statements:

“I can say that I was the trial judge in this matter. I remember the evidence well. I have reviewed the file. I have not gone over the transcripts, the disc that you sent me was unreadable.… So, you may want to resubmit one for the record, but it’s not necessary. I have, again, gone over the file, and I remember the details of this offense fairly clearly.

“The Court should also note that I have reviewed the motion itself. Further, the People’s motion to deny the petition, filed May 1st, 2019, and also the supplemental to People’s motion to deny the defendant’s petition, filed August 7th, 2020.

“The Court does recognize that the Court must be convinced in this hearing by beyond a reasonable doubt that the current sentence is appropriate under the facts of this case.”

No new evidence was presented at the hearing. Following argument by the parties, the court denied Flores-Ventura’s petition, stating:

“The Court is going to rule at this time. The Court is going to deny the motion for resentencing, and I want to go over an explanation.

“The fact is that the jury returned a verdict in this case on April 22nd, 2013. As to the charge of murder, the defendant was found guilty of first-degree murder, and the jury [found] true the special allegation that the defendant committed the murder of Albert Ivan Navares Torres while the defendant was engaged in the commission of the attempted commission of a robbery, a felony within the meaning of Section 190.2, subparagraph (a), subparagraph (17) of the Penal Code.

“And it is true, as noted by the District Attorney, that the jury was properly instructed, pursuant to the instructions 703 of the intent requirement of an accomplice, and that the jury was told that they – in order to prove this special circumstances for a defendant who is not the actual killer, but who is guilty of first-degree murder as an aider and abettor or a member of a conspiracy, the People must prove either that the defendant intended to kill or the People must prove all of the following:

“1. The defendant’s participation in the crime began before or during the

killing.

“2. The defendant was a major participant in the crime.

And,

“3. When the defendant participated in the crime, he acted with reckless

indifference to human life.

“So, the jury was instructed properly and found, beyond a reasonable doubt, those factors to be present.

“But even if the Court did not have that specific instruction and that specific finding to rely upon, the Court would find at this time, beyond a reasonable doubt, that at the time of the commission of this murder, this killing, that pursuant to Section 190.2, subparagraph (d), that he acted with reckless indifference to human life; and, as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the commission of a felony enumerated in paragraph 17 of subdivision (a), which resulted in the death of some person or persons who is found guilty of murder.

“And the Court also finds, consistent with the verdict of the jury, that at the time of the commission of the robbery, that the defendant’s participation in the crime began before the killing, the defendant was a major participant in the crime, and the defendant participated in the crime, he acted with reckless indifference to human life.

“Now, I heard all of the evidence. I saw the video. And [defense counsel’s] argument that the other defendant entered first and fired the shot is a little misleading, just in terms of the timing of it, because this was a very quick event.

“It may have been that the other defendant was a step or two ahead of Mr. Flores-Ventura, but they came in, virtually, right together, both armed. The shot made almost immediately that was fatal. And, immediately, both of them went to the bodies that were downed and went through their pockets.

“It was clear that this did not phase Mr. … Flores-Ventura, in that it seemed that he was of a mind to look for something in the pockets of the men who were downed, including the decedent in this case.

“So, I think the video is a very important piece of evidence. And while it does show that the other defendant came in first, the timing was immediate as to Mr. Flores-Ventura coming in. The fact that he did not fire the shot is important, but that’s the very reason why we are here. If he had fired the shot, then this motion would not even be a consideration.

“The Court does find that this was certainly more than just a planning of a robbery with other confederates, and not one in which he had any personal reckless disregard for the life of the victim. It seemed to me that he put himself and the other defendant, or they put each other, in a situation where it was entirely foreseeable that somebody would get killed.

“And, therefore, the Court does find this to not even be a close case. The Court does deny the motion.”

DISCUSSION

Flores-Ventura contends the trial court erroneously denied his petition for resentencing for two reasons. First, he contends the trial court applied an erroneous subjective standard in denying his petition by finding his sentence appropriate based upon the facts of the case. Second, he argues the trial court placed an inappropriate emphasis on the jury’s finding of a felony-murder special circumstance. (§ 190.2, subd. (a)(17)(A).) Because the jury’s true finding on the special circumstance occurred prior to the United States Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), Flores-Ventura contends he is not ineligible for relief as a matter of law. As discussed further below, we find Flores-Ventura’s claims unpersuasive.[3]

1. The Trial Court Applied the Proper Standard in Denying Flores-Ventura’s Petition

Flores-Ventura claims the trial court erroneously applied a subjective legal standard in denying his petition. Before hearing argument from the parties, the court made the following comments: “The Court does recognize that the Court must be convinced in this hearing by beyond a reasonable doubt that the current sentence is appropriate under the facts of this case.” The Attorney General contends the trial court’s introductory comments were not intended to serve as a complete recitation of the applicable standard of review. We agree with the Attorney General.

In denying Flores-Ventura’s petition for resentencing, the court expressly found, beyond a reasonable doubt, that Flores-Ventura was a major participant in the commission of robbery and that he had acted with reckless indifference to human life. Although the court did not discuss how the evidence supported the existence of each of the individual factors articulated in Banks and Clark, the court offered an explanation as to how the evidence supported its findings. In so doing, the court explained its conclusion was based upon its review of the court file, the video evidence, and its recollection of the evidence adduced at trial.

Section 1170.95, subdivision (d)(3), provides the following, in pertinent part: “At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.… A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, eff. Jan. 1, 2022.) Contrary to Flores-Ventura’s assertions, the trial court did not deny his petition based upon a finding that the sentence was warranted based upon the facts of the case. Rather, the full context of the record makes clear that the court applied the appropriate standard in denying the petition for resentencing.

2. The Jury’s True Finding on the Special Circumstances Renders Flores-Ventura Ineligible for Relief as a Matter of Law

Next, Flores-Ventura contends the trial court erred by denying his petition for resentencing under section 1170.95 based, in part, upon the fact that the robbery-murder special circumstance was found true prior to our Supreme Court’s decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. Relying upon People v. Secrease (2021) 63 Cal.App.5th 231, 256, review granted June 30, 2021, S268862 (Secrease), he suggests the jury instructions given at the time of Flores-Ventura’s 2013 trial were insufficient to incorporate Banks and Clark.[4] Thus, according to Flores-Ventura, the jury’s special-circumstance finding is insufficient as a matter of law to show that he acted as a major participant with reckless indifference to human life. (See § 189, subd. (e)(3) [“[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: [¶] … [¶] (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”].)

Appellate courts that have adopted this viewpoint have concluded that a petitioner with a special-circumstance finding that occurred pre-Banks and Clark may have been convicted based on “conduct that is not prohibited by section 190.2 as currently understood.” (People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review granted June 24, 2020, S262011, overruled on other grounds by People v. Lewis (2021) 11 Cal.5th 952, 963; accord, People v. Harris (2021) 60 Cal.App.5th 939, 958, review granted April 28, 2021, S267802; People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) And, if the jury’s finding on a felony murder special circumstance is legally insufficient under Banks and Clark, such a finding cannot “conclusively refute a prima facie showing of entitlement to resentencing relief.” (Secrease, supra, 63 Cal.App.5th at p. 256.) Thus, in considering whether a petitioner is entitled to relief pursuant to section 1170.95, the court must first determine whether “the evidence presented at trial was sufficient to support the felony-murder special-circumstance finding under Banks and Clark.” (Secrease, at p. 264.)

A contrary line of authority has emerged rejecting this contention and concluding that a special circumstance finding bars section 1170.95 resentencing relief as a matter of law. (See People v. Nunez (2020) 57 Cal.App.5th 78, 92, review granted Jan. 13, 2021, S265918; People v. Jones (2020) 56 Cal.App.5th 474, 478-479, review granted Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th 449, 458; People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020, S264284; People v. Gomez (2020) 52 Cal.App.5th 1, 13-14, review granted Oct. 14, 2020, S264033.) “Courts which have held that a pre-Banks and Clark felony-murder special-circumstance finding bars section 1170.95 resentencing relief have reasoned that Banks and Clark merely clarified the law as it always was.” (People v. Simmons (2021) 65 Cal.App.5th 739, 747, review granted Sept. 1, 2021, S270048 (Simmons).) Banks and Clark merely relied upon decisions by the United States Supreme Court to clarify principles that have long been in existence. (Simmons, at p. 749, citing Enmund v. Florida (1982) 458 U.S. 782 & Tison v. Arizona (1987) 481 U.S. 137.)

This issue is currently pending review in our Supreme Court in People v. Strong, review granted March 10, 2021, S266606 [“Does a felony-murder special-circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95?”].

Until our Supreme Court resolves this issue, we decline to depart from our holding in Simmons. We therefore conclude that a jury’s special circumstance finding precludes resentencing relief under section 1170.95 as a matter of law. By finding the special circumstance allegation true, the jury made the requisite findings necessary to sustain Flores-Ventura’s felony murder conviction under the law as amended by Senate Bill No. 1437. Specifically, the jury decided he was a major participant in the robbery who acted with reckless indifference to human life. (See § 189, subd. (e)(3).) We therefore reject Flores-Ventura’s claim that the trial court erred in relying upon the jury’s special-circumstance finding in denying his petition.

3. The Trial Court’s Independent Determination that Flores-Ventura Was a Major Participant Who Acted With Reckless Indifference to Human Life

Flores-Ventura was not denied resentencing relief at the prima facie stage of section 1170.95 proceedings based upon the jury’s true finding on the special-circumstance. (See, e.g., Secrease, supra, 63 Cal.App.5th 231 [trial court erred in concluding pre-Banks/Clark special-circumstance finding by jury barred petitioner from pleading a prima facie case for § 1170.95 resentencing relief as a matter of law].) Indeed, the court held an evidentiary hearing upon Flores-Ventura’s petition where Flores-Ventura was represented by counsel. At the conclusion of the hearing, the court held that consistent with the jury’s special-circumstance finding, the evidence established beyond a reasonable doubt that Flores-Ventura acted as a major participant with reckless indifference to human life, stating:

“But even if the Court did not have that specific instruction and that specific finding to rely upon, the Court would find at this time, beyond a reasonable doubt, that at the time of the commission of this murder, this killing, that pursuant to Section 190.2, subparagraph (d), that he acted with reckless indifference to human life; and, as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the commission of a felony enumerated in paragraph 17 of subdivision (a), which resulted in the death of some person or persons who is found guilty of murder.

“And the Court also finds, consistent with the verdict of the jury, that at the time of the commission of the robbery, that the defendant’s participation in the crime began before the killing, the defendant was a major participant in the crime, and the defendant participated in the crime, he acted with reckless indifference to human life.”

Thereafter, the trial court offered an explanation as to how the evidence supported its ruling, adding, “the Court does find this to not even be a close case.” Thus, in addition to determining Flores-Ventura was ineligible for relief as a matter of law based upon the jury’s special-circumstance finding, the trial court also independently determined that the evidence proved, beyond a reasonable doubt, that Flores-Ventura was a major participant who acted with reckless indifference to human life during the commission of the robbery.

Flores-Ventura does not address the trial court’s findings except to state that it is not clear “whether the court considered all the pertinent factors under Banks/Clark.” He further suggests this court cannot determine the scope of the record upon which the trial court relied in reaching its conclusion, but he does not point to the absence of any particular factors under Banks/Clark which would undermine the trial court’s findings.

We do not presume error on appeal. To the contrary, “ ‘[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As Flores-Ventura does not argue there is insufficient evidence supporting the trial court’s finding that he acted as a major participant with reckless indifference to human life during the course of the robbery, we do not address this issue.[5]

DISPOSITION

The trial court’s order denying Flores-Ventura’s petition for resentencing is affirmed.

* Before Detjen, Acting P. J., Franson, J. and Peña, J.

[1] All undefined statutory citations are to the Penal Code.

[2] We have omitted a portion of the statement of facts from this court’s unpublished opinion. We recite these facts to provide context for the court’s ruling and the parties’ arguments. We do not rely on the facts contained in that opinion in resolving the issues presented in this appeal because with the enactment of Senate Bill No. 775 (2021-2022 Reg. Sess.) and section 1170.95 (Stats. 2021, ch. 551, § 2), the Legislature effectively prohibited such reliance effective January 1, 2022. (People v. Clements (2022) 75 Cal.App.5th 276, 292.) On our own motion, we take judicial notice of this court’s unpublished opinion. (See Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)

[3] Flores-Ventura does not challenge his conviction for attempted murder. Consequently, we do not address this conviction.

[4] Secrease does not suggest that pre-Banks/Clark jury instructions are insufficient as a matter of law. As our colleagues in the First District Division 4 made clear, “the heart of the problem we deal with here is not that Secrease’s jury received inadequate instructions in 1998; under Estrada, the instructions were correct as given, as we confirmed in Secrease I. Rather, the problem is that no court has ever reviewed that jury’s special circumstance finding under Banks and Clark standards.” (People v. Secrease, supra, 63 Cal.App.5th at p. 256.)

[5] As the Attorney General observes, appellate court decisions that have concluded a pre-Banks/Clark special circumstance finding renders a petitioner ineligible for section 1170.95 resentencing as a matter of law have concluded that the proper procedure for challenging such a finding is by way of a habeas corpus petition. (See Simmons, supra, 65 Cal.App.5th at p. 749.) Our Supreme Court’s resolution of the issue presented in People v. Strong may provide guidance on this issue.