Opinion
B301175
07-02-2021
THE PEOPLE, Plaintiff and Respondent, v. BERNADETTE CORVERA, Defendant and Appellant.
Dwyer and Kim and John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. VA087669, Ronald S. Coen, Judge. Affirmed.
Dwyer and Kim and John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, J.
INTRODUCTION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), effective January 1, 2019, amended the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. Under Penal Code section 1170.95, a person who was convicted under theories of felony murder or murder under the natural and probable consequences doctrine, and who could not be convicted of murder following the enactment of SB 1437, may petition the sentencing court to vacate the conviction and resentence on any remaining counts.
All undesignated statutory references are to the Penal Code.
In 2007, defendant and appellant Bernadette Corvera pled guilty to one count of second-degree murder. In exchange for testifying against a codefendant, Corvera was sentenced to 15 years to life in state prison. In 2019, Corvera filed a petition for recall and resentencing under section 1170.95. The trial court issued an order to show cause, held an evidentiary hearing, and denied the petition, concluding the prosecution had met its burden of proving beyond a reasonable doubt Corvera was a major participant in the robbery during which the murder occurred who acted with reckless indifference to human life.
On appeal, Corvera argues: (1) because she was convicted of second-degree murder under a felony-murder theory of liability, and because section 1170.95 abolished second-degree felony murder, her conviction must be vacated; and (2) even assuming a defendant convicted of second-degree felony murder may be denied relief based on a factual finding of ineligibility under a viable theory of liability, the prosecution failed to prove beyond a reasonable doubt that she acted with reckless indifference to human life. We affirm.
PROCEDURAL BACKGROUND
In 2006, the Los Angeles County District Attorney filed an information charging Corvera and codefendant Leonardo Cisneros with one count of murder (§ 187, subd. (a); count 18) and 14 counts of second-degree robbery (§ 211; counts 5-17, 19). The information further alleged the murder was committed while Corvera and Cisneros were engaged in the commission of the robbery (§ 190.2, subd. (a)(17)), and Cisneros personally used a firearm causing great bodily injury and death (§ 12022.53, subds. (b), (d)).
The information also charged three other codefendants with various offenses.
In 2007, Corvera pled guilty to second-degree murder and one count of robbery. In exchange for her testimony, Corvera received a prison term of 15 years to life. The trial court imposed this sentence in 2014.
Cisneros was convicted of capital murder. His direct appeal is pending before the California Supreme Court in case number S221158.{Note to Caroline - before filing this opinion, please double check to see if the Supreme Court has issued its decision}
In 2019, Corvera filed a petition for resentencing under section 1170.95. The trial court appointed counsel for Corvera. The prosecution filed an opposition to the petition, along with a transcript of Corvera's testimony during Cisneros's trial. The prosecution argued that although Corvera was convicted under a felony-murder theory of liability, she was ineligible for section 1170.95 relief because she was a major participant in the robbery who acted with reckless indifference to human life. Corvera's attorney filed a reply. The court issued an order to show cause why the relief sought should not be granted. The parties presented no additional evidence at the hearing.
The trial court denied the petition, concluding the prosecution had met its burden of proving Corvera was a major participant who acted with reckless indifference to human life.
Corvera timely appealed.
The following facts are taken from the transcript of Corvera's testimony at Cisneros's trial, which the prosecution attached to its response to Corvera's petition. Her testimony was the sole evidence before the trial court when it ruled her ineligible for section 1170.95 relief. There is no prior appellate decision in her case because she did not directly appeal her guilty plea.
Cisneros (a gang member with the moniker “Cyko”) was the boyfriend of Corvera's half-sister, Mitzie Oso. In about September 2004, Oso introduced Corvera to Cisneros. Corvera was not a gang member, though she had friends who were.
Corvera acted as a driver for Cisneros and Oso when they committed robberies. At some point, Corvera stopped being a driver and actually committed the robberies with Cisneros, because he needed somebody to go into the businesses with him. Corvera agreed to do so because she used methamphetamine and wanted the money. Oso became the driver.
Cisneros used a.38 caliber revolver in the robberies. During one of the robberies, Corvera displayed a BB gun. Cisneros's role was to point the revolver at the victims and demand money. Corvera's role was to take the money from the cash register.
Corvera and Cisneros decided to rob a Subway restaurant in Whittier. They targeted that location because an ex-girlfriend of Corvera told her it had a “money drop.” Corvera consequently believed there would be a lot of money there.
Corvera and Cisneros drove to the Subway with Oso and Sara Lopez. Lopez gave Cisneros a revolver. Corvera and Cisneros entered the Subway. Corvera wore a bandanna over her face, and Cisneros wore a hoodie. Corvera walked to the register. Cisneros, with the gun in his hand, yelled at people to get on the floor.
An employee, Joseph Molina, was behind the counter near the register. He had his hands in the air. Corvera unsuccessfully tried to remove the money from the register. She believed the register was locked.
Molina was “just standing there” with his hands raised. Corvera stood beside Molina on the same side of the counter. Cisneros, who was on the other side of the counter with the gun in his hand, said, “[expletive] you, ” and shot Molina. Molina fell to the floor.
Corvera was in shock. Cisneros told Corvera, “Let's go.” Corvera stepped over Molina's body, into his blood, and ran toward the front entrance. Cisneros yelled at Corvera to get the money, so she went back to the register. Corvera jumped over Molina's body again. Corvera opened the register and took about $300.
Corvera testified she did not sign up for a murder. As far as Corvera was concerned, “it was gonna be another one of these armed robberies that [she] had gone on with [Cisneros].” Although Cisneros had murdered another robbery victim months earlier, Corvera had no knowledge of that murder.
After they returned to the car, Corvera asked Cisneros why he had shot the victim. Cisneros replied, “He wasn't listening.” Cisneros's explanation surprised Corvera because the victim had been cooperating.
Corvera did not participate in any more robberies or associate with Cisneros again. She was afraid of Cisneros because he had killed someone.
DISCUSSION
I. Governing Principles
A. SB 1437's Limitation of Accomplice Liability for Murder
The Legislature enacted SB 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).) SB 1437 amended section 189 to provide that a participant in qualifying felonies during which death occurs generally will not be liable for murder unless the person was (1) “the actual killer, ” (2) a direct aider and abettor in first degree murder who harbored the intent to kill, or (3) “a major participant in the underlying felony [who] acted with reckless indifference to human life[.]” (§ 189, subd. (e).)
This limitation does not apply “when the victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties.” (§ 189, subd. (f).)
SB 1437 also “added a crucial limitation to section 188's definition of malice for purposes of the crime of murder.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 326, rev. granted, S260493, Mar. 18, 2020 (Verdugo), fn. omitted.) Under new section 188, subdivision (a)(3), “‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' [Citations.]” (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.) “As a result, the natural and probable consequences doctrine can no longer be used to support a murder conviction. [Citations.]” (Ibid.)
The review order in People v. Lewis states: “The issues to be briefed and argued are limited to the following: (1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c).” (Lewis, S260598, Supreme Court Mins. Mar. 18, 2020.) The review order in Verdugo states: “Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Lewis, S260598 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court.” (Verdugo, S260493, Supreme Court Mins., Mar. 18, 2020.)
B. Petitions to Vacate Prior Convictions
SB 1437 also added section 1170.95 to the Penal Code. This section permits individuals who were convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437's changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under section 1170.95 must include: “(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).) If any of the information is missing “and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.” (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section 1170.95, subdivision (c), prescribes “a two-step process” for the court to determine if it should issue an order to show cause. (Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must “review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section.” (§ 1170.95, subd. (c).) If the petitioner has made this initial prima facie showing, and has requested that counsel be appointed, he or she is then entitled to appointed counsel. (Ibid.; Lewis, supra, 43 Cal.App.5th at p. 1140 [“trial court's duty to appoint counsel does not arise unless and until the court makes the threshold determination that petitioner ‘falls within the provisions' of the statute.”].) The court then reviews the petition a second time. If, in light of the parties' briefing, it concludes the petitioner has made a prima facie showing that he or she is entitled to relief, it must issue an order to show cause. (§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.)
“Once the order to show cause issues, the court 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.” (Verdugo, supra, 44 Cal.App.5th at p. 327, citing § 1170.95, subd. (d)(1).) At the hearing, the parties may rely on the record of conviction or present “new or additional evidence” to support their positions, and “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
II. The trial court conducted the proper inquiry under section 1170.95, subdivision (d)(3)
Corvera argues her murder conviction must be vacated because she was convicted under the felony-murder rule. Before reaching the merits of this argument, we first address a disagreement the parties have regarding the proper inquiry a trial court must make following a section 1170.95, subdivision (d)(3) evidentiary hearing. The parties' disagreement concerns a recent split in authority in the Court of Appeal. In People v. Duke (2020) 55 Cal.App.5th 113 (Duke), review granted January 13, 2021, S265309, the Court of Appeal held: “To carry its burden, the prosecution must [ ] prove beyond a reasonable doubt that the defendant could still have been convicted of murder under the new law-in other words, that a reasonable jury could find the defendant guilty of murder with the requisite mental state for that degree of murder [under current law]. This is essentially identical to the standard of substantial evidence, in which the reviewing court asks ‘“‘whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.... [¶]...” [Citation.]' [Citation.]” (Id. at p. 123, italics in original.) The Attorney General contends this court should follow Duke.
After the parties submitted their first round of briefing, the Attorney General filed a motion to file a supplemental brief so it could offer a different position in light of new legal authority. Corvera filed a response to the motion asking for 30 days from the filing of the Attorney General's supplemental brief to file her response. We granted both parties' requests.
In People v. Lopez (2020) 56 Cal.App.5th 936, 950-951 (Lopez), review granted February 11, 2021, S265974, the Court of Appeal disagreed with Duke's conclusion that the applicable standard at the evidentiary hearing stage is akin to substantial evidence. Lopez concluded the plain language of “section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law in order to establish ineligibility” for relief. (Lopez, at p. 942.) The court in People v. Rodriguez (2020) 58 Cal.App.5th 227 (Rodriguez), review granted March 10, 2021, S266652, agreed with “the Lopez Court of Appeal that it is the [trial] court's responsibility to act as independent fact finder and determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189 and is thus ineligible for resentencing under section 1170.95, subdivision (d)(3).” (Rodriguez, at pp. 243-244.) Corvera argues Lopez and Rodriguez were correctly decided and this court should follow them.
We agree with the approach taken in Lopez and Rodriguez. (See also People v. Harris (2021) 60 Cal.App.5th 939, 952-953, rev. granted Apr. 28, 2021, S267802 [following Lopez and Rodriguez]; People v. Hernandez (2021) 60 Cal.App.5th 94, 103 [same]; People v. Duchine (2021) 60 Cal.App.5th 798, 813-814 [same]; People v. Clements (2021) 60 Cal.App.5th 597, 617-618, rev. granted Apr. 28, 2021, S267624 [same].) At the evidentiary hearing stage, the trial court's role is not to review the record and apply a substantial evidence standard to determine whether the petitioner could still have been convicted of murder under the new law. Rather, the trial court's role is to act as independent fact finder. In this capacity, the court must determine whether the prosecution has established beyond a reasonable doubt the petitioner is guilty of murder under the law as of January 1, 2019. The trial court properly made this inquiry in Corvera's case.
We reject Corvera's argument that the trial court denied her petition based on a conclusion that substantial evidence supported the finding that she was a major participant who acted with reckless indifference to human life, as her position finds no support in the record. (People v. Thomas (2011) 52 Cal.4th 336, 361 (Thomas) [“In the absence of evidence to the contrary, we presume that the court ‘knows and applies the correct statutory and case law.' [Citations.]”].) We likewise reject her contention that the presumption stated in Thomas does not apply here because the law in question was unclear or uncertain when the lower court acted. Although, as discussed above, Courts of Appeal have disagreed over the applicable standard since the trial court denied Corvera relief, the statutory language has remained the same and provided clear guidance regarding the proper standard. (See § 1170.95, subd. (d)(3) [“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 ineligible for resentencing.”].)
Having concluded the trial court made the proper inquiry, we reject Corvera's argument that her conviction must be vacated merely because she was convicted of second-degree felony murder. Because the trial court concluded the prosecution sustained its burden of proving beyond a reasonable doubt Corvera could be convicted of murder under current law, its denial of her petition was proper. (See Lopez, supra, 56 Cal.App.5th at p. 942; § 1170.95, subds. (a)(3) & (d)(3).) This is true regardless of the fact that she pled guilty under a felony-murder theory.
As mentioned above, under the new law, a participant in the perpetration or attempted perpetration of a robbery in which death occurs is still liable for murder if it is proven that the person was a major participant in the robbery and acted with reckless indifference to human life. (§ 189, subds. (a) & (e)(3).) The trial court concluded Corvera was ineligible for relief on that basis.
III. Corvera's challenge to the sufficiency of the evidence
Corvera next argues the record contains insufficient evidence to support the trial court's factual finding that she acted with reckless indifference to human life. Corvera argues that because the trial court relied on the transcript of her testimony at Cisneros's trial in making its factual finding, and because the relevant facts are undisputed, we should apply de novo review, and that under this standard, the finding must be reversed for lack of sufficient evidence. Alternatively, she argues the finding is unsupported by the record even under the more deferential substantial evidence standard of review. The Attorney General argues substantial evidence is the applicable standard, and that standard is satisfied here based on Corvera's testimony at Cisneros's trial. Before reaching the merits of the issue, we first address what standard of review applies.
A. We review the trial court's factual finding for substantial evidence
In Lopez, after issuing an order to show cause under section 1170.95, subdivision (c) and holding an evidentiary hearing under section 1170.95, subdivision (d)(3), the trial court denied Lopez's petition, concluding that although Lopez had been convicted under a natural and probable consequences theory, the prosecution had carried its burden of proving beyond a reasonable doubt Lopez could still be convicted of murder under the current statute on an implied malice theory. (Lopez, supra, 56 Cal.App.5th at pp. 941-942.) On appeal, Lopez argued the evidence was insufficient to support the trial court's conclusion that he was guilty of implied malice second-degree murder. (Id. at p. 942.) He further argued a de novo standard of review should apply to factual findings “‘made by a postconviction trial court based upon review of transcripts, '” and no deference to the trial court's factual findings is appropriate where “‘the trial court primarily reviewed [the Court of Appeal's] [prior] opinion and the probation report' and did not rely on the ‘credibility of live witnesses.'” (Id. at pp. 953-954.)
The Court of Appeal rejected Lopez's argument. (Lopez, supra, 56 Cal.App.5th at p. 954.) In so doing, the court explained that the substantial evidence standard of review is not reserved for the review of jury findings, but rather has been applied to postjudgment orders involving judicial factfinding, such as orders denying resentencing under section 1170.18 (Proposition 47). (Lopez, at pp. 953-954.) The court also found it significant that the trial judge who made the factual finding that Lopez was ineligible for relief was the same judge who oversaw Lopez's initial trial, where she observed the evidence and witness testimony firsthand. (Id. at p. 954.)
Applying Lopez to Corvera's case, we conclude that deference to the trial court is the appropriate course. Here, as in Lopez, the judge who presided over Cisneros's trial and Corvera's guilty plea was the same judge who denied Corvera relief, concluding she was a major participant in the robbery who acted with reckless indifference to human life. Because the trial judge in this case observed Corvera's testimony first-hand, we accord his factual finding deference and review it for substantial evidence. (See also People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087 [reviewing for substantial evidence trial court's factual finding that petitioner was ineligible for section 1170.95 relief because he was a major participant who acted with reckless indifference to human life].)
B. The trial court's finding is supported by substantial evidence
Having resolved the parties' dispute over the applicable standard of review, we now address whether the trial court's factual finding is supported by substantial evidence. Under this standard, we review the record in the light most favorable to the judgment to determine if there is substantial evidence from which any rational trier of fact could find each element of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 3781, 61 L.Ed.2d 560]; People v. Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is evidence that is “‘reasonable in nature, credible, and of solid value.' [Citation.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence includes circumstantial evidence and reasonable inferences based on that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813.) In reviewing a sufficiency claim, we “presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919.)
On appeal, Corvera does not contend the record contains insufficient evidence that she was a major participant in the robbery. Instead, she contends the record does not contain substantial evidence that she acted with reckless indifference to human life. We therefore focus our analysis on this point.
In People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court expounded upon the meaning of “reckless indifference to human life, ” and set forth a non-exclusive list of relevant factors, including: (1) the defendant's knowledge of weapons used in the crime; (2) how those weapons were used; (3) the number of weapons used; (4) the defendant's proximity to the crime; (5) the defendant's opportunity to stop the killing or aid the victim; (6) the duration of the crime; (7) the defendant's knowledge of the killer's propensity to kill; and (8) the defendant's efforts, if any, to minimize the possibility of violence during the crime. (Id. at pp. 616-623.) “‘[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient.' [Citation.]” (Id. at p. 618.) “We analyze the totality of the circumstances to determine whether [Corvera] acted with reckless indifference to human life.” (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).)
We conclude the trial court's finding that Corvera acted with reckless indifference to human life is supported by substantial evidence. As our Supreme Court recently reiterated, “‘only knowingly creating a “grave risk of death”'” is sufficient to support a finding of reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at p. 677, italics added, citing People v. Banks (2015) 61 Cal.4th 788, 808 (Banks).) This principle is dispositive here. The record contains sufficient evidence from which a trier of fact could reasonably conclude Corvera knowingly created a grave risk of death. Corvera had previously participated in several robberies with Cisneros. Although he had not shot anyone during the commission of those crimes, he brandished a gun. Corvera testified she was unaware Cisneros had previously murdered anyone, and if she had known, she would not have participated in any robberies with him. She also testified Cisneros shot Molina unexpectedly and without provocation. Molina had his hands in the air and was cooperating when Cisneros shot him. Corvera testified she was “in shock” when Cisneros shot him.
“Notably, ‘the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used' is not sufficient to establish reckless indifference to human life.” (Scoggins, supra, 9 Cal.5th at p. 677, citing Banks, supra, 61 Cal.4th at p. 808, Clark, supra, 63 Cal.4th at p. 623; see also In re Ramirez (2019) 32 Cal.App.5th 384, 405 [the fact the defendant knew the shooter was a gang member “says nothing about petitioner's knowledge of his cohorts' likelihood of killing”].) But there is more to the Attorney General's argument in this case. The Attorney General argues the trial court's finding is supported by substantial evidence because Corvera knew Cisneros was a gang member nicknamed “Cyko, ” suggesting Corvera knew or reasonably should have known he might shoot a victim unexpectedly and without apparent provocation.
Moreover, the Attorney General points to Corvera's failure to aid Molina after Cisneros shot him. She actually jumped or stepped over the prone victim not once, but twice, in order to rob the cash register, without making any attempt to save him or summon assistance. Taken together, this is substantial evidence upon which the trial court could base a finding of reckless indifference, notwithstanding Corvera's contention that she was in a state of shock after the shooting.
DISPOSITION
The order denying Corvera's section 1170.95 petition is affirmed.
We concur: MANELLA, P.J., COLLINS, J.