Opinion
B297430
07-02-2020
THE PEOPLE, Plaintiff and Respondent, v. ROLANDO MEDRANO, Defendant and Appellant.
Thomas Owen, 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, Assistant Attorney General, Idan Ivri, Deputy Attorney General, and Amanda V. Lopez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA291921-01) APPEAL from an order of the Superior Court of Los Angeles County, Renee F. Korn, Judge. Affirmed. Thomas Owen, 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, Assistant Attorney General, Idan Ivri, Deputy Attorney General, and Amanda V. Lopez, Deputy Attorney General, for Plaintiff and Respondent.
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Rolando Medrano (defendant) filed a petition seeking resentencing pursuant to Penal Code section 1170.95. The People filed a response and the trial court appointed counsel, but the court summarily denied the petition after finding that the record of conviction established, as a matter of law, that defendant was not entitled to relief. The trial court's substantive ruling was correct, rendering any procedural irregularities harmless. Accordingly, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crime
In August 2005, defendant belonged to a street gang called the "Maniacs." On one of the Saturdays that month, defendant and his friends "got into arguments" with Jose Duran and his friends at a quinceañera celebration at a church. As the party wound down, defendant and his friends "began beating" Duran and his friend. They then started to "chase[]" Duran. One of defendant's "gang" "associate[s]" caught up to Duran and stabbed him with a knife. Defendant joined in, stabbing Duran "between the abdomen and [the] chest." Duran broke free, but defendant "pursued [him] to an alley[,] where he continued stabbing him." Duran died from the stab wounds.
B. Prosecution , conviction and appeal
The People charged defendant with Duran's murder (§ 187). The People alleged that defendant "personally used a deadly and dangerous weapon" (a knife) in committing the murder (§ 12022, subd. (b)(1)). The People further alleged that defendant's 2005 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) constituted a "strike" within the meaning of our Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
The jury was instructed that defendant could be liable for murder (1) as the perpetrator or (2) as a person who directly aided and abetted the perpetrator. The jury was not instructed that defendant could be liable for murder under the felonymurder doctrine or as a natural and probable consequence of a different crime he aided and abetted.
The jury convicted defendant of first degree murder, but hung on the personal use allegation. The court sentenced defendant to prison for 25 years to life.
Defendant appealed his conviction, and we affirmed in an unpublished decision. Among other challenges to the conviction, defendant argued that the trial court erred in instructing the jury that he could be held liable for murder as a direct aider and abettor. In rejecting this argument, we held that "the evidence [at trial] supported the inference that [defendant] was either a direct perpetrator" of the murder (because he "caused the fatal wound") or an "aider and abettor" (because he "aided and abetted" the fellow gang member who caused "the fatal [stab] wound").
II. Procedural Background
On January 28, 2019, defendant filed a petition seeking resentencing under section 1170.95. In the form petition, defendant checked the boxes for the allegations that he had been charged with murder, that he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine," and that his murder conviction would be invalid under the "changes made to Penal Code §§ 188 and 189, effective January 1, 2019." He also requested the appointment of counsel.
The People filed a response, arguing that section 1170.95 was unconstitutional and that defendant could not in any event "avail himself of the relief offered" under that section. The court also appointed defendant counsel. At a hearing on April 2, 2019, the court entertained argument from counsel but counsel never asked the court for permission to file a reply brief. At the hearing, the court ruled that defendant had not made a "prima faci[e] showing" of entitlement to relief under section 1170.95 because "the court file" indicated that he was guilty of murder either as "the actual killer" or "on an aider and abettor theory." Later the same day, the court issued an order summarizing its findings and denying defendant's petition.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily denying his section 1170.95 petition and in doing so without first allowing him to file a reply. Because resolution of this argument turns on questions of statutory construction and the application of law to undisputed facts, our review is de novo. (People v. Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled to the appointment of counsel and the opportunity to "file and serve a reply" to the People's "response" if he makes "a prima facie showing that [he] falls within the provisions of this section." (§ 1170.95, subd. (c); People v. Lewis (2020) 43 Cal.App.5th 1128, 1140 (Lewis), review granted Mar. 18, 2020, S260598; People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo), review granted Mar. 18, 2020, S260493; see also People v. Fryhaat (2019) 35 Cal.App.5th 969, 982-984 [so holding, as to post-conviction relief under section 1473.7].) A person "falls within the provisions of" section 1170.95 if, as relevant here, (1) "[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder . . .," (2) he "was convicted of first degree murder . . . following a trial," and (3) he "could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).) A person may be convicted of murder, even after the 2019 changes made to sections 188 and 189, if he "was the actual killer" (§ 189, subd. (e)(1)); he "aided [and] abetted . . . the actual killer in the commission of murder in the first degree" "with the intent" to do so (§ 189, subd. (e)(2)); or he "was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(3).) A "'prima facie showing is one that is sufficient to support the position of the party in question.'" (Lewis, at p. 1137, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
Although defendant in his petition alleged each element necessary to make out a prima facie case for relief under section 1170.95, a trial court evaluating whether a defendant has made a prima facie showing in a section 1170.95 petition is not required to accept those allegations at face value and may also examine the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) However, the contents of the record of conviction defeat a defendant's prima facie showing only when the record "show[s] as a matter of law that the petitioner is not eligible for relief." (Lewis, at p. 1138, italics added; Verdugo, at p. 330; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [record must show defendant is "indisputably ineligible for relief"].)
Here, the trial court correctly concluded that defendant did not make out a prima facie case for relief because the record of conviction establishes, as a matter of law, that he is not eligible for relief. The trial court instructed the jury that it could convict defendant of first degree murder only if he was (1) the actual killer, or (2) if he aided and abetted the actual killer in committing the murder; the trial court provided the jury with no other theories of liability. As a result, the jury's guilty verdict necessarily relies on its finding that defendant was either the actual killer or someone who directly aided and abetted the actual killer. (Accord, In re Hansen (2014) 227 Cal.App.4th 906, 922 ["'Absent some contrary indication in the record, we presume the jury followed its instructions "and that its verdict reflects the legal limitations those instructions imposed."'"], quoting Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.) Because, as noted above, a person who is the actual killer or who directly aids and abets the actual killer in committing first degree murder is still liable for murder under the now-amended sections 188 and 189 (§ 189, subds. (e)(1) & (e)(2); Lewis, supra, 43 Cal.App.5th at p. 1137 ["one can be convicted of murder even after the amendments if he . . . directly aided and abetted the perpetrator of the murder"]), defendant is ineligible for relief under section 1170.95 as a matter of law. What is more, this court specifically found that "[t]he evidence [at trial] support[ed] the inference that [defendant] was either a direct perpetrator or an aider and abettor" when it rejected defendant's challenge to the aiding and abetting instruction. This finding also forecloses relief. (E.g., Lewis, supra, 43 Cal.App.5th at pp. 1138-1139 [finding of appellate court necessarily forecloses relief]; Verdugo, supra, 44 Cal.App.5th at pp. 335-336 [same]; see generally People v. Stanley (1995) 10 Cal.4th 764, 786-787 [describing the law of the case doctrine and its application to the findings of appellate courts].)
Because defendant is not entitled to relief under section 1170.95 as a matter of law, any error the trial court may have committed by not allowing defendant to file a reply brief is necessarily harmless.
Defendant makes three arguments in response.
First, he argues that his inability to file a reply brief is not harmless because a trial court lacks the power to summarily deny a petition if that petition contains the appropriate allegations. Denying relief just because the record of conviction forecloses such relief as a matter of law, defendant continues, is inconsistent with the statutory right of section 1170.95 permitting petitioners to present "new or additional evidence." (§ 1170.95, subd. (d)(3).) Thus, he concludes, Verdugo, Lewis and Cornelius are wrongly decided. We disagree, for the reasons articulately set forth in those decisions. Although, as defendant trumpets, our Supreme Court has granted review in those cases, we find them to be persuasive unless and until they are reversed.
Second, he argues that the trial court's ruling was "inconsistent with the prima facie . . . standard" because the court "never mentioned a prima facie case." But whether the trial court recited the words "prima facie" is of no moment where, as here, the analysis the court actually undertook is consistent with the proper analysis of whether a defendant has made a prima facie showing.
Third, he argues that he did not forfeit his right to file an optional reply brief merely because his counsel did not ask for leave to file one, and that, if his counsel's silence did effect such a forfeiture, his counsel was constitutionally ineffective. We need not address this argument in light of our conclusion that the absence of a reply brief was harmless due to the unavailability of section 1170.95 relief as a matter of law.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P.J.
ASHMANN-GERST /s/_________, J.
CHAVEZ