Opinion
G059467
10-20-2021
THE PEOPLE, Plaintiff and Respondent, v. ALBERT LUGO RUEDAS, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 08CF2288, James Edward Rogan, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Appellant Albert Lugo Ruedas challenges an order denying his petition for resentencing under Penal Code section 1170.95. That section authorizes convicted murderers such as appellant to seek resentencing if their culpability was based on vicarious liability principles. However, section 1170.95 does not apply if the defendant personally and maliciously murdered the victim. Because the jury found appellant killed his victim in that fashion, the trial court properly denied his request for resentencing. We therefore affirm the denial order.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Daniel Lopez was attacked and fatally shot by two men as he was walking on a sidewalk in Santa Ana. Five days later, the gun used in the shooting was found in appellant's possession, and when interviewed by the police, appellant confessed he shot Lopez during an attempted robbery.
At trial, appellant unsuccessfully challenged his confession on the basis it was involuntarily rendered, and the jury found him guilty of first degree felony murder and street terrorism. (§§ 189, 186.22, subd. (a).) The jury also found true special circumstances allegations that the murder occurred during a robbery and that appellant intentionally killed Lopez to further the activities of a criminal street gang. (§ 190.2, subds. (a)(17) & (22).) In addition, the jury found appellant personally discharged a firearm causing Lopez's death. (§ 12022.53, subd. (d).) The trial court sentenced him to prison for life without parole, plus 25 years, for his crimes.
On appeal, we affirmed the judgment in its entirety. (People v. Ruedas (Nov. 14, 2014, G048545) [nonpub. opn.] (Ruedas I).) The California Supreme Court denied further review, and since appellant did not file a petition for a writ of certiorari in the United States Supreme Court, the judgment against him became final 90 days later, on April 28, 2015.
Three years later, the Legislature enacted Senate Bill No. 1437 (SB 1437), which restricted the scope of vicarious liability for the crime of murder in two ways. First, the law eliminated the natural and probable consequences theory of aiding and abetting in murder cases. (§ 188, subd. (a)(3) [except when the felony murder rule applies, malice shall not be imputed based solely on a person's participation in a crime].) Second, SB 1437 narrowed the circumstances under which a defendant can be convicted of felony murder. (§ 189, subd. (e) [if the defendant did not kill the victim or aid and abet the killing with the intent to kill, the felony murder rule applies only if he was a major participant in the underlying felony and acted with reckless indifference to human life].)
SB 1437 also created section 1170.95, which is the procedural mechanism for challenging a murder conviction based on vicarious liability. To obtain relief under that section, the defendant must show he was convicted of murder under the felony murder rule or the natural and probable consequences doctrine, but he would not be liable for murder today because of how SB 1437 redefined and restricted the scope of that offense. (§ 1170.95, subd. (a).)
If the defendant makes a prima facie showing to that effect, the trial court must issue an order to show and conduct an evidentiary hearing. (Id., subd. (c).) At the hearing, the prosecution must prove beyond a reasonable doubt the defendant is ineligible for resentencing because his conduct did in fact rise to the level of murder as redefined by SB 1437. (Id., subd. (d)(3).) Otherwise, the defendant is entitled to vacatur and resentencing pursuant to the terms of section 1170.95.
As explained above, appellant was convicted of first degree felony murder. In 2019, he filed a section 1170.95 petition in which he alleged that he did not personally kill Lopez and that his conduct did not constitute felony murder as redefined by SB 1437. The prosecution disagreed. Relying on the jury's true findings on the firearm allegation and the gang special circumstance allegation, the prosecution contended appellant was ineligible for resentencing because he personally killed Lopez with the intent to kill. In reply, appellant, through appointed counsel, continued to allege he was not the shooter. He argued this allegation alone was sufficient to establish a prima facie case for relief. Therefore, the court was required to issue an order to show cause and schedule an evidentiary hearing, at which he intended to present evidence showing his confession was unlawfully coerced and he was not the person who killed Lopez.
In hearing the matter, the trial court granted appellant's request to take judicial notice of the entire court record in this case. But it ultimately determined appellant was not entitled to an order to show cause and an evidentiary hearing because he failed to make a prima facie case for relief. Siding with the prosecution, the court determined appellant was ineligible for resentencing as a matter of law because the jury found he harbored the intent to kill and was personally responsible for Lopez's death. Therefore, the court summarily denied his petition.
DISCUSSION
Appellant contends reversal is required for four reasons: 1) The trial court erred in considering the record of conviction in considering his eligibility for resentencing; 2) the record of conviction does not actually prove he is ineligible for resentencing; 3) he was not allowed to personally attend the hearing on his petition; and 4) the prosecution relied on a new legal theory which violated his constitutional right to a jury trial.
After briefing on those issues was complete, the California Supreme Court issued its decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the rules respecting the adjudication of resentencing petitions under section 1170.95. Having considered the parties' supplemental briefing on the Lewis decision, we find the trial court properly denied appellant's resentencing petition for failure to establish a prima facie case for relief.
The Lewis Decision
In Lewis, the Supreme Court ruled that when the petitioner requests an attorney in conjunction with a facially sufficient petition for resentencing, the trial court must allow input from counsel before considering whether the petitioner established a prima facie case for relief. (Lewis, supra, 11 Cal.5th at pp. 961-970.) That aspect of the Lewis decision is not at issue here because the trial court appointed appellant an attorney upon receiving his petition for resentencing, and counsel actively advocated for appellant, both in writing and in person, before the court ruled on the petition.
Beyond addressing the right to counsel, the Lewis court determined the trial court may rely on the record of conviction in deciding whether the petitioner has made a prima facie showing for relief. The court reasoned, "This is consistent with [section 1170.95's] overall purpose: to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process. [Citation.]" (Lewis, supra, 11 Cal.5th at p. 972.)
Lewis also made clear that the bar for establishing a prima facie case for resentencing is very low, and that the trial court's role in determining whether that bar has been cleared in a given case is quite limited. (Lewis, supra, 11 Cal.5th at pp. 970-972.) While the trial court may consider the underlying record of conviction, it must take petitioner's factual allegations as true and find in his favor unless the record shows he is ineligible for relief. (Ibid.)
In addition, Lewis cautioned that while prior appellate opinions are part of the record of conviction, their probative value is "case-specific" and "'might not supply all the answers'" in determining whether a petitioner is eligible for resentencing. (Lewis, supra, 11 Cal.5th at p. 972.) And, "[i]n reviewing any part of the record of conviction [for purposes of determining eligibility], a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Ibid.)
With these principles in mind, we now turn our attention to appellant's claims respecting the trial court's order denying his request for resentencing under section 1170.95.
The Basis for the Trial Court's Decision
In light of the Lewis decision, appellant concedes the trial court was entitled to consider the record of conviction, including the jury instructions and verdict forms, in deciding whether he made a prima facie case for resentencing pursuant to section 1170.95. However, he argues that, to the extent the trial court relied on our prior decision in Ruedas I and the transcript of his preliminary hearing, the court erred because those sources of information contained inadmissible hearsay and did not accurately reflect the evidence adduced at his trial.
The argument fails for two reasons. First, as explained above, Lewis permits consideration of prior appellate opinions in determining the petitioner's eligibility for relief under section 1170.95. (Lewis, supra, 11 Cal.5th at p. 972.) Second, it is clear the trial court did not rely on Ruedas I or appellant's preliminary hearing in denying his petition for resentencing. It is true the trial court granted appellant's request to take judicial notice of the entire record of his case, but in issuing its ruling, the court adopted the prosecution's position and adjudicated appellant's petition on the basis of what the jury actually found in his underlying case. Because there is nothing to suggest the trial court relied on any other aspects of the record, it did not exceed the scope of permissible review in making its decision.
The Record of Conviction
Appellant also claims this was error because the record of conviction fails to prove he is ineligible for resentencing. We disagree.
Per its terms, section 1170.95 only applies when the defendant is convicted of murder based on vicarious liability principles; it does not apply when the defendant personally killed the victim with malice aforethought. (§ 1170.95, subd. (a).) In finding the gang special circumstance allegation true in this case, the jury found appellant harbored the intent to kill, which is tantamount to a finding he acted with malice. (People v. Smith (2005) 37 Cal.4th 733, 739 ["Intent to unlawfully kill and express malice are, in essence, 'one and the same'"].) And in finding the firearm allegation true, the jury found appellant personally and intentionally discharged a firearm causing the victim's death. (§ 12022.53, subd. (d).) Taken together, these findings prove the jury found appellant personally and maliciously murdered the victim. Therefore, he is ineligible for resentencing as a matter of law.
In arguing otherwise, appellant relies on People v. Offley (2020) 48 Cal.App.5th 588 (Offley). In that case, the court held the jury's finding the defendant personally and intentionally discharged a firearm causing the victim's death was insufficient by itself to render the defendant ineligible for resentencing under section 1170.95. (Id. at pp. 597-599.) While recognizing that finding proved the defendant was the actual killer, Offley reversed the denial of his resentencing petition because it did not prove he intended to kill the victim, and the jury did not make any findings with respect to that important issue. (Ibid.) In fact, since the jury was instructed on the natural and probable consequences theory of aiding and abetting, it was not required to assess the defendant's personal mindset at the time he pulled the trigger in order to find him guilty of murder, and none of the other charges obligated the jury to do so either. (Ibid.)
Our case is different. While the jury here did not have to find appellant intended to kill in order to convict him of felony murder, it did have to find he acted with such intent in order to find the gang special circumstance allegation true. That finding is what distinguishes this case from Offley. Coupled with the jury's finding that appellant personally killed the victim with a firearm, it proves the jury found appellant both engaged in the requisite act and had the requisite intent to support a conviction of murder, even under the more restrictive standards established by SB 1437. That being the case, the trial court properly denied his resentencing petition.
Attendance at the Hearing
The trial court ruled appellant did not have the right to personally attend the hearing on his petition because he failed to make a prima facie showing for resentencing. Appellant argues that ruling infringed his constitutional right to be present at all critical stages of the proceedings, but we cannot agree.
"For purposes of the right to be present, a critical stage is 'one in which a defendant's "'absence might frustrate the fairness of the proceedings' [citation], or 'whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'"' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 465.) The right generally does not attach at postjudgment proceedings where the defendant's initial eligibility for ameliorative sentencing relief depends on a purely legal assessment of undisputed facts. (People v. Simms (2018) 23 Cal.App.5th 987, 996-998.)
Such is the case here. The issue of whether appellant established a prima facie case for resentencing under section 1170 was a strictly legal question for the trial court. As the Lewis decision makes clear, the court's duty was limited to assessing the uncontested facts in appellant's petition and the record of his underlying conviction and deciding whether those facts entitled appellant to an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 974.) The court was not called upon to resolve factual disputes or exercise its discretion in any respect. (Ibid.)
Due to the strictly legal nature of the proceeding, appellant's attorney was well positioned to represent him at the hearing. We do not believe appellant's absence frustrated the fairness of the proceedings or undermined his opportunity to fully pursue his legal rights. His absence from the hearing is therefore not cause for reversal. (Cf. Lewis, supra, 11 Cal.5th at pp. 972-974 [initial eligibility hearing under section 1170.95 is not a critical stage for purposes of the right to counsel].)
The Right to a Jury Trial
Lastly, appellant claims the trial court's ruling violated his Sixth Amendment right to have a jury decide whether he was eligible for resentencing. However, "the retroactive relief . . . afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis," and therefore appellant did not have the right to a jury trial on his petition. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.) For Sixth Amendment purposes, it is sufficient that the facts pertinent to his claim, i.e., whether he personally and maliciously killed the victim, were found true beyond a reasonable doubt by the jury in his underlying trial. The Constitution does not require additional jury protections in the context of the current proceeding. (People v. James (2021) 63 Cal.App.5th 604; People v. Perez (2020) 54 Cal.App.5th 896, rev. granted Dec. 9, 2020, S265254; People v. Howard (2020) 50 Cal.App.5th 727, 740; People v. Lopez (2019) 38 Cal.App.5th 1087, 1114-1115, rev. granted Nov. 13, 2019, S258175; People v. Anthony, supra, 32 Cal.App.5th at pp. 1156-1157.)
DISPOSITION
The trial court's order denying appellant's petition for resentencing is affirmed.
I CONCUR: FYBEL, J.
O'LEARY, P.J, Concurring and Dissenting.
I respectfully dissent to the part of the majority opinion that relies on the gang special circumstance allegation. But I agree the jury's true finding on the personal use of a firearm allegation makes Ruedas ineligible as a matter of law.
In all other respects, I concur in the majority opinion.