Opinion
B297114
05-22-2020
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. CHRISTIAN VILLEGAS, Defendant and Appellant.
Lynda A. Romero, 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, Acting Assistant Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA225497) APPEAL from an order of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed. Lynda A. Romero, 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, Acting Assistant Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Christian Villegas appeals from the trial court's summary denial of his petition for resentencing under Penal Code section 1170.95. As Villegas is ineligible for resentencing as a matter of law, we affirm.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We have granted defendant's request that we take judicial notice of the records in his prior appeals. Our review of the factual background is taken from the opinion in his second appeal. (People v. Villegas (Aug. 22, 2007, B190206) [nonpub. opn.].) Our review of the procedural background is taken from the record in that appeal, as well as his first appeal. (People v. Villegas (Aug. 29, 2005, B163953) [nonpub. opn.].)
1. The Facts
On the evening of December 11, 2001, defendant drove his Tahoe truck at a high rate of speed through a red light in downtown Los Angeles. Police officers in a marked patrol car attempted to stop defendant's vehicle. Defendant led police on a high-speed chase, swerving around cars and driving through red lights, despite the patrol car behind him with activated lights and siren. The chase ended when defendant's vehicle entered an intersection against a red light and struck a compact car. Both vehicles went into the air, and the compact car landed across the intersection. The individual in the compact car was pinned inside, and later died of his injuries.
Defendant did not go to the aid of the trapped man, but exited his vehicle and ran on foot. Defendant and his passenger, who had also fled, eventually stopped running and were detained. When defendant was interviewed by the police early the next morning, he admitted that he was aware that officers were behind him and that he had run a red light. He explained that he did not stop because he was on probation, did not have a driver's license, and did not want to go back to jail. He had a condition of probation precluding association with the person who was his passenger in the Tahoe at the time. (People v. Villegas, supra, B190206 [nonpub. opn.], pp. 3-5.)
2. Defendant's First Trial and Appeal
Following a jury trial, defendant was convicted of second degree murder (Pen. Code, § 187) and evading an officer with willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)). Defendant appealed, arguing that the verdict was based on a legally incorrect theory of felony murder. Specifically, defendant argued that Vehicle Code section 2800.2, subdivision (a) is not an inherently dangerous felony for the purposes of the second -degree felony-murder rule. Based on intervening California Supreme Court authority, this court agreed. Defendant's jury had been instructed on both felony murder and implied malice murder, and there was no way to determine which theory the jury adopted. We reversed the murder conviction and remanded for further proceedings on second-degree murder. (People v. Villegas, supra, B163953 [nonpub. opn.], pp. 3-5.)
The felony-murder rule makes killing while committing certain felonies murder, without the necessity of further examining the defendant's mental state. First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, burglary or robbery. Second degree felony murder is a murder committed during the course of a felony inherently dangerous to human life which is not a felony enumerated in section 189. (People v. Solis (2020) 46 Cal.App.5th 762, 774.) At least one case has concluded that recent amendments to section 189, enacted by Senate Bill No. 1437, have eliminated the second -degree felony-murder rule in California. (In re White (2019) 34 Cal.App.5th 933, 937, fn. 2.) We need not reach the issue. --------
3. Defendant's Second Trial and Appeal
Defendant was retried. The prosecution filed an amended information, adding charges of voluntary manslaughter (Pen. Code, § 192, subd. (c)(1)), and leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). In accordance with our prior opinion, the jury was not instructed on the doctrine of felony murder. Nor was the jury instructed on imputed malice via the natural and probable consequences doctrine. Instead, as to murder, the jury was instructed on express and implied malice only.
The jury found defendant guilty of murder, vehicular manslaughter, and leaving the scene of an accident. Defendant was sentenced to 15 years to life for murder, with a concurrent term for leaving the scene, and the sentence for vehicular manslaughter stayed. Defendant appealed again, raising double jeopardy and other issues. We affirmed. (People v. Villegas, supra, B190206 [nonpub. opn.].)
4. Defendant's Resentencing Petition
On February 13, 2019, defendant, without counsel, filed a petition for resentencing under section 1170.95. In his petition, he alleged he had been convicted of second degree murder under either the felony-murder theory or the natural and probable consequences doctrine, rendering him eligible for resentencing under the new statute. He also requested appointment of counsel.
On March 7, 2019, the court summarily denied the petition on the basis that defendant's conviction was not, in fact, based on felony murder or natural and probable consequences.
Defendant filed a timely notice of appeal.
DISCUSSION
1. Overview of Penal Code section 1170 .95
In 2018, the Legislature adopted Senate Bill No. (SB) 1437 which, among other things, "significantly restricted potential aider and abettor liability, as well as coconspirator liability, for murder under the natural and probable consequences doctrine." (People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019.) It also narrowed liability for felony murder. (People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review granted Mar. 18, 2020.)
In addition, SB 1437 enacted a new statutory procedure, codified in section 1170.95, by which a defendant convicted of murder under the felony-murder rule or the natural and probable consequences doctrine could seek resentencing under the new, narrower, version of the law.
A defendant who has previously been convicted of murder, but would no longer be subject to murder liability under the law as amended by SB 1437, may seek resentencing pursuant to the process established by section 1170.95. If the defendant prevails, and had been charged with murder "generically, and the target offense was not charged, the petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes." (§ 1170.95, subd. (e).)
Once a petition is filed, there follows a multi-step process by which the court first determines whether the petition is facially complete, and, if so, whether the petitioner has made a prima facie showing that he falls within the provisions of statutory eligibility. (People v. Torres (2020) 46 Cal.App.5th 1168, 1177.) If the court determines at this first stage the petitioner is ineligible for relief as a matter of law, the petition is denied; if not, the court proceeds to the next step. (Id. at p. 1178.) That step requires the court to appoint counsel for the defendant, if requested, and permit briefing on the issue of the defendant's entitlement to relief under the statute. (Verdugo, supra, 44 Cal.App.5th at p. 330.)
This first inquiry under section 1170.95 is a determination of whether the defendant has established a prima facie showing of eligibility for relief. The statutory language "makes plain the Legislature's intent to permit the sentencing court, before counsel must be appointed, to examine readily available portions of the record of conviction to determine whether a prima facie showing has been made that the petitioner falls within the provisions of section 1170.95—that is, a prima facie showing the petitioner may be eligible for relief because he or she could not be convicted of first or second degree murder following the changes made by [SB] 1437 to the definition of murder in sections 188 and 189." (Verdugo, supra, 44 Cal.App.5th at p. 323.) The readily available portions of the record, which the court may examine, include, "at least," the "complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment." (Id. at pp. 329-330.) The trial court may also consider jury instructions and any Court of Appeal opinion in the case. (Id. at p. 333; People v. Edwards (2020) ___ Cal.App.5th ___, ___ [2020 WL 2108986, *4].)
At this stage, prior to the appointment of counsel for defendant and a response by the prosecution, the trial court is only looking to determine whether ineligibility for relief is "established as a matter of law by the record of conviction." (Verdugo, supra, 44 Cal.App.5th at p. 330.) If, for example, " 'a review of the court file shows the petitioner was convicted of murder without instruction or argument based on the felony murder rule or [the natural and probable consequences doctrine], . . . it would be entirely appropriate to summarily deny the petition based on petitioner's failure to establish even a prima facie basis of eligibility for resentencing.' [Citation.]" (People v. Lewis (2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020.)
Here, the trial court summarily denied defendant's section 1170.95 motion on the ground that he was not statutorily eligible for relief. Our review of the procedural history confirms the trial court was correct. Defendant's first murder conviction may have been based on a theory of felony murder, but that conviction was reversed, and defendant was retried and convicted of murder without instruction on felony murder or the natural and probable consequences doctrine.
2. Defendant was not Entitled to Appointment of Counsel at the Prima Facie Stage
Defendant does not argue with the substantive conclusion of ineligibility. Instead, he argues that the trial court was statutorily and constitutionally required to appoint counsel for this initial, prima facie eligibility determination. As to the statute, that argument was rejected in Verdugo, supra, 44 Cal.App.5th at page 323, which, as we have observed, concluded that the language of section 1170.95 "makes plain the Legislature's intent to permit the sentencing court, before counsel must be appointed, to examine readily available portions of the record of conviction to determine whether a prima facie showing has been made that the petitioner falls within the provisions of section 1170.95 . . . ."
As to defendant's constitutional argument, both state and federal constitutions grant a defendant who faces incarceration the right to counsel at all critical stages of the process. (People v. Rouse (2016) 245 Cal.App.4th 292, 296-297.) A sentencing hearing typically constitutes a critical stage, as does a postconviction resentencing hearing, at least when the sentence is vacated and the defendant is resentenced anew on all counts. (Id. at pp. 297, 299.) The essence of a critical stage is "the adversary nature of the proceeding, combined with the possibility that a defendant will be prejudiced in some significant way by the absence of counsel. [Citation]." (Id. at p. 297.)
Under this test, the initial section 1170.95 eligibility determination conducted by the trial court, without briefing, and based only on readily available portions of the record, does not qualify as a critical stage. At this stage, the court is tasked only with determining whether there is a prima facie showing the defendant falls within the provisions of the statute as a matter of law, making all factual inferences in the defendant's favor. (Verdugo, supra, 44 Cal.App.5th at p. 329.) This initial prima facie review is not an adversarial proceeding. It is not akin to a sentencing hearing. The court does not rule on disputed issues of fact; it must make all factual inferences in favor of the petitioner. (Id. at p. 329.) The court does not, for example, consider evidence related to the determination of whether defendant was a major participant in the crime who acted with reckless indifference. And, it is not called upon to exercise its discretion in any respect. The court's inquiry is limited to a review of certain documents already in the record to determine whether the defendant is statutorily ineligible as a matter of law. (Cf. People v. Simms (2018) 23 Cal.App.5th 987, 996-998 [the determination of eligibility for resentencing under Proposition 47 (section 1170.18) is a critical stage for purposes of the defendant's right to be present when eligibility turns on a factual determination to be made at a hearing, but not when eligibility can be determined without a hearing as a matter of law].)
Defendant's contrary argument appears to be based on his belief that, at the first prima facie review, the trial court may look only at the facial sufficiency of the petition itself, whether it ticks appropriate boxes or describes the conviction correctly. Anything more, as was the case here, requires appointed counsel. By this argument defendant melds the first two steps of section 1170.95. We agree that counsel is required at the briefing and hearing stage; indeed, the statute provides for it. (§ 1170.95, subd. (c).) But, as we have explained, section 1170.95 sets as an initial step of prima facie eligibility review prior to briefing and a hearing. (Verdugo, supra, 44 Cal.App.5th at p. 323.) Counsel is not constitutionally mandated at this stage.
DISPOSITION
The order denying defendant's section 1170.95 petition is affirmed.
RUBIN, P. J. WE CONCUR:
MOOR, J.
KIM, J.