People v. Verdugo

          APPEAL from an order of the Superior Court of Los Angeles County No. BA245638-03, Ronald S. Coen, Judge. Affirmed.

          Allison H. Ting, 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 and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

          PERLUSS, P. J.

         Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. SB 1437 also permits, through new Penal Code section 1170.95, ^[1] an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of SB 1437's changes to the definition of the crime. Section 1170.95, subdivision (b), prescribes the information that must be included in the petition. Section 1170.95, subdivision (c), requires the sentencing court to review the petition; determine if it makes a prima facie showing the petitioner falls within the provisions of section 1170.95; and, “[i]f the petitioner has requested counsel, ... appoint counsel to represent the petitioner.” After counsel has been appointed, the prosecutor is to file and serve a response to the petition; and the petitioner may file a reply. If the petitioner has made a prima facie showing he or she is entitled to relief, the court must issue an order to show cause (§ 1170.95, subd. (c)) and conduct a hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts (§ 1170.95, subd. (d)(1)).

         Nick Verdugo contends section 1170.95, subdivision (c), mandates the appointment of counsel whenever, as here, a “facially sufficient petition” has been filed-that is, one that contains the basic averments required by subdivision (b)(1)(A), (B) and (C)-and argues the superior court erred in summarily denying his petition without appointment of counsel. However, the relevant statutory language, viewed in context, 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. Accordingly, we reject Verdugo's argument the superior court lacked jurisdiction to deny his section 1170.95 petition on the merits without first appointing counsel and allowing the prosecutor and appointed counsel to brief the issue of his entitlement to relief and affirm the court's summary denial of Verdugo's petition, which was properly based on its ruling Verdugo was ineligible for relief as a matter of law.

         FACTUAL AND PROCEDURAL BACKGROUND

         Verdugo was convicted in 2006 following a jury trial of first degree murder (§§ 187, subd. (a), 189), conspiracy to commit murder (§§ 182, subd. (a)(1), 187) and two other felonies. The jury also found true special firearm-use and criminal street gang enhancement allegations. Verdugo was sentenced to an aggregate state prison term of 57 years 8 months to life. We affirmed the convictions on appeal but modified Verdugo's sentence to correct several unauthorized provisions. (People v. Barraza (June 17, 2008, B194415) [nonpub. opn.].)

         On January 16, 2019 Verdugo petitioned for sentencing relief under SB 1437. He utilized a downloadable form petition/declaration prepared by Re:Store Justice, a cosponsor of the legislation (see Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.) Apr. 24, 2018, p. 1), on which Verdugo checked boxes 1, 2a and 3, stating, in language paralleling that of section 1170.95, subdivision (a)(1), (2), and (3), “A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine”; “At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine”; and “I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” Verdugo also checked box 4, requesting the court appoint counsel for him during the resentencing process.^[2]

         Verdugo's petition attached a copy of an 18-page document that appears to be an almost-final version of the jury instructions used by the court at Verdugo's joint trial with codefendant Bryant Barraza.^[3] Included among the instructions are CALJIC Nos. 8.26 and 8.69. CALJIC No. 8.26, as given, stated, “If a number of persons conspire together to commit willful, deliberate, and premeditated Murder, and if the life of another person is taken by one or more of them in the perpetration of, or an attempt to commit that crime, and if the killing is done in furtherance of the common design and to further that common purpose, or is the natural and probable consequence of the pursuit of that purpose, all of the co-conspirators are equally guilty of murder in the first degree, whether the killing is intentional, unintentional, or accidental.” The second paragraph of this instruction defined the term “natural and probable.” CALJIC No. 8.69 stated in part, “A conspiracy to commit murder is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. [¶] The crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being.”

         There were no other attachments to the petition, and Verdugo submitted no other information regarding his conviction for first degree murder.

         The matter was called on January 24, 2019. Verdugo was not present. The court summarily denied the petition “as petitioner is not entitled to relief as a matter of law.” The court's minute order explained, “Besides first degree murder, petitioner was convicted of conspiracy to commit murder, a crime requiring express malice. In addition, the appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was convicted as a direct aider and abettor, with malice aforethought, and not on a theory of felony murder of any degree or a theory of natural and probable consequences.”

         DISCUSSION

         1. SB 1437 and the Right To Petition To Vacate Certain Prior Convictions for Murder

         a. Statutory changes relating to accomplice liability for murder

         On September 30, 2018 the Governor signed SB 1437, which, effective January 1, 2019, amended Penal Code sections 188 and 189, significantly modifying the law relating to accomplice liability for murder. In its uncodified findings and declarations the Legislature stated, “It is necessary 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).) The Legislature also declared, “Except as stated in subdivision (e) of Section 189 of the Penal Code [relating to first degree felony murder], a conviction for murder requires that a person act with malice aforethought. A person's culpability for murder must be premised upon that person's own actions and subjective mens rea.” (Id., § 1, subd. (g).)

         To effectuate this legislative purpose, SB 1437 added a crucial limitation to section 188's definition of malice for purposes of the crime of murder.^[4] New section 188, subdivision (a)(3), provides, “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.”^[5]

         New section 189, subdivision (e), in turn, provides with respect to a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs-that is, as to those crimes that provide the basis for the charge of first degree felony murder-that the individual is liable for murder “only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (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.”^[6]

         b. Petitions to vacate prior convictions for felony murder or murder under the natural and ...