California Court of Appeals, Second District, Seventh Division
[257
Cal.Rptr.3d 512] APPEAL from an order of the Superior Court
of Los Angeles County, Ronald S. Coen, Judge. Affirmed. (Los
Angeles County Super. Ct. No. BA245638-03)
Page 321
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Page 322
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COUNSEL
Allison
H. Ting, Santa Monica, 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.
OPINION
PERLUSS,
P. J.
Page 323
Senate
Bill No. 1437 (2017-2018');">2018 Reg. Sess.) (Stats. 2018');">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 [257 Cal.Rptr.3d 513] 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
1437s 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 Legislatures 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 Verdugos
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 courts summary denial of Verdugos petition,
which was properly based on its ruling Verdugo was ineligible
for relief as a matter of law.
Page 324
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 Verdugos
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');">2018 Reg. Sess.) Apr. 24,
2018');">2018, p. 1');">p. 1), on which Verdugo checked boxes 1, 2a and 3,
stating, in language paralleling that of [257 Cal.Rptr.3d
514] 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]
Verdugos
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 Verdugos 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
Page 325
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 courts 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 petitioners
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."
[257
Cal.Rptr.3d 515] DISCUSSION
 . 1');">p. 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');">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');">2018, ch. 1015, § 1, subd. (f).) The ...