Trial court erred in dismissing re-sentencing petition for felony murder

Trial court erred in dismissing re-sentencing petition for felony murder

People v. Ramirez, 2019 WL 5387737 (Cal.App. 2 Dist.), 5 (Cal.App. 2 Dist., 2019)

Not Reported in Cal.Rptr., 2019 WL 5387737

Summary: Raymond Salvador Ramirez (defendant) appealed from the summary denial of his petition filed pursuant to Penal Code section 1170.95.1 to vacate his 2003 murder conviction and to resentence him. He contends that the trial court failed to adhere to  procedures required  by the statute. Respondent agreed.  Defendant also asserted that on remand, the trial court should be directed to grant the petition and resentence him on the remaining charges.  The Court of Appeal reversed  and remanded.

Background

Defendant was convicted in 2003 of first degree felony murder as an aider and abettor of the robbery who acted as a major participant with reckless indifference to human life. Defendant was also convicted of two counts of second degree robbery, assault with a deadly weapon, and conspiracy to commit robbery. The trial court sentenced defendant to life in prison without the possibility of parole, and stayed the sentences imposed as to the remaining counts.

On direct appeal this court, in 2004,  held that substantial evidence supported the finding of special circumstance, and affirmed the judgment. The California Supreme Court denied review.

Petition based on Banks and Clark: defendant was not the actual killer nor a major participant who acted with reckless indifference to human life

In 2017, defendant filed a petition for habeas corpus, seeking relief based on the California Supreme Court decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which reviewed the factors established by the United States Supreme Court for determining whether an aider and abettor of felony murder who was not the actual killer nor harbored an intent to kill, was a major participant who acted with a reckless indifference to human life.

Here, Defendant and  his codefendants Juan Soto, Frank Quintero, Vincent Lopez, and Lorraine Calvillo participated in the armed robbery of a tax service business, planned by Lopez and Soto. Soto, Quintero, and Lopez entered the business, while defendant waited outside as a lookout and Calvillo remained in the car as the getaway driver. When the co-owner of business saw the men enter she screamed. Soto then shot and killed her. In another room, one of the three codefendants robbed the other occupants of the business at gunpoint. The three men then broke open a charity donation box and left with the money. A neighboring business owner heard the gunfire, and when he came outside to look, defendant struck him.

The Court of Appeal concluded  that defendant was not the actual killer in this case, that he remained outside, that he had no knowledge that one of his accomplices would shoot a victim. Also, he did not instigate the shooting and was not in a position to prevent it. Under the Banks and Clark factors, the prior “finding that [defendant] was a major participant who acted with reckless indifference to human life [was] not supportable.”

Defendant’s habeas petition alleged that these two required elements were not supported by substantial evidence. The court granted the petition, struck the finding of special circumstances, and remanded the matter to the trial court for resentencing. (In re Raymond S. Ramirez (Dec. 19, 2017, B282005) [nonpub. opn.] (Ramirez I).)

On October 31, 2018, the trial court resentenced defendant to a term of 25 years to life on the murder count. The sentences on the remaining counts were not changed.

SB 1437

One month before defendant’s resentencing on September 30, 2018, the Governor signed Senate Bill No. 1437 (S.B. 1437)  which “amend[ed] 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).)

S.B. 1437 also added Penal Code section 1170.95, which created a procedure whereby a person whose felony murder conviction was final, but who could not have been convicted under the amended statutes, could petition to have the conviction vacated. (§ 1170.95, subd. (a).)

S.B. 1437 went into effect on January 1, 2019. Two days later defendant filed a petition pursuant to section 1170.95 to vacate his felony murder conviction. On March 14, 2019, without the prosecution’s response and without the parties or counsel present, the trial court overruled defendant’s objection and denied his motion and petition. The court found that defendant was not entitled to relief as a matter of law, and stated its reasoning as follows:

“The appellate opinion affirming the petitioner’s conviction and sentence reflects that the petitioner was not the actual killer and was convicted of murder on a theory of being a direct perpetrator and with the intent to kill or a major participant and with reckless indifference to human life. The jury also found the special circumstances under Penal Code section 190.2(a)(17) to be true, which the opinion affirmed.”

Defendant filed a timely notice of appeal from the denial of his petition.

Claim that trial court failed to follow procedures of 1170.95

Defendant contends that the trial court erred in denying the petition, in failing to follow the procedures mandated by section 1170.95, and in relying on the 2004 Court of Appeal opinion. Respondent agrees that the trial court erred and that the order must be reversed.

S.B. 1437 added section 1170.95 and amended sections 188 and 189. As amended, section 188 limits a finding of malice: “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.” (§ 188, subd. (a)(3).) As added by S.B. 1437, subdivision (e) of section 189 reads: “A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [including robbery] in which a death occurs 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.”

A petition under section 1170.95 must allege the following: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;]

(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [and]

(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.”

The superior court reviews  the petition and determines whether the petitioner has made a prima facie showing of entitlement to relief. A prima facie showing of eligibility obligates the trial court to issue an order to show cause and either hold a hearing, give the parties an opportunity waive a hearing and stipulate to eligibility, or “[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.” (§ 1170.95, subds. (c), (d)(1) & (d)(2).)

If a hearing is held, the prosecution has the burden to prove beyond a reasonable doubt, that petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) If the prosecution fails to sustain its burden of proof the trial court is required to vacate the prior conviction and resentence the petitioner on the remaining charges. (§ 1170.95, subd. (d)(3).)

Trial court failed to hold a hearing and disregarded Court’s prior ruling

 Here, the defendant  made a prima facie showing of entitlement to relief and satisfied all three requirements of section 1170.95, subdivision (b)(1). He gave his name, the case number of superior court in which he was convicted by jury of first degree felony murder, the date of conviction, and the date of the filing of the information which allowed the prosecution to proceed on that charge.  In his declaration, defendant stated that he could not have been convicted of murder under the changes to sections 188 or 189 which became effective January 1, 2019. Defendant also attached copies of the information, abstracts of judgment, the Court of Appeal opinion in Ramirez I, the amended and newly enacted statutes, CALJIC instructions given, and the jury’s verdicts. The trial court  failed to require a response, hold a hearing, or give the parties an opportunity to waive a hearing and stipulate to eligibility. The trial court also disregarded the prior finding of the appellate court that defendant was not a major participant in the robbery who acted with reckless indifference to human life.

Defendant contends that the trial court was required to grant the petition and vacate the murder conviction without a hearing as he requested in his motion for immediate resentencing, and that the only issue on reversal and remand should be resentencing. Defendant refers to the mandatory language in section 1170.95, subdivision (d)(2): “the court shall vacate the petitioner’s conviction and resentence the petitioner” if there was a prior court finding that he was not a major participant who acted with reckless indifference to human life. (Italics added.)

Interpretation of section 1170.95, subdivision (d)(2) raised by defendant in the petition-Court finds mandatory duty to resentence the defendant

“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’ (People v. Pieters (1991) 52 Cal.3d 894, 898.) In this case, we have the Legislature’s own expression of its intent and the purpose of the law in the statute itself. (See Stats. 2018, ch. 1015, § 1.) The  Legislature declared  as follows:

“(b) There is a need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.

“(d) It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability.

“(e) Reform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.

“(f) 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.

“(g) Except as stated in subdivision (e) of Section 189 of the Penal Code, 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.”

Defendant argues that whenever the word “shall” is used in a statute, as it is in section 1170.95, subdivision (d)(2), it expresses a mandatory duty.

This is not always the case, as “shall” can also be directory or denote future operation. (People v. Ledesma (1997) 16 Cal.4th 90, 95.) “When language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute.” (People v. Overstreet (1986) 42 Cal.3d 891, 896.) Thus, statutes defining criminal liability and punishment are generally strictly construed in favor of protecting the accused’s due process rights. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313.) To this end and “[w]herever possible, a statute is to be construed in a way which will render it reasonable, fair and harmonious with its manifest purpose, and which will conform with the spirit of the act. [Citation.]” (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644.)

Here the  court construed  the word “shall” in section 1170.95, subdivision (d)(2) as imposing a mandatory duty on the court to vacate defendant’s sentence and resentence him whenever there is a prior finding of this court that the defendant was not a major participant in the underlying felony and did not act with reckless indifference to human life. The court also construed subdivision (d)(2) as requiring the court to proceed directly to resentencing under such a circumstance.

When resentenced defendant must be given credit for the time he has served, which is greater than all the time that could be imposed for his crimes. The court found that the defendant was not shown to have been a major participant in the underlying felony, or to have acted with reckless indifference to human life. Therefore,  the trial court was required by section 1170.95, subdivision (d)(2) to vacate the conviction and resentence defendant on the remaining counts.

DISPOSITION

The order denying defendant’s petition to vacate his murder conviction and for resentencing is reversed. The matter is remanded to the superior court with directions to grant the petition, vacate defendant’s murder conviction, and resentence him on the remaining counts.