People v. FarfanPeople v. Farfan
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff
Edgar Alejandro Farfan appeals the summary denial of a petition for resentencing under
Appellant was convicted in 2016 of the first degree murder of Kamell Heno (
In January 2019, appellant filed a petition for recall and resentencing under
Appellant did not appeal the superior court‘s order, but filed a second petition for
As a preliminary matter, we reject respondent‘s contention that the second
Turning to the merits of the appeal, we conclude that because appellant filed a facially sufficient
FACTUAL BACKGROUND2
Kamell Heno was employed as a delivery driver for Cartons to Go, a company that bought and sold cigarettes. On December 4, 2014, Heno was scheduled to deliver cigarettes worth $217,000 to Cartons to Go in LaVerne. That morning, driving a large white box truck, Heno picked up the cigarettes from Giant
Around 3:30 that afternoon, Heno‘s truck was discovered parked on the 10200 block of South Grand Avenue in the city of Los Angeles. Only about 10 percent of the cigarettes Heno had collected that morning remained in the truck‘s cargo area. Heno was found on the floor of the truck with a red stained cloth covering his head. His face was wrapped in duct tape, which covered his eyes and mouth. He had two projectile head wounds from a BB gun in addition to multiple abrasions, lacerations, and bruises on his head, neck, and upper extremities. Heno was pronounced dead at the scene. An autopsy indicated the cause of death to be asphyxiation.
Prior to December 4, appellant, his brother Josue Farfan (Josue), and Josue‘s wife, Jennifer Medina, agreed to rob a delivery truck of its cargo of cigarettes. In accordance with the plan, on the morning of December 4, appellant drove Medina and Josue in his SUV to Cigar Cartel, where they parked and waited until the white box truck driven by Heno pulled out. Appellant followed the truck as it picked up its cargo. When the truck left Costco, appellant followed it onto the freeway and hit Heno‘s truck with his SUV to force it to stop.
The truck pulled over, and Heno got out. Appellant exited the SUV carrying a BB gun and shoved Heno into the passenger side of the truck. Josue got into the truck and the brothers drove away with Heno while Medina followed in the SUV. Eventually, the truck exited the freeway, drove into a neighborhood and parked. Appellant, Josue, and Medina filled the SUV with cigarettes from the truck and drove away, leaving Heno in the cab of his truck.
I. Appellant‘s Second Petition for Relief Under Section 1170.95 Is Not Procedurally Barred as a Successive Petition
Respondent contends that the
As California courts have grappled with the interpretation and application of
Appellant‘s 2019 petition was facially sufficient and thus triggered the requirement that a request for appointment of counsel be honored before the superior court may consider the record of conviction to determine whether the appellant made a prima facie showing of eligibility for relief. (Lewis, supra, 11 Cal.5th at p. 957.) Appellant‘s subsequent petition was also facially sufficient and should also have prompted the appointment of counsel. Furthermore, appellant‘s 2020 petition cited three appellate decisions issued after the superior court‘s summary denial of the 2019 petition: People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954 (York); People v. Smith (2020) 49 Cal.App.5th 85, review
Respondent asserts that “successive
Application of collateral estoppel is not automatic, but is subject to public policy considerations. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342-343.) As our Supreme Court has explained, “[T]he public policies underlying collateral estoppel—preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.” (Id. at p. 343.) In this cаse, none of these public policy considerations favors application of collateral estoppel to bar appellant‘s 2020 petition. (See Lewis, supra, 11 Cal.5th at p. 967 [“Appointing counsel to assist a petitioner in navigating these complex theories, upon the filing of a facially sufficient petition, promotes the reliability of
Respondent also analogizes to the general rule in habeas cоrpus procedure that a “court will not consider repeated applications for habeas
Under this standard, not only are the changes to the law effected by Senate Bill No. 1437 themselves retroactive, but judicial interpretations of
II. Because the Jury Found the Robbery-murder Special Circumstance True, Appellant Is Ineligible for Relief Under Section 1170.95 as a Matter of Law
A. Applicable legal principals
The Legislature enacted Senate Bill No. 1437 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); Gentile, supra, 10 Cal.5th at p. 842; People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
Prior to the enactment of Senate Bill No. 1437, “a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or
In order to ensure that a person‘s sentence is commensurate with his or her criminal culpability (Lewis, supra, 11 Cal.5th at p. 971), the Legislature substantively amended
When a petition for resentencing under
“The record of conviction will necessarily inform the trial court‘s prima facie inquiry under
B. The superior court erred in failing to appoint counsel, but the error was harmless in light of the jury‘s true finding on the robbery-murder special circumstanсe allegation
Appellant‘s 2020 petition for resentencing met the requirements for facial sufficiency and he requested counsel. Lewis therefore dictates our conclusion that the superior court erred in its summary denial of appellant‘s petition without first appointing counsel and accepting briefing from the parties.
Nevertheless, we conclude the error was harmless.
By adding
first degree murder under
Here, appellant‘s jury was instructed pursuant to CALCRIM No. 703 that if it found appellant was not the actual killer, it could not find the robbery-murder special circumstance true unless it was satisfied beyond a reasonable doubt that appellant intended to kill or he was a major participant in the crime, and, when he participated in the crime, he acted with reckless indifference to human life. The jury was further instructed that “[a] person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.”
In order to оbtain relief from his or her felony murder conviction under
The issue resolved in all of these cases and pending before our Supreme Court in Strong is whether a special circumstance finding made before Banks and Clark precludes
Thus, even though appellant‘s jury was not instructed with the Banks and Clark factors, this case falls outside the split of authority to be resolved by
In Lewis, our Supreme Court held the deprivation of a petitioner‘s right to counsel under
Because the jury‘s felony-murder special circumstance finding precludes relief under
C. Appellant is not entitled to relief under section 1170.95 based on the natural and probable consequences instructions given in connection with the uncharged conspiracy to commit robbery
Appellant contends the instructions given allowed the jury to convict appellant of first degree felony murder as an aider and abettor under two alternative theories: “traditional” felony murder and felony murder based on appellant‘s participation in an uncharged conspiracy to commit rоbbery. With regard to the latter theory, the jury was instructed that if death was a natural and probable consequence of the conspiracy‘s target offense of robbery, then any member of the conspiracy who intended that a member of the conspiracy commit the robbery could be convicted of first degree felony murder. (CALCRIM Nos. 417, 540B.) The general verdicts did not indicate whether the jury found appellant to be the actual killer. Moreover, the verdicts did not specify the theory upon which the murdеr conviction was predicated—“traditional” felony murder, or the prosecution‘s alternate theory of an uncharged conspiracy to commit robbery, which embraced the doctrine of natural and probable consequences. Thus, according to appellant, there is no way to ascertain from the record which theory formed the basis for the jury‘s first degree murder verdict. And because the jury was misdirected on an alternate theory of first degree felony murder that incorporаted the natural and probable consequences doctrine, appellant maintains that the matter must be reversed and remanded for issuance of an order to show cause and an
Appellant‘s argument might have merit were it not for the jury‘s true finding on the felony-murder special circumstance in this case. While it is true (contrary to the superior court‘s conclusion) that appellant‘s jury was instructed on an alternate uncharged conspiracy theory which incorporated natural and рrobable consequences principles, the jury‘s special circumstance finding demonstrates that appellant‘s murder conviction was not predicated on any theory of derivative liability. Indeed, as set forth above, viewing the jury‘s true finding on the felony-murder special circumstance in light of CALCRIM No. 703 establishes that the jury found, beyond a reasonable doubt, that if appellant was not the actual killer, he had the intent to kill or was a major participant in the robbery who acted with reckless disregаrd for human life. This finding simply leaves no room for speculation that the jury might have relied on the alternate uncharged conspiracy theory and natural and probable consequences to convict appellant of murder.
The superior court correctly determined that appellant is ineligible for
DISPOSITION
The superior court‘s order denying relief under
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.