People v. MurilloPeople v. Murillo
FACTS AND PROCEEDINGS BELOW
In a prior opinion in Murillo‘s direct appeal (People v. Murillo (July 28, 1994, B078813) [nonpub. opn.] (Murillo)), this court described the facts of this case, beginning with the prosecution‘s case:
“During the evening of April 12, 1992, 15-year-old Mirna G., 14-year-old Gabriel N. and defendant gathered at a park with a number of others. At some point, it was decided that a group of these individuals would do a ‘beer run,’ meaning to take beer from a store without paying for it. Mirna, Gabriel, defendant and someone named Peeker made the run. As they drove, they decided Gabriel and defendant would enter the store and get the beer; Mirna would hold the door for them and Peeker would remain in the automobile, ready to drive. Defendant showed the others a handgun.
“After trying several stores, the group settled on one at approximately 11:00 p.m. After the group parked in the Mobil gasoline station, defendant, Gabriel and Mirna walked to the
store. As previously arranged, Mirna stayed at the door, while defendant and Gabriel entered the store. Gabriel then walked back and told Mirna to get the beer while he held the door. Defendant and Mirna took several cases of beer and walked out of the store with it; Gabriel followed. As they left the store, they noticed Peeker was putting gasoline into the automobile; they began to run. “Rocco Pugliese (Pugliese), Eric Hice (Hice) and Chris Brown (Brown), who were standing in the store‘s parking lot, saw defendant and Mirna running away with something in bags, followed by Gabriel, then saw the store clerk make a gesture that led them to believe there had been a crime. Believing the store had been robbed, Pugliese and Brown pursued the trio who had emerged from the store.
“Defendant, Gabriel and Mirna ran across the street; as they ran, defendant and Mirna dropped the beer. Brown caught up with Mirna and pulled her hair, causing her to fall. She got up and ran in a direction different from that taken by defendant and Gabriel. Pugliese pursued her, while Brown pursued Gabriel and defendant, going over a wall after them. As Mirna neared a yard down the street, she heard defendant tell Gabriel, ‘Shoot him.’ This was followed by a gunshot. Pugliese found Brown lying on the grass in a yard beyond the brick wall Brown had scaled; he went for help. Brown died from a single gunshot wound which perforated the aorta, causing him to bleed to death.
“At this point, Mirna, defendant and Gabriel met and attempted to leave the neighborhood. Approximately 30 minutes later, Mirna saw defendant trying to hide a gun in the bushes in front of a house near some railroad tracks. When the trio
reached the tracks, Gabriel said he shot someone once to scare him; he said he should have shot the man in the head instead. “Defendant was arrested on Apri1 14, 1992. As he was escorted to the police vehicle, he said, ‘The white boy shouldn‘t have tried to be a hero.’ He also said he had ‘pulled lots of jobs,’ and ‘when I pull them, I pull them clean;’ he was not going to jail, for he ‘was going to take care of the guy that said he shot the white guy.’ During a subsequent police interview, defendant admitted telling Gabriel, ‘Shoot him.’ He also said Gabriel was very nervous; he did not want to give him the gun because Gabriel might shoot someone with it. After he initially told Gabriel to shoot in the air if they were pursued, Gabriel said he would just shoot the pursuer.” (Murillo, supra, B078813.)
The opinion went on to summarize the defense evidence:
“Defendant admitted his complicity in the burglary. He acknowledged he belonged to the South Side Reseda street gang. According to defendant, when the group planned the burglary, he was unarmed. Someone gave him a handgun as protection should they encounter rival gang members. Defendant had shot at rival gang members on at least one prior occasion, but he did not intend to use the gun during the burglary.
“As the group drove around looking for the best store to burgle, Gabriel asked defendant what to do if someone pursued them. Defendant said he would shoot in the air. As they left one store they had investigated, Gabriel asked for the gun. Defendant refused to give it to him, explaining he did not want his fellow gang members ‘to say we gave you the gun, why did you lose it.’ Gabriel repeated his request for the gun often enough that defendant grew tired of the debate and gave him the gun. He said nothing further about how the gun should be used.
“As the group fled after stealing the beer, Brown pursued them. When Brown drew near after they had scaled a wall and entered a yard, defendant told Gabriel to shoot. He thought Gabriel would shoot in the air. After Gabriel fired, defendant did not believe anyone had been shot. Gabriel later said he shot only to scare his pursuer. “Defendant learned someone had been shot during the pursuit after overhearing a conversation on the following evening. When defendant was arrested, he was angry at being accused of the shooting and at Gabriel for ‘snitching.’ According to defendant, he never said anything at the time of his arrest about Brown trying to be a hero.” (Murillo, supra, B078813.)
A jury convicted Murillo of first degree murder (
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished the natural and probable consequences doctrine in cases of murder, and limited the application of the felony murder doctrine. Under
Murillo filed a petition for resentencing on March 29, 2019. The trial court summarily denied the petition on the ground that the jury‘s special circumstance finding rendered him ineligible for resentencing. (See
DISCUSSION
A. Background on Section 1170.95
Upon receipt of a petition, the trial court reviews it to determine whether the petitioner has made a prima facie case for relief. (
In this case, the trial court denied Murillo‘s petition at the first stage of prima facie review under
The primary obstacle preventing Murillo from establishing his eligibility for resentencing is the jury‘s finding of a felony-murder special circumstance. To be eligible for resentencing under
Murillo attempts to avoid this conclusion by attacking the felony-murder special circumstance finding. He notes that after his conviction of felony murder, the Supreme Court decided Banks and Clark, which decisions represent a significant shift in the interpretation of the concepts of major participation and
The Attorney General argues, however, that in order to challenge the validity of a felony-murder special circumstance by collateral attack, a defendant must file a petition for a writ of habeas corpus.5 A defendant may not seek relief via
As we explained in Galvan, a defendant subject to a pre-Banks and Clark special circumstance is ineligible for resentencing under
By requiring a defendant to seek relief via habeas corpus, we avoid creating a disparity in which similarly situated defendants’ cases are evaluated under different standards based solely on the date of their convictions. “Defendants convicted after the Supreme Court issued its decisions in Banks and Clark would be required to challenge the sufficiency of the evidence of the special circumstance finding on direct appeal, where the People would need only to show that substantial evidence supported that finding. If the judgment is affirmed, generally it would be the law of the case in any proceedings thereafter as to those findings. (In re Saldana (1997) 57 Cal.App.4th 620, 625 . . . ; see also In re Harris (1993) 5 Cal.4th 813, 829 . . . [‘in the absence of strong justification, any issue that was actually raised and rejected on appeal cannot be renewed in a petition for a writ of habeas corpus‘].) But where, as here, a defendant was convicted before Banks and Clark, if the defendant could bring a collateral challenge under
C. As a Matter of Law, the Special Circumstance as Defined by Banks and Clark Applies to Murillo
We also affirm the trial court‘s denial of Murillo‘s petition on a second, independent ground. Even if a defendant could challenge the validity of a felony-murder special circumstance by means of a petition under
1. The background of Banks and Clark
The definition of the felony-murder special circumstance under
In Enmund, the defendant and two confederates planned to rob an elderly couple at their home. When the couple resisted, one or both of Enmund‘s cohorts shot and killed the couple. Enmund, who was waiting in a car nearby, drove his cohorts away and helped them dispose of the murder weapons. (Enmund, supra, 458 U.S. at p. 784.) The Court held that the imposition of the death penalty was unconstitutionally disproportional as a punishment to Enmund, who had not intended for a killing to take place and was not at the scene at the time of the murders. (Id. at p. 798.)
By contrast, the Court did not reverse the imposition of the death penalty in Tison. The defendants in that case, three
To assist in distinguishing points along the continuum between Enmund and Tison, the Court in Banks set out a series of considerations relevant to determining whether a particular defendant was a major participant in the underlying felony. These factors are as follows: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient.” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
In Clark, the Court re-examined Tison, this time considering in particular the second requirement for the special circumstance, reckless indifference to human life. Once again, the Court established a list of factors useful to determining whether a defendant met the standard for liability. Because the issue of reckless indifference to human life overlaps significantly with major participation in the underlying felony, the relevant factors are similar to those stated in Banks. (See Clark, supra, 63 Cal.4th at pp. 614–615.) The factors identified in Clark are: (1) The defendant‘s knowledge of weapons, the number of weapons used, and the defendant‘s own use of weapons; (2) the defendant‘s physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the felony; (4) the defendant‘s knowledge that his cohort was likely to kill; and (5) whether the defendant made efforts to minimize the risk of violence during the felony. (Id. at pp. 618–622.) Just as in Banks, the Court in Clark clarified that these considerations are not exhaustive, sufficient, nor necessary to establishing whether the defendant‘s conduct met the standard for the special circumstance. (Id. at p. 618.)
2. Application to this case
Although many of the Banks and Clark factors are relevant, a single fact is overwhelmingly important in this case, and almost alone establishes that Murillo was a major participant who acted with reckless indifference to human life: Murillo instructed Gabriel to fire the gun. Even if we assume that Murillo was telling the truth when he claimed that he did not mean for Gabriel to shoot at Brown, Murillo‘s actions led directly to Brown‘s death. This is a key factor making him a major participant under Banks. In addition, by instructing Gabriel to shoot, Murillo maximized the risk of violence in the crime rather than minimizing it: rather than attempting to
Other factors also support the conclusion that Murillo was a major participant in the burglary and that he acted with reckless indifference to human life. Murillo knew that Gabriel was young and inexperienced with firearms, and he told police that Gabriel seemed nervous. Yet, in spite of these concerns, Murillo allowed Gabriel to carry the gun during the burglary. Murillo could have minimized the inherent risk in the burglary simply by ordering Gabriel to leave the gun in the car. Instead, Murillo significantly increased the danger by giving Gabriel the gun to carry into the store.
The only mitigating factor is that the original plan did not require the perpetrators to use a gun or shoot anyone. But this is vastly less important than the other factors described above.
In Banks and Clark, and in other cases in which a court has overturned a special circumstance finding, the defendant either was not present at the scene of the killing, or at least was not capable of preventing his cohort from acting. (See Banks, supra, 61 Cal.4th at p. 805; Clark, supra, 63 Cal.4th at pp. 619–620; accord, In re Taylor (2019) 34 Cal.App.5th 543, 559; In re Ramirez (2019) 32 Cal.App.5th 384, 404; In re Miller (2017) 14 Cal.App.5th 960, 975.) We are not aware of any case where a court overturned a special circumstance finding in which the defendant was present and bore such a strong responsibility for the victim‘s death.
In People v. Smith (2020) 49 Cal.App.5th 85, 95–96 (Smith), our colleagues in Division 5 of this district held that a defendant could challenge a pre-Banks and Clark special circumstance
We have already explained that a petition under
Here, the record of conviction establishes as a matter of law that Murillo was a major participant who acted with reckless
DISPOSITION
The trial court‘s order is affirmed.
CERTIFIED FOR PUBLICATION.