People v. NunezPeople v. Nunez
Resolving the first issue, we hold that, in order to make the initial prima facie showing under
We resolve the remaining issues in accord with the decisions of our colleagues in Division One of this district in People v. Allison (2020) 55 Cal.App.5th 449 (Allison), People v. Murillo (2020) 54 Cal.App.5th 160, 167 (Murillo), and People v. Galvan (2020) 52 Cal.App.5th 1134, 1140–1141, review granted October 14, 2020, S264284 (Galvan), as well as the decision in
FACTUAL BACKGROUND2
On January 31, 2007, between 5:00 and 6:00 a.m., a witness in Rancho Palos Verdes heard two gunshots coming from the area of the nearby archery range and turnout area, and callеd the police. Around 7:15 a.m. the same day, another witness reported he had seen a dead body on the side of the road in the same location. Police arrived to find the body of Jesus Payan lying facedown in the dirt beneath a heavy chain gate. His wrists were bound behind his back with clear packing tape, and his ankles were bound with silver duct tape and clear packing tape. A small flashlight was tucked between his ankles. There were
The ground was damp from rain the night before, and investigators were able to make casts of the tire and shoe prints found near Payan‘s body. Casts of the tire impressions matched the tires of the Ford Expedition owned by appellant‘s girlfriend, Renee Casteneda. Casts of the shoe prints matched a pair of size 11 Nike Air Jordan athletic shoes found inside the trunk of a Toyota Camry owned by appellant‘s mother, which appellant often drove. Appellant wore a size 11 shoe. No shoe prints from the shoes Payan was wearing were found in the area.
A shell casing found near Payan‘s body matched shell casings that had been recovered from a shooting on January 19, 2007. In that incident, codefendant Rudy Tafoya had fired multiple shots into another vehicle from the passenger seat of the Camry; the shell casings found near Payan‘s body were determined to have been fired from the same weapon.
Two days earlier on January 29, 2007, Payan had told his former girlfriend that he would be going to Gardena to help appellant move the following day. On January 30, 2007, Payan‘s neighbor saw Payan exit the front passenger door of a light blue Ford Expedition. He asked her for some cigarettes and told her he was going to Gardena to help friends move. He returned to the Expedition, in which there were three other occupants, and left.
On January 31, 2007, at 12:22 a.m., Payan left a message on his former girlfriend‘s cell phone, asking her to lock his van and stating that he was in Gardena with appellant.
Sometime on the night of January 30, 2007, Mayra Moran and Christine S. went to someone‘s house. Apрellant was there with a “dark, bald and skinny guy” who matched Tafoya‘s thin build. Moran was intoxicated; she recalled passing out more than once, but did not remember seeing Payan that night. In an interview with detectives, Moran indicated that at some point a man was put into the cargo compartment of an SUV. Appellant ordered Moran and Christine S. to get in the SUV and wait. Moran did not see the man in the cargo area, but she heard him moaning and groaning. Appellant and his companion entered the vehicle and appellant started driving.
With loud music playing, the SUV eventually came to a stop at a dirt road turnout. Appellant and his associate exited the SUV and took the man out of the back of the vehicle. Moran then heard two gunshots. The two men returned to the SUV without saying anything. Moran woke up in her own bed, but did not remember how she got home.
PROCEDURAL BACKGROUND
Appellant was charged and convicted in 2009 of the 2007 first degree murder and kidnapping of Payan. (
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017–2018 Reg. Sess.) in order to “amend the felony murder rule and the natural and probable consequences doctrine,
On February 15, 2019, appellant filed a petition for resentencing under
On the form declaration in support of the
Appellant did not check any of the boxes on the form that set forth the various factual grounds for the legal conclusion that
The superior court noted that appellant had not made any factual allegations to support the claim he could not now be convicted under
Reviewing the instructions given, the court stated that “[p]ursuant to CALCRIM 703, the jury was instructed that in order to find this special circumstance true, for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, they must find, beyond a reasonable doubt, that the defendant either intended to kill, or that ‘the defendant acted with reckless indifference to human life and was a major participant in the crime.’ (CALCRIM 703)” Because the jury had found the felony-murder special-circumstance allegation true, the superior court summarily denied the petition on the ground that appellant is not entitled to relief under
I. In Order to Make the Initial Prima Facie Showing Under Section 1170.95, Subdivision (c), the Petition Must Include the Factual Basis for the Assertion that the Petitioner Could Not Now Be Convicted Because of Changes to Section 188 or 189
It is clear from the language of
” ‘[P]rima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. It may, however, be contradicted, and other evidence is always admissible for that purpose.’ (Vaca Valley etc. R. R. v. Mansfield (1890) 84 Cal. 560, 566.) ‘The words “prima facie” mean literally, “at first view,” and a prima facie case is one which is received or continues until the contrary is shown аnd can be overthrown only by rebutting evidence adduced on the other side.’ ” (In re Raymond G. (1991) 230 Cal.App.3d 964, 972; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 [“A prima facie showing is one that is sufficient to support the position of the party in question“].)
The averments in boxes 5, 6, and 7 of the form petition appellant filed provide the support for the legal conclusion in box 3 that petitioner “could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code [sections] 188 and 189” by stating the factual grounds for eligibility under
Here, appellant did not check boxes 5, 6, or 7 in his petition for resentencing under
Confronted with such a petition⎯averring no facts whatsoever and presenting the court with neither declaration nor a single document suggesting petitioner‘s eligibility under the statute⎯the superior court may simply deny the petition for failure to make the requisite prima facie showing. Accordingly, because appellant failed to make the initial prima facie showing required in
Alternatively, the court may, as the superior court did here, examinе readily ascertainable information in the record of
In order to obtain relief from his felony-murder conviction under
A. The jury‘s finding that appellant either intended to kill or was a major participant in the kidnapping who acted with reckless indifference to human life establishes as a matter of law that he could still be convicted of first or second degree murder
As amended,
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, cоunseled, 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]
(
The elements listed in
By finding the kidnapping special circumstance true beyond a reasonable doubt, the jury necessarily made the factual finding that appellant participated in the kidnapping with the intent to kill Payan, or that appellant was a major participant in the kidnapping who acted with reckless indifference to Payan‘s life. Either of these findings would allow appellant to be convicted of first degree murder notwithstanding Senate Bill No. 1437‘s changes to
B. The Banks and Clark decisions provide no basis for challenging the jury‘s factual finding that appellant either intended to kill or was a major participant in the kidnapping who acted with reckless indifference to human life in the context of a petition for resentencing under section 1170.95
Appellant seeks to evade the preclusive effect of the special circumstance finding to his
In Banks, following an examination of existing United States Supreme Court jurisprudence, the court explained that in order to qualify as a major participant in the underlying felony, “a defendant‘s personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” (Banks, supra, 61 Cal.4th at p. 802.) To help resolve that question, Banks set out a series of considerations relevant to determining whether a defendant was a major participant in the underlying felony. (Id. at p. 803.) The court did the same in Clark, identifying factors that may be useful in determining whether a defendant acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 618–622.)
Banks and Clark did not state a new rule of law. Rather, the high court in those cases “merely clarified the ‘major participant’ and ‘reckless indifference to human life’ principles that existed when defendant‘s conviction became final.” (In re Miller (2017) 14 Cal.App.5th 960, 978; Allison, supra, 55 Cal.App.5th at p. 458.)
Further, our Supreme Court has not required that juries be instructed on the clarifications, and in the wake of Banks and
In short, the felony-murder special-circumstance instructions given post-Banks and Clark do not necessarily differ at all from pre-Banks and Clark felony-murder special-circumstance instructions⎯the factors, issues, and questions the post- and pre-Banks and Clark juries consider to make the MPRI finding are exactly the same.7 Accordingly, whether a jury made
In this regard, we disagree with the decisions in People v. Torres (2020) 46 Cal.App.5th 1168, review granted July 7, 2020, S262011 (Torres), People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith), and People v. York (2020) 54 Cal.App.5th 250 (York) because all three of these cases misinterpret the scope and effect of Banks and Clark.
Torres concluded the superior court erred in denying an
As discussed above, however, there is no basis to conclude as a general matter that a pre-Banks and Clark jury was instructed differently than a post-Banks and Clark jury, or resolved different factual issues, answered different questions, or applied different standards. The mandatory instructions did not change, and the pre-Banks and Clark jury necessarily resolved the same factual issues beyond a reasonable doubt that a post-Banks and Clark jury would necessarily resolve beyond a reasonable doubt.
Of course, jury findings in a final judgment are generally considered to be valid and binding unless and until they are overturned by collateral attack, regardless of whether they were subjected to appellate review. Nothing in Banks or Clark supports the automatic invalidation or disregard of such findings by a properly instruсted jury.
C. Appellant‘s claim that he could not now be convicted of murder is based on his substantial evidence challenge under Banks and Clark, not on any changes to sections 188 or 189 brought about by Senate Bill No. 1437. He is therefore ineligible for relief under section 1170.95.
At the heart of appellant‘s appeal is the contention that he is eligible for resentencing under
As Division One of this district explained in rejecting the same argument appellant advances here: “We analyze the issue by turning to the language of
The Legislature made plain that its purpose in enacting
In this regard, we agree with Allison‘s conclusion that Verdugo, supra, 44 Cal.App.5th 320, “correctly describes the role of prior factual findings in the analysis of a petition under
III. A Section 1170.95 Petition Is Not a Proper Vehicle for Mounting a Challenge Under Banks and Clark to the Jury‘s Prior Factual Finding that the Petitioner Was a Major Participant Who Acted with Reckless Indifference to Human Life
Nothing in Senate Bill No. 1437 suggests the Legislature intended to provide redress for allegedly erroneous prior fact-findings or give defendants with pre-Banks and Clark special circumstances findings an opportunity to retry their cases by challenging their convictions under
As discussed above, Senate Bill No. 1437 did not change any of the requirements for the special circumstance finding announced in Banks and Clark. “Just as was the case before that law went into effect, the special circumstance applies to defendants who were major participants in an underlying felony and acted with reckless indifference to human life. If [the defendant] is entitled to relief based on Banks and Clark, the avenue for such relief is not
In this regard, the courts’ reasoning in Gomez, Galvan, and Murillo is particularly persuasive. In rejecting the defendant‘s bid to challenge the evidentiary support for the special circumstance findings under Banks and Clark in the context of a
“In an evidentiary hearing on a
section 1170.95 petition to determine whether there is sufficient evidence to support her murder conviction on a felony-murder or natural and probableconsequences theory, the People would bear the burden of proof beyond a reasonable doubt. ( § 1170.95, subd. (d)(3) .) To make its true findings on the special circumstance allegations against [the defendant], the jury was required to find that [the defendant] either acted with the intent to kill, or that she was a mаjor participant who acted with reckless indifference to human life in the robbery and kidnapping of [the victim]. The People should not be required to prove beyond a reasonable doubt, a second time, that [the defendant] satisfied those requirements for the special circumstance findings. Considering the different burdens of proof in a habeas corpus proceeding and a proceeding undersection 1170.95 , we conclude that a petition for writ of habeas corpus is the appropriate vehicle for [the defendant] to challenge her special circumstance findings. If [the defendant] were to succeed in challenging the special circumstance findings in a habeas corpus proceeding, she would then be in a position to successfully petition undersection 1170.95 to vacate her murder conviction.” (Gomez, supra, 52 Cal.App.5th at p. 17, rev.gr.)
Galvan also expressed concern over the disparate treatment of defendants based solely on the date of their conviction. Because the People would have the burden of proving the factual support for special circumstance findings beyond a reasonable doubt in a
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
I concur:
CHAVEZ, J.
I agree with the opinion of the court that the trial court properly denied defendant and appellant Daniel Isidro Nunez‘s petition for resentencing (
As the trial court noted at the hearing on defendant‘s petition, the jury was instructed with CALCRIM No. 703. Specifically, the jury was told that in order to find the special circumstance true, the People had to prove either that defendant intended to kill or that defendant was a major participant in the crime and acted with reckless indifference to human life. The jury then found the special circumstance of felony murder true. Because the jury was instructed that in order to find the special circumstance true it had to find that defendant either intended to kill the victim or that he was a major participant in the
Moreover, I conclude that that finding stands under People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). (People v. Law (2020) 48 Cal.App.5th 811, 821–822 (Law), review granted July 8, 2020, S262490 [holding that whether there is sufficient evidence that a defendant was a major participant who acted with reckless indifference to human life is a question that we can decide on appeal].) As set forth in People v. Nunez (Sept. 1, 2011), B222962 [nonpub. opn.], the evidence of defendant‘s participation in the kidnapping and murder was overwhelming. “[T]his sort of conduct easily meets our state‘s standard for what constitutes being a major participant who acted with reckless indifference to human life.” (Law, supra, at p. 825.) Under these circumstances, defendant is not entitled to resentencing relief.
In light of this conclusion, there is no need to decide whether the trial court could have denied defendant‘s petition for resentencing solеly on the grounds that he did not offer any facts in support of his averment that he could not now be convicted of
As noted by the court‘s opinion, authority on this issue is split. “Some courts say the legislature did not intend
ASHMANN-GERST, J.