THE PEOPLE, Plаintiff and Respondent, v. DANIEL ISIDRO NUNEZ, Defendant and Appellant.
B299065
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
Filed 11/3/20
57 Cal.App.5th 191
CERTIFIED FOR PUBLICATION
APPEAL from an order of the Superior Court of Los Angeles County. Hector M. Guzman, Judge. Affirmed.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal from the summary denial of a petition for resentencing under
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 People v. Gomez (2020) 52 Cal.App.5th 1, 16-17, review granted October 14, 2020, S264033 (Gomez), in holding that the superior court may summarily deny a
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 called thе police. Around 7:15 a.m. the same day,
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.
Sometime on January 30, 2007, Regina Reyes, a friend of Payan‘s, called appellant asking for methamphetamine. Appellant told her he was in Gardena moving out of his house. Reyes went to appellant‘s house around 10:50 p.m. hoping to get some drugs. When she arrived, appellant and Tafoya were there, and the house was mostly empty. Reyes stayed, and around midnight Payan and another man arrived with beer. All five of them sat in the living room talking. Before Reyes left appellant‘s house between midnight and 2:00 a.m., Payan and the man with whom he had arrived departed, saying they would return.
Sometime on the night of January 30, 2007, Mayra Moran and Christine S. went to someone‘s house. Appеllant 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.
Detectives searched the Camry and Castaneda‘s Ford Expedition in February 2007. In addition to the athletic shoes recovered from the Camry‘s trunk, detectives found two bloodstained shirts and DMV paperwork with appellant‘s name in the Camry. In the cargo compartment of the Ford Expedition, detectives found a black plastic bag with a small fragment of duct tape stuck to it. Tests of the duct tape fragment revealed DNA that came from a mixture of at least two people, including Payan. A comparison of the tape fragment with the duct tape found on Payan‘s ankles revealed no differences in physical, optical, and chemical properties. In the Ford Expedition detectives also found a folding knife, paperwork belonging to appellant and Castaneda, and a photo album with pictures of appellant and one picture of Tafoya.
PROCEDURAL BACKGROUND
Appellant was charged and convicted in 2009 of the 2007 first degree murder and kidnapping of Payan. (
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 petitioner could not now be convicted of first or second degree murder because of the changes made to
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
DISCUSSION
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
In interpreting
It is clear from the language of
The superior court‘s role in conducting the initial prima facie review under
” ‘[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 and сan 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
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, examine rеadily ascertainable information in the record of conviction and deny the petition if that threshold review “establishes the petitioner is ineligible for relief as a matter of law because he or she was convicted on a ground that remains valid notwithstanding Senate Bill [No.] 1437‘s amendments to
II. The Superior Court May Summarily Deny a Section 1170.95 Petition at the Initial Prima Facie Review on the Ground that a Petitioner Convicted of Murder with a Felony-murder Special Circumstance Finding Is Not, as a Matter of Law, Eligible for Resentencing Under Section 1170.95
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 actuаl 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 .6” (§ 189, subd. (e) ; Allison, supra, 55 Cal.App.5th at p. 457; Gomez, supra, 52 Cal.App.5th at p. 14, rev.gr.)
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
Appellant seeks to evade the preclusive effect of the special circumstance finding to his
In Banks, supra, 61 Cal.4th 788, 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 Clark, no mandatory language or material changes were made to the CALCRIM special circumstance instructions. (Allison, supra, 55 Cal.App.5th at p. 458; see CALCRIM No. 703 (2020 ed.); Gomez, supra, 52 Cal.App.5th at p. 14, fn. 6, rev.gr. [CALCRIM No. 703 before Banks and Clark].) Rather, while CALCRIM No. 703 now includes optional language drawn from Banks and Clark regarding the factors a jury may consider, “[t]he bench notes to the instruction state that Banks ‘stopped short of holding that the court has a sua sponte duty to
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 a post- or pre-Banks and Clark MPRI finding, that finding establishes as a matter of law the defendant‘s ineligibility for relief under
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 instructed jury.
C. Appellant‘s claim that he could not now be conviсted 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 probable consequences 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 actеd with the intent to kill, or that she was a major 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
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
I concur:
CHAVEZ, J.
People v. Nunez, B299065
ASHMANN-GERST, J., Concurring in the judgment.
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 kidnapping who acted with reckless indifference to the victim‘s life and then found the special circumstance true, the jury necessarily found either intent or that defendant was a major participant who acted with reckless indifference to human life. (People v. Felix (2008) 160 Cal.App.4th 849, 865 [the appellate court presumеs that the jury followed the instructions as given].)
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 рetition for resentencing solely on the grounds that he did not offer any facts in support of his averment that he could not now be convicted of first or second degree murder because of the changes made to
As noted by the court‘s opinion, authority on this issue is split. “Some courts say the legislature did not intend
Like my colleagues in Douglas, I do not think we need to “enter this controversy.” (Douglas, supra, 2020 Cal.App.LEXIS at p. *10.) It will continue until
ASHMANN-GERST, J.