People v. VerdugoPeople v. Verdugo
APPEAL from an order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey and Idan Ivri, Deputy Attorneys General, for Plaintiff and
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. SB 1437 also permits, through new
Nick Verdugo contends
Verdugo was convicted in 2006 following a jury trial of first degree murder (
On January 16, 2019 Verdugo petitioned for sentencing relief under SB 1437. He utilized a downloadable form petition/declaration prepared by Re:Store Justice, a cosponsor of the legislation (see Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.) Apr. 24, 2018, p. 1), on which Verdugo checked boxes 1, 2a and 3, stating, in language paralleling that of
Verdugo‘s petition attached a copy of an 18-page document that appears to be an almost-final version of the jury instructions used by the court at Verdugo‘s joint trial with codefendant Bryant Barraza.3 Included among the instructions are CALJIC Nos. 8.26 and 8.69. CALJIC No. 8.26, as given, stated, “If a number of persons conspire together to commit willful, deliberate, and premeditated Murder, and if the life of another person is taken by one or more of them in the perpetration of, or an attempt to commit that crime, and if the killing is done in furtherance of the common design and to further that common purpose, or is the natural and probable consequence of
There were no other attachments to the petition, and Verdugo submitted no other information regarding his conviction for first degree murder.
The matter was called on January 24, 2019. Verdugo was not present. The court summarily denied the petition “as petitioner is not entitled to relief as a matter of law.” The court‘s minute order explained, “Besides first degree murder, petitioner was convicted of conspiracy to commit murder, a crime requiring express malice. In addition, the appellate opinion affirming the petitioner‘s conviction and sentence reflects that the petitioner was convicted as a direct aider and abettor, with malice aforethought, and not on a theory of felony murder of any degree or a theory of natural and probable consequences.”
DISCUSSION
1. SB 1437 and the Right To Petition To Vacate Certain Prior Convictions for Murder
a. Statutory changes relating to accomplice liability for murder
On September 30, 2018 the Governor signed SB 1437, which, effective January 1, 2019, amended
To effectuate this legislative purpose, SB 1437 added a crucial limitation to
New
b. Petitions to vacate prior convictions for felony murder or murder under the natural and probable consequences doctrine
SB 1437 also added
If any of the required information is missing and cannot be readily ascertained by the court, “the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.” (
If the petition contains all required information,
Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (
2. Section 1170.95, Subdivision (c), Authorizes the Court To Preliminarily Determine Whether the Petitioner Has Made a Prima Facie Showing of Eligibility for Relief Under Section 1170.95
As discussed, pursuant to
The nature and scope of
What then is the court‘s role in conducting the first prima facie review of the petition required by
The midpoint between
Although subdivision (c) does not define the process by which the court is to make this threshold determination, subdivisions (a) and (b) of
Because the court is only evaluating whether there is a prima facie showing the petitioner falls within the provisions of the statute, however, if the petitioner‘s ineligibility for resentencing under
That the Legislature intended this three-step evaluation of a
The next iteration of the bill deleted the initial review of the petition to determine whether it was complete and slightly revised the subsequent step to require the court, immediately upon receipt of the petition, to provide notice to defense counsel (either the attorney who represented the petitioner in the superior court or the public defender if the attorney of record is no longer available) and the district attorney and to order a response from both parties “as to whether the petitioner is entitled to relief.” (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended May 25, 2018, § 6.) As before, the court was required to hold a resentencing hearing if it found there was “sufficient evidence that the petitioner falls within the provisions of this section.” (Ibid.)
The final version of the bill revived the initial review of the petition for completeness—that is, its facial sufficiency—as
3. Section 1170.95, Subdivision (c), Does Not Require Appointment of Counsel Prior to the Court‘s Initial Prima Facie Review
The first sentence of
Indeed, although Verdugo disputes the nature of the initial prima facie showing required by
4. The Superior Court Correctly Concluded Verdugo Is Ineligible as a Matter of Law for Any Relief Under Section 1170.95
A court of appeal opinion, whether or not published, is part of the appellant‘s record of conviction. (People v. Woodell (1998) 17 Cal.4th 448, 456; People v. Cruz (2017) 15 Cal.App.5th 1105, 1110; People v. Brimmer (2014) 230 Cal.App.4th 782, 800.) Accordingly, it was proper for the superior court to consider this court‘s opinion in People v. Barraza, supra, B194415, which affirmed Verdugo‘s convictions for conspiracy to commit murder and first degree murder, in determining whether he had made a prima facie showing of eligibility for relief under
a. The conspiracy and the murder
The Barraza opinion described a portion of the evidence at trial in the following language: “Barraza (also known as ‘Stranger‘) and Verdugo (also known as ‘Musky‘) were active members of the Arizona Maravilla (AMV) street gang. Peter Quijas (also known as ‘Pistol Pete‘), Angel Martinez (also known as ‘Bugsy‘) and David Lopez (also known as ‘Grumpy‘) were also members of AMV. [¶] In May 2000, after Martinez told Barraza, Verdugo, Quijas and Lopez he had been beaten up by members of the rival Marianna Maravilla gang (MMV), Barraza, Quijas and Verdugo devised a plan to retaliate by shooting a member of MMV. As crafted, the retaliation plan required Verdugo to drive a car into MMV territory and look for MMV gang members. When he spotted an MMV member, he would inform Quijas of the member‘s whereabouts using a two-way radio. Quijas and Barraza would
b. The contention the instructions permitted the jury to find Barraza and Verdugo guilty of conspiracy to commit murder without regard to whether either of them personally intended to kill
Quijas was charged along with Barraza and Verdugo with murder and conspiracy to commit murder. By the time of trial, however, Quijas had pleaded guilty to those offenses as part of a negotiated agreement for a state prison sentence to run concurrently with an unrelated prison term he was serving; and he testified as a prosecution witness. Nonetheless, the jury heard evidence the conspiracy at issue in the case involved three individuals, Barraza, Verdugo and Quijas.
On appeal Barraza and Verdugo contended the trial court committed prejudicial error by instructing the jury that to prove conspiracy to commit murder the People had to establish “[a]t least two of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being.”12 Barraza and Verdugo argued the jury may have understood it could convict both of them on the conspiracy charge
c. The description of the basis for Verdugo‘s murder conviction
After describing the various instructions relating to conspiracy and concluding it was not reasonably likely the jury was confused, we continued, in language relied upon by the superior court in this proceeding, “The implausibility of any jury confusion as to the required specific intent is confirmed by its findings as to both Barraza and Verdugo that the murder was premeditated and deliberated. The jury‘s verdict that both Barraza and Verdugo were guilty of premeditated murder necessarily included a finding that both harbored the specific intent to kill Ortiz Jr. A finding that Verdugo had aided and abetted the premeditated murder necessarily included a finding that he, not simply Barraza, specifically intended to inflict death. (See People v. Jurado (2006) 38 Cal.4th 72, 123 [even though instruction on conspiracy omitted mention of required specific intent to commit target offense, omission was harmless beyond a reasonable doubt;
The superior court correctly understood this language to mean that, while Barraza, not Verdugo, was the shooter, our review of the record confirmed that Verdugo‘s conviction for first degree murder was based on a jury finding he had aided and abetted Barraza in the commission of that offense and had acted with express malice in doing so. As the Supreme Court recently explained in parallel circumstances in People v. Beck & Cruz (2019) 8 Cal.5th 548, 645, despite the fact the court had mentioned the natural and probable consequences doctrine in the conspiracy instruction, “Beck and Cruz were charged with conspiracy to murder, not conspiracy to commit a lesser crime that resulted in murder. There is thus no possibility they were found guilty of murder on a natural and probable consequences theory.”
DISPOSITION
The order summarily denying the
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.