People v. Maraglino CA4/1 ( 2021 )

Filed 6/24/21 P. v. Maraglino CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077746
Plaintiff and Respondent,
v. (Super. Ct. No. SCN304686)
DOROTHY GRACEMARIE
MARAGLINO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
K. Michael Kirkman, Judge. Affirmed.
Robert L.S. Angres, under appointment of the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and
Respondent.
In October 2015, a jury convicted Dorothy Gracemarie Maraglino of
first degree murder (Pen. Code,1 § 187, subd. (a)), kidnapping (§ 207,
subd. (a)), torture (§ 206), and attempted sexual battery by restraint
(§§ 243.4, subd. (a) & 664) following the death of Brittany K. in April 2012. It
also convicted Maraglino of a conspiracy to kidnap. (§ 182, subd. (a)(1).)
Maraglino appealed the convictions, and we affirmed the murder,
kidnapping, and conspiracy convictions in an unpublished opinion (People v.
Maraglino (Dec. 29, 2017, D069297, D069609) [nonpub. opn.]) (hereafter
Maraglino). The trial court modified the judgment to reverse the convictions
for torture and attempted sexual battery.
In 2019, Maraglino filed a petition for resentencing under
section 1170.95, which permits a defendant convicted of murder under a
felony-murder theory to petition for the conviction to be vacated and
resentenced. (§ 1170.95, subd. (a).) She contends her petition meets the
requirements of section 1170.95 to demonstrate she is entitled to relief, so the
court’s denial of was improper. We conclude the trial court properly
considered the record of conviction to determine as a matter of law that
Maraglino is ineligible for relief under section 1170.95, and we affirm the
order.
I
BACKGROUND AND PROCEDURAL FACTS
A. The Crimes
We take the facts of the underlying conviction directly from our opinion
in Maraglino, supra, D069297, D069609:
“On April 13, 2012, Perez picked up [Brittany K.] from her apartment
under the pretext of taking her on a dinner cruise. Ten minutes later,
1 Further unspecified statutory references are to the Penal Code.
2
[Brittany K.] sent her friend a text message saying, ‘Help.’ Four days later,
detectives recovered her nude body near Lake Skinner in Riverside County.
Evidence presented at trial suggested [Brittany K.] died while defendants
were acting out a BDSM kidnapping fantasy.
“[Louis Ray] Perez, Maraglino, and [Jessica Lynn] Lopez were active
participants in the BDSM lifestyle, respectively occupying roles in their
household of ‘master,’ ‘mistress,’ and ‘slave.’ Perez and Maraglino were in a
dominant-submissive relationship wherein Perez was the dominant and
Maraglino was his submissive. Perez lived in a separate residence but often
visited Maraglino at her home in Fallbrook, California. Lopez was
Maraglino’s slave and lived in Maraglino’s home.
“As a masochist, Lopez enjoyed receiving pain; Maraglino would inflict
pain on her through BDSM ‘play.’ Although a slave in the Maraglino
household, Lopez had been a dominant in the past and in an ongoing online
relationship with someone named Bella. Maraglino was a ‘switch,’ meaning
she was submissive with Perez and dominant with Lopez. Maraglino
established written procedures, including a ‘House Manual,’ ‘Perfect Slave
Checklist,’ and slave contract. She controlled everything Lopez did inside
and outside the home; Lopez wore a dog collar stating she was Maraglino’s
property. As Maraglino’s master, Perez had control over Maraglino’s
household, including control over Lopez.
“. . . Although there was testimony Perez was considered a ‘safe’ player
in the BDSM community who acted only with consent, detectives found a
video of Perez beating a woman with various implements as she begged him
to stop and continuing to beat her past the point of consciousness.
“All three defendants had BDSM abduction, torture, and murder
fantasies. . . . Maraglino authored a writing about abducting three
3
generations of women, each one ‘prescribed a method of death’ and subjected
to sexual torture, torture, and forced suicide. Maraglino authored a separate
writing, found in Perez’s garage, in which she slit the throat of a woman
while that woman was having sex with Perez. Maraglino made a
handwritten list of ‘hunting ground[s]’ for vulnerable victims that included
ways to dispose of a body and avoid detection. Perez and Maraglino
discussed their abduction fantasies with Dora B., another of Maraglino’s
slaves, on two or three occasions. At one point, Maraglino asked Dora how
she would react if a kidnapped woman were brought to the home. Dora
worried these fantasies ‘didn’t always take consent into account,’ but she
‘wanted to believe that it was nothing more than a fantasy.’
“Perez and Maraglino acted out an abduction fantasy on Nicole A.
Without prior agreement, Perez and Maraglino picked up Nicole in a parking
lot, blindfolded her, undressed her in the ‘dungeon’ in the basement of
Maraglino’s home, restrained her, and engaged in BDSM play. Thereafter,
Nicole voluntarily joined the household for a short period as Maraglino’s
slave.
“Perez and Maraglino had an open relationship, but Maraglino was
paranoid about losing him to another woman. Nicole’s relationship with
Maraglino soured because Nicole communicated with Perez directly, rather
than go through her. As their relationship deteriorated, Maraglino made
threatening statements toward Nicole’s daughter. When Perez began seeing
Marina V., Maraglino talked about killing Marina and wanting her to die a
torturous death; in an online forum, she threatened to kill Marina and
Marina’s daughter. Perez and Maraglino briefly broke up over Marina; they
soon rekindled their relationship and in 2011 conceived a child.
4
“Although there was some evidence the relationship between Perez and
Maraglino became more conventional after they reunited, there was also
evidence they remained involved in BDSM. Lopez remained Maraglino’s
slave. Maraglino kept her BDSM toys and, on the day of [Brittany K.]’s
disappearance on April 13, 2012, sent Deborah E. a text message about a
forced lactation-torture fantasy. . . .
“[Brittany K.]’s close friend, Elizabeth Hernandez, became friends with
Maraglino in 2011. Hernandez would often visit Maraglino’s home and bring
[Brittany K.] with her. [Brittany K.] and Hernandez were not involved in
BDSM, but both knew that defendants were. Although Maraglino was
initially friendly with [Brittany K.], she became hostile toward her after she
perceived [Brittany K.] flirting with Perez. Maraglino called [Brittany K.]
‘the disease’ and ‘the herpes’ when she was not around; asked why
Hernandez and [Brittany K.] were always together; and seemingly in jest,
offered to get rid of [Brittany K.] for Hernandez. There was some evidence
Maraglino wanted to recruit Hernandez into the BDSM lifestyle because
Hernandez seemed impressionable and easy to control. On April 13, 2012,
the day of [Brittany K.]’s disappearance, Maraglino wrote a letter stating: [¶]
‘I Dee [Maraglino] do hereby give to Ivan [Perez] all my grudges and revenge
from my birth till now. I release my anger and entrust justice into Ivan’s
hands. I accept Ivan will decide, design, and dispense the measure of
retribution he deems appropriate to my enemies, tormenters, and violators.’
“Lopez appeared to have a better relationship with [Brittany K.], but
she, like Maraglino, called [Brittany K.] ‘the disease’ and ‘herpes’ and joked,
on April 13, 2012, that she would make [Brittany K.] walk the plank at her
pool party the next day.
5
“On the afternoon of April 13, 2012, Hernandez visited Maraglino’s
home to return a camera charger. She stayed to socialize with Maraglino and
Perez; Lopez was not home. Maraglino seemed excited to hear [Brittany K.]
was going to move to the east coast, saying Hernandez would finally be ‘free.’
Hernandez told Perez and Maraglino about her recent excursion on the
Hornblower dinner cruise in San Diego. She said [Brittany K.] seemed very
interested in going, and she wanted to take [Brittany K.] on a cruise before
she moved. Hernandez recalled nothing out of the ordinary about her
conversation. Perez and Maraglino did not mention having tickets or plans to
go on a dinner cruise that evening.
“[Brittany K.] and Hernandez lived in the same apartment complex on
Ammunition Road in Fallbrook, as did friends Channy Tal[ ] and Jessica
Perry. At 4:38 p.m.2 on April 13, 2012, Perez knocked on [Brittany K.]’s door.
Tal was in the apartment, helping [Brittany K.] pack for her upcoming move.
[Brittany K.] asked Perez how he knew where she lived; Perez replied that he
had ‘asked around.’ Perez pressed [Brittany K.] to come with him on the
Hornblower dinner cruise that night, saying he had two tickets but nobody to
go with. [Brittany K.] declined. Perez gave [Brittany K.] his phone number,
and security footage showed him leaving the complex at 4:54. When leaving
the apartment, Perez texted Maraglino, ‘That guy wasn’t successful,’ to which
Maraglino replied, ‘Tomorrow is another day.’
“A few minutes after Perez left, [Brittany K.] texted to ask if he knew
anyone who could help move her belongings. At 5:00, Perez texted
[Brittany K.], ‘Party with me tonight & you’ll have five guys there in the
morning.’ [Brittany K.] replied that she would welcome help moving but felt
‘weird about the partying’ because she did not think Maraglino would like it.
2 All times are p.m., unless otherwise noted.
6
“[Brittany K.] told Tal she was uncomfortable accompanying Perez
because he was in a relationship with Maraglino. Perez responded to
[Brittany K.]’s text, saying Maraglino was ‘ok with it’ and suggesting at 5:19
that [Brittany K.] text her to confirm. [Brittany K.] replied at 5:26 that she
did not know Maraglino’s number and did not think Maraglino liked her.
Perez reassured [Brittany K.] that was not the case and gave her Maraglino’s
number. At 5:39, Perez checked in to see if [Brittany K.] had contacted
Maraglino. [Brittany K.] replied two minutes later that she had not but
would. At 5:42, Maraglino searched the Internet on her phone for ‘San Diego
dinner cruise.’ A minute later, Perez texted [Brittany K.] to say he was
‘dressing up to go to dinner on the hornblower.’
“[Brittany K.] called Maraglino and left a voicemail message at 5:55.
Maraglino called back ten minutes later, and Tal overheard their
conversation. Maraglino seemed friendly and was laughing; she told
[Brittany K.] to go with Perez on the cruise because she was pregnant and
would get seasick. After speaking with Maraglino, [Brittany K.] decided to
go. She told Tal she had no interest in Perez, but thought it would be her last
chance to go on the dinner cruise before she moved to Pennsylvania the
following week.
“[Brittany K.] texted Perez around 6:10 agreeing to go, asking what
time he would pick her up and when his friends would help her move. At
6:12, Maraglino searched the Internet on her cell phone for ‘Hornblower San
Diego.’ Perez sent [Brittany K.] texts at 6:15 and 6:19 asking her to be ready
at 7:30 that night and stating his friends would help her move in the
morning. At trial, the parties stipulated that on April 13, 2012, the
Hornblower cruise left the dock in San Diego at 7:00, meaning it would not
7
have been possible to make it if they left Fallbrook at 7:30, and that
Maraglino, Perez, and [Brittany K.] did not have tickets for the cruise.
“[Brittany K.] left Tal phone numbers for Perez and Maraglino, saying
she still felt unsure about going. She borrowed two dresses from Tal and got
ready to leave. At 6:38, [Brittany K.] texted Hernandez that Perez had
stopped by to ask her out and it was ‘odd.’ Hernandez followed up, and
[Brittany K.] texted her at 7:30 that Perez was taking her ‘[t]o the
[H]ornblower and a casino’ after Maraglino had given permission.
Hernandez testified that this plan confused her because Perez and
[Brittany K.] hardly interacted.
“At 7:31, Perez sent [Brittany K.] a text message saying, ‘I’m running
late be there in five minutes, can you meet me at the curb? I got stopped at
the front gate.’3 [Brittany K.] responded, ‘At the curb? It’s raining you know.
Id appreciate it if you drove into the complex.’ Perez responded, ‘It’s not. I
don’t want to miss our boat.’ Perez called [Brittany K.] and evidently agreed
to drive up to her complex. Surveillance footage showed Perez entering the
complex at 7:36. At 7:37, Perez texted [Brittany K.], ‘I’m here,’ and
[Brittany K.] responded, ‘I’m out now.’ At 7:39, [Brittany K.] texted Perry
that she was going with Perez on a dinner cruise and might stop by to visit
Perry afterwards. Surveillance footage showed someone getting into the
passenger side of Perez’s car; the car pulled out of the lot around 7:40. Perez
testified that he then drove [Brittany K.] to Maraglino’s home to pick up a
flier, and a neighbor recalled Perez’s car swerving up to Maraglino’s
residence near dusk.
3 “At trial, Perez admitted he knew there were surveillance cameras in
[Brittany K.]’s apartment complex, supporting an inference that he tried to
park outside their view when picking [Brittany K.] up.
8
“At 7:50, ten minutes after leaving her apartment complex with Perez,
[Brittany K.] sent Tal a text message that read, ‘Help.’ [Brittany K.]’s cell
phone was closer to Maraglino’s house than to her apartment when she sent
that text. At 7:57, Perez texted Maraglino, ‘Kitten?’ At that point, Maraglino
and Lopez were shopping at a grocery store located just minutes away from
[Brittany K.]’s apartment and about 5 to 15 minutes from Maraglino’s home
(depending on traffic). Around 7:58, Lopez left the store to retrieve her wallet
from Maraglino’s home while Maraglino waited at the checkout aisle.
“Around 8:00, Tal tried three times to contact [Brittany K.]. At 8:05,
she received a text from [Brittany K.]’s phone stating, ‘Yes I love this party.’
Tal was suspicious because the message did not resemble [Brittany K.]’s
texts. She demanded [Brittany K.] call her so she could hear her voice. Tal
received another suspicious text message from [Brittany K.]’s phone at 8:07
that said, ‘In a few hot guys.’ Tal insisted [Brittany K.] call her immediately,
and [Brittany K.]’s phone made two short calls to Tal at 8:09 and 8:10. Tal
texted [Brittany K.] that she could not hear her when she called, and
[Brittany K.]’s phone sent Tal a message stating, ‘Its ok music is too loud.’ At
trial, Perez admitted using [Brittany K.]’s phone to call her friends while
playing loud background music from his car.
“Meanwhile, Maraglino, who remained at the grocery checkout aisle,
left missed calls on Lopez’s phone at 8:07 and 8:09. At 8:10, Maraglino
stepped outside and returned a few seconds later with Lopez. At 8:11, Perez
texted Maraglino, ‘Come home,’ suggesting he was then at Maraglino’s home.
At 8:12, Lopez and Maraglino were seen on video leaving the grocery store.
“[Brittany K.]’s friends grew very concerned. At 8:14, Hernandez called
[Brittany K.]; cell location data placed [Brittany K.]’s phone near Maraglino’s
house at that time. At 8:21, Hernandez called Maraglino, who lied that she
9
had not spoken to [Brittany K.] that day. At 8:30, Tal texted [Brittany K.],
demanding she call her. At 8:40, Perry called Perez, who told her he had left
[Brittany K.] downtown at a club. Perez told Perry he had last seen
[Brittany K.] talking to some guys outside the club. He kept repeating that
[Brittany K.]’s face looked okay, which struck Perry as odd. Cell location
data indicated Perez and Lopez were both in the vicinity of Maraglino’s home
in Fallbrook up to this point.
“Maraglino, who previously worked for a cell phone company, told
Perez that cell phones were traceable. Perez then decided to dispose of
[Brittany K.]’s phone in downtown San Diego to corroborate the story he had
told Perry. At 9:20, cell location data showed Perez driving southbound from
Fallbrook toward San Diego. Perez had [Brittany K.]’s phone with him.
While driving south on the I–15, Perez texted [Brittany K.] ‘Where are you?’
and ‘You’re friends are calling me worried.’ He texted Maraglino asking
about her night, and Maraglino replied that she was having a quiet night at
home. Perez later admitted to using [Brittany K.]’s phone to send text
messages to her friends. At 10:10, Tal tried again to call [Brittany K.] and
texted, ‘Should I just call the cops.’ [Brittany K.]’s phone responded from a
downtown San Diego location, ‘Im ok.’ Perez’s license plate was
photographed downtown by a San Diego Police Department license reader at
10:34. Perez’s phone and [Brittany K.]’s phone remained downtown until
10:51, when Perry tried again to reach [Brittany K.].
“At 11:02, Perez called Perry as he was driving north from San Diego
toward Fallbrook. Perez sounded frantic and told Perry he had been driving
around looking for [Brittany K.]. Perez returned to Maraglino’s home after
midnight. Thereafter, cell data showed Perez’s and Lopez’s cell phones
moving east toward Temecula. In the early hours of April 14, both Perez’s
10
and Lopez’s cell phones were traced near Lake Skinner and later traced
returning toward Maraglino’s home. At trial, Perez explained that he and
Lopez wrapped [Brittany K.]’s corpse in a tarp and put it in a trailer that
they hitched to Perez’s car. Perez drove the trailer to Lake Skinner, with
Lopez tailing his car to cover the trailer’s missing license plate, and the two
dumped the body near Lake Skinner.
“On the morning of April 14, Hernandez confronted Maraglino, saying
she knew Maraglino had spoken to [Brittany K.] the previous day. Maraglino
stuttered and gave the phone to Perez. During the call, Perez changed his
story two or three times as to what had happened the previous night.
“Tal and Hernandez went to search for [Brittany K.] in her apartment;
when they did not find her, they called the sheriff’s department. Perez called
Hernandez around noon and offered to drive her around to look for
[Brittany K.]; Hernandez told him law enforcement had already arrived.
Sheriff’s Deputy James Breneman called Perez, who sounded panicked but
offered to come talk in person.
“Perez drove to [Brittany K.]’s apartment complex on the afternoon of
April 14. After he parked, surveillance footage showed him doing something
inside his right rear passenger door. Perez told detectives [Brittany K.] was
flirty, flighty, and that she had been drinking; [Brittany K.]’s friends did not
agree with these characterizations. Perez claimed he had left [Brittany K.]
downtown at a club the night before and that [Brittany K.] had texted him,
‘I’m okay.’ Deputy Breneman was suspicious when he did not find that text
on Perez’s phone. He also found it strange that Perez’s car was caked with
fresh mud, given the heavy rains the night before. Perez agreed to provide a
voluntary statement at the sheriff’s department and was transported there.
He consented to a search of his vehicle and was placed under arrest when
11
deputies found an unlawful weapon inside. Later that afternoon, someone
turned in [Brittany K.]’s phone in downtown San Diego.
“Deputies searched Maraglino’s home on April 15 and 16. On April 16,
Lopez and Maraglino were gone, and some items seen the previous day were
missing, as if someone had cleaned up. The sheriff’s department authorized a
search for Maraglino’s truck, which bore the license plate, ‘Ivnsktn (‘Ivan’s
Kitten,’ indicating Maraglino was Perez’s ‘Kitten’). Deputies found the truck
on April 17 at a hotel parking lot near the San Diego airport. They forcibly
opened a room booked under Maraglino’s name and found Lopez, bleeding at
the neck and half naked after an apparent suicide attempt. In the room were
three copies of a seven-page handwritten confession letter by Lopez, with a
sign above stating, ‘Pigs read this.’
“In the letter, Lopez used derogatory language, describing [Brittany K.]
as a ‘miserable cunt’ who had tried to come between Perez and Maraglino.
Lopez took complete responsibility for [Brittany K.]’s death, saying sheriffs
had arrested the ‘WRONG FUCKING PERSON’ in Perez. Lopez claimed she
alone had grabbed [Brittany K.]; slammed her body into the stairs; restrained
her wrists, ankles, and mouth; subdued her with a Taser; wrapped rope
around her neck to apply and release pressure; attempted to hack up the
body with power tools; doused the body with bleach; and dumped the body
near Lake Skinner. The letter described injuries that would likely be found
on [Brittany K.]’s body—ligature marks around her neck and wrists, a Taser
mark near her neck, and bruising and mutilation marks.4 Lopez expressed
her love to Maraglino as her slave and pet; sheriffs found a dog collar in the
4 “The letter also contained statements that did not correspond with
other evidence, including that the murder happened after 11:15 and that
[Brittany K.], who did not drive, appeared suddenly at the residence to
demand sex with Perez.
12
room marking Lopez (alias Rosalin) as ‘Property of Ms. Dee [Maraglino].’
There were three copies of the confession letter in the hotel room, one
addressed to ‘Master Ivan’ (Perez), another to ‘My parents’ and a third to a
local media station. Surveillance video showed the hotel receptionist making
copies of the letter for Lopez the previous night. Maraglino was in the hotel
when Lopez had her letter copied and departed San Diego on the morning of
April 17 to visit family in Virginia. Deputies accompanied Lopez to the
hospital, and she was arrested thereafter.
“Based on Lopez’s letter, deputies focused their search team on the
Lake Skinner area in Riverside County. Later that afternoon on April 17,
deputies found [Brittany K.]’s nude body about a mile from Lake Skinner.
The medical examiner determined the cause of death to be ligature
strangulation, with hemorrhaging in her eyes consistent with pressure being
intermittently applied and released over a long period. The cricoid cartilage
of [Brittany K.]’s neck had been fractured, indicating someone had applied
more than 33 pounds of pressure on her neck. There were bruises on her
legs, a bruise outside her left wrist consistent with the use of handcuffs, two
cuts forming a ‘T’ on her left wrist, and five small pinprick marks on the left
side of her face, consistent with the use of a stun baton. In addition, there
was a deep postmortem cut to [Brittany K.]’s left knee with marks consistent
with the use of a power saw. The lack of maggots was consistent with the
wound having been doused with bleach. There were postmortem abrasions
on [Brittany K.]’s back, consistent with the body being rolled down the
embankment. There were no internal or external injuries to [Brittany K.]’s
genitalia.
“As lead sheriff’s detective Brian Patterson was driving to Lake
Skinner on April 17, Maraglino called him to say that she and Lopez ordered
13
a movie on cable on April 13 called ‘Adventures of Rin Tin’ and had spent the
night in. Her cable records later indicated she rented ‘Tintin’ on April 14 and
did not rent any movies on the 13th. Maraglino hung up after Patterson
pressed her on inconsistencies with Perez’s account, insisting that he could
not get her to contradict Perez.
“Officers searched Maraglino’s home again on April 19. They recovered
the roll of plastic mentioned in Lopez’s letter and photographed a
reciprocating saw blade in a drawer near the hallway. They also recovered
various images, videos, documents, and BDSM implements from the home.5
Officers recovered a release of liability form in which Maraglino stated she
voluntarily engaged with Perez in BDSM activities, including whipping,
beating, and asphyxia, and that she relieved Perez of ‘injuries or loss of life
that may result.’ They also recovered the April 13, 2012 writing in which
Maraglino released her anger to Perez and entrusted him to deliver justice
and retribution. Maraglino was arrested in May 2012.
“A later search of Perez’s vehicle revealed a plastic bag containing food
wrappers, disposable gloves, a piece of plastic, and a stun baton in working
condition. There was blood on the plastic gloves, pieces of plastic, and the
plastic bag matching [Brittany K.]’s DNA. Swabs from the piece of plastic
and the gloves matched Perez’s DNA. The stun baton contained Perez’s DNA
on the straps and handle and [Brittany K.]’s DNA on the prongs. There was
no semen found in Perez’s car. Tire treads from Perez’s car were a possible
match to the treads found near [Brittany K.]’s body at Lake Skinner.
5 “Among these was the ‘Deed to Dee’ and ‘Perfect Slave’ documents,
found in the room Maraglino was setting up as a nursery. At trial,
Maraglino’s counsel presented evidence that the ‘Deed to Dee’ document was
found in a broken glass frame at the bottom of a closet to show that Perez
and Maraglino had ceased participating in BDSM by April 2012.
14
“Sheriff’s deputies ultimately found no evidence of blood or semen at
Maraglino’s home. They recovered a rope and knife from Maraglino’s truck
but could not connect those items to [Brittany K.]’s murder. They also
recovered from Maraglino’s truck a receipt for cleaning products, water,
paper towels, and rubber gloves purchased on April 14.
“A special agent with the Naval Criminal Investigative Service
searched Perez’s home on base and found additional BDSM writings,
including Maraglino’s throat-slit fantasy writing. Maraglino’s cell phone was
found a year and a half later, cleared of text data, disassembled, and
underneath several suitcases in a closet in her brother’s house in Missouri.
The clothes worn by Maraglino, Perez, and [Brittany K.] on April 13 were
never recovered.
“At trial, Perez admitted he had lied to Perry and detectives about
taking [Brittany K.] downtown, and he admitted taking [Brittany K.]’s cell
phone downtown to match that story. He claimed he had lied to protect
Maraglino but denied doing so to give her more time to clean up. Perez
admitted he had misled [Brittany K.] into believing they were going on a
cruise long after they had already missed it in order to get her into his car.
He also admitted telling Becky Z. on October 17, 2013, ‘everybody had a role
to play that night, including myself.’ On redirect, Perez explained this
statement referred only to his role in the cover-up and that he had also told
Becky, ‘I didn’t kill anybody.’
“[¶] . . . [¶]
“[¶] . . . [¶]
“[¶] . . . [¶]
15
“. . . .Maraglino called to the stand her obstetrician and argued she had
put her BDSM activities on hold since becoming pregnant and had no role
beside assisting in the cover up. . . .
“Following deliberations, on October 21, 2015, the jury convicted Perez
and Maraglino of all counts and found true the kidnapping special
circumstance allegation . . . .
“[¶] . . . [¶]
“In her sentencing brief, Maraglino filed a motion to set aside the true
finding on the kidnapping special circumstance and argued an LWOP
sentence would violate her Eight Amendment rights. The court denied
Maraglino’s motion and, on November 19, 2015, sentenced Maraglino and
Perez to LWOP on count 1 [first degree felony murder with a kidnap special
circumstance] and life without the possibility of parole on count 4 [torture].
The court imposed a determinate term of an eight-year upper term for count
2 [conspiracy to commit kidnap], a stayed term for count 3 [kidnapping]
pursuant to section 654, and a consecutive six-month term for count 5
[attempted sexual battery by restraint].” (Maraglino, supra, D069297,
D069609.)
B. The Direct Appeal
Maraglino appealed her conviction. She challenged, among other
things, the sufficiency of the evidence supporting the convictions and the true
findings on the kidnapping special circumstance. (Maraglino, supra,
D069297, D069609.) We issued our opinion in December 2017, and we found
insufficient evidence to support Maraglino’s convictions for torture and
attempted sexual battery by restraint. However, we concluded that
substantial evidence supported the other convictions and special
circumstance findings, and we affirmed those convictions. (Ibid.)
16
We specifically concluded there was sufficient evidence that Maraglino
aided and abetted the kidnapping and that she conspired to kidnap.
(Maraglino, supra, D069297, D069609.) We explained: “The jury could infer
Maraglino and Perez planned the Hornblower ruse after Hernandez stopped
by and mentioned [Brittany K.]’s interest in going. Maraglino searched the
Internet for ‘dinner cruise’ and ‘Hornblower San Diego’ after Hernandez left
and while Perez was trying to convince [Brittany K.] to go. Maraglino then
lured [Brittany K.] to accompany Perez. [Brittany K.] told Perez she was
reluctant to party with him and would ‘need [Maraglino] to say it was ok’ to
go. She expressed similar reservations to Tal. On Perez’s urging, she called
Maraglino. Maraglino laughed and told [Brittany K.] to go use her ticket
because she was pregnant and would get seasick. [Brittany K.] told Tal she
decided to go after speaking to Maraglino and texted Perez, ‘Ok I talked to
dee [Maraglino] and she [said] she was good with it so i[’]ll go.’ The jury
could infer that [Brittany K.] would not have gone without Maraglino’s
encouragement.” (Ibid.)
We also explained there was evidence the jury could have considered to
infer consciousness of guilt and motive evidence. (Maraglino, supra,
D069297, D069609, citing People v. Cooper (1991) 53 Cal.3d 771, 833;
People v. Thornton (2007) 41 Cal.4th 391, 438-439.) In particular, we noted
that Maraglino had previously worked for a cell phone company and told
Perez how the data could be traced, prompting him to dispose of Brittany K.’s
phone downtown, and that items went missing from Maraglino’s home
between the first and second searches. (Maraglino, supra, D069297,
D069609.) And we explained that Maraglino was paranoid about losing
Perez to another woman and believed Brittany K. had been flirting with him,
17
that she referred to Brittany K. as a disease and offered to get rid of her, and
that she seemed happy about Brittany K.’s pending move. (Ibid.)
We also expressly concluded there was “ample evidence supporting her
culpability for kidnapping as a direct aider and abettor and as a conspirator
with Perez.” (Maraglino, supra, D069297, D069609.) And we concluded that
the kidnapping conviction alone was sufficient to sustain her first degree
felony murder conviction, and that there was sufficient evidence to support
the jury’s true findings as to the kidnapping special circumstance. (Ibid.)
We next explained that “where an aider and abettor of felony murder
lacks the intent to kill, section 190.2, subdivision (d) ‘imposes both a special
actus reus requirement, major participation in the crime, and a specific mens
rea requirement, reckless indifference with human life’ to convict of special-
circumstances murder eligible for death. [People v. Banks (2015) 61 Cal.4th
788, 798 (Banks).] The California Supreme Court defined both of those
elements—’major participant’ and ‘reckless indifference to human life’—in
Banks.” (Maraglino, supra, D069297, D069609.) We discussed Banks, noting
that under that guidance, a jury considers the totality of the circumstances
and considers several factors, which we detailed. (Ibid.) We also explained
reckless indifference, as defined and discussed in People v. Clark (2016) 63
Cal.4th 522, 617 (Clark). (Maraglino, supra, D069297, D069609.) Then,
using those definitions, we explained:
“There is sufficient evidence to support the inference
Maraglino was a major participant in the kidnapping. [Brittany
K.] made it clear she would not accompany Perez on the dinner
cruise without Maraglino’s approval. Maraglino provided
essential assistance, convincing [Brittany K.] to accompany
Perez. The jury could infer she helped plan the kidnapping
conspiracy shortly after Hernandez came and told them about her
recent experience on the Hornblower cruise. After [Brittany K.]
initially declined the invitation, Perez texted Maraglino, ‘That
18
guy wasn’t successful,’ and Maraglino responded, ‘Tomorrow is
another day.’ As Perez was trying to convince [Brittany K.] to go
on the cruise, Maraglino was searching the Internet on her phone
for ‘dinner cruise’ and ‘Hornblower San Diego.’
“After the ‘Help’ text, when Hernandez called Maraglino
worriedly, Maraglino denied having spoken to [Brittany K.].
That night, she told Perez to get rid of [Brittany K.]’s cell phone
downtown. She later tried to hide her role, telling detectives she
had only let [Brittany K.] get Perez’s help for the move, not go out
with him. Maraglino deleted her text messages, disassembled
her cell phone, and hid it in the bottom of a closet in her brother’s
house in Missouri. She was at the hotel when Lopez penned her
confession letter and flew to Virginia while Lopez attempted
suicide in the hotel room. Based on the totality of circumstances,
the jury could reasonably find Maraglino was a major participant
in criminal activities known to pose a grave risk of death
[citation].[ ]
“There is sufficient evidence from which the jury could find
Maraglino acted with reckless indifference to human life under
either a subjective or objective standard. The jury could
reasonably find Maraglino knowingly created a grave risk of
death, beyond the risk posed in aiding any kidnapping. This was
no ordinary kidnapping; it was a BDSM-related kidnapping to
fulfill shared sexual fantasies. Maraglino and Perez fantasized
about kidnapping a person without consent and beating, raping,
and killing her. She had a video in her possession showing Perez
continuing in extreme BDSM activity with a woman past the
point of consciousness. Her fantasy writings involved abduction,
torture, and murder. Maraglino signed a release of liability form
indicating her awareness that BDSM activities with Perez could
result in ‘loss of life.’ She also authored a document on the day of
[Brittany K.]’s murder releasing her anger to Perez and
entrusting justice in his hands.
“Likewise, under an objective standard, the jury could find
that a reasonable person in Maraglino’s situation would have
recognized the risk her actions posed to [Brittany K.]’s life.
Maraglino knew Perez’s sexual interests and the risks of
engaging in BDSM with him, and the jury could infer she was
19
home during [Brittany K.]’s prolonged restraint. [Citation.]
Given the fantasies they shared, the jury could infer a reasonable
person would know Perez’s likelihood to kill [Brittany K.].
[Citation.] There is no indication Maraglino tried to minimize
the risk of violence during the kidnapping. [Citation.] Given her
dislike of [Brittany K.] and letter entrusting justice to Perez, the
jury could infer a reasonable person would have recognized an
elevated risk to human life beyond the risk apparent in any
kidnapping [Citation.]”
(Ibid.)
We also directly compared Maraglino’s involvement in the crimes here
to the conduct of Banks and Clark in those respective cases and explained
that her involvement was substantially greater than the one Banks played,
and that unlike the plan in Clark, here a jury could properly find a
reasonable person would have foreseen the risk to Brittany K. beyond a risk
apparent in a kidnapping. (Maraglino, supra, D069297, D069609.)
C. The Section 1170.95 Petition
Maraglino filed a petition for relief under section 1170.95. Her petition
asserted that she was convicted of a theory of felony murder or murder under
the natural and probable consequences doctrine, that she did not personally
kill anyone, that she did not aid and abet the killer, and that her conduct did
not reach the level of a major participant in a crime who acted with reckless
indifference to human life. The petition also noted our conclusions on the
direct appeal, but contended that the conviction “was sole[l]y based on felony
murder due to [the appellate court’s] mi[]sinformation regarding the
communication between Petitioner and [Brittany K.].” It identified other
facts presented to the jury and maintained that those facts disputed the
conclusion that she knew Brittany K. would miss the Hornblower cruise.
Maraglino argued that because “the jury and Appellate Court based their
conviction on the belief that Petitioner knew that Perez and [Brittany K.]
20
would miss any cruise on Hornblower and the fact that the court documents
dispute this, Petitioner ask[s] the court to examine the case for
resentencing.”6
The court denied the initial petition without prejudice for failure to file
a declaration stating she had complied with all the requirements of
section 1170.95, subdivision (a). Maraglino refiled her petition in May 2019.
The People filed an initial response to the petition, contending that
Maraglino could not meet her prima facie burden of showing she could not be
convicted of first or second-degree murder because of the changes to the
Penal Code. And Maraglino’s attorney filed a motion and corresponding
points and authorities in August 2019, maintaining Maraglino was not the
actual killer and did not physically participate in the kidnapping. It also
argued there was insufficient evidence that Maraglino was a major
participant who acted with reckless indifference to human life.
At the hearing on the matter, the trial court read extensively from our
opinion before concluding that Maraglino failed to make a prima facie case
that she was entitled to relief under section 1170.95.
II
DISCUSSION
Maraglino makes two arguments. First, she contends it was improper
for the trial court to consider any information outside the section 1170.95
petition in determining whether she had met her prima facie burden.
Second, she contends that even had the court considered facts outside the
petition, like the record of conviction, she met her burden because, she
6 Maraglino filed a habeas petition with the superior court in January
2019 raising many of the same factual claims she raised in her petition for
resentencing under section 1170.95.
21
alleges, a question remains about whether she could still be convicted of
felony murder under the Supreme Court interpretations in Banks and Clark
of what it means to be a “major participant” in the felony who shows a
“reckless indifference to human life.”
A. Penal Code Section 1170.95
On January 1, 2019, Senate Bill No. 1437’s addition of section 1170.95
and amendments to sections 188 and 189 became effective. (See Stats. 2018,
ch. 1015, § 4.) Section 188 now reads: “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a crime shall
act with malice aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
Section 189, subdivision (e) now reads: “A participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a)[7] in which a
death occurs is liable for murder only if one of the following is proven: [¶]
(1) The person was the actual killer. [¶] (2) The person was not the actual
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.”8
7 Section 189, subdivision (a) includes murder committed in the
perpetration or attempted perpetration of kidnapping.
8 Section 190.2, subdivision (d) provides that a defendant who is not the
actual killer but who is a major participant in a felony listed in
subdivision (a)(17) that results in death, and who acts with a reckless
indifference to human life, can be punished by death or life without parole if
a special circumstance in subdivision (a)(17) is found true. Kidnapping is an
enumerated felony listed in subdivision (a)(17).
22
Section 1170.95 created a petition process that permits a defendant
convicted of murder under a felony-murder theory to petition for the
conviction to be vacated and to be resentenced. (§ 1170.95, subd. (a).)
Section 1170.95 requires the trial court to determine whether the petitioner
has made a prima facie showing that the prosecution proceeded under a
felony-murder theory or the natural and probable consequences doctrine, the
jury convicted the petitioner of first or second degree murder, or the
petitioner accepted a plea instead of having a trial in which the petitioner
could be convicted of first or second degree murder, and the petitioner could
not be convicted of first or second degree murder presently in light of changes
to section 188 or 189, which became effective January 1, 2019. (See
§ 1170.95, subd. (a); People v. Verdugo (2020) 44 Cal.App.5th 320, 326
(Verdugo), review granted Mar. 18, 2020, S260493.)
If a review of the facial sufficiency of the petition shows it does not
comply with requirements, the trial court may deny it without prejudice.
(People v. Drayton (2020) 47 Cal.App.5th 965, 975-976 (Drayton); § 1170.95,
subd. (b)(2).) To determine if a prima facie case for relief has been shown, the
court should ordinarily appoint counsel and receive briefing from the People
and from the petitioner. (§ 1170.95, subds. (c), (d)(1) & (3).)
The trial court may review the record of conviction to determine if the
form allegations in the petition are correct. This may demonstrate
ineligibility if the petitioner was convicted on a ground that remains valid
after Senate Bill No. 1437’s amendments to sections 188 and 189. (Verdugo,
supra, 44 Cal.App.5th at p. 330, review granted; People v. Lewis (2020) 43
Cal.App.5th 1128, 1136, fn. 7, 1137-1138, review granted Mar. 18, 2020,
S260598.) Although the authority to review the record “is limited to readily
ascertainable facts from the record (such as the crime of conviction), rather
23
than factfinding involving the weighing of evidence or the exercise of
discretion (such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime),” the court does
not need to “credit factual assertions that are untrue as a matter of law—
for example, a petitioner’s assertion that a particular conviction is eligible
for relief where the crime is not listed in subdivision (a) of section 1170.95
as eligible for resentencing.” (Drayton, supra, 47 Cal.App.5th at p. 980.) If
the record, without weighing evidence, shows the petitioner is not entitled
to relief as a matter of law, the court can deny the petition without an
order to show cause. (See ibid; see § 1170.95, subd. (c) [order to show
cause issues if petitioner makes prima facie showing of entitlement to
relief].)
If the court issues the order to show cause, it holds a hearing to
determine whether to vacate the murder conviction and recall the sentence
and resentence the petitioner on the remaining counts. (§ 1170.95,
subd. (d)(1).) At that hearing, the burden is on the prosecution to prove
beyond a reasonable doubt that the petitioner is ineligible for resentencing.
(Id., subd. (d)(3).)
B. The Meaning of “Major Participant” Acting with “Reckless Indifference
to Human Life”
In 2015 and 2016, our Supreme Court “clarified ‘what it means for an
aiding and abetting defendant to be a “major participant” who acted with a
“ ‘reckless indifference to human life.’ ” (In re Taylor (2019) 34 Cal.App.5th
543, 546.) In Banks, the court identified certain factors to consider in
determining whether a defendant was a major participant (Banks, supra, 61
Cal.4th at p. 803); Clark identified factors to determine whether the
defendant acted with reckless indifference to human life (Clark, supra, 63
24
Cal.4th at pp. 618-623). The court clarified that the focus should be on the
defendant’s personal role in the crimes leading to a victim’s death, and “[t]he
defendant must be aware of and willingly involved in the violent manner in
which the particular offense is committed, demonstrating reckless
indifference to the significant risk of death his or her actions create.” (Banks,
at p. 801.) The Supreme Court identified several factors: knowledge of
weapons and use and number of weapons, physical presence at the crime and
opportunities to restrain the crime and/or aid the victim, duration of the
felony, defendant’s knowledge of the other perpetrators’ likelihood of killing,
and the defendant’s efforts to minimize the risk of violence during the felony.
(Clark, at pp. 618-623.)
C. Use of Record of Conviction
Maraglino’s arguments present questions of statutory interpretation,
which we review de novo. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
The statute separates facial sufficiency requirements in
section 1170.95, subdivision (b)(2) from the requirements for a prima facie
evaluation in subdivision (c), prescribing two court reviews before an order to
show cause issues, “one made before any briefing to determine whether the
petitioner has made a prima facie showing he or she falls within
section 1170.95—that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the petitioner has
made a prima facie showing he or she is entitled to relief.” (Verdugo, supra,
44 Cal.App.5th at p. 328, review granted.) Subdivision (c) “contemplates a
more substantive review by the trial court. . . .” (Drayton, supra, 47
Cal.App.5th at p. 974.) Here, the court had the benefit of briefing when it
determined that Maraglino had not met her prima facie burden of
demonstrating she was entitled to relief.
25
Maraglino’s contention that a prima facie review should exclude readily
ascertainable facts so that a petitioner can reopen the factual allegations and
findings of a jury on appeal ignores the court’s limited role under this process.
The court considers relief eligibility as a matter of law; it does not engage in
any fact-finding or reconsider whether the evidence supports a special
circumstance finding by the jury.9 The record of conviction provides the
court with factual information to help ascertain whether the petitioner is
ineligible for relief as a matter of law, with all inferences in the petitioner’s
favor. (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) It would
not be reasonable to ignore a jury’s finding of special circumstances to reach
an inference that a petitioner was not a major participant who acted with
reckless indifference to human life when the verdict demonstrates clearly
that the petitioner was indeed a major participant who acted with reckless
indifference to human life as those terms are defined in Banks and Clark.
D. Maraglino was a Major Participant Who Showed Reckless Indifference
Maraglino next contends that the trial court erred in relying on our
findings in Maraglino that sufficient evidence supported the kidnapping
special circumstance finding she was a major participant in the kidnapping
who acted with reckless indifference to human life. She maintains that
multiple courts have concluded that a murder defendant whose conviction
includes a special circumstance finding is not precluded as a matter of law
9 The People ask us not to follow People v. Torres (2020) 46 Cal.App.5th
1168, review granted June 24, 2020, S262011 (Torres) and People v. York
(2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954 (York),
cases which have concluded a defendant need not file a habeas petition to
challenge a special circumstances verdict in order to reopen questions of fact
that may indicate entitlement to relief under section 1170.95. We do not
reach this issue because, as we explain post, the record of conviction makes
clear that Maraglino was not eligible for relief under section 1170.95.
26
from obtaining relief under section 1170.95. This may be true in some
circumstances, but it is not true under the circumstances of Maraglino’s case.
The cases Maraglino cites address jury verdicts and direct appeals that
predate the Supreme Court’s opinions in Banks and Clark. (Torres, supra, 46
Cal.App.5th at p. 1177, review granted [jury’s findings in 2001]; People v.
Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835
[verdict in 1994]; York, supra, 54 Cal.App.5th at pp. 257-258, review granted
[1994 verdict].) Thus, neither the juries’ special circumstance findings nor
the direct appeals considered the meanings of “major participant” who acts
with a “reckless disregard for human life” as those terms are currently
understood post-Banks and Clark.
The case before us is distinguishable. Maraglino argued in her direct
appeal that there was insufficient evidence that she acted with intent to kill
or that she was a “major participant” in the kidnapping who acted with
“reckless indifference to human life” as those words have been clarified in
Banks and Clark. (Maraglino, supra, D069297, D069609.) Although there
was no special jury instruction that referenced the factors from Banks or
Clark, as Maraglino acknowledges, we reviewed her case on direct appeal in
2017 and found there was sufficient evidence to support the special
circumstances conviction utilizing the factors detailed in Banks and Clark.
Specifically, we noted the Supreme Court’s definition of “ ‘major
participant’ ” and “ ‘reckless indifference to human life’ ” in Banks, explaining
a major participant must have involvement that is substantial and greater
than the actions of an ordinary aider and abettor to an ordinary felony
murder. (Maraglino, supra, D069297, D069609, quoting Banks, supra, 61
Cal.4th at pp. 801, 802.) We explained that a jury considers the “totality of
the circumstances,” and we identified the factors outlined in Banks: the
27
defendant’s role in planning; the defendant’s role in supplying or using lethal
weapons, the defendant’s awareness of the particular dangers posed by the
crime; weapons used, or past experience or conduct of other participants;
whether the defendant was present at the killing and in a position to
facilitate or prevent the death; and the defendant’s actions after lethal force
was used. (Maraglino, supra, D069297, D069609, quoting Banks, supra, 61
Cal.4th at pp. 802, 803.)
We also addressed the standards used to assess reckless indifference to
human life, explaining that under a subjective standard, there must be
evidence that a defendant appreciated her acts would likely result in the
taking of innocent life, and under the objective standard, we ask what a law-
abiding person would do in the defendant’s situation. (Maraglino, supra,
D069297, D069609.) Then, we explained why there was sufficient evidence to
support Maraglino’s role as a major participant, “provid[ing] essential
assistance, convincing [the victim] to accompany Perez.” (Ibid.) We noted
that Maraglino was the one who convinced the victim to accompany Perez,
that she lied to Brittany K. about her own (nonexistent) recent experience on
the cruise, and that she researched information about the cruise that she was
trying to convince the victim to accompany Perez on. (Ibid.) Maraglino also
directed Perez to get rid of the victim’s cell phone, tried to hide her role,
deleted text messages, and disassembled her phone and hid it out of state.
And she was present when Lopez penned the confession but left town while
Lopez attempted suicide. (Ibid.) We cited Banks when we concluded that
“based on the totality of the circumstances, the jury could reasonably find
Maraglino was a major participant . . . .” (Ibid.)
We also concluded there was sufficient evidence from which a jury
could find Maraglino acted with reckless indifference to human life under
28
either the subjective or objective standard. (Maraglino, supra, D069297,
D069609.) We explained why she subjectively acted with reckless
indifference: “ The jury could reasonably find Maraglino knowingly created a
grave risk of death, beyond the risk posed in aiding any kidnapping. This
was no ordinary kidnapping; it was a BDSM-related kidnapping to fulfill
shared sexual fantasies. Maraglino and Perez fantasized about kidnapping a
person without consent and beating, raping, and killing her. She had a video
in her possession showing Perez continuing in extreme BDSM activity with a
woman past the point of consciousness. Her fantasy writings involved
abduction, torture, and murder. Maraglino signed a release of liability form
indicating her awareness that BDSM activities with Perez could result in
‘loss of life.’ She also authored a document on the day of [the victim]’s
murder releasing her anger to Perez and entrusting justice in his
hands.” (Ibid.)
We cited to Clark when we concluded that under the objective
standard, “a reasonable person in Maraglino’s situation would have
recognized the risk her actions posed to [the victim]’s life. Maraglino knew
Perez’s sexual interests and the risks of engaging in BDSM with him, and the
jury could infer she was home during [the victim]’s prolonged restraint.
[Citation.] Given the fantasies they shared, the jury could infer a reasonable
person would know Perez’s likelihood to kill [the victim]. [Citation.] There is
no indication Maraglino tried to minimize the risk of violence during the
kidnapping. [Citation.] Given her dislike of [the victim] and letter
entrusting justice to Perez, the jury could infer a reasonable person would
have recognized an elevated risk to human life beyond the risk apparent in
any kidnapping. [Citation.]” (Maraglino, supra, D069297, D069609.)
29
It is clear from the record of conviction that Maraglino is ineligible for
relief under section 1170.95 because she was a major participant who acted
with a reckless indifference for human life. Accordingly, the trial
appropriately denied the petition.
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
30