People v. Penesa CA2/7 ( 2022 )

Filed 9/20/22 P. v. Penesa CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B309907
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA052000)
v.
EUGENE PENESA,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Laura R. Walton, Judge. Affirmed.
Gail Harper, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Rama R. Maline,
Deputy Attorneys General for Plaintiff and Respondent.
_________________
In 1999 a jury convicted Eugene Penesa of the first degree
murder of Judy Rodriguez, the attempted willful, deliberate, and
premeditated murder of Judy’s aunt, Maria Rodriguez,1 and first
degree burglary. The jury also found true the special
circumstance that the murder was committed during the
burglary and that in the commission of the murder, Penesa
personally used and discharged a firearm, causing the death of
Judy, and he personally used and discharged a firearm in the
attempted murder of Maria. Penesa appealed, and we affirmed.
(People v. Penesa (Aug. 22, 2001, B136925) [nonpub. opn.]
(Penesa I).)
In 2020 Penesa, representing himself, filed a petition for
resentencing seeking to vacate his murder conviction and be
resentenced pursuant to Penal Code former section 1170.95 (now
section 1172.6).2 The trial court summarily denied Penesa’s
petition without appointing counsel on the basis Penesa was
ineligible for resentencing as a matter of law because he was the
actual killer.
On appeal, Penesa argues the trial court’s order summarily
denying his petition should be reversed and the case remanded to
the trial court for the court to appoint counsel for Penesa, issue
an order to show cause, and conduct an evidentiary hearing. In
addition, although Penesa’s petition only sought resentencing on
his murder conviction, he argues that under the amendments to
section 1170.95 by Senate Bill No. 775 (2021-2022 Reg. Sess.)
1 We refer to Judy and Maria Rodriguez and Penesa’s family
members by their first names to avoid confusion.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered as section 1172.6 with no change in the text. (Stats.
2022, ch. 58, § 10.) Further statutory references are to the Penal
Code.
2
(Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1,
2022, on remand the superior court should issue an order to show
cause as to his attempted murder conviction as well.
The People concede the superior court erred in denying
Penesa’s petition without appointing counsel and issuing an
order to show cause, but they argue the error was harmless
because Penesa was the actual killer and therefore ineligible for
relief. As to Penesa’s conviction for attempted murder, the
People contend he is not entitled to relief because he did not
include attempted murder in his petition, and in any event, the
jury was not instructed on the natural and probable
consequences doctrine.
We conclude the superior court’s error in summarily
denying Penesa’s petition for resentencing was harmless because
the record shows with respect to his murder conviction that he
was the actual killer, and as to his attempted murder conviction,
the jury was instructed that to find Penesa guilty, it had to find
he had an intent to kill. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial3
In 1988 Maria lived on Neptune Avenue in Carson with her
niece, Judy. In the early morning of June 30, 1988, Maria heard
Judy close the bathroom door. Seconds later, Maria heard
someone try to open her bedroom door. Maria called out to Judy,
but there was no response. Maria called 911; as she was
requesting help, she heard gunshots and saw wood fragments fly
3 We provide a recitation of the facts from the trial only as
background.
3
into her room. Maria dropped to the floor and stayed on the
telephone with the 911 operator. Judy then got on the call and
said, “I have been shot.” Maria stayed on the telephone with
Judy and the 911 operator. Maria heard Judy moaning; then the
moaning stopped. The police arrived and assisted Maria in
fleeing the house.
The police found Judy’s body lying face up in the rear of the
kitchen by the back door. She had wood splinters in her hair
consistent with wood fragments that were found in the bathroom.
An autopsy performed on Judy found 21 shotgun pellets in her
body. The deputy medical examiner opined at trial the cause of
death was a shotgun wound to the chest. The following day
Maria returned to her home and observed that her television was
missing.
Virginia Trujillo, who lived about three houses from Maria,
was watching television at around 1:00 in the morning when she
thought she heard fireworks. She looked out her front window
and saw two men run from the direction of Maria’s house to a
small, black car that looked like the car depicted in a photograph
of Penesa’s father’s car. A third man carrying a small television
followed, and the three men left in the car. Rosalva Magana, who
lived across the street from Maria, heard what she thought were
gunshots and looked out the window. She saw three men
running to a black car parked about three houses away. The last
man carried a television.
As part of their investigation, Los Angeles County Sheriff’s
Detective Steven Davis and his partner interviewed Penesa’s
sister, Jennifer Penesa. An audiotape of the interview was
played for the jury. The officers cautioned Jennifer that she
could get into trouble if she did not cooperate. Jennifer told the
4
officers that at the end of June 1998 Penesa came to visit her in
Carson. Jennifer lived 10 to 15 minutes from Neptune Street.
During his visit, Penesa asked Jennifer if she heard the news
about the “the girl that got shot on Neptune.” Jennifer said she
had not, and Penesa responded, “I did it.” He said he was drunk
and shot the woman when she came out of the bathroom because
she had seen him. Penesa told Jennifer that he and his friends
Pesa Matautia and Half-Breed were together and took a
television. After this conversation, Penesa packed up his
belongings and left. Before he left, he gave Jennifer a shotgun,
which he said Matautia would pick up. Matautia did not come,
and Jennifer disposed of the shotgun in the Los Angeles River.
At trial, however, Jennifer testified she lied to the detectives
about most of what she said during the interviews because she
had a gun that did not belong to her.
Detective Davis and his partner also interviewed Penesa’s
aunt, Faapio Penesa. An audiotape recording of the interview
was played for the jury. On June 29 Penesa and his friends
Matautia, Half-Breed, and Sefa Goa spent time together drinking
outside Faapio’s apartment building until about 1:30 or 2:00 the
next morning. The next day Penesa inquired whether she had
heard the news about the girl on Neptune. Faapio had not, and
Penesa said, “I did it” and that he and his friends “did that home
invasion.” At trial Faapio testified she did not recall Penesa
telling her that Penesa had killed a girl as part of a home
invasion robbery or that Faapio relayed this to the police.
Detective Davis and his partner also interviewed Faapio’s
fiance, John Cruz. An audiotape of the interview was played at
trial. Cruz confirmed that between 5:00 and 6:00 p.m. on June
29, 1998, Penesa, Matautia, and Half-Breed arrived at Faapio’s
5
house in Penesa’s father’s black four-door Ford Escort. They
spent time together outside into the early morning. Penesa
opened the trunk of the car, and Cruz could see a 12-gauge
shotgun with a cut-off handle wrapped in tape. At around 1:00 in
the morning, Penesa fired the shotgun one time into the air. A
few days later Penesa’s sister, Jennifer, showed Cruz the same
shotgun in her house.
The jury convicted Penesa of first degree murder (§ 187,
subd. (a)(2)) and found true the special allegation that in the
commission of the offense Penesa was engaged in a residential
burglary (§ 190.2, subd. (a)(17)). The jury also found true Penesa
personally and intentionally discharged a firearm (a shotgun)
causing Judy’s death (§ 12022.53, subds. (b), (c), (d)). Further,
the jury found Penesa guilty of the attempted willful, deliberate,
and premeditated murder of Maria (§§ 187, subd. (a), 664)) and
first-degree residential burglary (§ 659), and it found true the
special allegation Penesa personally and intentionally used and
discharged a firearm in the commission of the attempted murder
(§ 12022.53, subds. (b), (c)). The trial court sentenced Penesa to
an aggregate state prison term of life without the possibility of
parole plus a life term, plus 36 years.4
4 On count 1 for murder the court sentenced Penesa to life
without the possibility of parole, plus 25 years to life for the
firearm enhancement (§ 12022.53, subd. (d)). On count 2 for
attempted murder the court sentenced Penesa to life, plus
20 years on the firearm enhancement (id., subd. (c)). On count 3
for burglary the court sentenced Penesa to 16 years in state
prison (the upper term of six years plus 10 years under
section 12022.5, subdivision (a)(1)).
6
B. Penesa’s Petition for Resentencing and the Trial Court’s
Ruling
On April 23, 2020 Penesa, representing himself, filed a
form petition for resentencing seeking to vacate his murder
conviction and be resentenced in accordance with recent
statutory changes relating to accomplice liability for murder. In
his petition, Penesa declared he was convicted of murder under
the felony murder rule or the natural and probable consequences
doctrine and could not now be convicted of murder because of
changes made to Penal Code sections 188 and 189. He also
stated he was convicted of felony murder, he was not the actual
killer, he did not intend to kill, and he was not a major
participant in the felony and did not act with reckless
indifference to human life during the course of the murder.
Penesa requested the court appoint him counsel.
The People opposed the petition on the basis Penesa was
the actual killer and therefore ineligible for resentencing. The
People attached to their opposition this court’s opinion in Penesa
I, supra, B136925, as well as the jury’s verdict on the murder
count. Penesa filed a response to the People’s opposition (labelled
a “traverse”), arguing there was no direct evidence he was the
actual killer and the special circumstance finding did not make
him ineligible for sentencing.
On December 2, 2020 the trial court summarily denied
Penesa’s petition without appointing counsel, finding Penesa was
ineligible for resentencing as a matter of law because he was the
actual killer. The court explained, “Petitioner was convicted of
first degree murder during a burglary, premeditated, willful, and
deliberate attempted murder both with personal use and
7
discharge of a firearm. Petitioner admitted the crimes to family
members. Petitioner’s conviction was upheld on appeal. As the
actual shooter, petitioner is ineligible for re-sentencing pursuant
to Penal Code [section] 1170.95.”
Penesa timely appealed.
DISCUSSION
A. Senate Bill Nos. 1437 and 775
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder and significantly limited the scope of the felony-murder
rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People
v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; see People v.
Strong (Aug. 8, 2022, S266606) ___ Cal.5th ___ [2022 Cal.LEXIS
4563, *1-2].) The legislation also provided a procedure (now
codified in section 1172.6) for an individual convicted of felony
murder or murder under a natural and probable consequences
theory to petition the sentencing court to vacate the conviction
and be resentenced on any remaining counts if he or she could
not have been convicted of murder under Senate Bill 1437’s
changes to sections 188 and 189. (Lewis, at p. 959; Gentile, at
p. 847.)
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the court must appoint counsel to represent the
petitioner upon his or her request pursuant to section 1172.6,
subdivision (b)(3). Further, upon the filing of a facially sufficient
8
petition, the court must direct the prosecutor to file a response to
the petition and permit the petitioner to file a reply, and the
court must determine whether the petitioner has made a prima
facie showing that he or she is entitled to relief. (See § 1172.6,
subd. (c).) Where a petitioner makes the requisite prima facie
showing he or she falls within the provisions of section 1172.6
and is entitled to relief, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1172.6, subd. (d)(1).)
At the time Penesa filed his petition, the Courts of Appeal
agreed that, by its express terms, former section 1170.95 as
enacted by Senate Bill 1437 did not provide relief for a petitioner
convicted of attempted murder. However, section 1172.6,
subdivision (a), now provides for relief where the petitioner was
convicted of “attempted murder under the natural and probable
consequences doctrine” and “could not presently be convicted
of . . . attempted murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (a) & (a)(3).)
B. The Trial Court’s Error in Denying Penesa’s Petition for
Resentencing of His Murder Conviction Without Appointing
Counsel Was Harmless
1. The trial court erred in failing to appoint counsel
Penesa contends, the People concede, and we agree the trial
court erred in summarily denying Penesa’s petition for
resentencing without appointing counsel because he filed a
facially sufficient petition. Under Lewis, supra, 11 Cal.5th 952,
which was decided seven months after the superior court’s ruling
denying Penesa’s petition, once a petitioner files a facially
9
sufficient petition under section 1172.6 and requests appointment
of counsel, the superior court must appoint counsel before
performing a prima facie review under section 1172.6,
subdivision (c). (Lewis, at p. 963 [“petitioners who file a
complying petition requesting counsel are to receive counsel upon
filing of a compliant petition”].) As discussed, pursuant to the
amendments to former section 1170.95 under Senate Bill 775,
section 1172.6, subdivision (b)(3), now likewise provides for
appointment of counsel at the prima facie review stage.
(§ 1172.6, subd. (b)(3).) Under Lewis and Senate Bill 775,
therefore, it was error for the trial court to deny Penesa’s petition
for resentencing without first appointing counsel.
2. The error in failing to appoint counsel was harmless
Failing to appoint counsel for a petitioner at the prima facie
review stage is state law error only, reviewable for prejudice
under the harmless error standard of People v. Watson (1956) 46
Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 957-958, 973-974.)
As the Lewis court explained, “[A] petitioner ‘whose petition is
denied before an order to show cause issues has the burden of
showing “it is reasonably probable that if [he or she] had been
afforded assistance of counsel his [or her] petition would not have
been summarily denied without an evidentiary hearing.”’” (Id. at
p. 974.)
The People contend that because the jury found true that
Penesa personally and intentionally discharged a shotgun
causing Judy’s death, Penesa was the actual killer and ineligible
for relief under section 1172.6. Penesa responds that the true
finding on the firearm enhancement does not necessarily mean
that Penesa was the actual killer, relying on People v.
10
Offley (2020) 48 Cal.App.5th 588. However, in Offley the issue
was not whether the defendant (Dana Offley) was the actual
killer, but whether he acted with actual malice. Offley was one of
five defendants who took part in a gang-related shooting; the
defendants were charged with murder, attempted murder, and
shooting into an occupied vehicle. (Id. at p. 592.) Although the
defendants were not charged with conspiracy, the People
presented evidence of a conspiracy among the defendants, and
the court instructed the jury that a member of a conspiracy is
guilty not only of the particular crime he knows his confederates
agreed upon and committed, but also for the natural and
probable consequences of any crime of a coconspirator to further
the objective of the conspiracy. (Id. at p. 593.) The jury convicted
Offley of the three charged crimes, and the jury found true that
he had personally used and intentionally discharged a firearm
proximately causing the victim’s death. (Ibid.) The superior
court summarily denied Offley’s petition under former section
1170.95, but the Court of Appeal reversed, explaining Offley had
been convicted of murder under the natural and probable
consequences doctrine, and “[b]ecause an enhancement under
section 12022.53, subdivision (d) does not require that the
defendant acted either with the intent to kill or with conscious
disregard to life, it does not establish that the defendant acted
with malice aforethought.”5 (Offley, at p. 598.) The court
observed, “The jury might have concluded that Offley intended to
take part in a conspiracy to commit assault with a firearm, or to
fire into an occupied vehicle, with the aim of either injuring or
5 The jury in Offley was not instructed on the felony murder
doctrine.
11
merely frightening [the victim]. The jury could have then
concluded that [the victim’s] death was the natural and probable
consequence of the conspiracy and convicted [Offley] of murder
without finding beyond a reasonable doubt that he acted with
malice aforethought. For this reason, we cannot say that Offley
‘is ineligible for relief as a matter of law.’” (Id. at p. 599.)
In contrast to Offley, the jury here was not instructed on a
conspiracy theory or the natural and probable consequences
doctrine. Instead, the jury was instructed with CALJIC No. 8.10
that to prove the offense of murder, it needed to find a human
being was killed, the killing was unlawful, and “the killing was
done with malice aforethought or occurred during the commission
or attempted commission of burglary.” Further, the jury was
instructed that to find the firearm enhancement true under
section 12022.53, subdivision (d), the jury needed to find that
Penesa “intentionally and personally discharged a firearm and
proximately caused great bodily injury to a person, Elba [Judy]
Rodriguez, not an accomplice to the crime, in the commission of
the crime charged.”6 Therefore, even if the jury found Penesa
guilty of murder under the felony murder rule, under amended
section 189, subdivision (e)(1), he would be guilty of murder today
as the “actual killer” regardless of whether he had the intent to
kill.
Penesa is therefore ineligible for resentencing
under section 1172.6 as a matter of law because he continues to
be guilty of murder under sections 188 and 189 as amended by
6 The instruction referred to a finding that Penesa
proximately caused great bodily injury to Judy, but the jury
found true on the verdict form that Penesa proximately caused
great bodily injury and death to Judy.
12
Senate Bills 1437 and 775. (See People v. Mancilla (2021)
67 Cal.App.5th 854, 864, 866 [error in not appointing counsel
before denying facially sufficient petition was harmless because
defendant was convicted under a theory of liability not affected
by Senate Bill 1437].) Because there is no reasonable probability
Penesa would obtain a more favorable result if on remand the
trial court were to appoint counsel and allow counsel an
opportunity to file a memorandum supporting Penesa’s petition,
the court’s error in denying Penesa’s petition was harmless.
(See People v. Watson, supra, 46 Cal.2d at p. 836.)7
C. Penesa Is Not Entitled to Resentencing for His Attempted
Murder Conviction Because the Jury Was Not Instructed on
the Natural and Probable Consequences Doctrine
The People contend Penesa is ineligible for resentencing
because even if he had included allegations in his petition
pertaining to attempted murder, the jury was instructed that to
find Penesa guilty of attempted murder, it had to find Penesa
acted with actual malice, and further, the jury was not instructed
on the natural and probable consequences doctrine. The People
are correct. The trial court instructed the jury with CALJIC No.
8.66 that to prove Penesa guilty of attempted murder, it must be
proved that a “direct but ineffectual act was done by one person
toward killing another human being” and “[t]he person
7 Because we conclude Penesa is ineligible for relief as the
actual killer, we do not reach his alternative contention that the
jury’s special circumstance finding did not render him ineligible
for resentencing because he was convicted prior to the Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522.
13
committing the act harbored express malice aforethought,
namely, a specific intent to kill unlawfully another human being.”
The court did not instruct the jury on either aiding and abetting
principles (CALJIC No. 3.01) or the natural and probable
consequences doctrine, and therefore the jury’s finding that
Penesa was guilty of attempted murder necessarily meant he was
the person who committed the act and harbored “a specific intent
to kill.” Accordingly, Penesa is ineligible for relief under section
1172.6, subdivision (a). (People v. Daniel (2020) 57 Cal.App.5th
666, 677 [error in denying petition was harmless because
defendant was ineligible for resentencing for second degree
murder conviction where jury was not instructed on felony
murder or murder under a natural and probable consequences
theory].)
DISPOSITION
The order denying Penesa’s petition for resentencing is
affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
14