People v. Maldonado CA2/6 ( 2021 )

Filed 9/23/21 P. v. Maldonado CA2/6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B306808
(Super. Ct. No. 1434089)
Plaintiff and Respondent, (Santa Barbara County)
v. OPINION FOLLOWING
TRANSFER FROM
RAMON DAVID SUPREME COURT
MALDONADO,
Defendant and Appellant.
Ramon David Maldonado appeals from the trial
court’s postjudgment order denying his petition for resentencing.
(Pen. Code,1 § 1170.95.) He contends the court erred when it
summarily denied his petition without appointing counsel. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
In May 2015, a jury convicted Maldonado and four
codefendants of first degree murder (§§ 187, subd. (a), 189, subd.
1 Statutory references are to the Penal Code.
1
(a)), and found true a special circumstance allegation that they
committed murder during the commission of a kidnapping
(§ 190.2, subd. (a)(17)(B)). (People v. Gonzales (Aug. 7, 2018,
B264384) 2018 WL 3737940 at p. *1 (Gonzales) [nonpub. opn.].)
As to Maldonado only, the jury also found true a special
circumstance allegation that the murder was intentional and
involved the infliction of torture (§ 190.2, subd. (a)(18)).
(Gonzales, at p. *1.) In a bifurcated proceeding, the trial court
found true allegations that Maldonado served three prior prison
terms (§ 667.5, subd. (b)). (Gonzales, at p. *1.) It sentenced him
to life in state prison without the possibility of parole plus three
years. (Ibid.)
Maldonado did not challenge the jury’s true finding
on the torture special circumstance on appeal, but did challenge
the kidnapping special circumstance finding. (Gonzales, supra,
2018 WL 3737940 at pp. *7-8.) We rejected his challenge. (Id. at
p. *17.)
After the case was final, Maldonado petitioned the
trial court to resentence him pursuant to section 1170.95. In his
petition, Gonzales declared that: (1) the information filed against
him allowed the prosecution to proceed on a felony murder
theory, (2) he was convicted of first degree felony murder, (3) he
could not now be convicted of first degree murder based on
amendments to sections 188 and 189, and (4) he was not the
actual killer. Maldonado also requested the appointment of
counsel to assist him during the resentencing process.
Prosecutors filed an “initial response” to Maldonado’s
petition. The response set forth the facts of the case and the
prosecutors’ preferred procedure for evaluating a resentencing
petition. It also argued that Maldonado failed to make a prima
2
facie showing of entitlement to relief because, in finding true the
torture special circumstance allegation, the jury determined that
he acted with the intent to kill. Attached to the response was a
copy of our opinion in Maldonado’s direct appeal.2
The trial court summarily denied Maldonado’s
petition because he did not “make a prima facie case for eligibility
as a matter of law.” Although he was not the actual killer, he
“intended to kill the victim and/or was a major participant and
acted with reckless disregard for human life” based on the jury’s
true findings on the kidnapping and torture special circumstance
allegations. Maldonado was therefore not entitled to the
appointment of counsel or a hearing on his resentencing petition.
On appeal, Maldonado contended the trial court erred
when it summarily denied his section 1170.95 resentencing
petition without appointing counsel. (People v. Maldonado (June
21, 2021, B306808) 2021 WL 2525124 at p. *1 [nonpub. opn.].)
We disagreed, concluding that appointment of counsel was not
required because Maldonado was statutorily ineligible for section
1170.95 relief. (Id. at pp. *2-3.) The Supreme Court
subsequently granted Maldonado’s petition for review, and
ordered us to vacate our decision and reconsider the matter in
light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
DISCUSSION
Maldonado contends the trial court erred when it
summarily denied his section 1170.95 resentencing petition
without appointing counsel. Having reconsidered the matter, we
2 The trial court deemed prosecutors’ response to
Maldonado’s petition a “discretionary filing, with no procedural
significance under the statutory scheme, as it included as an
attachment [our] opinion on direct appeal.”
3
agree. (Lewis, supra, 11 Cal.5th at pp. 961-970.) But the error
was harmless.
If a trial court erroneously denies a section 1170.95
resentencing petition without appointing counsel, the error is
prejudicial and requires reversal only if the petitioner shows a
reasonable probability that the “‘“petition would not have been
summarily denied without an evidentiary hearing”’” had the
court appointed counsel. (Lewis, supra, 11 Cal.5th at p. 974; see
People v. Watson (1956) 46 Cal.2d 818, 836.) Here, the jury found
true a torture special circumstance allegation, a finding
Maldonado did not challenge on direct appeal. That finding—
which is now law of the case (Conservatorship of Edde (2009) 173
Cal.App.4th 883, 889)—required the jury to determine that
Maldonado acted with the intent to kill. (People v. Davenport
(1985) 41 Cal.3d 247, 271.) A defendant who acts with the intent
to kill can still be convicted of murder under the amended
versions of sections 188 and 189. (See § 189, subd. (e)(2).) They
are thus ineligible for resentencing as a matter of law.
(§ 1170.95, subd. (a)(3).) Accordingly, Maldonado has failed to
show a reasonable probability that his petition would not have
been summarily denied even if the trial court had appointed
counsel. The error was harmless. (People v. Simmons (2021) 65
Cal.App.5th 739, 749-750, review granted Sept. 1, 2021, S270048
(Simmons).)
And to the extent the court erred when it accepted
prosecutors’ response to Maldonado’s petition, that error was also
harmless given his ineligibility for resentencing. (Simmons,
supra, 65 Cal.App.5th at pp. 749-750, review granted.)
4
DISPOSITION
The trial court’s order denying Maldonado’s petition
for resentencing, entered June 1, 2020, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
5
John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
Leonard J. Klaif, 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 Lopez and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and
Respondent.