People v. Martinez-Costa CA3 ( 2022 )

Filed 12/5/22 P. v. Martinez-Costa CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089499
Plaintiff and Respondent, (Super. Ct. No. 12F00180)
v. OPINION ON TRANSFER
CLEO MARTINEZ-COSTA,
Defendant and Appellant.
Defendant Cleo Martinez-Costa challenges the trial court’s denial of her petition
for resentencing under former Penal Code section 1170.95 (statutory section citations that
follow are to the Penal Code) based on changes made to the felony-murder rule by Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant filed her petition in
2019. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section
1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute.
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For purposes of clarity and conformity with the petition, we will continue to refer to the
statute as former section 1170.95 throughout the opinion.
Defendant contends the trial court erred in summarily denying her petition
following its appointment of counsel and determination that she had presented a facially
valid petition. She argues the court’s denial at that procedural juncture without briefing
or an evidentiary hearing denied her due process and effective assistance of counsel. In
an opinion issued July 12, 2021, we found any trial court error was harmless beyond a
reasonable doubt and affirmed the trial court’s order. Defendant petitioned the California
Supreme Court for review, and that court directed us to vacate our previous decision and
reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). Having
done so, we now conclude that reversal and remand for further proceedings consistent
with Strong is required.
FACTS AND HISTORY OF THE PROCEEDINGS
We incorporate portions of our discussion set forth in our unpublished opinion
deciding defendant’s prior appeal, People v. Martinez-Costa (June 13, 2018, C076567)
[nonpub. opn.] (Martinez-Costa):
“A jury found Cleo Martinez-Costa (Costa) guilty of the first degree murder of
Hiter in violation of section 187, subdivision (a), found true special allegations that a
principal in her offense was armed with a firearm within the meaning of section 12022,
subdivision (a)(1), and that the murder was committed while in the commission of an
attempted robbery within the meaning of section 190.2, subdivision (a)(17).
“The jury also found Costa guilty of the attempted robbery of Hiter as defined in
sections 664/211 and found true the special allegation that the principal in the offense
was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
“Thereafter, the trial court found that on May 2, 1994, Costa had been convicted
of a violation of section 245, subdivision (a)(2) (assault with a firearm) and 12022.5
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(personal use of a firearm), bringing her within the provisions of section 667, subdivision
(a) and sections 667, subdivisions (b) through (i) and 1170.12.
“The court sentenced Costa to life without the possibility of parole on the special
circumstance murder conviction, one year for the section 12022, subdivision (a)(1)
allegation, five years for the prior conviction under section 667, subdivision (a), and
stayed the sentence for count two. The trial court awarded Costa 850 days credit for time
served.” (Martinez-Costa, supra, C076567 at [p. 2].)
Defendant appealed challenging the sufficiency of the evidence supporting the
section 190.2, subdivision (a)(17) enhancement and requesting a modification of her
custody credits. (Martinez-Costa, supra, C076567 at [p. 2].) We found substantial
evidence supported the enhancement but agreed a recalculation of custody credits was
required and remanded the matter to the trial court for that purpose. (Id. at [pp. 3, 34].)
As we explained: “The evidence showed that Costa lured Hiter—a drug dealer
who she believed had sold her inferior methamphetamine—to her home in the dead of
night to be robbed by Doria, another drug dealer, who she believed had the mentality of a
child and was ‘fuckin’ crazy.’ That Costa recruited Doria to rob Hiter suggests that she
knew Doria was capable of violence. We note that, as a matter of common sense, taking
money and drugs from a drug dealer is an inherently dangerous activity.
“Here, the record shows both Doria and Hiter used and sold drugs and Costa knew
that. Moreover, Doria was a dangerous person, who carried a gun at all times. He was
known in his circle of acquaintances, of which Costa was one, to at least claim to have
used a firearm to rob people, was known to have been previously involved in a shootout
while robbing a dealer, and was known as a person considered capable of murder.
“Costa’s own son harbored concerns about Doria’s violent tendencies and the
danger he posed to Costa, which one can reasonably infer he expressed to his mother,
further supporting Costa’s subjective awareness of the risk incurred by enlisting Doria to
rob Hiter.
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“Costa’s awareness of the heightened potential for grave danger during the
robbery may also be inferred from Costa texting her friend not come to Costa’s house
shortly before the botched robbery, arguably to keep the friend safe and avoid witnesses
to the crime. That Hiter would not be a passive victim and was capable of defending
himself from an armed assailant may be inferred from his apathy concerning a warning
that Doria might try to rob him if he flashed money in front of him again. All of these
factors notwithstanding, Costa arranged the robbery for her own purposes and
participated in it knowing she was bringing together two violent drug dealers who were
quite likely armed with firearms.” (Martinez-Costa, supra, C076567 at [pp. 34-35].)
In light of this evidence and inferences that could be drawn therefrom, we
determined substantial evidence supported “the jury’s ultimate finding that objectively
the robbery Costa orchestrated posed a grave risk of death and that subjectively she was
aware that her active participation, indeed her organization, of the robbery of Hiter, posed
a grave risk of his death and, therefore, that she acted with a reckless indifference to
human life.” (Martinez-Costa, supra, C076567 at [pp. 35-36].)
Defendant’s Section 1170.95 Petition
Defendant’s form petition for resentencing pursuant to former section 1170.95 was
filed with the superior court on January 30, 2019. In it, defendant checked boxes
alleging: (1) “A complaint, information, or indictment was filed against me that allowed
the prosecution to proceed under a theory of felony murder or murder under the natural
and probable consequences doctrine”; (2) “At trial, I was convicted of 1st or 2nd degree
murder pursuant to the felony murder rule or the natural and probable consequences
doctrine”; (3) “I could not now be convicted of 1st or 2nd degree murder because of
changes made to Penal Code §§ 188 and 189, effective January 1, 2019”; and (4) “I
request that this court appoint counsel for me during this re-sentencing process.”
Defendant failed to check any of the boxes on the form petition under No. 5 pertaining to
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defendant’s conviction of first degree felony murder, and as such did not aver that she
was not the actual killer, did not aid/abet the murder, and was not a major participant and
did not act with reckless indifference to human life.
A minute order in the appellate record reflects that on March 5, 2019, the trial
court reviewed defendant’s petition and “found no procedural defect.” A March 12,
2019, letter informed defendant that an attorney had been appointed to represent
defendant. Thereafter, on March 14, 2019, the trial court granted the People’s request for
more time to respond to defendant’s resentencing petition. However, before any response
was filed, on April 15, 2019, the trial court issued an order summarily denying
defendant’s petition.
This order stated: “Defendant Cleo Martinez-Costa has filed a Penal Code
§ 1170.95 petition for a vacating of defendant Costa’s first degree murder conviction in
Sacramento County Superior Court Case No. 12F00180. As the Honorable Ernest
Sawtelle was the original sentencing judge in the matter, Judge Sawtelle will now address
the petition.
“Penal Code § 1170.95 applies only to murder convictions. As such, the court will
consider only defendant Martinez-Costa’s murder conviction in this proceeding.
“Defendant Martinez-Costa has not shown that she falls within the provisions of
Penal Code § 1170.95. In Case No. 12F00180, she was convicted of Penal Code § 187
first degree murder and a Penal Code § 190.2(a)(17) robbery-murder special
circumstance was found true. In finding true the Penal Code § 190.2(a)(17) special
circumstance, the jury necessarily found that defendant Martinez-Costa was either the
actual killer, acted with intent to kill, or was a major participant in the underlying crime
who acted with reckless indifference to human life, as the jury was specifically instructed
with CALCRIM No. 703 that it must make such a finding before finding true the Penal
Code § 190.2(a)(17) robbery-murder special circumstance.
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“As Penal Code §§ 187 and 189 still provide for first degree murder based on
robbery-murder, when the trier of fact has found that the defendant either was the actual
killer, intended to kill, or was a major participant in the robbery who acted with reckless
indifference to human life, and the jury in Case No. 12 F00180 necessarily found that to
be so with regard to defendant Martinez-Costa, [¶] IT IS ORDERED that defendant
Martinez-Costa’s Penal Code § 1170.95 petition for vacating of the murder conviction is
DENIED.”
This appeal followed.
DISCUSSION
I
Applicable Legal Principles
Senate Bill 1437 was enacted to “amend the felony murder rule and the natural
and probable consequences doctrine, . . . to ensure that murder liability is not imposed on
a person who is not the actual killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1(f).) Senate Bill 1437 achieves these goals by amending
section 188 to require that a principal act with express or implied malice (§ 188, as
amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a
person can be liable for felony murder only if (1) “[t]he person was the actual killer”; (2)
the person, with an intent to kill, was an aider or abettor in the commission of murder in
the first degree; or (3) “[t]he person was a major participant in the underlying felony and
acted with reckless indifference to human life . . . .” (§ 189, subd. (e), as amended by
Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also “added section 1170.95 to provide a procedure for those
convicted of felony murder or murder under the natural and probable consequences
doctrine to seek relief . . . .” (People v. Gentile (2020) 10 Cal.5th 830, 843.) Former
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section 1170.95, subdivisions (b) and (c) create a two-step process for evaluating a
petitioner’s eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960-962
(Lewis).) First, the trial court determines whether the petition is facially sufficient under
former section 1170.95, subdivision (b). (Lewis, at p. 960.) If the petition is facially
sufficient, then, the trial court moves on to former subdivision (c), appointing counsel (if
requested) and following the briefing schedule set out in the statute. (Lewis, at p. 966.)
Following the completion of this briefing, the trial court then determines whether the
petitioner has made a prima facie showing they are entitled to relief. (Ibid.)
As the Supreme Court explained, “[w]hile the trial court may look at the record of
conviction after the appointment of counsel to determine whether a petitioner has made a
prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c)
is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the
court takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.” ’ [Citations.] ‘[A]
court should not reject the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if the record, including
the court’s own documents, “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)
As relevant here, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch.
551, §§ 1-2), which took effect on January 1, 2022, amended former section 1170.95 to
“[c]odif[y] the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding
petitioners’ right to counsel and the standard for determining the existence of a prima
facie case” and to “[r]eaffirm[] that the proper burden of proof at a resentencing hearing
under this section is proof beyond a reasonable doubt.” (Cal. Const. art. IV, § 8; Stats.
2021, ch. 551, § 1.)
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II
Application
Here, the trial court reviewed defendant’s section 1170.95 petition and “found no
procedural defect” as noted in its minute order. The court then appointed counsel and
granted the People’s request for additional time to file a responsive brief. Thus, it would
appear from the record that the trial court made a determination under the first sentence
of section 1170.95, subdivision (c) that defendant had “made a prima facie showing that
the petitioner falls within the provisions of this section.” However, after appointing
counsel and granting an extension for responsive briefing, the court proceeded to
summarily deny defendant’s petition ex parte on the ground that the jury’s true finding of
the section 190.2, subdivision (a)(17) special circumstance precluded her eligibility for
relief. This order did not identify whether the court was revisiting its initial prima facie
determination or issuing an order denying defendant’s requested relief under the last
sentence of subdivision (c) that she had not made a prima facie showing that she was
“entitled to relief.” (Italics added.)
Defendant argues that because she made a prima facie showing of her right to
relief, she was entitled to briefing, an evidentiary hearing, and to have her appointed
counsel actually represent her at this critical phase in her case. She reasons the trial
court’s failure to afford her these rights as provided in the statute violated her rights to
due process and effective assistance of counsel.
In our unpublished decision issued July 12, 2021, we found any error in failing to
appoint counsel and allow briefing was harmless beyond a reasonable doubt in light of
the jury’s section 190.2 subdivision (a)(17) finding. (People v. Martinez-Costa (Jul. 12,
2021; C089499) [nonpub. opn.], [pp. 8-9].) This was so because in order to find the
section 190.2 allegation true, the jury had already determined beyond a reasonable doubt
that defendant was a major participant who had acted with reckless indifference to human
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life. (Ibid.) This mirrors the current requirements for felony murder (§ 189, subd.
(e)(3)), and was a finding we upheld in defendant’s original appeal. (Martinez-Costa,
supra, C076567 at [pp. 35-36].) Accordingly, we found the jury’s section 190.2
subdivision (a)(17) finding foreclosed defendant’s ability to show that she could not now
be convicted of murder for purposes of her former section 1170.95 petition. (Martinez-
Costa, supra, C089499 at [p. 9].) While not addressed by the parties in the original
briefing on appeal, on transfer defendant argues that reversal and remand for further
proceedings is required because the section 190.2 subdivision (a)(17) enhancement
finding in this case predated the Supreme Court’s clarifications of the definitions of
“major participant” and “reckless indifference to human life” in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The People
have elected not to file a brief on remand. We nonetheless concur with defendant that in
light of the Supreme Court’s recent decision in Strong, reversal and remand is required.
In Strong, the Supreme Court concluded: “Findings issued by a jury before Banks
and Clark do not preclude a defendant from making out a prima facie case for relief
under Senate Bill 1437. This is true even if the trial evidence would have been sufficient
to support the findings under Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 710.)
Here, the jury’s section 190.2 determination in 2014 predated the issuance of Banks and
Clark. In light of this, we cannot conclude the trial court’s failure to follow the dictates
of former section 1170.95 was harmless. Accordingly, we must reverse and remand for
further proceedings consistent with Strong.
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DISPOSITION
The trial court’s order on defendant’s petition is reversed and the matter remanded
for further proceedings consistent with Strong.
HULL, Acting P. J.
We concur:
KRAUSE, J.
BOULWARE EURIE, J.
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