People v. Reaza CA4/2 ( 2021 )

Filed 10/8/21 P. v. Reaza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074012
v. (Super.Ct.No. RIF113648)
RONNIE CRUZ REAZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Lynda A. Romero, under appointment by 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, A. Natasha Cortina, Quisteen S.
Shum and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant, Ronnie Cruz Reaza, filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the superior court summarily denied. On
appeal, defendant contends the court erred in summarily denying his petition without
affording him the opportunity to file a reply to the People’s opposition. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
Defendant was the driver in a drive-by shooting committed with a shotgun; one
person was killed and another injured. Officers recovered a shotgun in a vehicle driven
by someone who testified that defendant had given him the shotgun. The witness
testified defendant told him to keep the shotgun because they had used it to shoot at rival
gang members. Defendant admitted to police that he drove the vehicle that night and that
his passenger had fired shots at the victims; however, defendant denied knowing in
advance that his passenger intended to shoot. (People v. Reaza, supra, E038773.)
On October 21, 2004, the People charged defendant by felony information with
murder (§ 187, subd. (a), count 1), attempted murder (§§ 664, 187, subd. (a), count 2),
personally discharging a firearm from a moving vehicle (§ 12034, subd. (c), count 3),
personally discharging a firearm at an inhabited dwelling house (§ 246, count 4), and
being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 5). As to the count
1 offense, the People further alleged that the murder was intentional and perpetrated by
1 All further statutory references are to the Penal Code unless otherwise indicated.
2By order dated December 31, 2019, we took judicial notice of the record in
defendant’s appeal from the original judgment. (People v. Reaza (Oct. 11, 2006,
E038773) [nonpub. opn.]; see Evid. Code, § 459.)
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the discharge of a firearm at another person from a motor vehicle (§ 190.2, subd. (a)(21));
that defendant intentionally killed the victim to further the criminal activities of a
criminal street gang while an active participant in a criminal street gang (§ 190.2, subd.
(a)(22)); and that a principal personally and intentionally discharged a firearm causing
great bodily injury or death (§ 12022.53, subds. (d), (e)(1)).
As to the count 2 offense, the People additionally alleged that a principal
personally and intentionally discharged a firearm causing great bodily injury or death
(§ 12022.53, subds. (d), (e)(1)) and that defendant committed the offense for the benefit
of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)).
As to counts 1 through 4, the People alleged that defendant committed the offenses for
the benefit of, at the direction of, and in association with a criminal street gang.
(§ 186.22, subd. (b).) Finally, the People alleged defendant had suffered a prior strike
conviction. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)
The court instructed the jury with aiding and abetting principles (CALJIC No. 3.01)
and the natural and probable consequences doctrine (CALJIC No. 3.02). The court gave
the jury “special” instructions that “[a]iding and abetting the perpetrator of a specific
intent crime requires that the defendant share the specific intent of the perpetrator.
However, an aider and abettor will ‘share’ the perpetrator’s specific intent when he or she
knows the full extent of the preparator’s criminal purpose and gives aid or encouragement
with the intent or purpose of facilitating the perpetrator’s commission of the crime.” “If
you find the defendant guilty of Murder as charged in Count 1, or Attempted Murder as
charged in Count 2, as an aider and abettor, you need not find the defendant personally
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premediated and deliberated, provided you find that the shooter did premediate and
deliberate.” The court also instructed the jury with CALJIC 8.81.22 on the requirements
for finding true the intentional killing by an active street gang member special
circumstance: “it must be proved: [¶] 1. The defendant intentionally killed the
victim . . . .”
During closing argument, the prosecutor told the jury defendant was not the
shooter. The prosecutor also discussed the natural and probable consequences doctrine:
“But an aider and abettor need not deliberate and premediate. Basically, if the person
who commits the actual killing premediated and deliberated, and therefore, it’s first-
degree murder, and the defendant aided and abetted a premediated and deliberate murder,
a first-degree murder, he is also liable for first-degree murder as an aider and abettor. He
is liable for exactly the same crime as the person who pulls the trigger.”
The jury found defendant guilty on all charges, including first degree murder in
count 1, and found all enhancement allegations true.3 The court sentenced defendant to
life in prison without the possibility of parole; a consecutive term of 25 years to life; a
consecutive sentence of life with the possibility of parole, with a minimum parole
eligibility term of 30 years; a consecutive term of 25 years to life; a consecutive term of
30 years to life; and a consecutive term of 16 years four months. (People v. Reaza,
supra, E038773.)
3 Defendant admitted suffering the prior strike conviction.
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On appeal, defendant contended that the jury improperly convicted him of
discharging a firearm at another person from a vehicle, that insufficient evidence
supported the gang enhancements, and that the court improperly imposed various aspects
of his sentence. In an opinion filed October 11, 2006, this court affirmed the judgment
but ordered the determinate term vacated; the cause remanded for resentencing; ordered
the court to stay sentence on count 3, including the enhancement; and ordered the court to
strike the parole revocation fine. (People v. Reaza, supra, E038773.)
On January 7, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95. On March 8, 2019, the People filed a response in which they argued, in
part, that defendant was ineligible for relief because he aided and abetted the offenses with
the intent to kill. The People noted that the jury had found true two special circumstance
findings that required an intent to kill: shooting from a motor vehicle (§ 190.2,
subd. (a)(21)) and the first degree murder with an active participation in a criminal street
gang special circumstance (§ 186.22, subd. (a)(22)).4
At the hearing on April 19, 2019, the public defender noted, “We have not filed a
reply. We ask for a 90-day stay.” The court ordered the matter stayed. However, the
People asked to be heard, to which the court acquiesced. The People noted that the jury
had found true two special murder circumstances requiring that defendant had intended to
kill the victim. The court summarily denied the petition.
The People attached a copy of this court’s opinion in People v. Reaza, supra,
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E038773, to their response.
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II. DISCUSSION
Defendant contends the court erred in summarily denying his petition. He
maintains that “[g]iven the prosecutor’s argument and reliance on natural and probable
consequences, it is without a doubt that the jury could have based appellant’s conviction
on the natural and probable consequences doctrine,” thereby entitling him to file a reply
to the People’s response and, thereafter, requiring an evidentiary hearing. Defendant also
contends that the court erred in failing to indicate its reasons for denying the petition or
indicating upon what records it relied. We disagree.
A. Legal Background.
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to amend the
felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, 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,
subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
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was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’
[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the
appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with
subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’” (Lewis, supra, 11 Cal.5th at pp. 959-960.)
“Where the petition complies with [section 1170.95,] subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess whether the petitioner
has made ‘a prima facie showing’ for relief.” (Lewis, supra, 11 Cal.5th at p. 960.)
“[O]nly after the appointment of counsel and the opportunity for briefing may the
superior court consider the record of conviction to determine whether ‘the petitioner
makes a prima facie showing that he or she is entitled to relief.’” (Lewis, at p. 957, first
italics in original, second and third italics added.)
A court may rely on the record of conviction in determining whether a prima facie
showing has been made. (Lewis, supra, 11 Cal.5th at p. 970.) “The record of conviction
will necessarily inform the trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential merit from those that are clearly
meritless.” (Id. at p. 971.) “While 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.
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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.”’” (Ibid.)
“‘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.) “Appellate opinions . . . are generally considered to be part of the record of
conviction.” (Id. at p. 972.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’” (Ibid.) “In sum, the parties can, and
should, use the record of conviction to aid the trial court in reliably assessing whether a
petitioner has made a prima facie case for relief under [section 1170.95,] subdivision (c).”
(Ibid.)
B. First Degree Murder Conviction.
In this case, the trial court erred in denying the petition without permitting
defendant to file a reply to the People’s response. (Lewis, supra, 11 Cal.5th at p. 957.)
However, the Lewis court announced a harmless error standard when a trial court deprives
a defendant of his statutory rights under section 1170.95: “[W]e conclude that the
deprivation of [the defendant’s] right to counsel under subdivision (c) of section 1170.95
was state law error only, tested for prejudice under People v. Watson (1956) 46 Cal.2d
818.” (Lewis, at pp. 957-958.) “[A] petitioner ‘whose petition is denied before an order to
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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.) We presume that
standard would also apply to the deprivation of defendant’s statutory right to file a reply
brief. Thus, defendant has the burden of showing that it is reasonably probable that if he
had been afforded the right to file a reply brief, his petition would not have been
summarily denied.
Here, the jury found defendant guilty of first degree murder and found true an
intentional killing by an active street gang member special circumstance. As the People
both in the proceedings below and on appeal argue, the jury’s verdict and special finding
required that the jury conclude that, although defendant was not the actual killer, he
intended the death of the victim. As the jury was instructed, it could not find the
intentional killing by an active street gang member special circumstance true unless it
found that defendant intended to kill the victim.
Such a finding, even under current law, would render defendant ineligible for
relief as a matter of law because the jury’s findings establish that defendant was a direct
aider and aider of the murder. (People v. Palacios (2020) 58 Cal.App.5th 845, 857,
review granted Feb. 24, 2021, S266701 [“[D]efendant’s record of conviction shows that
he directly aided and abetted in the murder,” rendering him ineligible for relief.]; People
v. Garcia (2020) 57 Cal.App.5th 100, 105, 112-113, review granted, Feb. 10, 2021,
S265692 [Defendant ineligible for relief where statement of facts in the appellate opinion
reflected that defendant was convicted as a direct aider and abettor of the killing.].) Thus,
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the court’s error was harmless because even if permitted to file a reply brief, defendant
could not prove it is reasonably probable his petition would not have been summarily
denied.
In rendering its decision, we presume the court relied upon the copy of the opinion
in the People’s response and the People’s argument at the hearing made immediately
before its ruling. We also presume its reasoning for denying the petition was based upon
the People’s statement immediately before the court rendered its ruling: that the special
circumstance findings reflected the jury’s determination that defendant intended to kill.
Thus, the court properly denied defendant’s petition with respect to the count 1 offense.
C. Attempted Murder Conviction.
“By its plain language, section 1170.95 . . . makes resentencing relief available
only to qualifying persons convicted of murder.” (People v. Sanchez (2021)
48 Cal.App.5th, 914, 918; accord, People v. Larios (2019) 42 Cal.App.5th 956, 970,
review granted Feb. 26, 2020, S259983 [“[T]he relief provided in section 1170.95 is
limited to certain murder convictions and excludes all other convictions, including a
conviction for attempted murder.”]; accord, People v. Lopez (2019) 38 Cal.App.5th 1087,
1105, review granted Nov. 13, 2019, S258175 [“The plain language meaning of Senate
Bill 1437 as excluding any relief for individuals convicted of attempted murder is fully
supported by its legislative history.”]; People v. Munoz (2019) 39 Cal.App.5th 738, 753,
review granted Nov. 26, 2019, S258234 [“Senate Bill 1437 does not apply to attempted
murder convictions.”]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1018, review
granted Mar. 11, 2020, S259948 [“[T]he relief provided in section 1170.95 is limited to
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certain murder convictions and excludes all other convictions, including a conviction for
attempted murder.”]; People v. Dennis (2020) 47 Cal.App.5th 838, 841, review granted
July 29, 2020, S262184 [“Senate Bill No. 1437 . . . reaches the crime of murder but has
no application to attempted murder.”]; accord, People v. Love (2020) 55 Cal.App.5th 273,
286, review granted Dec. 16, 2020, S265445 [“In our view, Senate Bill 1437’s legislative
history pretty clearly establishes that its amendments apply to the crime of murder and to
that crime alone.”]; People v. Alaybue (2020) 51 Cal.App.5th 207, 223 [“Senate Bill 1437
does not apply to attempted murder.”]; accord, People v. Harris (2021) 60 Cal.App.5th
557, 566 [“[R]elief under section 1170.95 is not available to those convicted of attempted
murder.”].) We agree with the previous panels of this court in People v. Sanchez, supra,
48 Cal.App.5th 914, and People v. Harris that the plain language of section 1170.95
limits relief to those convicted of murder; no reference to attempted murder appears in
section 1170.95.5 Thus, the court properly denied defendant’s section 1170.95 petition
because defendant had been convicted of attempted murder in count 2, not murder.
Three courts have held that Senate Bill No. 1437 does apply to those convicted of
attempted murder but only on direct appeal from the judgment: “[W]e conclude Senate
Bill 1437 precludes any imposition of vicarious liability under the natural and probable
consequences doctrine if the charged offense requires malice aforethought. Because
malice cannot be imputed to a defendant who aids and abets a target offense without the
5As defendant notes, the issue of whether Senate Bill No. 1437 applies to
attempted murder is currently pending before the California Supreme Court. (People v.
Lopez, S258175 [2019 Cal. Lexis 8414].)
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intent to kill, the natural and probable consequences doctrine is no longer a viable theory
of accomplice liability for attempted murder.” (People v. Medrano, supra,
42 Cal.App.5th at p. 1013; accord, People v. Larios, supra, 42 Cal.App.5th at p. 968
[“Senate Bill 1437’s abrogation of the natural and probable consequences doctrine as
stated in section 188, subdivision (a)(3) necessarily applies to attempted murder.”];
accord, People v. Sanchez (2020) 46 Cal.App.5th 637, 644, review granted June 10,
2020, S261768 [“[W]e conclude Senate Bill No. 1437 abrogates the natural and probable
consequences doctrine in attempted murder prosecutions.”].) However, “the section
1170.95 petitioning procedure does not apply to defendants for their convictions of
attempted murder . . . .” (People v. Medrano, at p. 1008; accord, People v. Larios, at
p. 961 [“[S]ection 1170.95 provides no relief for the crime of attempted murder.”];
accord, People v. Sanchez, at p. 644 [The conclusion that “Senate Bill No. 1437
abrogates the natural and probable consequences doctrine in attempted murder
prosecutions . . . applies retroactively on direct appeal.”].) Thus, even if we assumed that
Senate Bill No. 1437 applied to convictions for attempted murder, the petitioning and
resentencing procedures of section 1170.95 do not. Therefore, because defendant’s
appeal is from the denial of a section 1170.95 petition and not from the judgment, he is
not entitled to any relief. The court properly denied his section 1170.95 petition.
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III. DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
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