People v. Montiel CA2/8 ( 2021 )

Filed 10/12/21 P. v. Montiel CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B308786
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA071398)
v.
MARIO MONTIEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Roger T. Ito, Judge. Affirmed.
Deborah L. Hawkins, 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, Senior
Assistant Attorney General, Idan Ivri and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Mario Montiel and two other men of
second degree murder for beating a man to death. The trial court
instructed the jury on and the prosecutor argued murder liability
under the natural and probable consequences doctrine. Montiel
filed a petition for resentencing under Penal Code section
1170.95. The trial court denied the petition, finding Montiel
could still be convicted of implied malice murder beyond a
reasonable doubt. Montiel appeals this denial, arguing he
deserves a new jury trial because the trial court instructed his
original jury on a now-invalid theory. We affirm. Undesignated
statutory references are to the Penal Code.
I
We recount the factual and procedural background.
A
In December 2001, Montiel and two other men beat fellow
drug dealer Eli Reyes over a debt. The beating lasted for hours
and ended with Reyes’s death. The coroner opined Reyes’s
injuries were consistent with being kicked and with fist blows.
The coroner identified two possible causes of death: (1) multiple
blunt force injuries to the head resulting in brain herniation, and
(2) a fractured larynx consistent with strangulation. Witnesses
identified Montiel as a participant in the beating and testified
Montiel made comments about having strangled a man shortly
after the beating.
At trial, the court instructed the jury on theories of liability
for murder including implied malice murder and the natural and
probable consequences doctrine. The prosecutor and defense
counsel focused on the natural and probable consequences theory
in their closing arguments. The jury convicted Montiel and the
other two men of second degree murder. (§ 187, subd. (a).)
2
Montiel appealed, and this court affirmed the judgment in People
v. Vasquez (Apr. 6, 2006, B173875) [nonpub. opn.].
B
The Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) (SB 1437), effective January 1, 2019, “to amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure 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).) Section 1170.95
allows persons convicted of felony murder or under a natural and
probable consequences theory to petition the court to have their
convictions vacated and to be resentenced. (§ 1170.95, subd. (a).)
To seek relief under section 1170.95, the petitioner must
file a petition meeting the requirements of the statute.
(§ 1170.95, subd. (b)(1).) If the petitioner files a facially sufficient
petition, the trial court must appoint counsel if so requested.
(People v. Lewis (2021) 11 Cal.5th 952, 962–963.) The trial court
then, after receiving briefing, determines whether the petitioner
has made a prima facie showing he or she is eligible for relief. (§
1170.95, subd. (c).) If the petitioner makes such a showing, the
trial court issues an order to show cause and sets an evidentiary
hearing to determine whether to vacate the conviction, recall the
sentence, and resentence the petitioner. (§ 1170.95, subd. (d)(1);
Lewis, at p. 960.)
C
After the passage of SB 1437, Montiel filed a petition for
resentencing, declaring that he had been convicted on a theory of
natural and probable consequences. The trial court found a
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prima facie case and set an evidentiary hearing. At the hearing,
the trial court said it had reviewed the record of conviction and
the parties’ briefing. The prosecution argued Montiel could still
be convicted under the current law under a theory of implied
malice murder. Montiel argued the evidence did not show
implied malice because there was no evidence he had the intent
to kill. Montiel also argued the prosecution had relied on a
theory of natural and probable consequences at trial that was no
longer valid. In Montiel’s view, because the prosecution did not
rely on an implied malice murder theory at trial, he must be
given a new trial.
At the conclusion of the hearing, the trial court found
“there is a valid theory of implied murder that could have been
sustained, and this Court does in fact sustain and finds that Mr.
Montiel is not entitled to the relief because in fact there is a valid
theory of implied malice murder . . . . [B]ased on my review of
the record of conviction, [it] indicates in my estimation beyond a
reasonable doubt that he could be convicted and he should be
convicted of that crime under this fact pattern.”
II
Montiel appeals the court’s denial of his petition. His
primary contention is because the trial court instructed the jury
on a now-invalid theory (second degree murder under the natural
and probable consequences doctrine), he has a right to a new jury
trial to be convicted on a theory not decided by his original
jury. This argument misconstrues the nature of both the
evidentiary hearing and the relief available under section
1170.95. Montiel’s assertion that substantial evidence does not
support the trial court’s finding also fails.
4
A
Montiel’s focus on the trial court’s instructions and
counsel’s arguments to the jury at trial misses the mark. Once
the trial court sets an evidentiary hearing, the question becomes
whether the petitioner could be convicted of first or second degree
murder beyond a reasonable doubt after the changes to sections
188 and 189. (See People v. Lopez (2020) 56 Cal.App.5th 936,
950–951 (Lopez), review granted Feb. 10, 2021, S265974; People
v. Rodriguez (2020) 58 Cal.App.5th 227, 238–239 (Rodriguez),
review granted Mar. 10, 2021, S266652; People v. Clements (2021)
60 Cal.App.5th 597, 616–617 (Clements), review granted Apr. 28,
2021, S267624.) In answering this question, the trial court acts
as an independent fact finder. (Lopez, at pp. 950–951; Rodriguez,
at pp. 238–239; Clements, at pp. 616–617.) What the jury did and
what instructions they did or did not receive are no longer
relevant. (See Lopez, at p. 950 [“the trial court may be confronted
with new evidence (§ 1170.95, subd. (d)(3)) and frequently will be
asked to find newly relevant facts not previously admitted or
found by a trier of fact”].)
This distinguishes the analysis in People v. Sanchez (2020)
46 Cal.App.5th 637, review granted June 10, 2020, S261768.
Sanchez involved a direct appeal, not a petition under section
1170.95, so its holding about the proper remedy for an invalid
jury instruction is inapplicable here. (See Sanchez, at pp. 639,
644–645.)
Although Montiel acknowledges the independent fact finder
role laid out in what he terms the “Clement[s]-Rodriguez
approach,” he argues it should not apply to his case because no
jury has found his mental state amounted to malice. This fact,
however, does not make Montiel’s case unique or undermine the
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applicability of Clements and Rodriguez. Indeed, those cases’
holdings that the trial court must act as an independent fact
finder necessarily imply the court is not relying on jury findings.
Montiel contends his case is different because the record
conclusively establishes the jury convicted him under a natural
and probable consequences doctrine, but this does not change the
analysis. Even assuming he is correct and the record does
establish that, the trial court’s role at the evidentiary hearing
stage remains the same.
B
Montiel argues the Clements-Rodriguez approach violates
his constitutional rights to the extent it calls for factfinding by
the trial court instead of a jury. This argument has been
repeatedly rejected by this court and others. (See, e.g., People v.
Falcon (2020) 57 Cal.App.5th 272, 279, review granted Jan. 27,
2021, S266041; Lopez, supra, 56 Cal.App.5th at pp. 957–958,
review granted.) We follow these holdings. SB 1437 is an act of
lenity and is not subject to the constitutional protections Montiel
cites. (See Lopez, at p. 957 [petitioners are not currently criminal
defendants with constitutional entitlement to a jury].)
Montiel urges us to find a difference between section
1170.95 petitioners convicted under a felony-murder theory and
those convicted under a natural and probable consequences
doctrine. He admits relief for felony-murder petitioners is an act
of lenity because they remain convicted by a jury of the
underlying felony. However, he argues this is not true of natural
and probable consequence doctrine petitioners because no jury
has validly convicted them of a crime.
This argument is meritless.
6
SB 1437 is an act of lenity because of the nature of the
statute. (See Lopez, supra, 56 Cal.App.5th at p. 958, review
granted.) It provides postconviction relief for persons sentenced
under certain theories. (Id. at pp. 957–958.) This does not
change based on the theory cited.
Moreover, in the case of both types of petitioners, a trial
court must engage in independent factfinding to evaluate
whether they can be convicted of murder under the current law
before they are eligible for resentencing. (See Rodriguez, supra,
58 Cal.App.5th at pp. 238–239, review granted; Clements, supra,
60 Cal.App.5th at pp. 616–617, review granted.) And, in some
cases, a natural and probable consequences doctrine petitioner
will remain convicted of the target offense, just as the felony-
murder petitioner remains convicted of the underlying
felony. Thus, not only is the theory underlying the petitioner’s
conviction irrelevant to the trial court’s determination at the
evidentiary hearing, but it also fails to create any distinction
between the two types of petitioners.
C
The prosecution argues substantial evidence supports the
trial court’s finding that Montiel could still be convicted of second
degree murder after the changes to sections 188 and 189.
Montiel’s response to this argument again improperly focuses on
what happened at trial. He claims the trial court made two
erroneous findings at the evidentiary hearing: (1) that the jury
“had been validly instructed” on implied malice murder, and (2)
that there was evidence to sustain such a finding if it had been
made, which Montiel argues contradicts the prosecutor’s
admission at trial that the People could not prove substantial
causation.
7
Each of these arguments fails because, as explained above,
the trial court acts as an independent fact finder at the
evidentiary hearing stage. The evidence cited by the trial court is
substantial support for its finding. Montiel does not contest this.
DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
GRIMES, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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