People v. Olivo CA3 ( 2021 )

Filed 10/20/21 P. v. Olivo CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C090006
Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-
2000-0006217, SF079356A)
v.
ABEL OLIVO,
Defendant and Appellant.
Defendant Abel Olivo appeals from the trial court’s order denying his petition for
resentencing under Penal Code section 1170.95. Defendant contends the trial court erred
by summarily denying his petition after determining he failed to establish a prima facie
case under the provisions of the statute. He argues the trial court should have reappointed
counsel, accepted briefing, and issued an order to show cause. We affirm.
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BACKGROUND
Prior Conviction
The relevant facts of this case are taken from our prior opinion in defendant’s
direct appeal. (People v. Olivo (Feb. 6, 2004, C038291) [nonpub. opn.] (Olivo)). “With
[defendant] acting as driver, gang members Jose Olivo and Henry Ortiz gunned down
two people in a liquor store.[1] Ortiz sought vengeance against African-American gang
members because of an earlier beating by a black rival gang. Unfortunately, the two
murder victims were not affiliated with gangs: one was the elderly liquor store owner,
the other merely a customer in the wrong place at the wrong time. An information
charged defendant, Jose, and Ortiz with two counts of murder with special circumstances
(Pen. Code, §§ 187, 190.2, subd. (a)(3), (16) & (22)), two counts of attempted murder
(Pen. Code, §§ 664, 187), one count of shooting at an inhabited dwelling (Pen. Code,
§ 246), and violations of the street gang terrorism statute (Pen. Code, § 186.22, subds. (a)
and (d)); defendant was also charged with possession of cocaine base for sale (Health &
Saf. Code, § 11351.5.) The court held separate trials for the three defendants. A jury
found defendant guilty of two counts of first degree murder, two counts of attempted
murder, and one count each of shooting at an inhabited building, gang terrorism, and
possession of cocaine base. The jury also found numerous special circumstance
allegations to be true. The court sentenced defendant to two terms of life without the
possibility of parole and two terms of life with the possibility of parole, plus 75 years to
life, plus a determinate term of 20 years.” (Id. [at pp. 1-2], fn. omitted.)
Defendant appealed, arguing, among other things, “insufficient evidence supports
his conviction for aiding and abetting the killings with intent to kill to support the three
special circumstance findings.” (Olivo, supra, C038291 [at p. 38].) We conducted a
1 “For clarity’s sake we shall refer to defendant’s brother Jose Olivo by his first name.”
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thorough review of all evidence and testimony presented at defendant’s trial, and detailed
the instructions provided to the jury. This included defendant telling police officers
multiple times “he knew Ortiz wanted to ‘blast’ someone,” meaning he knew they were
going to “[k]ill the dude that jumped [Ortiz.]” (Id. [at p. 39].) The jury instructions on
the special circumstances of “multiple murders, killing because of victim’s race, and a
gang killing,” required the jury to find either defendant was “the actual killer of the
human beings” or that defendant, “with the intent to kill, aided and abetted any actor in
the commission of the murder in the first degree.” (Id. [at pp. 38-39].)
On this issue we concluded, with the knowledge Ortiz and Jose wanted to kill
someone, “defendant proceeded to drive Jose and Ortiz to the site of the earlier beating.
He knew his brother was armed, angry, and intent on harming rival gang members. We
find sufficient evidence to support the jury’s finding that defendant aided and abetted the
killings with an intent to kill.” (Olivo, supra, C038291 [at p. 39].)
Penal Code Section 1170.95 Petition
On January 4, 2019, defendant filed a petition for resentencing under Penal Code
section 1170.95.2 The petition stated an information filed against him allowed the jury to
find him guilty under the felony-murder rule or the natural and probable consequences
doctrine; he was found guilty of first degree murder at trial; and he could not now be
convicted of first degree murder because of the changes to sections 188 and 189.
On March 8, 2019, the trial court found defendant had made a prima facie case,
appointed defendant counsel, and set an order to show cause hearing. Before this
hearing, the trial court changed its mind and held a discussion with counsel in chambers
where they discussed the facts of the case and our opinion in Olivo. The trial court told
the attorneys defendant actually isn’t eligible based on the special circumstance findings
2 Undesignated statutory references are to the Penal Code.
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and asked defendant’s counsel “[i]s there anything you wanna say?” Defendant’s counsel
replied, “Well, I wish I had something to say.” The trial court then stated in open court it
found defendant was ineligible for relief based on the special circumstance findings, so it
indicated it would deny the petition. On August 7, 2019, without briefing from either
party, the trial court issued a written order detailing its reasoning for denying defendant’s
petition. The order quoted the jury instructions for the three special circumstance
findings, which required the jury to find defendant was either the actual killer or had the
intent to kill. The trial court concluded the jury finding him guilty on all three special
circumstances rendered him ineligible for resentencing.
DISCUSSION
Defendant contends the trial court erred when it reversed its appointment of
counsel, failed to obtain written briefing, and consulted the record of conviction. For the
latter issue he specifically asserts the trial court was not permitted at the prima facie stage
to rely on the jury’s special circumstance findings and our prior opinion. Defendant
notes that this issue was being considered by our Supreme Court in People v. Lewis
(2021) 11 Cal.5th 952 (Lewis), which was pending when defendant filed his brief. Since
defendant filed his appeal, our Supreme Court has decided Lewis and its opinion requires
us to affirm the trial court’s order.
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, was enacted “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).) Senate Bill No. 1437 also added
section 1170.95, which allows those “convicted of felony murder or murder under a
natural and probable consequences theory [to] file a petition with the court that sentenced
the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
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any remaining counts when all of the following conditions apply: [¶] (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 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. [¶] (3) The
petitioner could not be convicted of first or second degree murder because of changes to
[s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
If the petition is facially valid, courts must perform a prima facie analysis under
section 1170.95, subdivision (c). This provision states: “The court shall review the
petition and determine if the petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has requested counsel, the
court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve
a response within 60 days of service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served. These deadlines shall be
extended for good cause. If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. (c).)
Our Supreme Court in Lewis found under this provision, the proper prima facie
procedure is: “[A] complying petition is filed; the court appoints counsel, if requested;
the issue is briefed; and then the court makes one (not two) prima facie determination.”
(Lewis, supra, 11 Cal.5th at p. 966.) “[S]ubdivision (c) does not establish an internal,
threshold barrier to the appointment of counsel and the opportunity for briefing.” (Id. at
p. 967.)
The court also determined that, in performing this preliminary screening function,
courts are not limited to the allegations of the petition; rather, they may “rely on the
record of conviction in determining whether that single prima facie showing is made.”
(Lewis, supra, 11 Cal.5th at p. 970.) And prior appellate opinions in a defendant’s case
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“are generally considered to be part of the record of conviction.” (Id. at p. 972.) If the
record of conviction establishes the petition lacks merit, the trial court may deny the
petition without conducting further proceedings. (Id. at p. 971 [“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”].)
The court in Lewis also determined denial of counsel at the prima facie stage is
“state law error only.” (Lewis, supra, 11 Cal.5th at p. 973.) So this type of error is
subjected to harmless error test under People v. Watson (1956) 46 Cal.2d 818, meaning a
defendant “ ‘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.” ’ ” (Lewis, at p. 974.) Defendant cannot make this showing.
Though the trial court here originally appointed counsel, defendant asserts the trial
court reversed its appointment of counsel and failed to take briefing. We find no
indication in the record the trial court relieved defendant’s counsel. The trial court did
however err when it did not request briefing before ruling, and briefing is the central
benefit of counsel at the prima facie stage. Though the trial court discussed the issue
with both attorneys in chambers and defendant’s counsel indicated there was no basis to
support the petition, the statute still mandates the “prosecutor shall file and serve a
response” and defendant is permitted to submit a reply. (§ 1170.95, subd. (c).)
This error, however, was harmless because the record of conviction establishes
defendant is ineligible as a matter of law. The jury instructions and verdicts confirm the
jury necessarily found defendant acted with the intent to kill. And we concluded in
defendant’s direct appeal that there was sufficient evidence supporting this finding. This
conclusion is law of the case and is binding. (Friends of Spring Street v. Nevada City
(2019) 33 Cal.App.5th 1092, 1106.) Thus, defendant still could be convicted of murder,
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even after the changes introduced to section 189 by Senate Bill No. 1437 and is therefore
ineligible for relief under section 1170.95. (See §§ 189, subd. (e), 1170.95, subd. (a)(3).)
There is no reasonable probability additional briefing could have changed this, so the trial
court denying the petition without briefing was harmless error.
DISPOSITION
The judgment (order) denying the petition is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
RENNER, J.
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