People v. Acajabon CA5 ( 2021 )

Filed 10/26/21 P. v. Acajabon CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081440
Plaintiff and Respondent,
(Super. Ct. No. 12CM0820-003)
v.
ROSE MARIE ACAJABON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Randy L.
Edwards, Judge.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Christina
Simpson, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Smith, J.
INTRODUCTION
In 2013, a jury found petitioner Rose Marie Acajabon guilty of the second degree
murder of Armando Ramirez. (Pen. Code, 1 § 187, subd. (a).) For this offense, she was
sentenced to a term of 15 years to life.
In 2019, petitioner filed a petition seeking resentencing pursuant to section
1170.95. The trial court denied the petition on the ground petitioner was prosecuted and
convicted as a direct aider and abettor, and therefore was ineligible for resentencing.
Petitioner contends her petition was improperly denied because (1) she was not
served with the People’s opposition, (2) the court failed to appoint counsel as required,
and (3) her petition set forth a prima facie claim for relief. We agree that the court
prejudicially erred in denying the petition without the opposition having been properly
served and without appointing counsel. We further conclude petitioner set forth a prima
facie claim for resentencing relief and, accordingly, the petition was erroneously denied
at the prima facie stage. Accordingly, we reverse.
FACTUAL AND PROCEDURAL HISTORY
This court previously summarized the facts underlying petitioner’s offense as
follows:
“On March 5, 2012, Acajabon drove Jason Reyes and Donald Simpson into
Hanford from Alameda County. Upon arriving in Hanford, the group met
up with Reyes’s daughter, [M.R.], and the four spent the afternoon smoking
marijuana and consuming methamphetamine. Although [M.R.] had
previously met Simpson, this was her first contact with Acajabon, whom
her father referred to as ‘wifey.’ Later in the afternoon, after purchasing a
train ticket back to Alameda for Simpson, the four stopped for food at a
local McDonalds drive-through. At approximately 5:15 p.m., while the
group was parked outside of the McDonald’s restaurant, Reyes stated that
he had been thinking about ‘what he wanted to do’ to a man named
Armando Ramirez who lived in Hanford and had previously been convicted
of molesting [M.R.]. Ramirez ended up serving nine years in prison for the
offense. Still in the parking lot, Reyes informed the group that he had
1 Undesignated statutory references are to the Penal Code.
2.
thought a lot about what Ramirez had done to [M.R.] and that he wanted to
‘get that fool’ or ‘[w]e are going [to] get that fool.’
“After leaving the McDonald’s parking lot, Acajabon stopped at a
red light, and [M.R.] noticed that Ramirez was a passenger in an adjacent
car. Acajabon and [M.R.] were in the front seats with Simpson and Jason
in the rear. As the car containing Ramirez made a left-hand turn into a
nearby Rite-Aid, Reyes pulled out a handgun and told Acajabon to turn into
the Rite-Aid as well. Being in the incorrect lane to make a left-hand turn,
Acajabon drove her car over the divider to reach the Rite-Aid parking lot
and then maneuvered her car into a parking spot facing the exit. Reyes
exited the vehicle, approached Ramirez, and fatally shot him.
“Afterwards, Reyes climbed back into Acajabon’s car and she drove
away from the scene, back to [M.R.]’s apartment complex. Upon arriving
at the complex, Acajabon, Reyes, and [M.R.] switched cars, and Simpson
disappeared. Acajabon, Reyes, and [M.R.] spent the evening at a local drug
house, and, at some point during the night, Acajabon and Reyes left
Hanford. The two were later apprehended by police in Ventura[.]” (People
v. Acajabon (Mar. 20, 2015, F067381) [nonpub. opn.], fns. omitted.)
On March 25, 2013, the Kings County District Attorney filed a first amended and
consolidated information charging petitioner and codefendant Simpson with the first
degree murder of Ramirez (§ 187, subd. (a); count 1), with the allegation that the murder
was committed intentionally and by means of lying in wait (§ 190.2, subd. (a)(15)).
On April 5, 2013, a jury found petitioner not guilty of first degree murder, but
convicted her on count 1 of the included offense of second degree murder. On May 16,
2013, the court sentenced petitioner to a term of 15 years to life.
Petitioner appealed. Relevant here, she argued the trial court prejudicially erred in
instructing the jury it could find her guilty of murder if it found she aided and abetted the
transportation of methamphetamine and that murder was a “natural and probable
consequence” of the transportation of methamphetamine. This court agreed the
instruction was erroneous because the evidence suggested the murder was motivated by
Reyes’s desire to retaliate against Ramirez for crimes against Reyes’s daughter and was
unrelated to the transportation of methamphetamine. However, this court concluded the
3.
error was factual in nature, and did not prejudice petitioner because there was no
affirmative indication the verdict rested on this unsupported ground. Rather, the verdict
was supported by evidence that petitioner directly aided and abetted the murder.
Accordingly, we affirmed. (People v. Acajabon, supra, F067381.)
On March 13, 2019, petitioner, in propria persona, filed a petition for resentencing
pursuant to section 1170.95. In the petition, petitioner stated that she was convicted of
murder as an aider and abettor, and that the jury instructions and arguments permitted her
to be convicted under a natural and probable consequences theory of liability.
On May 9, 2019, the People filed an opposition to the petition, arguing that section
1170.95 is unconstitutional and petitioner is, in any event, ineligible for resentencing
because she was convicted as a direct aider and abettor who acted with implied malice.
Although the People acknowledged the possibility that petitioner was “arguably”
convicted under a natural and probable consequences theory, they emphasized that she
still could be convicted of murder as a direct aider and abettor and therefore was not
entitled to relief. The People did not serve the opposition on petitioner, but rather on her
trial counsel.
The court did not appoint counsel to represent petitioner and petitioner filed no
reply to the People’s opposition.
On June 3, 2020, the trial court summarily denied the petition. The court
acknowledged that the jury was instructed it could find petitioner guilty under a natural
and probable consequences theory on the basis that murder was a natural and probable
consequence of transportation of methamphetamine. However, the trial court noted that
this court found the natural and probable consequences instruction to be erroneous and
unsupported by the evidence. The court also noted the jury was instructed on direct aider
and abettor liability for murder, and that this court found substantial evidence that
petitioner aided and abetted the murder. The court concluded: “The record does not
support the conclusion that [p]etitioner was a participant in a separate target felony
4.
during which the murder occurred. The record – including the jury instructions – lays out
a factual scenario in which [p]etitioner was an aider and abettor in murder itself and acted
with the requisite malice in doing so.” On that basis, the petition was denied.
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “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).) The bill accomplished this task by adding three
separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile).) First, to amend the natural and probable consequences doctrine, the bill added
section 188, subdivision (a)(3), which requires a principal to act with malice aforethought
before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at
pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189,
subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section
190.2.”2 (§ 189, subd. (e); accord, Gentile, at p. 842.)
2 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)
5.
Finally, the bill “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 under the two ameliorative provisions above.”3 (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “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 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.’ (§ 1170.95, subd[]. (a)(1)-(3); see also § 1170.95,
subd. (b)(1)(A).) 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.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952,
959-960 (Lewis).)
Where the petition complies with the requirements of section 1170.95, subdivision
(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and
the petitioner may file a reply. The trial court must then review the petition to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
3 The Legislature recently passed, and the Governor signed, a bill amending section
1170.95. (Sen. Bill No. 775 (2021-2022 Reg. Sess.).) The amendments are not yet
effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our
analysis. We quote from the version of section 1170.95 presently in effect.
6.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this
determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. The Petition was Improperly Denied
Petitioner contends her petition was improperly denied because (1) she was not
served with the People’s opposition, (2) the court failed to appoint counsel as required,
and (3) she set forth a prima facie claim for resentencing relief.
Petitioner is correct that the People failed to serve the opposition on her and the
trial court failed to appoint counsel to represent her. Proper service and appointment of
counsel were both required by section 1170.95, subdivision (c). (See Lewis, supra, 11
Cal.5th at pp. 961-963, 967.) Thus, we may affirm only if petitioner was not prejudiced
by these errors. To demonstrate prejudice, petitioner must show that, absent the errors, it
7.
is reasonably probable her petition would not have been denied without an evidentiary
hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974.) As we explain, we conclude
petitioner has met her burden to demonstrate prejudice.
To be eligible for relief pursuant to section 1170.95, petitioner must have been
convicted of felony murder or murder under a natural and probable consequences theory.
(§ 1170.95, subd. (a); accord, Gentile, supra, 10 Cal.5th at p. 853.) Here, the jury was
instructed on various theories of first and second degree murder, including general
principles of aiding and abetting. In addition, over a defense objection, the jury was
instructed it could convict petitioner of murder if it concluded she conspired or aided and
abetted in the transportation of methamphetamine, and murder was a natural and probable
consequence of that offense. In closing argument, the prosecutor argued three theories of
liability: direct aiding and abetting, conspiracy to commit murder, and murder as a
natural and probable consequence of the transportation of methamphetamine. The
instructions and arguments leave open the possibility that petitioner was convicted of
murder under a natural and probable consequences theory. Thus, the trial record does not
establish petitioner is ineligible for resentencing relief as a matter of law.
Nonetheless, the People urge us to conclude petitioner is categorically ineligible
for resentencing based on our decision in petitioner’s direct appeal, specifically our
determination that petitioner was not prejudiced by the erroneously given natural and
probable consequences instruction. To resolve this argument, we must briefly address the
legal principles we applied in that decision. When a trial court instructs a jury on two
theories of guilt, one correct and one incorrect, the reviewing court must first determine
whether the error in instructing on an incorrect theory is legal or factual in nature.
(People v. Guiton (1993) 4 Cal.4th 1116, 1128; accord, People v. Aledamat (2019) 8
Cal.5th 1, 7.) If the incorrect theory is legally inadequate, i.e., contrary to law, the error
is subject to reversal unless it was harmless beyond a reasonable doubt. (Guiton, at
p. 1128; Aledamat, at pp. 8-13.) However, if the incorrect theory was merely factually
8.
unsupported, reversal is not required so long as a valid ground for the verdict remains and
there is no “affirmative indication in the record that the verdict actually did rest on the
inadequate ground.” (Guiton, at p. 1129.)
In petitioner’s direct appeal, we determined the error in instructing on the natural
and probable consequences theory was factual in nature. We therefore affirmed because
there was no affirmative indication in the record that the verdict actually did rest on a
natural and probable consequences theory. Additionally, a valid ground for the verdict
remained, inasmuch as substantial evidence supported a verdict based on petitioner
having directly aided and abetted the murder. (People v. Acajabon, supra, F067381.)
Significantly, we were not required to apply, and did not apply, the harmless beyond a
reasonable doubt standard. In other words, we were not required to find, beyond a
reasonable doubt, that the erroneous instruction did not actually contribute to the verdict,
or that the verdict was based on the valid theory of direct aiding and abetting. (See
People v. Chun (2009) 45 Cal.4th 1172, 1202, 1204-1205 [applying harmless beyond a
reasonable doubt standard].) Because we did not definitively rule out the possibility that
the verdict was based on a natural and probable consequences theory, we cannot now
conclude that our holding affirmatively and unequivocally establishes petitioner is
ineligible for resentencing relief. (See Lewis, supra, 11 Cal.5th at pp. 971-972.) Any
such conclusion at this stage of the proceedings would require factfinding, which is
strictly prohibited at the prima facie review. (Id. at p. 972.)
In light of the foregoing, we conclude there is a reasonable probability that the
petition would not have been denied prior to the issuance of an order to show cause had
petitioner been served with the People’s opposition and afforded legal counsel. (Lewis,
supra, 11 Cal.5th at pp. 973-974.) Accordingly, we cannot say the errors were harmless.
Moreover, because we cannot determine from the record that petitioner is ineligible for
resentencing as a matter of law, we conclude the trial court erred in denying the petition
without issuing an order to show cause and holding an evidentiary hearing. (§ 1170.95,
9.
subds. (c), (d)(1); Lewis, supra, at pp. 971-972.) Accordingly, we will reverse and
remand for further proceedings. In light of this disposition, we do not address
petitioner’s additional arguments in support of the issuance of an order to show cause.
DISPOSITION
The June 3, 2020 order denying petitioner’s section 1170.95 petition is reversed.
On remand, the trial court is directed to appoint counsel to represent petitioner, and to
issue an order to show cause and conduct further proceedings as required under section
1170.95, subdivision (d).
10.