People v. Marin CA2/3 ( 2021 )

Filed 10/28/21 P. v. Marin CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B308620
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA071960)
v.
CORINA MARIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Renée F. Korn, Judge. Affirmed.
Eric R. Larson, 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, Assistant
Attorney General, Amanda V. Lopez and Ryan M. Smith, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Corina Marin petitioned for resentencing under Penal
Code1 section 1170.95. The trial court appointed counsel and
found that Marin failed to make a prima facie showing for relief,
concluding that she was either the actual killer, a direct aider
and abettor to the murder, or a major participant in the
underlying crime who acted with reckless indifference to human
life. Marin argues that the court erred in denying her petition
before holding an evidentiary hearing. We disagree and affirm.
BACKGROUND
The following facts are taken from our opinion affirming
Marin’s conviction in People v. Marin (Feb. 5, 1996, B086974)
[nonpub. opn.].
On November 30, 1992, 87-year-old Guillermo Villa was
found dead lying in a pool of blood in his home. He suffered a
fractured larynx due to manual strangulation, blunt force trauma
to both eyes, a broken cheekbone, eight broken ribs on his right
side, three broken ribs on his left side, hemorrhaging under his
scalp on both sides of his head, five or six puncture wounds to the
forehead and defensive wounds to his left hand, wrist, knuckles
and fingers. Some of Villa’s teeth had been knocked out. A
criminalist found a belt around Villa’s neck. The coroner
determined that Villa died of multiple traumatic injuries as well
as a fractured larynx that indicated manual strangulation.
Villa’s body was discovered by his brother-in-law Antonio
Garcia. Villa’s home abutted Garcia’s and he looked after Villa
on a daily basis. Garcia’s son, William and Marin’s mother lived
with Garcia. On November 29, 1992, Garcia took Villa to the
1 All further statutory references are to the Penal Code.
2
market. Marin was supposed to be attending a drug treatment
program. Marin asked Villa to loan her money and Villa loaned
her $8. Later that day, Garcia saw Marin on a corner four blocks
away. The next morning Garcia found Villa’s body inside Villa’s
home. Neither his screen door nor house door was locked.
The motive for the murder appeared to be robbery. Villa
kept large amounts of cash in large denominations at home
because he did not trust banks. When his body was discovered,
his wallet was missing and no other money was found in the
house except $3,000, which had been hidden. The investigating
officers found no evidence of forced entry, but found that one of
the bedrooms had been ransacked. A neighbor placed Marin
across the street from Villa’s home approximately an hour and a
half after the murder.
Investigators located Marin at a nearby abandoned house
on November 30, 1992. They asked to see the bottom of Marin’s
shoes and noted that the soles matched a shoe print on Villa’s
chest. They also preserved blood stains on Marin’s shoes, which
she claimed were there from injecting narcotics. A detective
escorted Marin to the bathroom where she witnessed Marin
removing a $100 bill from her vagina. When officers transported
Marin to jail, a detective told Marin that they knew she did not
commit the crime alone, and if she wanted to talk, she could do
so. Marin replied, “What for? I’ll still be in jail. We’d get the
same anyhow.”
A criminalist determined the blood on Marin’s shoes could
have only come from three percent of the population who shared
Villa’s genetic markers and was not Marin’s. The tread design on
Marin’s shoes also matched the shoe prints on Villa’s clothes.
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An information charged Marin with murder (§ 187,
subd. (a); count 1), first degree residential burglary (§ 459;
count 2), and two counts of robbery (§ 211; counts 3 & 4). It was
further alleged that the murder was committed during the
commission of a robbery and burglary. (§ 190.2, subd. (a)(17).)
No other person was charged with these crimes.
The jury convicted Marin of first degree murder with a true
finding on a robbery-murder special circumstance (§§ 187,
subd. (a), 190.2, subd. (a)(17)) and two counts of first degree
robbery. Marin was sentenced to life without the possibility of
parole. We affirmed Marin’s conviction on direct appeal. (People
v. Marin, supra, B086974.)
On April 17, 2019, Marin filed a section 1170.95 petition
asserting that she had been convicted of murder, but could not be
convicted today under statutory changes made by Senate Bill
No. 1437 (2017–2018 Reg. Sess.). The trial court appointed
counsel. The People filed a response, arguing Marin was not
entitled to relief because she was either a direct aider and abettor
in the murder or a major participant in the underlying felony and
acted with reckless indifference to human life. The trial court
found that Marin failed to make a prima facie showing that she
was entitled to relief because the record showed that she was
either the actual killer, or a direct aider and abettor to the
murder, or a major participant in the underlying felonies who
acted with reckless indifference to human life.
Marin appealed.
DISCUSSION
Marin contends the trial court erred by summarily denying
her petition without issuing an order to show cause. We
disagree.
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“Effective January 1, 2019, the Legislature passed Senate
Bill [No.] 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 [No.] 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.)
Under section 1170.95, subdivision (a)(1) to (3), 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) [t]he 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) [t]he petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” The petition must include: “(A) [a] declaration
by the petitioner that he or she is eligible for relief under this
section, based on all the requirements of subdivision (a)[;] [¶]
(B) [t]he superior court case number and year of the petitioner’s
conviction[;] [¶] (C) [w]hether the petitioner requests the
appointment of counsel.” (§ 1170.95, subd. (b)(1)(A)–(C).) If the
petition complies with section 1170.95, subdivision (b)’s three
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requirements, then the court proceeds to section 1170.95,
subdivision (c) to determine whether the petitioner has made a
prima facie showing for relief. (§ 1170.95, subd. (c).)
Prima facie review of a section 1170.95 petition is
analogous to the prima facie inquiry in a habeas corpus
proceeding. (People v. Lewis, supra, 11 Cal.5th at p. 971.) The
court takes the petitioner’s allegations as true and makes a
preliminary assessment regarding whether the petitioner would
be entitled to relief if those allegations were proved. (Ibid.) The
court should not “engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion,’ ” (id. at p. 972) or “ ‘reject
the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing’ ” (id. at p. 971).
However, if the record of conviction, including the court’s own
documents, contains facts refuting the allegations made in the
petition, the court may make a credibility finding adverse to the
petitioner. (Id. at p. 971.)
Marin argues that the court erred in ruling that she failed
to make a prima facie case for relief based on its own factual
findings and erred in ruling that the special circumstance
finding, which predated our Supreme Court’s decisions in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), precluded relief as a matter of law. We
disagree.
To be eligible for resentencing, Marin had to show that she
“could not be convicted of first or second degree murder because
of changes to Section 188 or 189” made by Senate Bill No. 1437.
(§ 1170.95, subd. (a)(3).) Under section 189, as amended, a
defendant can be convicted of felony murder if she was the actual
killer, or acted as a direct aider and abettor with the intent to
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kill, or was a major participant in the underlying felony and
acted with reckless indifference to human life. (§ 189, subd. (e);
People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted
Nov. 18, 2020, S264978.)
We agree with the trial court that the jury’s special
circumstance finding precludes Marin’s eligibility for
resentencing under section 1170.95 as a matter of law. Here, the
jury was instructed with CALJIC No. 8.80.1 which reads in
relevant part: “[I]f you are satisfied beyond a reasonable
doubt . . . the defendant actually killed a human being, you need
not find that the defendant intended to kill in order to find the
special circumstances to be true. [¶] [If you find that a
defendant was not the actual killer of a human being . . . or if you
are unable to decide whether the defendant was the actual killer
or [an aider and abettor,] you cannot find the special
circumstance to be true unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill
[aided,] [abetted,] [or] [assisted] any actor in the commission of
the murder in the first degree][, or with reckless indifference to
human life and as a major participant, [aided,] [abetted,] [or]
[assisted] in the commission of the crime of burglary or robbery
which resulted in the death of a human being.]” Thus, to find the
special circumstance true, the jury had to find either that Marin
was the actual killer, or that she aided and abetted murder with
the intent to kill, or that she aided and abetted the underlying
felonies while acting as a major participant with reckless
indifference to human life.
Senate Bill No. 1437’s amendment to section 189,
subdivision (e) effectively made the crime of felony murder
subject to the same requirements as special circumstance felony
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murder under section 190.2, subdivision (a)(17). Thus, the
changes Senate Bill No. 1437 made to section 189 would have no
effect on Marin’s conviction. “By finding a special circumstance
allegation true, the jury makes precisely the same finding it must
make in order to convict a defendant of felony murder under the
new law.” (People v. Galvan (2020) 52 Cal.App.5th 1134, 1141,
review granted Oct. 14, 2020, S264284.)
Marin asserts that the true finding on the special
circumstance does not establish that she was a major participant
in a felony who acted with reckless indifference to human life,
because her conviction predated our Supreme Court’s decisions in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522.
Banks, at page 803, set out a series of considerations relevant to
determining whether a particular defendant was a major
participant in the underlying felony.2 Similarly, Clark, at page
622, set out factors relevant in determining whether a defendant
acted with reckless indifference to human life.3 In light of these
2 Banks, supra, 61 Cal.4th at page 803, held that courts
should consider: “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role
did the defendant have in supplying or using lethal weapons?
What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?”
3 Clark,supra, 63 Cal.4th at pages 618 to 623, found that
courts should consider defendant’s knowledge of weapons, use
and number of weapons, physical presence at the crime and
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considerations, Marin argues that she may no longer meet the
standard for a major participant or a person who acted with
reckless indifference to human life and, therefore, could be
eligible for relief under section 1170.95. The People respond that
a section 1170.95 petition is not the proper vehicle to challenge
the validity of pre-Banks and Clark special circumstances
findings. Rather, Marin must make that challenge via habeas
corpus. (See In re Scoggins (2020) 9 Cal.5th 667, 673–674.)
While there are well-reasoned cases in support of both positions,
we agree with the People.4
In favor of Marin’s contention, People v. Torres (2020)
46 Cal.App.5th 1168, 1179, review granted June 24, 2020,
S262011, found that Banks and Clark construed section 190.2 in
a significantly different and narrower manner than courts had
previously construed the statute, so a court considering a section
1170.95 petition cannot defer to the jury’s pre-Banks and Clark
factual findings that the petitioner was a major participant who
acted with reckless indifference to human life, as those terms
were interpreted at the time. (Ibid.) “No court has affirmed the
special circumstances findings at issue post-Banks and Clark.
There is therefore a possibility that [the petitioner] was punished
opportunities to restrain the crime or aid the victim, the duration
of the felony, and defendant’s knowledge of his or her cohort’s
likelihood of killing.
4 Our Supreme Court granted review in People v. Strong,
review granted March 10, 2021, S266606, to consider whether a
felony-murder special circumstance finding made before Banks
and Clark precludes a petitioner from making a prima facie
showing of eligibility for relief under section 1170.95.
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for conduct that is not prohibited by section 190.2 as currently
understood, in violation of [petitioner’s] constitutional right to
due process.” (Id. at p. 1180, fn. omitted.) Other courts have
reached the same conclusion. (People v. Smith (2020) 49
Cal.App.5th 85, review granted July 22, 2020, S262835; People v.
York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020,
S264954.)
There is also ample authority for the view that a pre-Banks
and Clark special circumstance finding bars section 1170.95 relief
as a matter of law, and section 1170.95 is not the proper vehicle
to challenge such a finding. (People v. Gomez (2020) 52
Cal.App.5th 1, review granted Oct. 14, 2020, S264033; People v.
Galvan, supra, 52 Cal.App.5th 1134, review granted; People v.
Allison (2020) 55 Cal.App.5th 449; People v. Nunez (2020) 57
Cal.App.5th 78, review granted Jan. 13, 2021, S265918; People v.
Murillo, supra, 54 Cal.App.5th 160, review granted.) Those cases
reason that section 1170.95 was not meant to be an avenue for a
collateral attack on the sufficiency of the evidence to support a
special circumstance finding, and a defendant seeking to
challenge the sufficiency of the evidence to prove a pre-Banks and
Clark major participant or reckless indifference finding must do
so via a petition for writ of habeas corpus. (See, e.g., Gomez, at
pp. 16–17.) They conclude that Banks and Clark did not state a
new rule of law, but merely clarified the meaning of “ ‘ “major
participant” ’ ” and “ ‘ “reckless indifference,” ’ ” so the argument
that a pre-Banks and Clark special circumstance finding must be
presumed invalid overstates the impact of Banks and Clark.
(Allison, at p. 458.) They also note that after Banks and Clark,
“our Supreme Court has not required that juries be instructed on
the clarifications, and in the wake of Banks and Clark, no
10
mandatory language or material changes were made to the
CALCRIM special circumstance instructions.” (Nunez, at pp. 92–
93; Allison, at pp. 458–459.) There is “no basis to conclude as a
general matter that a pre-Banks and Clark jury was instructed
differently than a post-Banks and Clark jury, or resolved
different factual issues, answered different questions, or applied
different standards.” (Nunez, at p. 94.)
Further, the view that a challenge to a pre-Banks and
Clark finding must be made via habeas corpus is supported by
the fact that the burdens of proof are different for section 1170.95
petitions and habeas petitions. A petitioner challenging a pre-
Banks and Clark special circumstance finding by means of a writ
of habeas corpus must show that the record contains insufficient
evidence to prove he or she acted as a major participant or with
reckless indifference. (People v. Galvan, supra, 52 Cal.App.5th at
pp. 1142–1143, review granted; People v. Gomez, supra, 52
Cal.App.5th at p. 17, review granted.) In contrast, a petitioner
who demonstrates a prima facie case for relief under section
1170.95 has shifted the burden to the People to prove beyond a
reasonable doubt that he or she is ineligible for resentencing.
(People v. Lewis, supra, 11 Cal.5th at p. 960; § 1170.95,
subd. (d)(3).) Allowing petitioners to challenge a special
circumstance finding via a section 1170.95 petition would give
them an advantage over similarly situated defendants based on
the date of their convictions. (Galvan, at pp. 1142–1143.)
“Nothing in the language of section 1170.95 suggests it was
intended to provide redress for allegedly erroneous prior
factfinding. In particular, subdivision (a)(3) of section 1170.95
says nothing about erroneous prior findings or the possibility of
proving contrary facts if given a second chance. Rather, it
11
requires that the petitioner could not be convicted of murder
because of the changes to sections 188 and 189, not because a
prior fact finder got the facts wrong. The purpose of
section 1170.95 is to give defendants the benefit of amended
sections 188 and 189 with respect to issues not previously
determined, not to provide a do-over on factual disputes that
have already been resolved.” (People v. Allison, supra,
55 Cal.App.5th at p. 461, italics omitted.)
We agree with those cases holding that a special
circumstance finding, even if made pre-Banks and Clark, still
precludes a petitioner’s eligibility for relief under section 1170.95
as a matter of law. Accordingly, we conclude that the trial court
correctly denied Marin’s petition.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
MATTHEWS, J.*
We concur:
EDMON, P. J. EGERTON, 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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