People v. Herrera CA5 ( 2021 )

Filed 12/1/21 P. v. Herrera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079701
Plaintiff and Respondent,
(Super. Ct. No. SUF29898B)
v.
RAUL HERRERA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Athena Shudde, 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, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Detjen, J. and Smith, J.
In 2008, defendant Raul Herrera was convicted of second degree murder (Pen.
Code,1 § 187 [count 1]) and active gang participation (§ 186.22, subd. (a) [count 2]). In
connection with the murder conviction, the jury found: (1) the crime was committed for
the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22,
subd. (b)(5)); and (2) defendant was a principal in the commission of the offense and a
co-principal personally and intentionally discharged a firearm and proximately caused
death to someone other than an accomplice (§ 12022.53, subds. (d), (e)(1)). The trial
court imposed a sentence of 15 years to life with a minimum parole ineligibility period of
15 years, plus 25 years to life for the vicarious firearm discharge enhancement, on
count 1; and a consecutive three years on count 2.
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95,
which was denied. On appeal, he contends that “[t]he trial court’s denial of the petition
without appointment of counsel and a hearing constitutes error under section 1170.95 and
requires reversal.”
We reverse.
BACKGROUND
I. The shooting2
At a party in Merced, members of two Merced subsets of the Norteño criminal
street gang exchanged gang taunts with members of the West Coast Outlaws, an Atwater
criminal street gang. Afterward, defendant and Robby Lee Maule—both Norteños—
confronted members of the West Coast Outlaws in a garage off a nearby alley. Maule
fired two gunshots into the garage while defendant stood behind him. Korey Suttles, a
member of the West Coast Outlaws, died of a gunshot wound.
1 Subsequent statutory citations refer to the Penal Code.
2 We derive the facts of the incident from our nonpublished opinion in the direct
appeal. (See People v. Maule et al. (May 10, 2010, F057094, F057096), as modified on
denial of rehearing on June 4, 2010, [nonpub. opn.].)
2.
II. The petition
On January 8, 2019, defendant filed a petition requesting resentencing pursuant to
section 1170.95. He marked the following checkboxes:
“1. A complaint, information, or indictment was filed against me that
allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine.
“2a. At trial, I was convicted of 1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences doctrine;
[¶] . . . [¶]
“3. I could not now be convicted of 1st or 2nd degree murder because of
changes made to Penal Code §§ 188 and 189, effective January 1, 2019.
[¶] . . . [¶]
“4. I request that this court appoint counsel for me during this re-
sentencing process. [¶] . . . [¶]
“6. (If applicable) I was convicted of 2nd degree murder under the natural
and probable consequences or under the 2nd degree felony murder doctrine
and I could not now be convicted of murder because of changes to Penal
Code § 188, effective January 1, 2019.”
The following sentence preceded defendant’s signature:
“I declare under penalty of perjury that the above is true except as to that
stated on information or belief or that which is a legal conclusion and as to
those, I believe them to be true.” (Boldface omitted.)
In its ruling filed March 13, 2019, the court denied the petition. It reasoned:
“The record shows petitioner could be convicted of second-degree
murder today, regardless of the changes to sections 188 or 189, because the
evidence demonstrates petitioner was charged and prosecuted under a
malice murder theory. The jury was not given a felony murder instruction.
Petitioner was prosecuted and convicted as an accomplice/aider and abettor
to the crime of murder. He was not convicted of murder under the natural
and probable consequences doctrine, where malice was implied from
participation in a non-target felony. Further, the jury found as true, under
the accomplice to malice murder theory, the enhancement of personal use
of a firearm for gang purposes.”
3.
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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis), quoting Stats. 2018,
ch. 1015, § 1, subd. (f).) The bill amended sections 188 and 189 of the Penal Code.
Section 188, subdivision (a)(3) now reads, “Except as stated in subdivision (e) of Section
189, in order to be convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” Section 189, subdivision (e) now states, “A participant in the
perpetration or attempted perpetration of a felony listed in subdivision (a) 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.”
Senate Bill No. 1437 (2017-2018 Reg. Sess.) also “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.” (Lewis, supra, 11 Cal.5th at p. 959.) “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 was convicted of first
4.
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.’ ” (Lewis, supra, at
pp. 959-960, quoting § 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A).)
“Additionally, the petition shall state ‘[w]hether the petitioner requests the appointment
of counsel.’ ” (Lewis, supra, at p. 960, quoting § 1170.95, subd. (b)(1)(C).) “If a
petitioner fails to comply with [section 1170.95,] subdivision (b)(1), ‘the court may deny
the petition without prejudice to the filing of another petition.’ ” (Lewis, supra, at p. 960,
quoting § 1170.95, subd. (b)(2).) “Where the petition complies with [section 1170.95,]
subdivision (b)’s three requirements,[3] then the court proceeds to [section 1170.95,]
subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for
relief.” (Lewis, supra, at p. 960, quoting § 1170.95, subd. (c).)
Section 1170.95, subdivision (c) provides:
“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.”
“ ‘If the petitioner has requested counsel, the court shall appoint counsel to
represent the petitioner.’ [Citation.] The combined meaning is clear: petitioners who
3 “The petition shall include all of the following: [¶] (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) The superior court case number and year of the
petitioner’s conviction. [¶] (C) Whether the petitioner requests the appointment of
counsel.” (§ 1170.95, subd. (b)(1)(A)-(C).)
5.
file a complying petition requesting counsel are to receive counsel upon the filing of a
compliant petition.” (Lewis, supra, 11 Cal.5th at p. 963.) Only after the appointment of
counsel and the opportunity for briefing may the court consider the petitioner’s record of
conviction to determine whether the petitioner has made a prima facie showing that he or
she is entitled to relief. (Id. at p. 957.)
“[T]he prima facie inquiry under [section 1170.95,] subdivision (c) is limited.
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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citation.] ‘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.” ’ [Citation.]”
(Ibid.; see 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.’ ”].)
II. Analysis
The record demonstrates that defendant filed a compliant petition that requested
appointment of counsel. The court erred in denying the petition without appointing
counsel.
In addition, the court denied defendant’s petition on the grounds that he “was
prosecuted and convicted as an accomplice/aider and abettor to the crime of murder” and
“was not convicted of murder under the natural and probable consequences doctrine.”
The record demonstrates that the court instructed the jury on two distinct theories of
derivative culpability for this offense: (1) defendant could be found guilty if he directly
aided and abetted the perpetrator (Maule) in the commission of the murder; or
6.
(2) defendant could be found guilty if he aided and abetted the perpetrator (Maule) in the
commission of another crime (assault with a firearm) and murder was a natural and
probable consequence of that crime. (Cf. People v. Soto (2020) 51 Cal.App.5th 1043,
1055, [trial court did not provide any instruction on which jury could have found the
accused guilty of second degree murder under the natural and probable consequences
doctrine], abrogated on another ground by Lewis, supra, 11 Cal.5th at p. 967.) In his
summation, the prosecutor reiterated that Maule was “the one who pulled the trigger” and
“the one who killed [Suttles].” While he remarked that defendant was subject to “ ‘aider
and abettor liability,’ ” he never articulated whether defendant was guilty because he
directly aided and abetted Maule in the commission of the murder (see People v. Prado
(2020) 49 Cal.App.5th 480, 487 [“ ‘direct’ aider and abettor liability”]) or because he
“aid[ed] and abet[ted] only an intended assault,” “a murder result[ed],” and a murder was
“a natural and probable consequence of the intended assault” (People v. McCoy (2001) 25
Cal.4th 1111, 1117). In support of its ruling, the court pointed out that “the jury found as
true” “the enhancement of personal use of a firearm for gang purposes,” i.e., defendant
was a principal in the commission of the murder offense and a co-principal (Maule)
personally and intentionally discharged a firearm and proximately caused death to
someone other than an accomplice. For the purposes of a section 12022.53, subdivision
(e)(1) enhancement, however, a principal “includes aiders and abettors under the natural
and probable consequences doctrine.” (People v. Lisea (2013) 213 Cal.App.4th 408,
416.) “[T]he time for weighing and balancing and making findings on the ultimate issues
arises at the evidentiary hearing stage rather than the prima facie stage, at least where the
record is not dispositive on the factual issues.” (People v. Duchine (2021) 60
Cal.App.5th 798, 815.) Absent a record that indisputably establishes that defendant was
not convicted of second degree murder under the natural and probable consequences
doctrine, “the trial court should not question his evidence.” (Ibid.; see Lewis, supra, 11
Cal.5th at p. 972 [“[T]he ‘prima facie bar [is] intentionally and correctly set very
7.
low.’ ”].) The court erroneously determined that defendant failed to make a prima facie
showing for relief.
Neither party contends that these errors were harmless and we find it reasonably
probable that the petition would not have been denied in the absence of the errors. (See
Lewis, supra, 11 Cal.5th at pp. 972-974; see also id. at p. 973 [“Typically, when an ‘error
is purely one of state law, the Watson[4] harmless error test applies.’ ”].) Accordingly, we
reverse.
DISPOSITION
The March 13, 2019 order denying defendant’s petition for resentencing pursuant
to section 1170.95 is reversed. On remand, the trial court is directed to appoint counsel,
issue an order to show cause, and conduct further proceedings as required under section
1170.95, subdivision (d). (See People v. Rivera (2021) 62 Cal.App.5th 217, 239.)
4 People v. Watson (1956) 46 Cal.2d 818.
8.