People v. Morones CA2/2 ( 2021 )

Filed 12/7/21 P. v. Morones CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B309121
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA080781)
v.
MARTIN MORONES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Mike Camacho, Judge. Reversed and
remanded to the trial court.
Law Offices of Stein and Markus, Andrew M. Stein,
Joseph A. Markus, and Brentford Ferreira 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 Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 2007, Martin Morones (Morones) and Robert Canizalez 1
(Canizalez) raced their cars in a speed contest that resulted in
the death of three people. In 2009, a jury convicted Morones of
three counts of second degree murder (Pen. Code, § 187, subd. (a),
counts 1 through 3)2 and found true the allegations that he
personally inflicted great bodily injury (§ 1203.075, subd. (a)).
The jury also convicted Morones of three counts of vehicular
manslaughter with gross negligence (§ 192, subd. (c)(1), counts 5
through 7). He was sentenced to state prison for an aggregate of
45 years to life on counts 1 through 3. The sentences on counts 5
through 7 were stayed pursuant to section 654. We affirmed the
judgment in People v. Canizalez (2011) 197 Cal.App.4th 832.
In 2020, Morones filed a petition for resentencing pursuant
to section 1170.95. After briefing by both sides, the trial court
held a section 1170.95, subdivision (c) hearing, determined that
Morones had failed to establish a prima facie case of eligibility
and denied the petition. On appeal, Morones argues that the
trial court erred by improperly making factual findings. The
Attorney General agrees that the denial must be reversed,
affirmatively asserting that appellant alleged facts sufficient to
state a prima facie case of eligibility because the record of
conviction does not show him to be ineligible as a matter of law.
We reverse and remand the matter to the trial court with
directions to issue an order to show cause and hold an
evidentiary hearing pursuant to section 1170.95, subdivision
(d)(3).
1 Canizalez is not a party to this appeal.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS
Evidence in People v. Canizalez3
“Background
“In October 2007, Dora Groce (Dora) resided at Brookside
Mobile Home Park (Brookside) in El Monte with her husband and
their two children, eight-year-old Robert and four-year-old
Katherine. Brookside had approximately 500 units and only one
entrance and exit, which was on Elliott Avenue, east of Parkway
Drive. Proceeding east on Elliott Avenue across Parkway Drive
led directly into Brookside. Dora drove a 2002 Nissan Altima
(Altima).
“The intersection of Parkway Drive and Klingerman Street
was a quarter of a mile south of the intersection of Parkway
Drive and Elliott Avenue. Both intersections had four-way stop
signs. The posted speed limit on Parkway Drive was 30 miles per
hour. Mountain View High School was in the area.
“The crash
“On October 8, 2007, between 5:00 and 5:30 p.m., Canizalez
driving a red Mustang and Morones driving a brown Honda north
on Parkway Drive, at Klingerman Street, stopped side by side.
They exchanged words, their tires screeched and they raced side
by side on Parkway Drive, attaining speeds up to 87 miles per
hour.
“According to two witnesses, German Uruena (German)
and his son Victor Uruena (Victor), the Honda took the lead. At
that time, Dora was proceeding from Brookside into the
intersection of Elliott Avenue and Parkway Drive in her Altima.
The Mustang and Honda ran through the four-way stop sign at
3 We borrow certain facts from the published portion of
Canizalez.
3
that intersection, the Honda hitting the rear of the Altima and
then the Mustang hitting the front. The Altima was pushed into
a green truck driven by Miguel Robles (Robles) and burst into
flames. The truck was turned 180 degrees. The Honda hit a red
Nissan Sentra driven by Marivel Villagrana (Villagrana), who
was in her car parked on Parkway Drive, a few houses north of
Elliott Avenue. Villagrana’s Sentra then hit a red Camaro in
front of it.
“The fatalities
“Los Angeles County Fire Captain Henry Rodriguez
responded to the accident scene, where he saw the Altima ‘totally
involved with fire.’ Black smoke and flames were inside the car,
with a burning woman visible in the front seat. ‘. . . [V]oices of
children screaming’ were coming from the back of the car. The
flames and intense heat made it difficult to break the windows
and impossible to free the occupants. When the fire was
extinguished, three bodies were found inside the car. The two in
the rear had their arms stretched out as if reaching for each
other. The victims were later identified as Dora, Katherine and
Robert.
“[Canizalez and Morones] flee the scene
After the collision, Canizalez got out of his Mustang,
walked to the Honda and helped Morones and a few other men
push the Honda into Brookside. Gilbert Canizalez (Gilbert),
Canizalez’s brother, lived with his family at Brookside. At
approximately 5:30 p.m., he saw Canizalez running toward their
home shaking, with a cut on his arm. Canizalez first told him
that he had been in a fight. When Gilbert said he did not believe
his brother, Canizalez told him that he was racing Morones, had
just crashed, lost consciousness and woke up when he smelled
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smoke. Gilbert drove him back to the accident scene to get
medical assistance from an ambulance. Gilbert admitted to
detectives that Canizalez told him that he and Morones had been
drinking beer before the crash.
“El Monte Police Sergeant Richard Williams was the first
responder to the accident scene and learned that ‘somebody
. . . had been pushing one of the cars that was involved in the
accident.’ He located the car, parked in a space 50 to 75 yards
from the entrance to Brookside. He contacted Marvin Morones
(Marvin), Morones’s brother, and asked him who had been
driving the car. Initially, Marvin said that he did not know, but
that it belonged to his father. After Sergeant Williams showed
the Honda to Marvin, Marvin admitted it belonged to Morones.
Morones fled to Mexico but was later deported back to the United
States. [¶] . . . [¶]
“The investigation
“Irwindale Police Officer John Fraijo, a former mechanic
and street racer, testified that he inspected the Honda and
Mustang, which was known for being a fast car. The tread wear
on the Mustang’s driver’s side rear tire was consistent with rapid
acceleration, and the rims and tires were larger than standard.
He was unable to determine if there were any engine
modifications due to the extensive front-end and fire damage.
The Honda, on the other hand, had been lowered ‘by changing out
the coil springs,’ the diameter of its rims had been changed to
lower its height and increase its maneuverability at high speeds,
it had an illegally modified air intake system, its catalytic
converter had been removed, and there had been ‘modification of
the headers,’ part of the exhaust system. These modifications
increased horsepower and speed.
5
“Fontana Police Captain Dave Faulkner, a traffic collision
reconstruction expert, reviewed the investigation file, including
diagrams, police reports and photographs, went to the scene and
took photographs, and inspected the involved cars. He calculated
that the minimum highest potential speed of the Mustang was 77
miles per hour, and could have been as high as 87 miles per hour,
and of the Honda was 80 miles per hour, and could have been as
high as 86 miles per hour. Based upon damage to the two
vehicles, Captain Faulkner believed that, at some point, they had
hit each other.
“In his report, Captain Faulkner stated that the primary
collision factor was attributed to the driver of the Mustang
because it was ‘his impact and his cause that was the direct
result of your party’s death.’ ‘[T]he Vehicle Code and the
California reporting system that deals with traffic collision
requires [sic] you to pick the one cause.’ However, he nonetheless
opined that both drivers shared the cause of the collision. It was
caused by the running of the stop sign by the two cars and their
unsafe speed. While he believed that the Honda did not hit the
Altima, because there was so much damage from the fire to the
back and side of the Altima, ‘[t]here was no way to tell.’” (People
v. Canizalez, supra, 197 Cal.App.4th at pp. 837–840,
fns. omitted.)
The Theories of Liability at Trial
The prosecutor proceeded on two theories of murder
liability: implied malice and the natural and probable
consequences doctrine. The jury was instructed on both theories.
Our Decision in Canizalez
In Canizalez, we rejected the argument that there was
insufficient evidence to support the murder convictions for
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Canizalez and Morones because there was overwhelming
evidence of implied malice as well as ample evidence of causation.
(People v. Canizalez, supra, 197 Cal.App.4th at pp. 841–846.) We
did not analyze whether there was sufficient evidence to support
their convictions under the natural and probable consequences
doctrine. (Id. at p. 846.)
Moving on, we considered Morones’s argument that the
trial court committed instructional error when it gave CALCRIM
No. 400, the instruction on aiding and abetting, in combination
with CALCRIM No. 403, the instruction on the natural and
probable consequences doctrine, without telling the jury it could
convict him of a less serious offense than that of which the direct
perpetrator was convicted. In his view, CALCRIM No. 400
essentially instructed that he should be convicted of the same
offense as the direct perpetrator because it stated that an aider
and abettor is “‘equally guilty’” of the crime committed by the
direct perpetrator. (People v. Canizalez, supra, 197 Cal.App.4th
at p. 848.) After determining that Morones had forfeited the
objection, we concluded that there was no prejudicial error
because there was sufficient evidence that Canizalez and
Morones “were guilty of second degree murder as joint, direct
perpetrators of the deaths of Dora and her children. As joint
perpetrators they were ‘equally guilty’ of the charged offense.”
(People v. Canizalez, supra, at p. 850.)
Next, we stated: “Even if the ‘equally guilty’ language in
the 2009 version of CALCRIM No, 400 was an incorrect
statement of the law, we nonetheless conclude that giving it here
was harmless under even the most stringent harmless error
standard. [Citation.] . . . [T]he evidence that Morones and
Canizalez were coparticipants in the speed contest and
7
coperpetrators of the victims’ deaths is overwhelming. Captain
Faulkner opined that both appellants shared the cause of the
collision, which was caused by running the stop sign and
speeding. It would be virtually impossible to conclude that either
one of the appellants was aiding the other, as they were both full
and equal participants in the speed contest that resulted in the
fatal accident.
“Similarly, any error in failing to include vehicular
manslaughter as a possible nontarget offense in CALCRIM
No. 403 was harmless beyond a reasonable doubt. The jury was
separately instructed on the elements of the offenses of murder
and vehicular manslaughter. On an aider and abettor theory,
one of the appellants had to be the direct perpetrator and the
other the aider and abettor. The jury found both [defendants]
guilty of second degree murder. Hence, if it decided the matter
on an aider and abettor theory, it had to have found that the
direct perpetrator satisfied the required elements for murder. If
the direct perpetrator committed murder, as discussed above, the
aider and abettor was “equally guilty” of murder under the
natural and probable consequences doctrine. Thus, even if
manslaughter was included in CALCRIM No. 403, the aider and
abettor would be guilty of murder.” (People v. Canizalez, supra,
197 Cal.App.4th at pp. 852–853.)
The Section 1170.95 Petition
On July 28, 2020, Morones filed a petition for resentencing
pursuant to section 1170.95. Morones checked boxes stating that:
(1) a complaint, information, or indictment had been filed against
him that allowed the prosecution to proceed under theories of
either felony murder or the natural and probable consequences
doctrine, (2) he was convicted of first or second degree murder
8
pursuant to the natural and probable consequences doctrine,
(3) he could no longer be convicted of murder pursuant to changes
made to sections 188 and 189, and (4) he could no longer be
convicted of second degree murder under the felony murder or
natural and probable consequences doctrine due to changes to
section 188.
Because the sentencing judge was no longer available to
rule on the petition, the case was assigned to a different judge.
On September 28, 2020, private defense counsel appeared on
Morones’s behalf and the matter was continued for further
proceedings. Following the prosecution’s opposition to the
petition, defense counsel replied and argued that there was a
prima facie case for relief because the jury had been instructed on
the natural and probable consequences doctrine, the prosecution
relied heavily on that doctrine during closing argument, and
Morones was not the actual killer.
At the next hearing, the trial court tentatively ruled that
Morones had failed to make “a prima facie showing that he could
not have been convicted of second-degree murder because [of] the
recent changes to . . . section 188 or 189.” It noted that Morones
had been convicted of murder and that the appellate court had
determined that there was sufficient evidence that Morones was
a direct perpetrator who acted with implied malice. The trial
court placed “great weight on the appellate court’s review on that
issue.”
After hearing argument, the court denied the petition. It
determined that Morones was a direct participant in a speed
contest because “there could not have been a speed [contest]
without two vehicles[.]” Because Morones was a “direct
participant in the speed [contest] that ultimately resulted in the
9
deaths of those victims,” there was “sufficient evidence to sustain
his conviction under second-degree murder based upon implied
malice.” Based on these factual findings, the trial court
concluded that Morones had been convicted of implied malice
murder.
This appeal followed.
DISCUSSION
I. Standard of Review.
This case is subject to de novo review because it involves
the application of law to undisputed facts. (People v. Blackburn
(2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction
Co. (2013) 56 Cal.4th 1014, 1018.)
II. Section 1170.95.
A defendant convicted of murder under a felony murder
theory or the natural and probable consequences doctrine can
have his or her conviction vacated and be resentenced on a lesser
count if he or she could not now be convicted of murder due to the
changes to sections 188 and 189 that took effect on January 1,
2019. (§ 1170.95.) These changes significantly modified the law
related to accomplice liability. (People v. Lopez (2019) 38
Cal.App.5th 1087, 1098–1099.)
A principal cannot be convicted of murder unless he or she
acted with malice aforethought, except as otherwise specified in
section 189. (§ 188, subd. (a)(3).)
After a defendant seeks relief by filing a petition that
satisfies section 1170.95, subdivisions (a) and (b) the trial court
“shall review the petition and determine if the petitioner has
made a prima facie showing that the [defendant] falls within the
provisions of this section. If the [defendant] has requested
counsel, the [trial court] shall appoint counsel to represent the
10
[defendant]. The prosecutor shall file and serve a response
within 60 days of service of the petition and the [defendant] may
file and serve a reply within 30 days after the prosecutor
response is served. . . . If the [defendant] 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).) After the
appointment of counsel and an opportunity for briefing, the trial
court may consider the record of conviction to determine whether
the defendant has made a prima facie showing of eligibility for
relief. (People v. Lewis (2021) 11 Cal.5th 952, 970 (Lewis).) The
record of conviction includes trial court and appellate court
documents “up to finality of the judgment.” (People v. Woodell
(1998) 17 Cal.4th 448, 455.)
“[W]hen assessing the prima facie showing, the trial court
should assume all facts stated in the section 1170.95 petition are
true. [Citation.]” (People v. Drayton (2020) 47 Cal.App.5th 965,
980 (Drayton), overruled on other grounds in Lewis, supra, 11
Cal.5th at p. 963.) If the record contains facts that refute
allegations in the petition, the petition can be denied. But “[t]his
authority to make determinations without conducting an
evidentiary hearing pursuant to section 1170.95, [subdivision] (d)
is limited to readily ascertainable facts from the record (such as
the crime of conviction), rather than factfinding involving the
weighing of evidence or the exercise of discretion[.]” (Drayton,
supra, at p. 980.)
If a trial court issues an order to show cause, it must hold a
hearing to determine whether to vacate the murder conviction,
recall the sentence, and resentence the defendant on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing, the
burden of proof is on the prosecution to prove beyond a
11
reasonable doubt that the defendant is ineligible for
resentencing. The parties “may rely on the record of conviction or
offer new or additional evidence to meet their respective
burdens.” (§ 1170.95, subd. (d)(3).)
III. Analysis.
A review of the record reveals that while there was strong
evidence indicating that appellant acted with implied malice due
to the danger inherent in his conduct (§ 188, subd. (a)(2)
[“circumstances attending the killing show an abandoned and
malignant heart”]; People v. McNally (2015) 236 Cal.App.4th
1415, 1425 [implied malice requires the performance of an act
that is dangerous to life and either knowledge of, or conscious
disregard of, that danger]), the record of conviction did not
establish as a matter of law that the jury convicted Morones
based on an implied malice theory rather than on a natural and
probable consequences theory. Based on his petition and the
record, Morones made a prima facie showing of eligibility for
resentencing and this case must be remanded for an evidentiary
hearing conducted pursuant to section 1170.95, subdivision (d)(3).
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DISPOSITION
The order is reversed. Upon remand, the trial court shall
issue an order to show cause and conduct a section 1170.95,
subdivision (d)(3) evidentiary hearing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________, J.
ASHMANN-GERST
We concur:
_________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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