People v. Vega CA2/5 ( 2021 )

Filed 12/8/21 P. v. Vega CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
THE PEOPLE, B308245
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA314454-03)
v.
CHRISTIAN VEGA,
Defendant and Appellant.
APPEAL from a court order of the Superior Court of Los
Angeles, County, Michael E. Pastor, Judge. Reversed and
remanded.
David Y. Stanley, 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, Senior
Assistant Attorney General, Idan Ivri and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Defendant and appellant Christian Vega appeals the trial
court’s order denying his petition for resentencing pursuant to
Senate Bill No. 1437 (Senate Bill 1437) and Penal Code section
1170.95.1
In 2009, the jury found Vega guilty of first degree murder
(§ 187, subd. (a) [count 1]), among other crimes, and found true
the special circumstance allegation that the murder was
committed while Vega was engaged in robbery and attempted
burglary (§ 190.2, subd. (a)(17)(A) & (G)). Vega was sentenced to
life without the possibility of parole.
After the enactment of Senate Bill 1437, Vega filed a
petition for vacatur of the murder conviction and resentencing
pursuant to section 1170.95. The trial court appointed counsel
and ordered briefing.
At a hearing on the matter, the prosecutor conceded that
the jury’s special circumstance finding—made before the
Supreme Court’s issuance of People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)—
did not render Vega ineligible for resentencing. The trial court
found Vega had made a prima facie showing of eligibility under
People v. Torres (2020) 46 Cal.App.5th 1168 (Torres), abrogated
on another ground in People v. Lewis (2021) 11 Cal.5th 952(Lewis)), and issued an order to show cause.
At the hearing following the order to show cause, the trial
court reversed its ruling and denied the petition as a matter of
law under People v. Galvan (2020) 52 Cal.App.5th 1134, review
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
granted on Oct. 14, 2020, S264284; People v. Gomez (2020) 52
Cal.App.5th 1, review granted Oct. 14, 2020, S264033; and People
v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18,
2020, S264978, which disagreed with Torres.
Vega asserts that he made a prima facie showing that he is
entitled to relief under section 1170.95, subdivision (c), and urges
us to remand the matter to the trial court to issue an order to
show cause and conduct a hearing.
The People respond that the special circumstance
allegation required the jury to find that Vega was a major
participant in the robbery and attempted burglary who acted
with reckless indifference to human life, which precludes Vega
from eligibility under section 1170.95. The People acknowledge
that there is disagreement among the courts of appeal on this
issue, but urge us to reconsider our position in Torres.
Alternatively, the People argue that this court may analyze the
purely legal question of whether Vega’s conviction satisfies Banks
and Clark, and deny the petition as a matter of law.
We reverse and remand to the trial court to issue an order
to show cause and conduct a hearing pursuant to section 1170.95,
subdivision (c).
DISCUSSION
Section 1170.95
“Effective January 1, 2019, the Legislature passed Senate
Bill 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
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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 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. (See [People v.] Gentile[ (2020)] 10 Cal.5th [830,]
843.)” (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 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, subds. (a)(1)–(3); see also § 1170.95 subd. (b)(1)(A).)”
(Lewis, supra, 11 Cal.5th at pp. 959–960.)
“Where the petition complies with subdivision (b)’s three
requirements, . . . the court proceeds to subdivision (c) to assess
whether the petitioner has made ‘a prima facie showing’ for
relief. (§ 1170.95, subd. (c).) [¶] If the trial court determines that
a prima facie showing for relief has been made, the trial court
issues an order to show cause, and then must hold a hearing . . . .
At the hearing stage, ‘the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
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petitioner is ineligible for resentencing.’ (§ 1170.95, subd. (d)(3).)”
(Lewis, supra, 11 Cal.5th at p. 960.)2
Analysis
We reject the People’s argument that the jury’s pre-Banks
and Clark special circumstance finding precludes eligibility. We
have explained that “[i]n their wording, the requirements for a
special circumstance finding are . . . identical to the requirements
for felony murder, as it is currently defined. However, in [Banks
and Clark], our Supreme Court ‘construed the meanings of
“major participant” and “reckless indifference to human life” “in a
significantly different, and narrower manner than courts had
previously.” (Torres, supra, 46 Cal.App.5th at p. 1179.)’ ([People
v.] Smith[ (2020)] 49 Cal.App.5th [85,] 93, review granted[ Jul.
22, 2020, abrogated on another ground in Lewis, supra,11 Cal.5th
952].) Where a special circumstance finding was made before
Banks and Clark, the terms ‘major participant’ and ‘reckless
indifference’ underlying that finding have significantly different
meanings than these terms have for purposes of convicting a
defendant of murder pursuant to section 189, subdivision (e)(3),
as amended by Senate Bill 1437. As a consequence, a pre-Banks
and Clark special circumstance finding cannot preclude eligibility
for relief under . . . section 1170.95[, subdivision (c),] . . . because
the factual issues that the jury was asked to resolve in a trial
that occurred before Banks and Clark were decided are not the
2 On October 5, 2021, the governor signed Senate Bill No.
775, which amends section 1170.95 effective January 1, 2022.
The amendments do not affect the analysis necessary to resolve
the instant appeal.
5
same factual issues our Supreme Court has since identified as
controlling.” (People v. York (2020) 54 Cal.App.5th 250, 258, fn.
omitted (York), abrogated on another ground in Lewis, supra, 11
Cal.5th 952.) The People offer no persuasive reason for us to
abandon our prior holdings.
We also reject the People’s alternative argument that this
court may affirm the trial court’s ruling by independently
reviewing the record to determine whether substantial evidence
supports the jury’s special circumstance finding, which is a
purely legal question. (See In re Miller (2017) 14 Cal.App.5th
960, 980 [sufficiency of the evidence supporting a jury’s special
circumstance finding “is not a ‘routine’ claim of insufficient
evidence” and “does not require resolution of disputed facts; the
facts are a given, they are just legally insufficient under section
190.2 as elucidated in Banks and Clark”].)
Section 1170.95 does not contemplate evaluation of special
circumstance findings; it concerns murder convictions. (See York,
supra, 54 Cal.App.5th at p. 260; People v. Harris (2021) 60
Cal.App.5th 939, 956–957, review granted Apr. 28, 2021,
S267802, abrogated on another ground in Lewis, supra, 11
Cal.5th 952.) As our Supreme Court recently emphasized, “the
prima facie inquiry under subdivision (c) is limited . . . . ‘“[T]he
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.
If so, the court must issue an order to show cause.”’ ([People v.
]Drayton[ (2020)] 47 Cal.App.5th [965,] 978, quoting Cal. Rules of
Court, rule 4.551(c)(1)).)” (Lewis, supra, at p. 971.) Nothing in
the language of section 1170.95 indicates that the Legislature
intended that a legal analysis of the sufficiency of a special
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circumstance be conducted as part of this preliminary
assessment, or as part of our review. Although the Supreme
Court has not addressed this issue, its recent precedent suggests
that the inquiry consists of a straightforward consultation of the
record of conviction that does not include ancillary legal analysis.
Likewise, our review would not include such an analysis.
Here, it cannot be determined from the record of conviction
that Vega is ineligible for relief without evaluating the facts; he
has therefore made a prima facie showing of entitlement. The
court must issue an order to show cause and hold a hearing, at
which it may evaluate new and/or additional evidence offered by
the parties as well as record facts. (§ 1170.95, subds. (c) & (d).)
DISPOSITION
We reverse the trial court’s order denying Vega’s section
1170.95 petition and remand for the court to issue an order to
show cause and hold a hearing in conformance with this opinion.
MOOR, J.
We concur:
RUBIN, P.J.
KIM, J.
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