People v. Marron CA2/4 ( 2021 )

Filed 12/15/21 P. v. Marron CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305484
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA028151)
v.
GEORGE MARRON et al.,
Defendants and Appellants.
B314535
In re GEORGE MARRON,
On Habeas Corpus.
APPEAL from orders of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Reversed and
remanded with directions.
PETITION for writ of habeas corpus granted as to
issuance of order to show cause.
John Steinberg, under appointment by the Court of
Appeal, for Defendant, Appellant, and Petitioner George
Marron.
Mark D. Lenenberg, under appointment by the Court
of Appeal, for Defendant and Appellant Raymond Vallejo.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez and Michael
J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________________________
INTRODUCTION
In 2004, appellants George Marron and Raymond
Vallejo joined fellow gang member Jose Jesus Medina in
assaulting Ernie Barba, shortly before Medina fired a gun at
Barba and his friend, killing Barba. Marron and Vallejo
were convicted under the natural and probable consequences
doctrine of one count of first degree murder and one count of
attempted murder. On their direct appeals, we initially
reversed their convictions for insufficient evidence. (People
v. Medina (July 23, 2007, B189049) [nonpub. opn.] 2007
Cal.App.LEXIS 1206, *615-*616 (Medina I), review granted
Oct. 31, 2007, and cause transferred Nov. 19, 2009,
S155823.) Our Supreme Court reversed, holding the
evidence was sufficient to support the convictions under the
2
natural and probable consequences doctrine, as the jury
reasonably could have found the shooting was a natural and
probable consequence of the preceding assault. (People v.
Medina (2009) 46 Cal.4th 913, 916 (Medina II).) On
transfer, we rejected Marron and Vallejo’s remaining
contentions and affirmed their convictions. (People v.
Medina (Jan. 26, 2010, B189049) 2010 Cal.App.Unpub.
LEXIS 572, *2-*3 (Medina III).)
After our Supreme Court held in People v. Chiu (2014)
59 Cal.4th 155, 167 (Chiu) that “a defendant cannot be
convicted of first degree premeditated murder under the
natural and probable consequences doctrine,” Vallejo filed a
petition for a writ of habeas corpus to reduce his murder
conviction from first to second degree. We issued an order
for the Secretary of the California Department of Corrections
and Rehabilitation to show cause why the People should not
be required either to retry Vallejo or accept the requested
reduction. The People opted to forego retrial, and the trial
court reduced Vallejo’s murder conviction from first to
second degree. Years later (during the pendency of this
appeal), Marron similarly filed a habeas petition seeking
reduction of his murder conviction from first to second
degree under Chiu. We deferred consideration of Marron’s
habeas petition pending consideration of this appeal.
In 2019, Marron and Vallejo filed petitions to vacate
their murder and attempted murder convictions under newly
enacted Penal Code section 1170.95 (Section 1170.95),
alleging the convictions were invalid in the wake of the
3
limitations on murder liability enacted by Senate Bill No.
1437 (2017-2018 Reg. Sess.) (SB 1437). The trial court
issued an order to show cause, held an evidentiary hearing,
and denied the petitions. Without discussing the evidence or
making any specific finding of fact, the court concluded: (1)
Marron and Vallejo were ineligible for relief from their
murder convictions because the prosecution had proved
beyond a reasonable doubt that they “could have been”
convicted under a direct aiding and abetting theory; and (2)
Section 1170.95 did not apply to attempted murder.
On appeal from the denial of their petitions, Marron
and Vallejo contend the trial court erred by: (1) applying a
standard of proof akin to the substantial evidence standard
of appellate review; (2) finding substantial evidence of their
guilt under a still-valid theory of murder; (3) failing to bar
the prosecution from relying on a still-valid theory under
principles of issue preclusion, law of the case, or double
jeopardy; and (4) concluding Section 1170.95 did not apply to
attempted murder. The Attorney General agrees the court
applied a substantial evidence standard, but argues this was
proper, and disputes Marron and Vallejo’s other contentions.
After the completion of briefing, the Governor approved
Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective
January 1, 2022. (See Cal. Const., art. IV, § 8, subd. (c)(2).)
SB 775 amends Section 1170.95 to reject a substantial
evidence standard, and to provide relief for those convicted
of attempted murder under the natural and probable
consequences doctrine.
4
We agree with the parties that the court applied a
substantial evidence standard, and agree with Marron and
Vallejo that this was error. However, we decline to resolve
Marron and Vallejo’s claim that there was no substantial
evidence of their guilt under a still-valid theory of murder,
as Section 1170.95 contemplates that the evidence will be
evaluated in the first instance by the trial court, and the
prosecution may offer new or additional evidence on remand.
Further, we disagree with Marron and Vallejo’s contentions
that principles of issue preclusion, law of the case, or double
jeopardy bar the prosecution from relying on a still-valid
theory of murder. Accordingly, we remand the matter to the
trial court with directions to hold a new evidentiary hearing.
We additionally direct the court to reconsider, after SB 775’s
effective date of January 1, 2022, whether Marron and
Vallejo are eligible for relief from their attempted murder
convictions.
Finally, in response to Marron’s habeas petition, we
order the Secretary of the California Department of
Corrections and Rehabilitation to show cause before the trial
court, when the matter is placed on calendar, why the People
should not be required either to retry Marron on the first
degree murder charge or accept a reduction of his murder
conviction from first to second degree, in accordance with
Chiu, supra, 59 Cal.4th 155. We direct the trial court to set
a schedule for the written return to the order to show cause,
a reply, and a hearing.
5
BACKGROUND
A. Trial
1. The Gang Inquiries
In 2004, Marron, Vallejo, and codefendant Medina -- all
self-described members of the Lil Watts gang -- attended a
party at the Lake Los Angeles home of Manuel Ordenes.
(Medina II, supra, 46 Cal.4th at 916.) Ordenes was a former
member of a rival gang, although the two gangs were not
rivals in the Lake Los Angeles area. (Ibid.) That evening,
Ernie Barba drove to Ordenes’s house with his friend
Krystal Varela, who stayed by the car while Barba went to
the house. (Ibid.) When the door was opened for Barba,
Ordenes heard Vallejo ask Barba, “Where are you from?”
(Ibid.) Wanting to avoid problems in his house, and
concerned that somebody was going to get killed, Ordenes
ordered the men to go outside. (Id. at 917.) Marron, Vallejo,
and Medina left the house, approached Barba, and continued
to ask, “Where are you from?” (Ibid.)
Ordenes and the prosecution’s gang expert, Hawthorne
Police Officer Christopher Port, testified that when a gang
member asks another person “where are you from?” he
suspects that person is a gang member and wants to know
what gang he claims as his. (Medina II, supra, 46 Cal.4th at
916-918.) Officer Port opined that a gang member who asks
that question probably would be prepared to use violence,
ranging from a fistfight to homicide. (Ibid.) Ordenes
6
similarly opined that if the gang members were enemies, the
question could lead to a fight or even death.1 (Id. at 917.)
2. The Assault
In response to Marron, Vallejo, and Medina’s asking
where he was from, Barba replied, “Sanfer,” referring to his
former gang. (Medina II, supra, 46 Cal.4th at 917.) Vallejo
responded, “Lil Watts.” (Ibid.) Medina remarked, “What
fool, you think you crazy?” (Ibid.) Vallejo then punched
Barba. (Ibid.) Medina and Marron joined in the fight.
(Ibid.)
Officer Port opined that Barba’s response of “Sanfer”
was a claim of membership in that gang, and that Marron,
Vallejo, and Medina had viewed Barba’s response as
disrespectful and had started a fight to avenge themselves.
(Medina II, supra, 46 Cal.4th at 918.) He stated, “When
gangs have a disagreement, you can almost guarantee it’s
1
According to the dissenting justices in Medina II, “[a]n
examination of the reporter’s transcript belies the majority’s
characterization” of the evidence “regarding the consequences of
the challenge, ‘Where are you from?’” (Medina II, supra, 46
Cal.4th at 930-931 (dis. opn. of Moreno, J.).) Although we state
the facts as described by the majority opinion, the trial court may
independently evaluate the reporter’s transcript on remand. We
note that an appellate court’s statements of fact are not law of
the case. (See Investors Equity Life Holding Co. v. Schmidt
(2015) 233 Cal.App.4th 1363, 1377-1378; People v. Harris (2021)
60 Cal.App.5th 939, 959 & fn.4, review granted Apr. 28, 2021,
S267802.)
7
going to result in some form of violence, whether that be
punching and kicking or ultimately having somebody shot
and killed.” (Ibid.)
3. The Shooting
Even though outnumbered in the fight, Barba defended
himself well and held his own against Marron, Vallejo, and
Medina. (Medina II, supra, 46 Cal.4th at 917.) Eventually,
Ordenes was able to pull Barba away and escort him to his
car, which was parked in front of the house. (Ibid.) Barba
sat in the driver’s seat, while Varela (his friend who had
arrived with him) sat in the passenger seat. (Ibid.)
Varela heard someone in the yard say, “get the heat,”
which she understood to refer to a gun. (Medina II, supra,
46 Cal.4th at 917.) Barba began to drive off. (Ibid.) Medina
walked into the middle of the street and repeatedly fired a
gun at Barba’s car as it drove away, killing Barba (Varela
was not hit). (Ibid.) Marron and Vallejo fled with Medina
before the police arrived. (Id. at 924.)
4. The Convictions
At Marron, Vallejo, and Medina’s trial, the jury was
instructed on a “direct” aiding and abetting theory and the
2
natural and probable consequences doctrine. With respect
to Marron and Vallejo, the prosecutor stated they were “not
2
At Marron’s request, we have taken judicial notice of the
record on his direct appeal.
8
legally the [direct] aiders and abettors of the murder,” and
relied only on the natural and probable consequences
doctrine, arguing Medina’s shooting at Barba and Varela
was a natural and probable consequence of the preceding
assault on Barba.
The jury convicted Marron and Vallejo of Barba’s first
degree murder and Varela’s attempted murder, which the
jury found to be willful, premeditated, and deliberate.
(Medina II, supra, 46 Cal.4th at 917, 919.) The jury also
found true various enhancement allegations, including that
the crimes were committed for the benefit of a gang. (Id. at
919.) Marron and Vallejo were sentenced to imprisonment
for 50 years to life.
B. Prior Appellate and Habeas Proceedings
As noted, on Marron’s and Vallejo’s direct appeals, we
initially reversed their convictions, finding insufficient
evidence of their guilt under the natural and probable
consequences doctrine -- the only theory under which they
had been tried. (Medina I, supra, 2007 Cal.App.LEXIS 1206,
at *615-*616.) Our Supreme Court reversed, reinstating the
convictions. (Medina II, supra, 46 Cal.4th at 916.) The court
observed, “It is undisputed . . . that the jury convicted
Marron and Vallejo of murder and attempted murder as
aiders and abettors under the natural and probable
consequences doctrine.” (Id. at 919-920.) The majority
disagreed with our assessment of the sufficiency of the
evidence under that doctrine, holding the jury reasonably
9
could have found (and implicitly did find) that a person in
Marron and Vallejo’s position would have or should have
known that Medina’s shooting at Barba and Valera was a
reasonably foreseeable consequence of the preceding assault
on Barba. (Id. at 922-928.) On transfer, we rejected Marron
and Vallejo’s remaining contentions, and affirmed their
convictions. (Medina III, supra, 2010 Cal.App.Unpub.
LEXIS 572, at *2-*3.)
In 2015, Vallejo filed a petition for a writ of habeas
corpus to reduce his murder conviction from first to second
degree, in reliance on our Supreme Court’s holding in Chiu
that “a defendant cannot be convicted of first degree
premeditated murder under the natural and probable
consequences doctrine.” (Chiu, supra, 59 Cal.4th 155, 167.)
We issued an order requiring the Secretary of the California
Department of Corrections and Rehabilitation to show cause
before the superior court why the People should not be
required “either to retry petitioner on the first degree
murder charge or accept a reduction of the conviction to
second degree murder, in accordance with [Chiu].” After the
People opted to forego retrial, the trial court reduced
Vallejo’s murder conviction from first to second degree, and
resentenced him.
C. The Instant Petitions
In January 2019, Marron and Vallejo separately filed
petitions for resentencing under Section 1170.95, alleging
they could not be convicted of murder or attempted murder
10
in the wake of SB 1437’s elimination of murder liability
under the natural and probable consequences doctrine. At
their request, the court appointed counsel for each of them.
In a joint opposition to both petitions, the prosecution argued
that despite SB 1437’s changes to the law, Marron and
Vallejo still could be convicted under a direct aiding and
abetting theory, or under an implied-malice theory. After
receiving reply briefs, the court issued orders for the
prosecution to show cause why the petitions should not be
granted.
In March 2020, the court held an evidentiary hearing.
No party offered new or additional evidence. At the outset of
the hearing, the court announced it would deny the petitions
with respect to the convictions for attempted murder, as
several appellate decisions had held Section 1170.95 did not
apply to attempted murder.
The prosecutor asserted that appellants could be
convicted of murder under a direct aiding and abetting
theory, or under an implied-malice theory. He argued that
because the prior appellate opinions had not addressed these
theories, the opinions should not constrain the court’s view
of the evidence. The prosecutor did not, however, discuss
any evidence of Marron’s or Vallejo’s guilt under either
theory.
Vallejo’s counsel argued he was entitled to relief in
light of our and our Supreme Court’s observations on direct
appeal that his murder conviction was based on the natural
and probable consequences doctrine. Counsel acknowledged
11
that the jury also had been instructed on a theory of direct
aiding and abetting, but argued that where a jury is
instructed on both valid and invalid theories, “you do not
have the opportunity or the right to reevaluate what the
jury’s findings w[ere] based upon . . . .” Marron’s counsel
similarly relied on the appellate opinions’ observations that
the convictions were based on the natural and probable
consequences doctrine, arguing the opinions implied the
convictions’ invalidity under any other theory. In rebuttal,
the prosecutor argued that because the jury had found the
attempted murders to be willful, premeditated, and
deliberate, the jury “could very well have” found that Vallejo
and Marron intended to aid and abet the murder. Again, the
prosecutor failed to discuss any evidence that might have
supported such a finding.
The court denied the petitions in an oral ruling. The
court observed that Vallejo’s argument concerning the effect
of instructions on valid and invalid theories was based on a
standard applicable only on direct appeal, not on a petition
under Section 1170.95. The court further observed that in
Medina II, our Supreme Court had neither addressed nor
“dispensed with” a direct aiding and abetting theory as a
possible alternative basis for Marron’s and Vallejo’s
convictions, as the court had not needed to consider any
theory other than the one on which it found the evidence
sufficient -- that of the natural and probable consequences
doctrine. Without referring to specific facts or evidence, the
court concluded, “Looking at this, I am convinced beyond a
12
reasonable doubt, based upon the fact[s] I have before me,
that the defendants clearly could have been convicted on a
direct aiding and abetting theory with actual malice. [¶] The
1170.[9]5 petition[s] as to each defendant are denied.”
Marron and Vallejo timely appealed. During the
pendency of his appeal, Marron filed a habeas petition
seeking reduction of his murder conviction from first to
second degree under Chiu, supra, 59 Cal.4th 155.
DISCUSSION
A. Section 1170.95
1. Principles
Section 1170.95 permits a defendant who was
convicted of murder under the natural and probable
consequences doctrine to petition the sentencing court to
have the conviction vacated and to be resentenced on any
remaining counts “when [specified] conditions apply.” (Pen.
Code, § 1170.95, subd. (a).) One such condition is that the
petitioner could not be convicted of murder after SB 1437’s
changes to the law (including its elimination of murder
liability under the natural and probable consequences
doctrine). (See id., § 1170.95, subd. (a)(3).) Where, as here,
the trial court finds the petitioner has made a prima facie
showing of eligibility for relief, and the parties do not
stipulate to relief after issuance of an order to show cause,
the court must hold an evidentiary hearing. (Id., § 1170.95,
subds. (c)-(d).) “At the hearing to determine whether the
petitioner is entitled to relief, the burden of proof shall be on
13
the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Id., § 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.) If the prosecution
fails to carry its burden, the court must vacate the murder
conviction and resentence the petitioner on any remaining
counts, “provided that the new sentence, if any, is not
greater than the initial sentence.” (Id., § 1170.95, subds.
(d)(1), (3).)
In determining whether the prosecution has proved the
petitioner could be convicted under a theory of murder that
is still valid after SB 1437, the trial court must
independently find the petitioner guilty under such a theory
beyond a reasonable doubt. (See People v. Fortman (2021) 64
Cal.App.5th 217, 225, review granted July 21, 2021, S269228
[“the People must convince the trial court, as an independent
trier of fact, that the petitioner is guilty of murder on a still-
valid theory beyond a reasonable doubt”]; accord, People v.
Clements (2021) 60 Cal.App.5th 597, 615, review granted
Apr. 28, 2021, S267624; People v. Rodriguez (2020) 58
Cal.App.5th 227, 243-244, review granted Mar. 10, 2021,
S266652; People v. Lopez (2020) 56 Cal.App.5th 936, 952
(Lopez), review granted Feb. 10, 2021, S265974; People v.
Duchine (2021) 60 Cal.App.5th 798, 815.) We disagree with
the contrary holding in People v. Duke (2020) 55 Cal.App.5th
113, 123, review granted Jan. 13, 2021, and cause
transferred Nov. 23, 2021, S265309, which endorsed a
14
substantial evidence standard. We note that the Legislature
rejected the substantial evidence standard in enacting SB
775, by amending subdivision (d)(3) of Section 1170.95 to
include the following language: “the burden of proof shall be
on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder or attempted murder under
California law as amended by [SB 1437] . . . . A finding that
there is substantial evidence to support a conviction for
murder, attempted murder, or manslaughter is insufficient
to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” (Stats. 2021, ch. 551, § 2.)
2. Analysis
The parties agree, as do we, that the trial court applied
a substantial evidence standard at the March 2020
evidentiary hearing. The court did not discuss the evidence
or make specific findings of fact. Although the court stated
that Marron and Vallejo “could have been” convicted under a
direct aiding and abetting theory, as Vallejo observes, this
language was consistent with an inquiry into “the possibility
that a different fact-finder theoretically could find certain
facts to be proved.” Neither the court’s minute orders nor its
oral ruling indicated that the court independently found
Marron and Vallejo guilty under a still-valid theory beyond a
reasonable doubt, as subsequent cases -- followed by SB 775
-- clarified was required. (See, e.g., Lopez, supra, 56
Cal.App.5th at 949, rev.gr. [noting in October 2020 the Duke
court was the “only . . . other court [to have] weighed in on
15
the nature of the required showing of ineligibility at the
hearing stage,” and disagreeing with its endorsement of the
substantial evidence standard].) Because the court applied
an incorrect standard of proof, we will remand for a new
evidentiary hearing.
We decline to resolve Marron and Vallejo’s claim that
there was no substantial evidence of their guilt under a still-
valid theory. As a preliminary consideration, Marron raises
this claim only in his reply brief, and Vallejo raises it only as
an alternative to his claim regarding the standard of proof,
with which we have agreed. More important, Section
1170.95 contemplates that the evidence will be evaluated in
the first instance by the trial court. (See People v. Clements,
supra, 60 Cal.App.5th at 603, rev.gr [“the trial judge sits as a
fact finder at a hearing under section 1170.95, subdivision
(d)”]; id. at 617 [“it is possible [for a trial judge] to review a
trial transcript and reach an opinion about what actually
happened. . . . And if either party believes it’s important to
put on live testimony to allow the trial judge to make
credibility determinations based on cues other than
consistency and plausibility, the statute expressly allows
them that opportunity”].) As explained, the court did not
evaluate the evidence as an independent factfinder. We will
be better positioned for substantial evidence review after it
has done so. Moreover, in attempting to prove Marron and
Vallejo’s guilt under a still-valid theory, the prosecution may
offer new or additional evidence. (See Pen. Code, § 1170.95,
subd. (d)(3); People v. Gentile (2020) 10 Cal.5th 830, 856
16
[“the Legislature authorized the parties to offer new or
additional evidence during the section 1170.95 process in
order to allow the parties to explore issues they did not
explore under the prior state of the law. The statute
contemplates that such evidence may inform whether a
conviction remains valid despite the ameliorative provisions
of Senate Bill 1437”].) Although the prosecution did not offer
such evidence at the original evidentiary hearing, Marron
and Vallejo identify nothing barring it from doing so at the
new evidentiary hearing, with the benefit of our and SB
3
775’s clarifications of the standard of proof.
Marron and Vallejo contend that because the
prosecution undisputedly relied only on the natural and
probable consequences doctrine in securing their convictions,
and our Supreme Court confirmed on direct appeal that their
convictions were based on that theory, principles of issue
preclusion or law of the case bar the prosecution from
arguing they could be convicted under another theory. We
disagree. In the inquiry into a petitioner’s entitlement to
relief under Section 1170.95, the fact the petitioner was
convicted under the natural and probable consequences
3
Vallejo asserts “[n]o do over should be permitted because
the cause has been heard and the trial judge entered his
findings,” purportedly including a finding of reasonable doubt
whether Marron and Vallejo are guilty under a still-valid theory.
But this assertion is inconsistent with Vallejo’s contention, and
our conclusion, that the trial court did not act as an independent
factfinder.
17
doctrine is the starting point, not the end. (See Pen. Code,
§ 1170.95, subd. (a) [“A person convicted of . . . murder under
a natural and probable consequences . . . theory” may file
petition to have conviction vacated “when [specified]
conditions apply,” including condition that petitioner could
not be convicted because of SB 1437].) As reflected in the
parties’ permission to present new or additional evidence,
Section 1170.95 “allow[s] the parties to explore issues they
did not explore [at trial] under the prior state of the law.”
(People v. Gentile, supra, 10 Cal.5th at 856; see also People v.
Rodriguez, supra, 58 Cal.App.5th at 239, rev.gr. [“If the
superior court’s ineligibility ruling may be based on evidence
not heard by the original trier of fact, the Legislature cannot
have intended the court simply to evaluate the grounds on
which the original verdict was reached”]; People v.
Hernandez (2021) 60 Cal.App.5th 94, 109-110 [although
prior appellate decision reduced petitioner’s felony murder
conviction from first to second degree to account for jury’s
failure to find it was in first degree, “whether that decision
[wa]s law of the case” was irrelevant to issue whether
prosecution could prove guilt under still-valid theory in
Section 1170.95 proceedings].) Thus, notwithstanding the
prosecution’s failure to explore any theory other than the
natural and probable consequences doctrine in securing
Marron’s and Vallejo’s convictions, the prosecution may rely
on a still-valid theory in opposing their petitions for relief
under Section 1170.95. Such reliance will not require
relitigation of any issue already decided by the jury, in
18
violation of the doctrine of issue preclusion, as no still-valid
theory was “actually litigated and necessarily decided” at
trial. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813,
825.)
We are unpersuaded by Marron and Vallejo’s reliance
on cases applying, on direct appeal, “the governing rule on
appeal . . . [that] when the prosecution presents its case to
the jury on alternate theories, some of which are legally
correct and others legally incorrect, and the reviewing court
cannot determine from the record on which theory the
ensuing general verdict of guilt rested, the conviction cannot
stand.” (People v. Green (1980) 27 Cal. 3d 1, 69, italics
added; see also People v. Chun (2009) 45 Cal.4th 1172, 1203;
Chiu, supra, 59 Cal.4th at 167.) These cases did not address
the standards to be applied by a trial court in postconviction
proceedings under Section 1170.95, a statute enacted after
the cases were decided. We agree with our colleagues in
Division Seven that the “backward looking” appellate
standard applied in these cases does not govern a trial
court’s determination whether a petitioner is ineligible for
relief under Section 1170.95 on the ground the petitioner is
guilty under a still-valid theory. (People v. Rodriguez, supra,
58 Cal.App.5th at 239-240, rev.gr.)
Finally, we reject Vallejo’s contention that because his
murder conviction has been reduced from first to second
degree, double jeopardy principles bar the prosecution from
relying on a still-valid theory of first degree murder in
opposing relief under Section 1170.95. As observed in the
19
case on which Vallejo relies, “The constitutional prohibition
against ‘double jeopardy’ was designed to protect an
individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.”
(Green v. United States (1957) 355 U.S. 184, 187, italics
added.) In postconviction proceedings under Section
1170.95, “double jeopardy principles are not at stake because
[the] defendant is voluntarily seeking to vacate [his or] her
prior conviction, not subjecting [himself or] herself to a new
trial or the possibility of increased punishment.” (People v.
Myles (2021) 69 Cal.App.5th 688, 704; accord, People v.
Hernandez, supra, 60 Cal.App.5th at 111 [“The retroactive
relief provided by section 1170.95 is a legislative ‘act of
lenity’ . . . and does not result in a new trial or increased
punishment that could implicate the Double Jeopardy
Clause”].) Nothing in Section 1170.95 authorizes the trial
court to impose a new conviction for first degree murder, to
enhance the degree of Vallejo’s existing conviction for second
degree murder, or to enhance the sentence on that
conviction. Indeed, the statute expressly prohibits
enhancement of the sentence. (Pen. Code, § 1170.95, subd.
(d)(1) [if court vacates conviction, it shall recall sentence and
resentence petitioner as if petitioner had not previously been
sentenced, “provided that the new sentence, if any, is not
greater than the initial sentence”].) Thus, even if the court
deems Vallejo ineligible for relief by finding him guilty under
a still-valid theory of first degree murder, the court will
merely deny his petition for relief, leaving in place his
20
conviction and sentence for second degree murder. Double
jeopardy principles do not bar the prosecution from pursuing
such a result. (See People v. Myles, supra, at 704; People v.
Hernandez, supra, at 111.)
In sum, because the trial court applied an incorrect
standard of proof in determining whether Marron and
Vallejo could be convicted under a still-valid theory, and
because they have identified nothing barring the prosecution
from relying on such a theory on remand, we will remand to
the trial court with directions to hold a new evidentiary
hearing. By the time of the new hearing, Section 1170.95
will have been amended to apply to convictions for
attempted murder under the natural and probable
consequences doctrine. (Stats. 2021, ch. 551, § 2 [amending
subdivision (a) of Section 1170.95 to read, in relevant part,
“A person convicted of . . . attempted murder under the
natural and probable consequences doctrine . . . may file a
petition with the court that sentenced the petitioner to have
the petitioner’s . . . attempted murder . . . conviction vacated
and to be resentenced on any remaining counts”].)
Accordingly, we will direct the court to reconsider, after SB
775’s effective date of January 1, 2022, whether Marron and
Vallejo are eligible for relief from their attempted murder
convictions.
B. Marron’s Habeas Petition
Marron’s habeas petition seeks reduction of his murder
conviction from first to second degree, in reliance on our
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Supreme Court’s holding in Chiu that “a defendant cannot
be convicted of first degree premeditated murder under the
natural and probable consequences doctrine.” (Chiu, supra,
59 Cal.4th 155, 167.) As noted, Vallejo has already received
such a reduction, and it is undisputed that Marron’s murder
conviction, like Vallejo’s, was based on the natural and
probable consequences doctrine. Accordingly, we order the
Secretary of the California Department of Corrections and
Rehabilitation to show cause before the trial court, when the
matter is placed on calendar, why the People should not be
required either to retry Marron on the first degree murder
charge or accept a reduction of his murder conviction from
first to second degree, in accordance with Chiu. We direct
the trial court to set a schedule for the written return to the
order to show cause, a reply, and a hearing. Our directions
are without prejudice to the court’s discretion to schedule
proceedings on the order to show cause concurrently with
proceedings on the Section 1170.95 petitions, or to defer
proceedings on the order to show cause until after the court
has decided whether to vacate Marron’s murder conviction
under Section 1170.95. (See Cal. Rules of Court, rule
4.551(h) [“On motion of any party or on the court’s own
motion, for good cause stated in the order, the court may . . .
extend the time for doing any act under this rule”].)
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DISPOSITION
The orders denying Marron’s and Vallejo’s petitions for
resentencing under Penal Code section 1170.95 are reversed.
Marron’s petition for a writ of habeas corpus is granted as to
the issuance of an order to show cause. The Secretary of the
California Department of Corrections and Rehabilitation is
ordered to show cause before the trial court, when the
matter is placed on calendar, why the People should not be
required either to retry Marron on the first degree murder
charge or accept a reduction of his murder conviction from
first to second degree, in accordance with Chiu. The matter
is remanded to the trial court with directions to: (1) hold a
new evidentiary hearing, after SB 775’s effective date of
January 1, 2022, on Marron’s and Vallejo’s eligibility for
relief under Section 1170.95 from their murder and
attempted murder convictions; and (2) set a schedule for the
written return to the order to show cause, a reply, and a
hearing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J. COLLINS, J.
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