People v. Arias CA4/1 ( 2022 )

Filed 12/14/22 P. v. Arias CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077778
Plaintiff and Respondent,
v. (Super. Ct. No. RIF111846)
SERGIO ROJAS ARIAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside, Samuel
Diaz, Jr., Judge. Reversed and remanded with instructions.
Martin Kassman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff
and Respondent.
I
INTRODUCTION
In 2008, Sergio Rojas Arias was found guilty of the first degree murder
of 18-year-old Ontario resident Jessica De La Torre (Pen. Code,1 §§ 187,
subd. (a), 189, subd. (a)). He was sentenced to life in state prison without the
possibility of parole. This court affirmed the judgment of conviction. (People
v. Arias (Mar. 11, 2011, D058086) [nonpub. opn.] (Arias I).)
In 2019, Arias petitioned for vacatur of his murder conviction and
resentencing based on legislative changes to our state’s murder laws. Those
amendments significantly curtailed the scope of the felony murder rule,
abolished natural and probable consequences murder, and provided a
pathway for persons previously convicted of felony murder or natural and
probable consequences murder to be resentenced. (Stats. 2018, ch. 1015,
§§ 2–4.) A person convicted of murder under one of these theories of liability
may be resentenced if he or she was not the actual killer, did not aid and abet
the commission of murder with an intent to kill, and was not a major
participant in an underlying felony who acted with reckless indifference to
human life. (§§ 189, subd. (e), 1172.6, subds. (a)(3) & (d)(3).)
The trial court denied Arias’s petition for resentencing without issuing
an order to show cause. It reasoned he was ineligible for relief, as a matter of
law, because his jury made a true finding on a robbery-murder special-
circumstance allegation. Because Arias was not tried as the actual killer, the
finding meant the jury determined he aided and abetted the commission of
the murder with an intent to kill, or he aided and abetted the commission of a
robbery as a major participant and while acting with reckless indifference to
human life. (§ 190.2, subds. (c), (d).)
1 Further undesignated statutory references are to the Penal Code.
2
In a prior opinion, our court reversed the order denying Arias’s
resentencing petition. (People v. Arias (2021) 281 Cal.Rptr.3d 580, previously
published at 66 Cal.App.5th 987 (Arias II).) We concluded a true finding on a
felony-murder special-circumstance allegation does not categorically preclude
resentencing where, as here, the finding was made before the Supreme Court
decided People v. Banks (2015) 61 Cal.4th 788 (Banks), which clarified the
meaning of the statutory phrase “major participant,” or before it decided
People v. Clark (2016) 63 Cal.4th 522 (Clark), which gave important guidance
on the phrase “reckless indifference to human life.” However, we remanded
the matter to the trial court to decide whether the evidence at Arias’s trial
was sufficient to support the robbery-murder special-circumstance finding
under the Banks and Clark standards. (Arias II, supra, D077778.) We
opined the jury’s finding would preclude resentencing if the answer to this
question was “yes,” and an order to show cause would be necessary if the
answer was “no.” (Ibid.)
The Supreme Court granted review and deferred further action
pending the consideration and disposition of related issues in People v.
Strong, S266606. Thereafter, the Supreme Court issued People v. Strong
(2022) 13 Cal.5th 698 (Strong), which held that a true finding on a felony-
murder special circumstance allegation does not preclude a petitioner from
making a prima facie case for relief if the finding was rendered pre-Banks
and Clark. That is true, Strong holds, even if sufficient evidence was
presented at trial to support the felony-murder special-circumstance finding
under the Banks and Clark standards. (Id. at pp. 718–720.)
The Supreme Court then transferred the matter back to our court with
directions to vacate our prior opinion and reconsider the cause in light of
Strong, supra, 13 Cal.5th 698. We have done so. With the benefit of the
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Supreme Court’s guidance, we conclude the jury’s pre-Banks and Clark
robbery-murder special-circumstance finding does not, as a matter of law,
preclude Arias from making a prima facie case for relief. However, this time,
we do not remand the matter for the trial court to conduct a sufficiency-of-
the-evidence review under the Banks and Clark standards, a remedy the
Supreme Court has since determined to be inadequate. Instead, we reverse
the order denying Arias’s petition for resentencing and remand the matter
with instructions that the trial court issue an order to show cause and
conduct such further proceedings as are required by section 1172.6.
II
BACKGROUND
A
In 2003, the body of 18-year-old Jessica De La Torre was discovered in
the hills of the City of Rubidoux. She was wearing only a bra, her feet were
bound with a belt, and she had tire tracks across her body. An autopsy
revealed she died from being run over by a car one or more times and she
suffered more than 100 distinct injuries including knife cuts, blunt force
trauma to her genitals, several broken bones, and numerous lacerations,
abrasions, and bruises.
The day of De La Torre’s disappearance, Arias made several attempts
to withdraw money from her bank account at a bank near her residence. All
of Arias’s attempts failed because he used an incorrect pin number or made
too many attempts to access the bank account. Law enforcement later found
personal items taken from De La Torre’s residence in the living room of a
residence that Arias shared with a codefendant and another person.
Arias and two codefendants were prosecuted for De La Torre’s murder.
(Arias I, supra, D058086.) Arias was tried “under three similar theories:
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(1) Arias aided and abetted or conspired to commit a felony that resulted in a
death, (2) Arias aided and abetted a robbery and the murder was a natural
and probable consequence of the robbery, and (3) Arias conspired to commit a
robbery and the murder was a natural and probable consequence of the
robbery.” (Ibid.) After a trial, a jury found Arias guilty of first degree
murder. (Ibid.) It also found true a special-circumstance allegation that the
murder was committed while Arias was engaged in the commission of a
robbery pursuant to section 190.2, subdivision (a)(17)(A). (Ibid.) He was
sentenced to life in prison without the possibility of parole. (Ibid.)
Our court affirmed the judgment on appeal. (Arias I, supra, D058086.)
In our opinion, we rejected Arias’s claim that there was insufficient evidence
to support the murder conviction or the robbery-murder special-circumstance
finding. (Ibid.) The Supreme Court denied review on June 22, 2011.
B
“In 2017, the Legislature adopted a concurrent resolution declaring a
need to reform the state’s homicide law ‘to more equitably sentence offenders
in accordance with their involvement in the crime.’ [Citation.] The next
year, the Legislature followed through with Senate Bill [No.] 1437 [(2017–
2018 Reg. Sess.) (Senate Bill 1437)], which made significant changes to the
scope of murder liability for those who were neither the actual killers nor
intended to kill anyone, including certain individuals formerly subject to
punishment on a felony-murder theory” or on a natural and probable
consequences theory. (Strong, supra, 13 Cal.5th at p. 707 & id., fn. 1.)
Senate Bill 1437 limited the scope of the felony-murder rule and
abolished natural and probable consequences murder in order “to effectuate
the Legislature’s declared intent ‘to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to
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kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’ ” (Strong, supra, 13 Cal.5th at pp. 707–
708; see People v. Gentile (2020) 10 Cal.5th 830, 846.) “Penal Code
section 189, as amended, now limits [murder] liability … principally to
‘actual killer[s]’ (Pen. Code, § 189, subd. (e)(1)) and those who, ‘with the
intent to kill,’ aid or abet ‘the actual killer in the commission of murder in the
first degree’ (id., subd. (e)(2)). Defendants who were neither actual killers
nor acted with the intent to kill can be held liable for murder only if they
were ‘major participant[s] in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of [Penal Code]
Section 190.2’—that is, the statute defining the felony-murder special
circumstance. (Id., § 189, subd. (e)(3).)” (Strong, at p. 708.)
“Senate Bill 1437 also created a special procedural mechanism for those
convicted under the former law to seek retroactive relief under the law as
amended. (See Pen. Code, § 1172.6 …; People v. Lewis (2021) 11 Cal.5th 952,
959–960; People v. Gentile, supra, 10 Cal.5th at p. 843.) Under newly enacted
section 1172.6, the process begins with the filing of a petition containing a
declaration that all requirements for eligibility are met (id., subd. (b)(1)(A)),
including that ‘[t]he petitioner could not presently be convicted of murder or
attempted murder because of changes to [Penal Code] Section 188 or 189
made effective January 1, 2019,’ the effective date of Senate Bill 1437
(§ 1172.6, subd. (a)(3)).” (Strong, supra, 13 Cal.5th at p. 708, fn. omitted.)
“When the trial court receives a petition containing the necessary
declaration and other required information, the court must evaluate the
petition ‘to determine whether the petitioner has made a prima facie case for
relief.’ (§ 1172.6, subd. (c); see People v. Lewis, supra, 11 Cal.5th 952[interpreting the prima facie requirement as originally codified in former
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§ 1170.95].) If the petition and record in the case establish conclusively that
the defendant is ineligible for relief, the trial court may dismiss the petition.
(See § 1172.6, subd. (c); Lewis, at pp. 970–972.) If, instead, the defendant has
made a prima facie showing of entitlement to relief, ‘the court shall issue an
order to show cause.’ (§ 1172.6, subd. (c).)” (Strong, supra, 13 Cal.5th at
p. 708.)
“If there has been ‘a prior finding by a court or jury that the petitioner
did not act with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the petitioner’s conviction and
resentence the petitioner.’ ([§ 1172.6], subd. (d)(2).) Additionally, the parties
may stipulate that the petitioner is eligible for resentencing. (Ibid.)
Otherwise, the court must hold an evidentiary hearing at which the
prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder’ under state law as
amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).) ‘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.’ (Ibid.) ‘If the prosecution fails to
sustain its burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and the petitioner
shall be resentenced on the remaining charges.’ (Ibid.)” (Strong, supra, 13
Cal.5th at pp. 708–709.)
C
After Senate Bill 1437 went into effect, Arias filed a petition to vacate
his murder conviction and to be resentenced. In the petition, he declared he
was entitled to relief because a charging instrument was filed against him
that allowed the prosecution to proceed under a theory of felony murder or
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natural and probable consequences murder; at trial, he was convicted of
felony murder or natural and probable consequences murder; and he could
not now be convicted of murder because of the changes made to our state’s
murder laws by Senate Bill 1437. After receiving the resentencing petition,
the trial court appointed counsel for Arias.
The district attorney filed a response contending the resentencing
petition should be denied because Arias failed to make a prima facie showing
of entitlement to relief. He argued resentencing was unavailable, as a matter
of law, because the jury’s finding on the robbery-murder special-circumstance
allegation meant it necessarily found that Arias aided and abetted the
commission of the murder with an intent to kill or, alternatively, he aided
and abetted the commission of a robbery while acting as a major participant
and with reckless indifference to human life.
The trial court accepted the district attorney’s argument and
summarily denied Arias’s petition for resentencing without issuing an order
to show cause.
III
DISCUSSION
A
The district attorney did not try Arias for De La Torre’s murder based
on a theory that he was the actual killer. Therefore, in order to reach a true
finding on the robbery-murder special-circumstance allegation, the jury
necessarily found that Arias either aided and abetted the commission of the
murder with an intent to kill, or he aided and abetted an underlying robbery
as a major participant while acting with reckless indifference to human life.
(§ 190.2, subds. (c), (d).) A non-killer is not entitled to resentencing if he or
she aided and abetted murder with an intent to kill or if he or she acted with
8
reckless indifference to human life as a major participant in an underlying
felony. (§§ 189, subd. (e), 1172.6, subd. (a)(3) & (d)(3).)
However, Arias argues the robbery-murder special-circumstance
finding does not preclude him from making a prima facie case for relief. He
claims the special-circumstance finding does not foreclose relief because the
jury rendered its finding before the Supreme Court issued Banks, supra, 61
Cal.4th 788, and Clark, supra, 63 Cal.4th 522. Prior to Banks and Clark,
“neither the United States Supreme Court nor California courts [had] offered
much guidance about the major participant or reckless indifference
standards” set forth in section 190.2. (Strong, supra, 13 Cal.5th at p. 705.)
The Supreme Court provided this much-needed guidance in its Banks
and Clark decisions. The Banks court considered and applied both the major
participant and reckless indifference requirements, but it focused its
attention primarily on the major participant requirement, framing the issue
before it as follows: “The issue before us is under what circumstances an
accomplice who lacks the intent to kill may qualify as a major participant”
under section 190.2.2 (Banks, supra, 61 Cal.4th at p. 794.)
After surveying U.S. Supreme Court case law pertinent to this issue,
the Banks court identified a non-exhaustive list of factors relevant to whether
a defendant is a major participant in a crime. (Banks, supra, 61 Cal.4th at
pp. 799–803.) Such factors include: the role the defendant had in planning
2 Banks and Clark clarified the meanings of the phrases “major
participant” and “reckless indifference to human life,” while interpreting
section 190.2, the special-circumstance statute. That statute makes a
defendant eligible for death or life in prison without the possibility of parole if
he or she is a “major participant” in an enumerated felony resulting in death,
and he or she acts “with reckless indifference to human life.” (§ 190.2,
subd. (d).) When the Legislature enacted Senate Bill 1437, it incorporated
these same elements into section 189. (Strong, supra, 63 Cal.4th at p. 274.)
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the criminal enterprise that led to one or more deaths; the role the defendant
had in supplying or using lethal weapons; the awareness the defendant had
of particular dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants; and whether the defendant
was present at the scene of the killing, in a position to facilitate or prevent
the actual murder, or played a particular role in the death. (Ibid.)
A year later, the Supreme Court issued Clark, supra, 63 Cal.4th 522,
which elucidated the meaning of the phrase “reckless indifference to human
life.” According to Clark, it “encompasses a willingness to kill (or to assist
another in killing) to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.” (Id. at p 617.)
Clark identified the following non-exclusive considerations, many of which
overlap with the Banks factors, as relevant to whether a defendant acts with
reckless indifference to human life: the defendant’s knowledge that weapons
would be used and/or his personal use of weapons; the defendant’s physical
presence at the scene and his opportunity to restrain the killer or aid the
victim; the duration of the felony; the defendant’s knowledge of his
accomplice’s propensity to kill; and the defendant’s efforts to minimize the
risk of violence in the commission of the felony. (Clark, at pp. 618–623.)
B
When Arias initially appealed the summary denial of his petition for
resentencing, a split of authorities existed among the Courts of Appeal
concerning whether true felony-murder special-circumstance findings made
pre-Banks and Clark precluded petitioners from obtaining relief under the
resentencing mechanism established by Senate Bill 1437. One line of
authorities held that such findings “categorically preclude relief unless they
have been vacated or set aside on direct appeal or collateral review.
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[Citation.] Other courts … concluded that pre-Banks and Clark findings do
not pose a categorical bar but may foreclose relief if a court determines that
sufficient evidence supports the findings under the Banks and Clark
standards. [Citation.] And still other courts … concluded that such findings
pose no bar because the decisions in Banks and Clark significantly changed
the prevailing understanding of the relevant elements.” (Strong, supra, 13
Cal.5th at pp. 709–710.)
We followed the second line of precedent when we initially decided
Arias’s appeal. (Arias II, supra, D077778.) We “agree[d] with Arias that a
pre-Banks and Clark felony-murder special-circumstance finding, standing
alone, does not necessarily preclude a defendant from obtaining resentencing
relief.” (Ibid.) Thus, we concluded the trial court “erred to the extent it
summarily denied Arias’s resentencing petition based solely on the existence
of a true felony-murder special-circumstance finding.” (Ibid.)
However, we decided it would be sufficient to “conduct an
individualized review of Arias’s record of conviction to determine whether his
special-circumstance finding satisfies the Banks and Clark standards.”
(Arias II, supra, D077778.) Given the “sparse” record of conviction before us,
we were unable to decide whether “the Banks and Clark standards [were]
met[.]” (Ibid.) Thus, we reversed the summary denial order and remanded
the matter to the trial court to conduct a sufficiency-of-the-evidence review
under the legal standards set forth in the Banks and Clark decisions. (Ibid.)
As noted, the Supreme Court then granted and held Arias’s case pending its
decision in People v. Strong, S266606.
Thereafter, the Supreme Court issued Strong, supra, 13 Cal.5th 698.
After concluding that section 1172.6 does not directly speak to the preclusive
effect of a true felony-murder special-circumstance finding rendered prior to
11
Banks and Clark, Strong turned to first principles of issue preclusion, or
equitable estoppel, which governs the conclusive effect of a prior finding in a
later proceeding. (Id. at pp. 715–718.) It noted that a “well-settled equitable
exception” to the preclusion doctrine “holds that preclusion does not apply
when there has been a significant change in the law since the factual findings
were rendered that warrants reexamination of the issue.” (Id. at p. 716.)
According to Strong, “Banks and Clark represent the sort of significant
change that has traditionally been thought to warrant reexamination of an
earlier-litigated issue.” (Strong, supra, 13 Cal.5th at p. 707.) That is so
because “[t]here are many petitioners with pre-Banks and Clark felony-
murder special-circumstance findings who nevertheless could not be
convicted of murder today.” (Id. at p. 717.) Stated another way, “[a] pre-
Banks and Clark special circumstance finding does not negate [a
resentencing petitioner’s] showing because the finding alone does not
establish that the petitioner is in a class of defendants who would still be
viewed as liable for murder under the current understanding of the major
participant and reckless indifference requirements.” (Id. at pp. 718–719.)
Thus, Strong rejected the first line of precedent noted above, and concluded a
pre-Banks and Clark felony-murder special circumstance finding does not
categorically preclude relief under section 1172.6. (Id. at pp. 716–718.)
Strong also rejected the second line of precedent discussed above, which
held “that pre-Banks and Clark findings do not pose a categorical bar to
resentencing,” yet still allowed a court to “reject a petition at the prima facie
stage if it independently examine[d] the record and determine[d], applying
the Banks and Clark standards, that sufficient evidence support[ed] the
earlier findings.” (Strong, supra, 13 Cal.5th at pp. 718–719.) As Strong
explained, this approach was untenable because the trial environment
12
changed after Banks and Clark were decided. (Id. at p. 719.) The arguments
available to counsel, the evidence counsel might have sought to introduce,
and overall trial strategies changed, or at least could have changed, post-
Banks and Clark. (Ibid.) Further, “after Banks and Clark, defense counsel
could have asked that optional additional instruction on the Banks and Clark
factors be given to guide the jury in its deliberations [citation], with the
possibility that different outcomes might have resulted.” (Id. at pp. 719–720.)
According to Strong, “[a]n after-the-fact court review of a pre-Banks and
Clark record does not account for all these differences.” (Id. at p. 720.)
Therefore, Strong endorsed the third line of precedent noted above. It
concluded that “[f]indings issued by a jury before Banks and Clark do not
preclude a defendant from making out a prima facie case for relief under
Senate Bill 1437. This is true even if the trial evidence would have been
sufficient to support the findings under Banks and Clark.” (Strong, supra, 13
Cal.5th at p. 710; id. at p. 720 [“Neither the jury’s pre-Banks and Clark
findings nor a court’s later sufficiency of the evidence review amounts to the
determination section 1172.6 requires, and neither set of findings supplies a
basis to reject an otherwise adequate prima facie showing and deny issuance
of an order to show cause.”]; id. at p. 721 [“For reasons we have explained,
unless a defendant was tried after Banks was decided, a major participant
finding will not defeat an otherwise valid prima facie case. And unless a
defendant was tried after Clark was decided, a reckless indifference to
human life finding will not defeat an otherwise valid prima facie case.”].)
C
When we apply the legal principles articulated in Strong to the present
case, the outcome is clear. The jury returned its robbery-murder special-
circumstance finding in 2008, before the Supreme Court clarified the major
13
participant requirement in Banks, and before it elucidated the reckless
indifference requirement in Clark. “Because [Arias’s] case was tried before
both Banks and Clark, the special circumstance finding[] do[es] not preclude
him from making out a prima facie case for resentencing under
section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) Therefore, the order
summarily denying Arias’s petition for resentencing must be reversed, and
the matter must be remanded for issuance of an order to show cause
pursuant to section 1172.6, subdivision (c).
IV
DISPOSITION
The order summarily denying Sergio Arias’s petition for resentencing is
reversed. The matter is remanded with instructions that the trial court issue
an order to show cause and conduct such further proceedings as are
mandated by section 1172.6.
McCONNELL, P. J.
WE CONCUR:
DATO, J.
BUCHANAN, J.
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