People v. Macias CA2/2 ( 2020 )

Filed 12/11/20 P. v. Macias CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B300444
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA055282)
v.
ERIC MACIAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Bruce F. Marrs, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Avri and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Eric Macias appeals the summary denial of a petition for
resentencing under Penal Code1 section 1170.95. Macias
contends, and the Attorney General agrees, that because the
record of conviction does not demonstrate that Macias is
ineligible for relief as a matter of law, the superior court
summarily denied the petition in error. We agree and remand
the matter to the superior court for further proceedings,
including the appointment of counsel for Macias and briefing by
the parties in accordance with section 1170.95, subdivision (c).
FACTS AND PROCEDURAL BACKGROUND2
Ana Gomez and Jose Pichardo never married, but had a
stormy relationship for 13 years and had three children together.
In November 2001, Gomez left the residence she had shared with
Jose and his mother, and rented a room in a house with two other
women. However, Gomez continued to see Jose, and occasionally
spent the night with him.
On December 15, 2001, Gomez attended her company’s
Christmas party with Carlos Mendez, a coworker. When the
party ended around 11:00 p.m., Mendez went with Gomez to her
home. While they were driving, Gomez received a call from Jose
on her cell phone but did not answer.
Gomez and Mendez were alone in the house sitting in the
kitchen when Gomez received another call from Jose. He asked
1 Undesignated statutory references are to the Penal Code.
2 We have taken judicial notice of this court’s prior opinion
in Macias’s direct appeal from his conviction, from which the
factual summary is drawn. (People v. Macias (Mar. 21, 2005,
B171380) [nonpub. opn.]; see People v. Cruz (2017) 15
Cal.App.5th 1105, 1110 [appellate opinion is part of the record of
conviction].)
2
her where she was, and Gomez told him she was at her mother’s
house. Jose sounded upset and told Gomez he knew she was
lying because he had driven by her mother’s and her car was not
there. Gomez said they could discuss it later and hung up. Jose
called again and wanted to know where Gomez was. Gomez
responded that she was at home and had been sleeping. Gomez
then heard a car door close and asked Jose where he was. Jose
told her to open the front door.
Gomez had Mendez hide in the space between the
refrigerator and the wall in the kitchen. As Gomez went to the
front door and looked out, she heard the back door being kicked
in. Jose, his brother Gerardo, and appellant entered the house.
Jose grabbed Gomez by the arms and demanded to know
who else was in the house. Gomez repeatedly told him she was
alone. He went to her roommates’ bedrooms, kicked in the locked
doors and checked inside. Finding no one there, Jose dragged
Gomez into her bedroom and searched it. As they moved toward
the living room, Gomez heard someone whose voice she did not
recognize yell, “Here he is.”
Jose ran to the kitchen and began punching Mendez, who
was still between the wall and the refrigerator. Gomez saw
appellant standing beside Jose. Gerardo had gone outside. Jose
pulled Mendez from the crevice into the main kitchen area.
While Mendez and Jose were fighting, Gomez saw appellant pick
up something from near the sink, raise his hand, and bring it
down toward Mendez. Jose then backed off from his attack on
Mendez. Gomez did not see appellant actually stab Mendez, nor
did she see Jose arm himself. During the fighting, Gomez was
tugging on Jose’s shirt, trying to pull him away from Mendez.
Jose knocked her to the floor and hit her several times as she lay
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there. Gerardo came in and said, “Let’s go. That’s enough.”
Gomez saw Mendez lying on the kitchen floor, and she heard him
crying.
Jose picked Gomez up and took her out to a car in the
driveway, which Gomez recognized as belonging to Gerardo’s
girlfriend. Trying to protect Mendez from further harm, Gomez
stopped resisting and got into the car. Jose sat in the back seat
on the driver’s side next to Gomez. Gerardo was driving, and
appellant sat in the front passenger seat. Jose continued to yell
at Gomez and hit her as they drove. Appellant was dropped off,
and eventually Jose released Gomez from the car.
One of Gomez’s roommates returned home around
1:00 a.m. to find the front and back doors of the house open and
blood everywhere. She attempted to open the bathroom door, but
something was blocking it. She went to a neighbor’s and called
the police. Upon entering the house, Los Angeles County
Sheriff’s deputies observed a blood trail from the kitchen to the
bathroom and found Mendez lying on the bathroom floor, dead
from a stab wound to the heart. One of the knives found in the
kitchen was consistent with the shape and size of the stab wound.
When Gomez arrived home she told one of the deputies she
had seen appellant pick up an object from the sink and stab
Mendez, demonstrating the motion he had made. Bloodstains
matching Mendez’s DNA were found in the front and rear
passenger seats of the car into which Jose had forced Gomez after
leaving the house. A fingerprint belonging to Gerardo was found
on the handle of the driver’s side door of the car, and Jose and
appellant’s fingerprints were found on two bottles recovered from
the front yard of Gomez’s home.
4
When appellant was arrested almost a year after the
stabbing, he told detectives, “I knew this was gonna happen
sooner or later, and I’m glad it’s over. I was gonna turn myself in
but couldn’t because I knew I would have to tell.”
At trial, appellant presented evidence that he was seen
wearing dressy clothes and shoes on the evening of December 15,
2001, before the stabbing. In the early morning hours of
December 16, 2001, around 2:00 a.m., appellant gave a friend a
ride to another friend’s house. Appellant was still dressed up,
wearing “church clothes.” The clothes were not stained, and
appellant was relaxed and joking.
A jury convicted appellant of first degree murder (§ 187,
subd. (a)), kidnapping (§ 207, subd. (a)), and first degree burglary
(§ 459), and he was sentenced to a term of 33 years to life in state
prison. In an unpublished opinion filed March 21, 2005, this
court affirmed the judgment.
In 2019, Macias filed a petition for resentencing pursuant
to section 1170.95. The superior court summarily denied the
petition without appointing counsel, finding, “the petitioner is not
entitled to relief as a matter of law, for the following reason: [¶]
. . . [¶] The appellate opinion affirming the petitioner’s conviction
and sentence reflects that the petitioner was the actual killer and
was convicted of murder on a theory of being the direct
perpetrator (People v. Eric Macias, March 21, 2005, B171380, 2d
Dist., Div. 2, p. 8).”
5
DISCUSSION
The Superior Court Improperly Denied the Section
1170.95 Petition Without Appointing Counsel to
Represent Macias or Allowing Briefing by the Parties
Section 1170.95, subdivision (c) requires the superior court
to engage in a two-step review of a facially adequate petition for
resentencing under section 1170.95. In the first step, the
superior court must review the petition to determine if the
petitioner has made a prima facie showing that he falls within
the provisions of the statute; that is, that he may be entitled to
relief. The parties agree that because Macias made the requisite
showing to satisfy the first step, he was entitled to the
appointment of counsel, and the matter should be remanded for
further proceedings in accordance with section 1170.95.
A. Senate Bill No. 1437 and section 1170.95
The Legislature enacted Senate Bill No. 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 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);
People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
To accomplish this objective, Senate Bill No. 1437 amended
section 188, subdivision (a)(3), defining malice, to require that all
principals to murder must act with express or implied malice to
be convicted of that crime, with the exception of felony murder
under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.)
The amendments to section 189 included the new requirement
that a participant in a specified felony during which a death
6
occurs may be convicted of murder for that death “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. [¶] [or] (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.” (§ 189, subd. (e)(1)–(3).)
Senate Bill No. 1437 and its amendment to section 188
“significantly restricted potential aider and abettor liability, as
well as coconspirator liability, for murder under the natural and
probable consequences doctrine, effectively overruling [People v.]
Chiu [(2014) 59 Cal.4th 155] insofar as it upheld second degree
murder convictions based on that theory. Now, rather than an
objective, reasonable foreseeability standard, as discussed in
[People v.] Prettyman [(1996) 14 Cal.4th 248] and Chiu, pursuant
to new section 188, subdivision (a)(3), to be guilty of murder other
than as specified in section 189, subdivision (e), concerning felony
murder, the subjective mens rea of ‘malice aforethought’ must be
proved: ‘[T]o be convicted of murder, a principal in a crime shall
act with malice aforethought.’ (See also Sen. Bill 1437[,] Stats.
2018, ch. 1015, § 1, subd. (g) [‘[a] person’s culpability for murder
must be premised upon that person’s own actions and subjective
mens rea’].) And that required element of malice ‘shall not be
imputed to a person based solely on his or her participation in a
crime.’ (§ 188, subd. (a)(3).)” (People v. Lopez (2019) 38
Cal.App.5th 1087, 1103, review granted Nov. 13, 2019, S258175;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted
Mar. 18, 2020, S260598 (Lewis).)
7
In addition to these amendments, Senate Bill No. 1437
added section 1170.95 to provide a procedure by which those
convicted of felony murder or murder under a natural and
probable consequences theory may seek retroactive relief if they
could no longer be convicted of murder because of the changes to
sections 188 or 189. (Martinez, supra, 31 Cal.App.5th at pp. 722–
723.)
If the petition meets the requirements of section 1170.95,
subdivisions (a) and (b), the superior court must then undertake
the two-step prima facie analysis set forth in subdivision (c)
before an order to show cause may issue.3 (People v. Nunez
(2020) 59 Cal.App.5th 78 (Nunez); People v. Verdugo (2020) 44
Cal.App.5th 320, 327–328, review granted Mar. 18, 2020,
S260493 (Verdugo); Lewis, supra, 43 Cal.App.5th at pp. 1136,
1140, rev.gr.) In the first step of this analysis, the superior court
conducts a sua sponte screening of the petition to verify the
petitioner’s eligibility for relief under the statute. At this stage,
the court may “examine readily ascertainable information in the
3 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.”
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record of conviction and . . . if that threshold review ‘establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill [No.] 1437’s amendments to sections
188 and 189’ ” (Nunez, at p. 89), the court may dismiss the
petition without the appointment of counsel or briefing from the
parties. (Lewis, supra, 43 Cal.App.5th at p. 1140, rev.gr.;
Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.; People v. Offley
(2020) 48 Cal.App.5th 588, 597; People v. Edwards (2020) 48
Cal.App.5th 666, 674–675, review granted July 8, 2020, S262481;
People v. Tarkington (2020) 49 Cal.App.5th 892, 900, review
granted Aug. 12, 2020, S263219.4)
On the other hand, if the record of conviction does not
indicate ineligibility as a matter of law, the court must proceed to
step two of the prima facie analysis. There, section 1170.95,
subdivision (c) requires the court to appoint counsel if requested
and accept briefing from the parties on the issue of whether the
petitioner is “entitled to relief.” (Verdugo, supra, 44 Cal.App.5th
at pp. 332–333, rev.gr.) But as in the initial prima facie review,
4 The California Supreme Court limited its review in Lewis,
Verdugo, Edwards, and Tarkington to the following issues:
“(1) May superior courts consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under Penal Code section 1170.95?
(2) When does the right to appointed counsel arise under Penal
Code section 1170.95, subdivision (c)?” (Lewis, S260598
[as of Nov. 12, 2020], archived at
.)
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the court does not engage in factfinding and draws “all factual
inferences in favor of the petitioner.” (Verdugo, at p. 329; People
v. Drayton (2020) 47 Cal.App.5th 965, 982.)
If, after the parties’ briefing, the petitioner has made a
prima facie showing that he is entitled to relief because there
remains no proof of ineligibility as a matter of law, “the court
shall issue an order to show cause” why relief should not be
granted. (§ 1170.95, subd. (c); see Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 851 [“A prima facie showing is one that
is sufficient to support the position of the party in question”]; In
re Edward H. (1996) 43 Cal.App.4th 584, 593 [“A ‘prima facie’
showing refers to those facts which will sustain a favorable
decision if the evidence submitted in support of the allegations by
the petitioner is credited”].)
At this point, the People may concede that relief should be
granted, or in a hearing to determine whether the petitioner is
entitled to relief, bear the burden of proving beyond a reasonable
doubt that the petitioner is ineligible. (§ 1170.95, subd. (d).) At
such a hearing, “[t]he prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3).)
B. Macias made a prima facie showing that he falls
within the provisions of the new law as required under
subdivision (c) of section 1170.95
Macias contends his petition for resentencing satisfied the
requirements for the initial prima facie showing that he falls
within the provisions of the statute and thus may be eligible for
relief. Accordingly, the superior court erred in summarily
denying his petition without appointing counsel and without
briefing from the parties. We agree.
10
Macias’s petition in this case satisfied the requirements for
the initial prima facie showing under section 1170.95,
subdivision (c). The petition alleges, and the record of conviction
shows that the information charged Macias with murder, the
prosecution proceeded under alternate theories, including the
natural and probable consequences doctrine, and Macias suffered
a conviction for first degree murder following a jury trial.
Presuming these facts to be true, and assuming Macias could not
now be convicted of first or second degree murder because of the
changes to section 188,5 he would be entitled to relief under
section 1170.95.
In his direct appeal, Macias challenged the sufficiency of
the evidence in support of his convictions as either a principal or
an aider and abettor, and he contended his “murder conviction
should be reversed because the doctrine of natural and probable
consequences on which it rests violates due process.” In rejecting
Macias’s claims, this court concluded that the evidence was
sufficient to establish that Macias was guilty of murder as a
direct perpetrator, and that the evidence was “sufficient to
support [his] conviction as an aider and abettor, or as a member
of a conspiracy to commit an assault, the natural and probable
consequences of which was the murder of Mendez.” This court
also determined that the trial court had properly instructed the
jury on the natural and probable consequences doctrine (CALJIC
No. 3.02, 2000 Re-revision), observing that, “[a]lthough the
natural and probable consequences doctrine may be subject to
criticism, it is important to note that ‘the Supreme Court has
5 There is no indication in the record that Macias was
convicted under a theory of felony murder.
11
repeatedly rejected the contention that an instruction on the
natural and probable consequences doctrine is erroneous because
it permits an aider and abettor to be found guilty of murder
without malice.’ ”
The trial court appears to have misconstrued our holding in
the prior opinion in the direct appeal by concluding that we had
determined Macias was the “actual killer” and “was convicted of
murder on a theory of being the direct perpetrator.” However,
the prior opinion did not so hold. Rather, we specifically found
the evidence sufficient to support the murder conviction on the
theory that Macias was an aider and abettor or a member of a
conspiracy to commit an assault, the natural and probable
consequences of which was the murder of Mendez. If it can be
established that Macias was convicted of murder on a natural
and probable consequences theory, he would be eligible for relief
under section 1170.95 because of the amendment to section 188.
The fact that we also found the evidence sufficient to support
conviction on the theory that Macias was the actual killer and
thus a direct perpetrator is irrelevant to the question of Macias’s
eligibility for relief under section 1170.95 at this prima facie
stage of review.
In sum, the allegations in the petition, together with this
court’s opinion in Macias’s direct appeal, were sufficient to meet
Macias’s duty of making an initial prima facie showing that he
falls within the provisions of the statute and may be entitled to
relief. Because the superior court failed to follow the statutory
procedures in denying the petition, its factual findings are not
entitled to deference and remand is warranted for further
proceedings in accordance with section 1170.95, subdivision (c).
12
On remand, the superior court is directed to appoint
counsel as requested and accept briefing by the parties before
proceeding to the determination of whether Macias made a prima
facie showing that he is entitled to relief. (See People v. Endsley
(2018) 28 Cal.App.5th 93, 104 [remand appropriate where trial
court failed to follow statutory procedures]; People v. Rocha
(2019) 32 Cal.App.5th 352, 360 [“A remand is necessary to ensure
proceedings that are just under the circumstances, namely, a
hearing at which both the People and defendant may be present
and advocate for their positions”].) Thereafter, if the court finds
that Macias has made the requisite showing, it must issue an
order to show cause and proceed with a hearing in accordance
with section 1170.95, subdivisions (c) and (d).
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DISPOSITION
The postjudgment order is reversed. The matter is
remanded to the superior court for further proceedings in
accordance with section 1170.95, subdivision (c), including the
appointment of counsel for Macias and briefing by the parties.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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