People v. Larrea CA5 ( 2021 )

Filed 7/30/21 P. v. Larrea CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081268
Plaintiff and Respondent,
(Super. Ct. No. BF131238A)
v.
MILANI CALBERTA LARREA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. John W. Lua,
Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Poochigian, Acting P.J., Peña, J. and DeSantos, J.
INTRODUCTION
In 2012, a jury convicted defendant Milani Calberta Larrea of first degree murder
and residential robbery and found true a felony-murder-robbery special-circumstance
allegation pursuant to Penal Code section 190.2, subd. (a)(17)(A). (Undesignated
statutory references are to the Penal Code.) After the passage of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), defendant filed a section 1170.95 petition for
resentencing. The People opposed the petition. The court denied the petition, concluding
defendant had not established a prima facie showing she was eligible for relief in light of
the true finding on the special circumstance allegation and because the record established
she was the actual killer. Defendant appeals from the court’s denial of her petition. She
asserts her petition was facially sufficient to establish she fell within the provisions of
section 1170.95 and the court erred in considering the record of conviction before issuing
an order to show cause. She further contends the record of conviction did not establish
she was categorically ineligible for relief.
We conclude the record establishes defendant is ineligible for resentencing as a
matter of law. Accordingly, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL HISTORY
In 2012, a jury convicted defendant of first degree murder (§ 187; count 1) with a
special circumstance that the murder was committed during the commission or attempted
commission of a robbery (§ 190.2, subdivision (a)(17)(A)); and residential robbery
(§ 212.5, subd. (a); count 2). The court sentenced defendant to life imprisonment without
the possibility of parole. Our court affirmed defendant’s conviction in an unpublished
opinion. (People v. Larrea (Nov. 14, 2014, F066300) [2014 Cal.App.Unpub. Lexis 8145;
2014 WL 6298334].)
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95
using a preprinted form. She checked boxes stating that a charging document had been
filed against her allowing the prosecution to proceed under a felony-murder theory or the
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natural and probable consequences doctrine; at trial, she was convicted of first or second
degree murder under a felony-murder theory or the natural and probable consequences
doctrine; and she could not now be convicted of murder in light of changes made to
sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). She also
checked a box indicating she was convicted of first degree murder but could not now be
convicted because she was not the actual killer, she did not, with the intent to kill, aid,
abet, counsel, command, induce, solicit, request, or assist the actual killer in the
commission of murder in the first degree, and she was not a major participant in the
felony or did not act with reckless indifference to human life during the course of the
crime or felony. She also checked a box stating, “I request that this court appoint counsel
for me during this re-sentencing process.” The court appointed defendant counsel and the
parties proceeded to file briefing.
In their response, the People moved to dismiss the petition, arguing Senate Bill
1437 is unconstitutional. They also filed a separate response arguing the petition failed
on the merits because the jury’s verdict, including the true finding on the special
circumstance allegation, rendered defendant ineligible for relief. The People argued
defendant was a major participant who acted with reckless indifference and she was an
actual killer based on the language in our appellate opinion from her direct appeal, which
concluded substantial evidence supported a conclusion she proximately caused the
victim’s death. The court denied the People’s motion to dismiss, concluding Senate Bill
1437 is constitutional.
The court set the petition for a hearing and, after hearing arguments from counsel,
the court held defendant was ineligible for relief. It noted it considered the record of
conviction, including the charging document, jury instructions, verdict form, and this
court’s opinion on direct appeal. It held those records established defendant was
convicted of robbery and first degree murder with the special circumstance that the
murder was committed during the course of a robbery. It explained, to render a true
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finding on the special circumstance, the jury had to conclude defendant was a major
participant in the robbery and, when she committed the crime, she acted with reckless
indifference to human life. The court stated, “These are factual findings the jury had to
have made based on the evidence presented at the trial.” Accordingly, the court stated it
would accept those findings previously made by the jury. The court further stated:
“Based on the evidence presented at the trial and specifically
referring to the appellate opinion so as not to weigh or determine
credibility, but only to understand the issues raised on appeal, there was
evidence to support the proposition that the defendant was an actual killer
in this case and that her actions proximately caused the victim’s death. Her
conduct, it was found, led to and became a substantial factor of the victim’s
death. As an actual killer, [defendant] would likewise be ineligible for
relief under … Section 1170.95.
“It is for those reasons, therefore, that this Court is going to find
[defendant] is ineligible for the relief sought and her petition, therefore, is
dismissed.}
DISCUSSION
I. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] 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).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability, and it adds section 1170.95, which provides a procedure
by which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a crime shall act with
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malice aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the
Legislature’s intent that “[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e) which provides:
“A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs is liable for murder 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.
[¶] (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.”
Newly enacted section 1170.95 permits those “convicted of felony murder or
murder under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts ….” (Id., subd. (a).) An offender may file a
petition under section 1170.95 where all three of the following conditions are met:
“(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
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of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(1)–(3).)
A trial court receiving a petition under section 1170.95 “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.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.” (Ibid.)
II. Analysis
Defendant contends the trial court erred by consulting the record of conviction,
which was not to be considered at the prima facie showing stage. Alternatively, she
argues even “if the record of conviction may be consulted, only matters necessarily
adjudicated by the trial or appeal may be consulted.” She asserts the recital of evidence
in an appellate court opinion may not be used as a basis for the court to deny a facially
sufficient petition and that nothing in the record rendered her ineligible for relief as a
matter of law. She further argues the conclusion in our court’s prior opinion that there
was sufficient evidence to support the jury’s conclusion defendant aided in the binding of
the victim and that her acts proximately caused the victim’s death did not establish she
was the actual killer as a matter of law. Defendant further contends the special
circumstance finding did not render her ineligible for resentencing as a matter of law. In
support, she relies on People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark), both decided after defendant’s conviction. She argues
these decisions by the California Supreme Court “significantly narrowed” what it means
to be a major participant who acted with reckless indifference, and the jury’s true
findings were “not guided by these refinements because they did not exist” at the time of
her trial. She asserts “[a] true finding under the old standards is not a finding under the
new standards.” The People concede the record of conviction does not establish
defendant was an actual killer as a matter of law. However, they assert the jury’s special
circumstance finding rendered defendant categorically ineligible for relief. We agree the
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jury’s true finding on the felony-murder-robbery special-circumstance enhancement
rendered defendant ineligible for relief as a matter of law. Thus, the court did not err in
denying defendant’s petition, nor was defendant prejudiced by the lack of an order to
show cause.
First, the California Supreme Court just affirmed that a trial court “may look at the
record of conviction after the appointment of counsel to determine if a petitioner has
made a prima facie case for section 1170.95 relief.” (People v. Lewis (July 26, 2021,
S260598) __ Cal.5th __, __ [2021 Cal. Lexis 5258 at p. *30].) However, the Lewis court
noted, “the prima facie inquiry under subdivision (c) is limited.” (Ibid.) “Like the
analogous prima facie inquiry in habeas corpus proceedings, ‘“the 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.”’” (Lewis, at pp. __ [2021 Cal. Lexis 5258
at pp. *30–*31.) “‘However, if the record, including the court’s own documents,
“contain[s] facts refuting the allegations made in the petition,” then “the court is justified
in making a credibility determination adverse to the petitioner.”’” (Id. at p. __ [2021 Cal.
Lexis at p. *31].) “In reviewing any part of the record of conviction at this preliminary
juncture, a trial court should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’” (Ibid.)
Here, the record of defendant’s conviction established she was categorically
ineligible for relief as a matter of law based on the jury’s felony-murder special-
circumstance finding. That is, section 189, as amended by Senate Bill 1437, now permits
a felony-murder conviction only when specified facts relating to the defendant’s
individual culpability have been proved. Among such circumstances, a felony-murder
conviction is permissible if the defendant 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).) And here, the jury found true felony-murder special
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circumstance allegations pursuant to section 190.2, subdivision (a)(17)(A), which impose
sentences of death or life without the possibility of parole for a murder committed during
the commission, or attempted commission, of an arson or burglary. (§ 190.2, subd.
(a)(17)(A).) To make such findings, the jury was required to find that petitioner acted
“with reckless indifference to human life and as a major participant” in aiding or abetting
the commission of the underlying felonies. (§ 190.2, subd. (d); People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 419.) In other words, “[t]he language of the special
circumstance tracks the language of Senate Bill 1437 and the new felony-murder
statutes.” (Gutierrez-Salazar, at p. 419.) Thus, by finding the special circumstance
allegation true, the jury made the requisite findings necessary to sustain felony-murder
convictions under the amended law. Defendant is therefore ineligible for resentencing
under section 1170.95 as a matter of law.
In so holding, we note after defendant was convicted, “Banks and Clark ‘clarified
“what it means for an aiding and abetting defendant to be a ‘major participant’ in a crime
who acted with a ‘reckless indifference to human life.’”’ [Citation.] Banks identified
certain factors to consider in determining whether a defendant was a major participant;
Clark identified factors to guide the determination of whether the defendant acted with
reckless indifference to human life.” (People v. Gomez (2020) 52 Cal.App.5th 1, 13, fn.
5 (Gomez), review granted Oct. 14, 2020, S264033.) And Courts of Appeal are split on
the question of whether a special circumstance finding entered prior to Banks and Clark
renders a petitioner ineligible for section 1170.95 resentencing relief as a matter of law.
(See People v. Jones (2020) 56 Cal.App.5th 474, 478–479 (Jones) [collecting cases],
review granted Jan. 27, 2021, S265854.) Our Supreme Court has granted review to
decide the issue. (People v. Strong (Dec. 18, 2020, C091162), review granted Mar. 10,
2021, S266606 [2020 Cal.App.Unpub. Lexis 8505; 2020 WL 7417057].)
However, our court has previously held we find more persuasive those cases
holding that a special circumstance finding precludes relief as a matter of law. (People v.
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Simmons (2021) 65 Cal.App.5th 739, 749; accord, Jones, supra, 56 Cal.App.5th at pp.
482, 484, review granted; People v. Nunez (2020) 57 Cal.App.5th 78, 92, review granted
Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449, 458.) And
defendant does not persuade us to depart from our previous reasoning.
Banks and Clark did not state a new rule of law. (People v. Simmons, supra, 65
Cal.App.5th at p. 749.) Rather, they relied upon the United States Supreme Court’s
decisions in Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona
(1987) 481 U.S. 137 (Tison) to clarify principles that had long been in existence at the
time those defendants were convicted. (Ibid.; accord, In re Miller (2017) 14 Cal.App.5th
960, 978; People v. Allison, supra, 55 Cal.App.5th at p. 458; Gomez, supra, 52
Cal.App.5th at p. 13, fn. 5, review granted.) Enmund prohibited felony-murder liability
for a defendant who “did not commit the homicide, was not present when the killing took
place, and did not participate in a plot or scheme to murder,” and explained that, to be
liable for felony murder, the aider and abettor must himself “kill, attempt to kill, or intend
that a killing take place or that lethal force will be employed.” (Enmund, supra, at pp.
795, 797.) Tison held that “major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the Enmund culpability
requirement.” (Tison, supra, at p. 158.) As Banks noted, this language from Tison was
later codified by the California electorate in section 190.2, subdivision (d). (Banks,
supra, 61 Cal.4th at p. 800.) To the extent Banks and Clark illuminated factors a fact
finder might consider in determining whether a defendant was a major contributor who
acted with reckless indifference to human life, they drew those factors from Enmund and
Tison. (See Banks, supra, at pp. 801–803; Clark, supra, 63 Cal.4th at pp. 615, 618–623.)
These principles existed when defendant was convicted and, absent a determination on
direct appeal or in a habeas corpus proceeding that the evidence was insufficient to
support the jury’s finding, there is no basis to conclude defendant’s jury applied different
standards than those described in Banks and Clark.
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Defendant argues the jury must be instructed on the Banks and Clark factors if the
jury’s factual findings of major participant and reckless indifference are to be
meaningful. However, the pattern jury instruction regarding major participation and
reckless indifference remains the same as it was before Banks and Clark. (People v.
Allison, supra, 55 Cal.App.5th at p. 458; accord, CALCRIM No. 703; Gomez, supra, 52
Cal.App.5th at p. 14, fn. 6 [setting forth language of CALCRIM No. 703 before and after
Banks and Clark], review granted; People v. Nunez, supra, 57 Cal.App.5th at p. 94
[finding “no basis to conclude as a general matter that a pre-Banks and Clark jury was
instructed differently than a post-Banks and Clark jury, or resolved different factual
issues, answered different questions, or applied different standards], review granted.)
Though this instruction now includes optional language suggested by the Banks and
Clark decisions, the bench notes to the instruction state that Banks “stopped short of
holding that the court has a sua sponte duty to instruct on those factors,” and Clark “did
not hold that the court has a sua sponte duty to instruct on those factors.” (Bench Notes
to CALCRIM No. 703 (2021 ed.) p. 477; see Gomez, supra, at p. 14, fn. 6.) Thus, we
cannot conclude, as defendant suggests, that such instructions are required for a jury’s
felony-murder special-circumstance finding to be valid.
Rather, we conclude defendant is categorically ineligible for relief as a matter of
law based on the jury’s special circumstance finding. Thus, the trial court did not err in
denying defendant’s petition without issuing an order to show cause and holding an
evidentiary hearing.
DISPOSITION
The court’s order denying defendant’s petition for resentencing is affirmed.
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