People v. Meza CA2/2 ( 2021 )

Filed 8/12/21 P. v. Meza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307736
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054914-
v. 02)
BRAYAN MARTIN MEZA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael D. Abzug, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Brayan Martin Meza (defendant) was convicted of second
degree murder in 2013 for his role in the death of David
Hendricks. In 2019, he filed a petition for resentencing under
Penal Code section 1170.95,1 which the trial court summarily
denied. Defendant now appeals, arguing that the court erred in
summarily denying his petition without an evidentiary hearing.
Although our Supreme Court in People v. Lewis (July 26, 2021,
S260598) ___Cal.5th___ [2021 Cal.Lexis 5258] (Lewis) has held
that summary denials are not procedurally appropriate, Lewis
also held that they can be harmless where, as here, the defendant
is otherwise ineligible for relief as a matter of law. Thus, we
affirm the denial of his petition.
FACTS AND PROCEDURAL BACKGROUND2
I. Facts
Carlos Sotello (Sotello) picked two fist fights with David
Hendricks (Hendricks) in a day, and lost both of them. Sotello
walked away after the first, but shot and killed Hendricks after
the second. Defendant was watching the second fight and
holding a gun; during that fight, Sotello retrieved the gun from
defendant in order to shoot Hendricks.
1 All further statutory references are to the Penal Code
unless otherwise indicated
2 For the background in this case, we rely on our prior
opinion, contained in the record. (People v. Meza (May 30, 2015,
B266328 [nonpub. opn.].)
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II. Procedural Background
A. Underlying conviction and sentence
The People charged defendant with murder (§ 187), and
alleged that the murder was committed for the benefit of, at the
direction of, and in association with a criminal street gang
(§ 186.22, subd. (b)(4)). The People further alleged in the
alternative that a principal in the crime (1) personally used a
firearm (§§ 12022.53, subds. (b), (e)(1), 186.22, subd. (b)(4)), (2)
personally discharged a firearm (§§ 12022.53, subds. (c), (e)(1),
186.22, subd. (b)(4)), and (3) personally used and discharged a
firearm causing death (§§ 12022.53, subds. (d), (e)(1), 186.22,
subd. (b)(4)).
The trial court instructed the jury on a single theory of
liability—namely, that defendant directly aided and abetted
Sotello in the commission of Hendrick’s murder.
The jury convicted defendant of second degree murder, and
found the gang enhancement and all of the firearm
enhancements to be true.
Defendant proceeded pro se at sentencing, and the trial
court sentenced him to 40 years to life in prison—15 years to life
on the murder charge, followed by 25 years to life for the
enhancement involving discharge of a firearm causing death.
The court imposed but stayed sentences for the remaining
enhancements.
B. First appeal
In his prior appeal, defendant challenged his sentence,
arguing that the 25-years-to-life sentencing enhancement was
improperly imposed and, additionally, that the court abused its
discretion when it denied his third request for postponement of
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his sentencing hearing. We disagreed and affirmed defendant’s
sentence.
C. Petition for resentencing
In 2019, defendant filed a form petition for resentencing
under section 1170.95. In the petition, defendant checked the
pertinent boxes to indicate that (1) “A complaint, information, or
indictment was filed against [him] that allowed the prosecution
to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine”; (2) “At trial, [he]
was convicted of 1st or 2nd degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine”;
and (3) “[He] could not now be convicted of 1st or 2nd degree
murder because of changes to Penal Code §§ 188 and 189,
effective January 1, 2019.”
After receiving briefing from both sides, the trial court
summarily denied defendant’s petition because the jury did not
convict defendant of murder under any theory of liability affected
by section 1170.95.
D. Second appeal
Subsequently, defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition without issuing an order to
show cause and holding an evidentiary hearing.
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel, the opportunity for further
briefing and a hearing if, in his petition, he “makes a prima facie
showing that he . . . is entitled to relief” under that section. (§
1170.95, subds. (c) & (d); Lewis, supra, ___Cal.5th___ [2021
Cal.Lexis 5258 at p. *12].) A person is entitled to relief
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under section 1170.95 if, as relevant here, (1) “[a] complaint,
information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of first degree murder,” and (3) he “could
not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (§
1170.95, subd. (a).) A person may be convicted of murder, even
after the 2019 changes made to sections 188 and 189, if he (1)
“was the actual killer,” (2) aided and abetted the actual killer
with the intent to kill, or (3) “was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e).) A ““‘prima facie showing is one that is
sufficient to support the position of the party in question.’””
(People v. Law (2020) 48 Cal.App.5th 811, 820, review granted
July 8, 2020, S262490.)
In Lewis, supra, ___Cal.5th___ [2021 Cal.Lexis 5258], our
Supreme Court held that if a defendant files a facially compliant
petition and requests the appointment of counsel, the trial court
must appoint counsel and entertain further briefing regardless of
whether the record of conviction unequivocally demonstrates that
the defendant is not entitled to relief. (Id. at p. *15.)
Here, defendant’s petition was facially compliant and he
requested counsel. Thus, Lewis dictates the conclusion that the
trial court erred in summarily denying defendant’s petition.
That being said, Lewis also provides that any error in
summarily denying a section 1170.95 petition is harmless unless
the defendant can show “‘“it is reasonably probable that if [he or
she] had been afforded assistance of counsel [and briefing] his [or
her] petition would not have been summarily denied without an
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evidentiary hearing.”’ [Citation.]” (Lewis, supra, ___Cal.5th___
[2021 Cal.Lexis 5258 at p. *29].)
Defendant has not carried this burden because it is not
reasonably probable that the outcome of this proceeding would
have been any different, even if defendant had counsel and the
opportunity for further briefing. That is because the record of
conviction indicates that he was found guilty of second degree
murder as a direct aider and abettor, precluding him from relief
under section 1170.95. (See § 189, subd. (e); see People v.
Drayton (2020) 47 Cal.App.5th 965, 972 [explaining that
summary denial is proper at the prima facie stage where
defendant is “indisputably ineligible for relief”].) In particular,
the jury was instructed on the direct aider and abettor theory of
second degree murder but was not instructed on either the
natural and probable consequences theory or felony murder
theory. Because defendant’s jury was not instructed on either of
the two theories on which relief can be granted under section
1170.95, defendant is ineligible for resentencing under section
1170.95 as a matter of law.
After Lewis, defendant’s sole argument on appeal is that
the court was prohibited from reviewing the record of conviction
to determine eligibility for relief at the prima facie stage. Lewis
specifically rejected that argument. (Lewis, supra, ___Cal.5th___
[2021 Cal.Lexis 5258 at pp. *22-*24].)
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DISPOSITION
We affirm the order denying relief under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P.J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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