People v. Banuelos CA2/4 ( 2021 )

Filed 8/16/21 P. v. Banuelos CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305433
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA024281
v.
SILVANO ZAPIEN BANUELOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Reversed and
remanded with instructions.
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, Amanda V. Lopez and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1992, defendant and appellant Silvano Zapien Banuelos
pled guilty to second degree murder. In 2019, he filed a petition
for recall and resentencing under Penal Code section 1170.95.1
The trial court summarily denied the petition, concluding
Banuelos was not entitled to relief because the record of
conviction showed he was not convicted under a felony murder or
natural and probable consequences theory, but rather was a
direct aider and abettor to the murder.
On appeal, Banuelos argues the trial court erred by
denying his petition without issuing an order to show cause and
holding an evidentiary hearing. The Attorney General disagrees,
asserting Banuelos failed to make a prima facie showing of
entitlement to relief because the record of conviction indisputably
showed he was prosecuted and pleaded no contest under the
theory that he harbored the intent to kill. We agree with
Banuelos and reverse the denial of his petition. The record does
not demonstrate as a matter of law that Banuelos was convicted
on the theory that he was a direct aider and abettor to the
murder who harbored the intent to kill. On remand, the trial
court is directed to issue an order to show cause and hold an
evidentiary hearing on whether Banuelos is entitled to relief
under section 1170.95.
1 All undesignated statutory references are to the Penal
Code.
2
PROCEDURAL BACKGROUND2
In 1991, the Los Angeles County District Attorney filed an
information charging Banuelos and his co-defendant, Rene
Fernando Herrera, with murder. (§ 187, subd. (a).) The charge
alleged Banuelos and Herrera committed the murder “willfully,
unlawfully, and with malice aforethought.” The information
further alleged that in the commission of the murder, a principal
was armed with a firearm (§ 12022, subd. (a)(1)), Herrera
personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5), and
Herrera inflicted great bodily injury and death by discharging a
firearm from a motor vehicle (§ 12022.55).
In 1992, Banuelos pled no contest to second degree murder
(§ 187, subd. (a)), including the charge that he “willfully,
unlawfully[,] [and] with malice aforethought murder[ed]
Armando Mendoza.” He admitted the allegation that a principal
was armed with a firearm in the commission of the offense.
(§ 12022, subd. (a)(1).) The trial court sentenced him to 15 years
to life, plus an additional year for the gun enhancement. At the
plea hearing, the court acknowledged Banuelos was not the
actual killer.
In 2019, Banuelos filed a petition for resentencing under
section 1170.95. In 2020, after appointing counsel for Banuelos
and considering briefing from the parties, the trial court filed a
written order summarily denying the petition. The court
concluded as a matter of law Banuelos was not entitled to relief.
The court explained the record of conviction showed Banuelos
2 We grant the Attorney General’s request that we take
judicial notice of the record in Banuelos’s direct appeal (case no.
B134469).
3
“was not convicted under a theory of felony-murder of any degree,
or a theory of natural and probable consequences[,]” and
“established [ ] [Banuelos] was a direct aider and abettor to the
murder . . . .”
Banuelos timely appealed.
PRELIMINARY HEARING TESTIMONY
On July 8, 1990, around 1:00 a.m., Alfred Vasquez and
some of his friends were with Jose Valencia in front of Valencia’s
house on Eagle Street. Vasquez belonged to the Clarence Street
gang. Vasquez was standing on the sidewalk when he saw a
brown Oldsmobile drive by. He recognized the car as belonging to
a rival gang, the White Fence gang. Banuelos’s co-defendant,
Rene Herrera, who Vasquez knew as either Polar or Bad Boy,
was in the front passenger seat. Vasquez’s friends told him to go
to the back of the house in case the people in the car were armed.
Three days earlier, Vasquez had seen the same car with people
inside throwing up gang signs.
Alex Miramontes was looking out the window of her home
when she saw a brown car make a U-turn and drive back down
Eagle Street. She then heard three or four gunshots. Vasquez,
who was now at the back of Valencia’s house, also heard the
shots. When Vasquez returned to the front of the house, he saw
that his friend, Armando Mendoza (a.k.a. “Rusty”), was lying on
the ground. Vasquez later identified Herrera in a photographic
lineup.
Two days later, Los Angeles Police Officer Rudolph
Navarro, who had been investigating the shooting, knocked on
what he believed to be Herrera’s door. When no one answered,
Officer Navarro asked neighbors for help, and they directed him
4
to a different house on the same street. At that house, an older
man answered the door, invited the officer in, and said his
grandson Rene Herrera was asleep inside. Herrera entered the
room and admitted he belonged to the White Fence gang. Officer
Navarro read Herrera his Miranda3 rights and then began
questioning him about the shooting. Herrera told Officer Navarro
that he, Bear, Lucky, and Chino had been driving in Bear’s
brown Oldsmobile Cutlass when the shooting happened. They
were taking a short cut through Eagle Street when they saw
Clarence Street gang members. They then went to the corner,
where Bear opened the hood of the car. Herrera then retrieved a
gun that had been stashed near the battery. Herrera, who had
put a rag on his face, was going to run at the Clarence Street
gang members and shoot them, but instead Bear told him to get
inside the car. Bear told Herrera to hold the steering wheel.
When they pulled up to the other group, Bear asked where they
were from, and they replied “Clarence Street.” Bear started
shooting, then they drove away. After Bear shot, Herrera saw one
of the men fall and die.
Herrera directed Officer Navarro to the location of the car
that had been used in the shooting. Officer Navarro ran a DMV
check on the license plate and discovered it belonged to Lupe
Banuelos.4 Officer Navarro went to Lupe’s home and she invited
him in. Officer Navarro observed Banuelos lying on a bed about
14 feet from the door. Officer Navarro saw Banuelos had a “W.F.”
3 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct.1602, 16
L.Ed.2d 694.]
4 To avoid confusion, and with no disrespect intended, Lupe
Banuelos is hereafter referred to as “Lupe” and Silvano Banuelos
is referred to as “Banuelos.”
5
tattoo on his leg, which he believed stood for White Fence gang.
Banuelos told Officer Navarro he went by the name Bear and was
part of the White Fence gang.
Banuelos also told Officer Navarro that he, Chino, Lucky,
and Bad Boy had been driving on their way to a party. When they
picked up Bad Boy, he asked Banuelos to stash his gun. Banuelos
did not want to stash the gun because it was his mother’s car, but
Bad Boy insisted, so Banuelos stashed it under the hood. Later,
Banuelos was driving them down Eagle Street when they saw
Clarence Street gang members standing on the sidewalk.
Banuelos drove down Eagle Street and stopped on the corner.
Bad Boy got out of the car, took out the gun, and started running
up to the hill toward the Clarence Street group. Banuelos told
him to stop, and Bad Boy got back in the car. Banuelos said they
should leave, but Bad Boy insisted he just wanted to scare the
Clarence Street group. As Banuelos drove up to the Clarence
Street gang members, Bad Boy put a rag over his face, extended
his arm past Banuelos’s head out of the driver’s side window, and
fired about four shots. Bad Boy then yelled for them to leave, and
Banuelos told him he “[messed] up.” Banuelos drove back to his
neighborhood, dropped the others off, then drove home. He did
not know what Bad Boy did with the gun after the shooting.
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DISCUSSION
The Trial Court Is Directed to Issue An Order to Show
Cause and Hold An Evidentiary Hearing to Determine
Whether Banuelos Is Entitled to Section 1170.95 Relief
A. Governing Law: SB 1437 and Section 1170.95
The Legislature enacted SB 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); accord, § 189, subd. (e);
People v. Lewis (July 26, 2021, S260598) __ Cal.5th __ [pp. 4-5]
(Lewis).)
SB 1437 also added section 1170.95 to the Penal Code. This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory, but
who could not be convicted of murder following SB 1437’s changes
to sections 188 and 189, to petition the sentencing court to vacate
the conviction and resentence on any remaining counts.
(§ 1170.95, subd. (a).) A petition for relief under section 1170.95
must include a declaration by the petitioner that he or she is
eligible for relief under section 1170.95 based on all the
requirements of subdivision (a), the superior court case number
and year of the petitioner’s conviction, and a request for
appointment of counsel, should the petitioner seek appointment.
(§ 1170.95, subd. (b)(1).)
Subdivision (c) of section 1170.95 provides: “The court shall
review the petition and determine if the petitioner has made a
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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.” Subdivision (c) describes “only a
single prima facie” stage of review. (Lewis, supra, (July 26, 2021,
S260598) __ Cal.5th __ [p. 8].) Under subdivision (c), “a complying
petition is filed; the court appoints counsel, if requested; the issue
is briefed; and then the court makes one . . . prima facie
determination.” (Lewis, supra, S260598, at p. 18].)
“If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to
vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, supra,
(July 26, 2021, S260598) __ Cal.5th __ [p. 6].) At the hearing, the
parties may rely on the record of conviction or present “new or
additional evidence” to support their positions, and “the burden of
proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).)
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B. Analysis
Because the issue presented in this appeal is a pure
question of law concerning the procedures section 1170.95
affords, we apply a de novo standard of review. (See In re T.B.
(2009) 172 Cal.App.4th 125, 129.) We agree with Banuelos that
the trial court erred by denying his petition without issuing an
order to show cause and holding an evidentiary hearing. The
record of conviction did not demonstrate as a matter of law that
Banuelos directly aided and abetted the murder while harboring
the intent to kill.
We reject the Attorney General’s argument that, given the
wording of the murder charge and plea admission, Banuelos’s
plea necessarily rendered him ineligible for relief as a matter of
law. As Banuelos points out, the reasoning of People v. Rivera
(2021) 62 Cal.App.5th 217, review granted June 9, 2021, S268405
(Rivera) is dispositive. Rivera pled no contest to second degree
murder and later petitioned for section 1170.95 relief. (Id. at p.
223.) After receiving briefing from the parties, the trial court
denied the petition, concluding Rivera was ineligible for relief as
a matter of law because he “‘entered a plea to second degree
murder with malice’ and nothing in the record of conviction
supported the conclusion that the murder was ‘anything other
than an intentional killing in which [he] harbored such malice.’”
(Id. at pp. 223-224.) On appeal, Rivera argued the trial court
erred in concluding his plea rendered him ineligible for relief as a
matter of law. (Id. at p. 224.) The Court of Appeal agreed, holding
“a defendant who entered a plea to murder ‘with malice
aforethought’ is not categorically incapable of making a prima
facie showing of eligibility for relief under section 1170.95,
subdivision (c) . . . , because such a plea is not necessarily an
9
admission that the crime was committed with actual malice.”
(Rivera, supra, at p. 224.)
In support of its holding, the Rivera court first explained
that in California, because only a single statutory offense of
murder exists, it is therefore standard practice for accusatory
pleadings to allege murder was committed “willfully, unlawfully,
and with malice aforethought,” and neither felony murder nor
murder under the natural and probable consequences doctrine
need be separately pleaded. (Rivera, supra, 62 Cal.App.5th at pp.
232-233.) “In short, despite the fact that the indictment charged
Rivera with murder committed with malice aforethought, it
allowed the prosecution to proceed on any theory of murder.” (Id.
at p. 233, italics in original.)
The court went on to reject the Attorney General’s
argument that Rivera’s admission to committing murder with
malice aforethought rendered him ineligible for relief as a matter
of law. (Rivera, supra, 62 Cal.App.5th at p. 234.) The court noted
“before Senate Bill No. 1437[,] malice could be imputed to a
defendant under the felony-murder rule or the natural and
probable consequences doctrine, meaning that the person did not
need to harbor express or implied malice to be convicted of second
degree murder.” (Rivera, supra, at p. 234; see also id. at pp. 230-
232.) The court explained that given “the allegation that a
murder was committed ‘willfully, unlawfully, and with malice
aforethought’ is a generic charge permitting the prosecution to
proceed on any theory of murder, we cannot conclude that by
admitting to the murder as charged[,] Rivera admitted that he
acted with actual malice[.]” (Id. at p. 234, italics in original.)
We agree with the reasoning of Rivera and apply it here.
Although the information charged Banuelos with murder
10
committed with malice aforethought, it allowed the prosecution
to proceed on any theory of murder, including the imputed-malice
theories of felony murder and murder under the natural and
probable consequences doctrine. Accordingly, Banuelos’s
admission to that charge did not demonstrate as a matter of law
that he acted with actual malice.5 For these same reasons, we
reject the Attorney General’s argument that the error was
harmless, as that contention is based on the erroneous premise
that Banuelos’s plea rendered him ineligible for relief as a matter
of law. Having concluded the trial court’s denial of Banuelos’s
petition was prejudicial error under state law, we need not
address his constitutional due process contentions.
Lastly, because we reverse the denial of the petition and
remand with directions to issue an order to show cause and hold
an evidentiary hearing, we need not address Banuelos’s
argument that the court erroneously engaged in premature
factfinding by relying on evidence presented at the preliminary
hearing in concluding he was ineligible for relief as a matter of
law. We do note, however, that even assuming the preliminary
hearing is part of the record of conviction, and assuming the trial
court did rely on the preliminary hearing testimony in issuing its
ruling, that testimony does not demonstrate as a matter of law
5 We reject the contention in the Attorney General’s brief
that the denial of the petition should be affirmed because the
trial court, when taking the plea, concluded the facts showed
Banuelos “very knowingly drove a car that was used to commit a
drive-by on a very innocent victim.” As conceded at oral
argument, that contention is mistaken. It was the prosecutor who
made this statement, not the trial judge. Nothing in the record
suggests the trial court shared the prosecutor’s view of the facts.
11
that Banuelos pled guilty based on an actual malice theory of
liability. The preliminary hearing offers conflicting accounts of
Banuelos’s role in the shooting. According to Officer Navarro’s
testimony, whereas Herrera said Banuelos was the shooter,
Banuelos said he did not know the shooting was going to happen
and Herrera was the shooter.
In sum, the case is remanded to the trial court with
instructions to hold an evidentiary hearing. On remand, the
parties “may rely on the record of conviction or offer new or
additional evidence . . . .” (§ 1170.95, subd. (d)(3).) We express no
opinion regarding Banuelos’s entitlement to relief following the
hearing.
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DISPOSITION
The order denying Banuelos’s section 1170.95 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause and hold an evidentiary hearing to determine
whether Banuelos is entitled to section 1170.95 relief.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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