People v. Carlos CA2/2

Filed 5/12/21 P. v. Carlos 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B303548
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A360287
v.
HENRY CARLOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Affirmed.
Stephen Temko, 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, Assistant
Attorney General, Idan Ivri and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Defendant and appellant Henry Carlos (defendant) appeals
from the order denying his petition for resentencing under Penal
Code section 1170.95,1 entered after appointment of counsel,
briefing by both counsel, issuance of an order to show cause, and
a hearing on the merits of the petition. Defendant contends that
the trial court erred because the prosecution failed to prove
beyond a reasonable doubt that he was ineligible for relief under
section 1170.95. Because defendant never made a prima facie
showing of eligibility for or entitlement to relief under the
statute, we reject defendant’s contention. Finding no error, we
affirm the order.
BACKGROUND
The 1980 charges2
In 1980, defendant and codefendant Ernest Romero were
charged by information with the murder of Macario Sanchez in
count 1, and the murder of Abraham Amesole in count 2. The
information also alleged the special circumstance of multiple
murders, within the meaning of former section 190.2, subdivision
(a)(3), specifying defendant as the actual killer and Romero as
the aider and abettor. In count 3, defendant and Romero were
charged with assault upon Joseph Duran by means of force likely
to cause great bodily injury and with the intent to commit
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 Attached to defendant’s section 1170.95 petition are copies
of the information, abstracts of judgment, minute orders
regarding sentencing, and the reporter’s transcript of the
sentencing hearing. The same documents are attached to
defendant’s response to the prosecution’s motion to reconsider the
order to show cause.
2
murder, in violation of former section 217.3 In addition, it was
alleged that defendant personally used a firearm, a rifle
(§ 12022.5), and as to Romero, that a principal was armed with a
firearm (§ 12022, subd. (a)).
The shooting4
On June 25, 1980, around 7:00 p.m., Sanchez, Duran, and
Amesole (collectively, victims) were sitting in a car parked next to
the curb, talking to their friend April Martinez, who was
standing next to the passenger side of the car. A 1954 rust-
colored lowrider Chevrolet passed by on the street. Moments
later, the same car approached from the opposite direction and
stopped alongside the car in which the victims were sitting. The
passenger in the Chevrolet said, “Where are you from?”5 When
no one responded the passenger said, “Keep out of El Sereno.”
The passenger then pulled out a rifle and began firing into the
victims’ car. Then the passenger got out, walked to the driver’s
side of the victims’ car, aimed the rifle at the window and fired
3 Section 217 has since been repealed. (See Stats. 1978, ch.
579, § 9.) Attempted murder is a lesser included offense of
assault with intent to commit murder; thus when defendant
committed his crimes, former section 217 defined a form of
attempted murder. (People v. Koontz (1984) 162 Cal.App.3d 491,
496.)
4 In considering defendant’s section 1170.95 petition, the
trial court considered preliminary hearing testimony and other
parts of the record of conviction. In his opening brief defendant
has summarized the testimony of three percipient witnesses to
the shooting, as well as the testimony of the arresting officer and
a firearms examiner. We do the same.
5 In his brief defendant explains that “Where are you from?”
is more of a gang challenge than a question.
3
more shots into the car. The passenger got back into the
Chevrolet, and it left the scene. Duran was shot three times, but
survived. The other two victims were shot and killed.
Police officers arrived at the scene within minutes after the
shooting. Martinez gave them a description of the shooter’s car
and turned over two spent .22-caliber cartridges she found inside
the victims’ car. Officer E. Harrell left the scene to search the
neighborhood for the Chevrolet, which he found a few minutes
later. Officer Harrell pulled the car over, and as he approached it
the passenger door opened, and the officer saw a rifle wedged
between the passenger seat and the door. He removed his service
revolver, ordered the men out of the car, and arrested them.
Officer Harrell identified the driver of the Chevrolet as
codefendant Romero and the passenger as defendant. About an
hour after the suspects were detained, Martinez was taken to
view the car, which she identified as the same car involved in the
shooting. A week before the preliminary hearing, Martinez
attended a live lineup, where she told officers that one person in
the line looked familiar. At the preliminary hearing she
identified Romero as the person she had indicated. Martinez
testified that she was “almost positive” that Romero was the
shooter. Duran identified defendant and Romero as the two
occupants of the 1954 Chevrolet and testified that the passenger
was the shooter.
Officer Harrell recovered an expended .22-caliber casing
from the rear seat of the suspects’ car. This casing and the other
casings recovered at the scene of the shooting were later tested
and determined to have been fired from the rifle Officer Harrell
recovered from the suspects’ car.
4
The plea hearing
Defendant entered into a plea agreement and pled guilty to
second degree murder on March 30, 1982. There is no reporter’s
transcript of the plea hearing in this appellate record, but it was
described in detail in the appellate decision affirming defendant’s
judgment on appeal (see People v. Carlos (July 8, 1983, 42795)
[nonpub. opn.])6 as follows:
“At the hearing on the guilty plea, the trial
court informed defendant of the charges against him.
The court mentioned that since special circumstances
had been alleged as to the two murders, defendant
could be sentenced to life without possibility of parole
if a jury were to find the special-circumstance
allegations to be true. The trial court then stated it
was his understanding that a possible disposition of
the case had been agreed upon, and asked the
prosecutor to comment on it. The prosecutor replied
that he had talked to defense counsel, and that if
defendant were to plead guilty to assault with a
deadly weapon as charged in the [newly alleged]
fourth count and admit the allegation of having been
armed with a firearm, and if he were to plead guilty
to second-degree murder as to each of the two murder
counts, the People would move to dismiss the special-
circumstance and firearm-use allegations. The
prosecutor added that it was ‘an open-type plea,’ that
the People wanted the court to impose consecutive
sentences but that defense counsel wished to argue
for concurrent sentences as to all counts to which
6 The prosecutor attached a copy of the opinion to his initial
response to the petition, filed June 21, 2019. The opinion
described what occurred in that hearing and was part of the
appellate record reviewed by the trial court in the current
proceedings.
5
defendant would plead guilty. Defense counsel then
indicated that the prosecutor had correctly set forth
the position of the defense.
“Before accepting defendant’s guilty plea, the
trial court made it clear to him that his sentence for
the second-degree murder as to both Counts I and II
would be 15 years to life . . . . The court thereafter
explained that as to the charge of assault with a
deadly weapon, defendant would get the middle term
of three years . . . . [Citation.] [And] there would be
an additional year for the ‘armed’ allegation (Pen.
Code, § 12022), which defendant was going to admit
under the plea bargain.”
Sentencing hearing
At the sentencing hearing, the testimony of the court-
appointed fingerprint expert, Lee Smith, was presented. Smith
examined photographs of the rifle used in the crimes and found
the identifiable fingerprints of two individuals: defendant and an
unknown person. Smith found three of defendant’s fingerprints,
all on the stock near the butt, the portion that is placed against
the shoulder. Prints from the right middle finger and the right
little finger were on one side of the stock and a thumbprint was
on the other side. In Smith’s opinion, the placement of the prints
was not consistent with holding the rifle in order to fire it.
However, in his experience, unusable or smudged prints were not
photographed, and he did not examine the rifle, so his opinion is
based only on the prints that were photographed.
The sentencing court acknowledged having read the
preliminary hearing transcript and portions of the probation
report indicated by counsel, and found it clear that Romero was
the person who actually fired the weapon at the time people were
6
killed or injured. The prosecutor then presented the
prosecution’s theory of defendant’s guilt, stating that whether or
not defendant was the actual shooter, he knew exactly what was
going to happen and why they were there; and if he was the
driver, he stopped the car right next to the victims’ car, allowing
his passenger to get out and kill two people and wound a third
while trying to kill him. The prosecutor argued that this was a
wanton, senseless murder for no more than a macho gang
purpose, and that the person who fired the weapon and the
person who made that firing possible were equally guilty.
The court noted that defendant handled the murder
weapon, as shown by his fingerprints, and given defendant’s gang
background and previous gang offenses (as shown by the
probation report), the court found these crimes to have been
“premeditated in the sense that they had the gun and they went
around looking for someone.” The court also found that the
crimes were committed with a high degree of cruelty, viciousness,
and callousness against particularly vulnerable victims. For each
count 1 and 2 (second degree murder), the court sentenced
defendant to a consecutive term of 15 years to life, plus a
consecutive one-year term for the firearm allegation of section
12022, subdivision (a). As to count 4, assault with a firearm, the
court sentenced defendant to a consecutive upper term of four
years.
Section 1170.95 petition
On April 19, 2019, defendant filed a petition for
resentencing under section 1170.95. The petition alleged:
“1) Petitioner was charged with felony
murder/natural and probable consequences;
7
“2) Petitioner plead [sic] to second degree
murder; AND
“3) Petitioner could not have been convicted
after January 1, 2019, because of the changes in
Penal Code §188 and §189 made effective thereof.”
(Boldface omitted.)
The petition was filed by counsel on behalf of defendant,
and included a memorandum of points and authorities in which
counsel claimed that defendant was factually innocent. It was
argued in the memorandum that defendant was not the actual
killer, was neither the driver, nor the shooter, was in the car only
to get a ride to pick up his tools, and was in a state of shock and
paralysis when Romero stopped the car and pulled a rifle from
the back seat.7 Also attached to the petition was the declaration
of counsel stating under penalty of perjury that defendant was
charged with murder, convicted upon a plea of second degree
murder under the natural and probable consequences doctrine,
and could not be convicted today under the 2019 changes to
sections 188 and 189. Counsel also stated that conflicting
witness and expert statements show that the driver was the
shooter, whereas defendant was the passenger. Exhibits
attached to the petition included copies of the information,
abstracts of judgment, minute orders regarding sentencing, and
7 Although counsel attached documents from the record of
conviction, there was no reference in the petition to any evidence
or offer of proof. Defendant does not renew that argument here,
and if he did have new evidence that demonstrated factual
innocence, his remedy would not be under section 1170.95. (See
People v. Allison (2020) 55 Cal.App.5th 449, 461.)
8
the reporter’s transcript of the sentencing hearing, as we have
summarized above.
A copy of the petition and supporting documents were
served on the district attorney, who filed a response within 60
days. Defendant then filed a “response to response to the
petition,” which again asserted claims of factual innocence.
Defendant also suggested that in 1982, second degree murder
under a direct aiding and abetting theory was essentially the
same as aiding and abetting under the natural and probable
consequences doctrine.
Upon receipt of defendant’s “response to response” and
without explanation, the trial court issued an order to show cause
pursuant to section 1170.95, subdivision (d)(1) and scheduled a
hearing. The prosecutor brought a motion to reconsider, which
the trial court denied, the hearing was held, and the trial court
issued its order denying the petition on December 12, 2019. In
its order, the court explained as follows:
“This court reviewed all the relevant
documents from the record of conviction in this case,
including but not limited to, the preliminary hearing
transcript, the transcript from the sentencing hearing
in this case, and the opinion from the appellate court
affirming the [defendant’s] conviction. This court’s
review of those documents leads this court to the
conclusion that the [defendant] was not convicted in
this case under either a theory of felony murder, or
under the doctrine of natural and probable
consequences. To the contrary, the record of
conviction established that the theory of conviction in
the [defendant’s] case is that he was a direct aider
and abettor to the murders charged in this case. As
such, the [defendant] is not eligible for the relief he
seeks pursuant to Penal Code Section 1170.95.”
9
Defendant filed a timely notice of appeal from the court’s
order.
DISCUSSION
Defendant contends that the trial court applied the wrong
standard of review. Defendant also contends that because his
guilty plea “may have been based” on the natural and probable
consequences doctrine, the trial court committed reversible error
by denying the petition. Defendant argues that “[t]he key fact
that was not sufficiently established was whether appellant had
the intent to kill or simply had the intent to aid an assault on
rival gang members[,] which would have made him guilty of
murder under the doctrine . . . .” Defendant claims that there is
nothing in the record to show that his guilty plea was based upon
a “valid theory that [he] was a direct aider and abettor.” He
concludes that the prosecution was thus required to prove beyond
a reasonable doubt that its theory of guilt was valid.
Respondent counters that because defendant was ineligible
for relief as a matter of law, an order to show cause should not
have issued in the first place, and even assuming the order to
show cause was properly issued, the trial court’s denial of the
petition was not error. We agree with respondent.
Effective January 1, 2019, the Legislature passed Senate
Bill No. 1437 (2017-2018 Reg. Sess.), which bars a conviction for
second degree murder under the natural and probable
consequences theory of aiding and abetting and amends the
felony murder rule. (People v. Gentile (2020) 10 Cal.5th 830, 838-
839.) The legislation did this by amending sections 188 and 189.
(Gentile, supra, at pp. 838-839.) “[T]o amend the natural and
probable consequences doctrine, Senate Bill 1437 added section
10
188, subdivision (a)(3) . . . : ‘Except [for felony-murder liability]
as stated in subdivision (e) of Section 189, in order to be convicted
of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.’” (Id. at pp. 842-843;
accord, § 188, subd. (a)(3).) To amend the felony-murder rule,
subdivision (e) was added to section 189, which now reads as
follows: “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.”8
Senate Bill No. 1437 (2017-2018 Reg. Sess.) also added
section 1170.95 to permit those previously convicted of murder
under the natural and probable consequences doctrine to petition
for vacatur of the conviction and resentencing to the underlying
felony. Once the court receives the section 1170.95 petition, the
8 Section 189, subdivision (a) lists various felonies subject to
the felony-murder rule, such as arson, rape, carjacking, robbery,
burglary, mayhem and others. The statute was amended after
defendant’s crimes to include “murder that 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.’” (See People v. Swain (1996) 12 Cal.4th
593, 612, fn. 3.)
11
court conducts a three-step evaluation. (People v. Perez (2020) 54
Cal.App.5th 896, 903, review granted Dec. 9, 2020, S265254,
citing People v. Verdugo (2020) 44 Cal.App.5th 320, 332-333,
review granted Mar. 18. 2020, S260493.) First, the court reviews
the petition, and if any information is missing and not readily
ascertainable, the court may deny the petition without prejudice.
(§ 1170.95, subd. (b)(2); Perez, supra, at p. 903.) If the petition
contains all required information and before any order to show
cause may issue, section 1170.95, subdivision (c) “contemplates
two separate assessments by the trial court of a prima facie
showing: one focused on ‘eligibility’ for relief and the second on
‘entitlement’ to relief.” (People v. Drayton (2020) 47 Cal.App.5th
965, 975 (Drayton).) If the first prima facie showing is met, the
court shall appoint counsel to represent the petitioner, if
requested, “[t]he 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.” (§ 1170.95, subd. (c); accord, Drayton, supra, at pp. 974-
975.) Then a prima facie showing of entitlement to relief is
required, thereby permitting the trial court to undertake more
informed analysis concerning a petitioner’s entitlement to an
evidentiary hearing at which the prosecutor must prove beyond a
reasonable doubt that the petitioner is ineligible for resentencing.
(§ 1170.95, subds. (c) & (d)(3); Drayton, supra, at pp. 974-975.)
The first assessment requires the court to determine
whether the petitioner has made a prima facie showing that he
“‘“falls within the provisions” of the statute’” and is thus eligible
for relief. (Drayton, supra, 47 Cal.App.5th at p. 975.) “‘Prima
facie evidence’ is defined as ‘[e]vidence that will establish a fact
or sustain a judgment unless contradictory evidence is
12
produced.’” (People v. Skiles (2011) 51 Cal.4th 1178, 1186.) To be
eligible for relief the petitioner must make a prima facie showing
of the three criteria listed in section 1170.95, subdivision (a).
(Drayton, supra, at pp. 975-976.) As relevant here, where
defendant was convicted upon a negotiated guilty plea, those
three criteria are: (1) the petitioner was charged with murder
“under a theory of felony murder or murder under the natural
and probable consequences doctrine”; (2) “petitioner was
convicted of first degree or second degree murder [after]
accept[ing] a plea offer in lieu of a trial”; and (3) “petitioner 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).)
Although defendant’s petition makes the allegations
required under section 1170.95, subdivision (a), insofar as it
states he had been charged with “felony murder/natural and
probable consequences” (boldface omitted) and that he could not
have been so convicted after January 1, 2019, because of the
changes in sections 188 and 189, defendant did not successfully
make a prima facie showing of eligibility for relief under the
statute. A court need not accept such allegations at face value
but may also examine the record of conviction. (Drayton, supra,
47 Cal.App.5th at p. 968; see People v. Torres (2020) 46
Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011;
People v. Verdugo, supra, 44 Cal.App.5th at pp. 329-330, review
granted; People v. Lewis (2020) 43 Cal.App.5th 1128, 1138,
review granted Mar. 18, 2020, S260598; but see People v. Cooper
(2020) 54 Cal.App.5th 106, 119-121, review granted Nov. 10,
2020, S264684.) The record of conviction includes the
information filed against defendant, the factual basis
13
documentation for a negotiated plea, and the abstract of
judgment. (Verdugo, supra, at pp. 328-330.) It also includes any
appellate opinion in the case. (People v. Lewis, supra, at
pp. 1138-1139.) The contents of the record of conviction will
defeat a defendant’s prima facie showing when the record
“show[s] as a matter of law that the petitioner is not eligible for
relief.” (Id. at p. 1138, italics added; accord, Drayton, supra, at
p. 968; see People v. Torres, at p. 1177; Verdugo, at p. 333; see
also People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410 [record must show defendant is
“indisputably ineligible for relief”].) Here, documents from the
record of conviction attached to defendant’s petition included
copies of the information, abstracts of judgment, minute orders,
and the reporter’s transcript of the sentencing hearing.
Defendant failed to make the required prima facie showing
that he was entitled to relief under section 1170.95. Defendant
complains that the prosecutor failed to prove beyond a reasonable
doubt that his guilty plea was based upon a theory of direct
aiding and abetting and was not based upon the natural and
probable consequences doctrine. We disagree and note that the
opinion affirming defendant’s judgment described what occurred
at the plea hearing. In response to the trial court’s inquiry
regarding the factual basis for the plea, the prosecutor replied
that as to Romero and defendant, “‘a murder was committed . . .
and that that murder was murder in the second degree and that
someone who was armed with a rifle shot and killed [Sanchez and
Amesole].’” (People v. Carlos, supra, 42795.) The prosecutor
appropriately referred to the charging document for a factual
basis. (See People v. Holmes (2004) 32 Cal.4th 432, 436.)
14
A defendant is not required to admit guilt or to describe his
role in the murder, so long as it appears that he understood the
nature of the charge to which he pled guilty. (See People v.
Holmes, supra, 32 Cal.4th at pp. 439-441, citing People v. Watts
(1977) 67 Cal.App.3d 173, 178-181.) The prosecution theory of
defendant’s guilt was made sufficiently clear. The prosecutor did
not proceed on the theory that defendant was not the actual
killer, but rather that either defendant or Romero was the actual
killer and the other principal was a direct aider and abettor.
After the prosecutor provided the factual basis, defendant stated
that he understood and was admitting the charges. Defense
counsel then stipulated to the factual basis. (People v. Carlos,
supra, 42795.)
Even if the prosecution theory of defendant’s guilt had not
been clear at that hearing, it was very clear at the sentencing
hearing, where defense counsel obviously understood the
prosecution’s theory and had explained it to defendant. The
prosecutor noted that whether or not defendant was the actual
shooter, he knew exactly what was going to happen and why they
were there; and if he was the driver, he stopped the car right next
to the victims’ car, allowing his passenger to get out and kill two
people and wound a third while trying to kill him. In seeking
concurrent sentences, defense counsel said, “[W]e recognize the
driver of the vehicle would be as guilty of the crime charged as
the person who did the shooting but here we’re not talking about
guilt. We’re talking about the sentence and it seems to me that
there should be some distinction between the person who did the
shooting and the person who was not involved in actually firing
the weapon.” The court stated that the only reason defendant
pled to second degree murder was to avoid life in prison without
15
the possibility of parole, and the court was convinced that if
defendant had gone to trial, both he and codefendant would have
been convicted and sentenced to prison without the possibility of
parole. Defense counsel replied, “That’s why I recommended it to
him.”
As defendant was charged and convicted as a direct aider
and abettor, he is ineligible for resentencing under section
1170.95 as a matter of law. We note that the petition could have
been denied without the issuance of an order to show cause. (See
People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1167.) We
agree with the trial court’s conclusion that the record of
conviction established that defendant was ineligible for relief
under the statute. We thus conclude that the court did not err.9
DISPOSITION
The order denying the section 1170.95 petition is affirmed.
________________________, J.
CHAVEZ
We concur:
___________________, Acting P. J. ________________________, J.
ASHMANN-GERST HOFFSTADT
9 Because we find defendant was ineligible for relief under
section 1170.95 based on his guilty plea, we need not address his
other argument that he may have been convicted under the
doctrine of natural and probable consequences as set forth in his
brief.
16