People v. Muro CA2/3

Filed 5/13/21 P. v. Muro CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE, B307128
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA035502)
v.
MARIO CARLOS MURO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Affirmed.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Mario Carlos Muro appeals from the trial court’s denial of
his Penal Code section 1170.951 petition. We affirm the court’s
order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The murders and Muro’s convictions
In March 1996, Muro’s brother-in-law sold Muro a Buick
Regal automobile. On March 24, 1996, Richard Lopez and
Michael Mahome were in Compton, seated in a van that was
stopped at a red light. A Latino man stood next to the van and
fired multiple shots into it, killing both Mahome and Lopez. The
shooter fled on foot and jumped into the front passenger seat of
Muro’s Buick, which drove away. Muro called his brother-in-law
and told him to report the Buick stolen.
Based on eyewitness identifications and other evidence
presented at trial, either Muro or a codefendant, Israel Magana,
could have been the shooter. Prior to trial, however, Muro
testified that he, Magana, and three other persons were driving
in his Buick. He was seated in the front passenger seat. When
the group arrived at the intersection of Acacia and Alondra, Muro
saw the victims, with whom he had previously “ ‘had problems.’ ”
He exited the Buick, ran to the van, and fired the fatal shots. He
confessed because he was “ ‘through already, you know. I’m
already looking at time, you know, and it ain’t right for an
innocent man to get accused.’ ”
1 All further undesignated statutory references are to the
Penal Code.
2 We derive the factual and procedural background partially
from this court’s unpublished opinion in Muro’s direct appeal, of
which we take judicial notice. (Evid. Code, § 451.)
2
In 1998, a jury convicted Muro of two counts of first degree
murder (§ 187, subd. (a).) It found not true allegations that Muro
personally used a firearm (§ 12022.5, subd. (a)) and that a
principal was armed with a firearm (§ 12022, subd. (a)(1)). It
found true a section 190.2, subdivision (a)(3) multiple murder
special circumstance. The trial court sentenced Muro to life in
prison without the possibility of parole. This court affirmed
Muro’s judgment in 2000 (People v. Muro (Jan. 14, 2000,
B129659) [nonpub. opn.]), and the California Supreme Court
denied review.
2. Muro’s Senate Bill No. 1437 petition
After passage of Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437), Muro petitioned for relief pursuant to
section 1170.95.3 In a declaration and a memorandum of points
and authorities attached to the petition, Muro averred that he
was convicted under the felony-murder rule; he was not at the
scene of the crime; he was not a major participant in the
underlying felony who acted with reckless disregard for human
life; and was not a direct aider and abettor who acted with the
3 Although captioned as a petition for writ of habeas corpus,
it is clear from the substance of the petition and the attached
documents that Muro was in actuality seeking relief pursuant to
Senate Bill 1437 and section 1170.95. The parties and the trial
court treated the petition as one for section 1170.95 relief, and we
do the same.
To the extent, if at all, that Muro’s petition also sought
habeas relief on the grounds of actual innocence or the principles
articulated in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522, a trial court’s denial of a habeas
petition is not appealable. (In re Clark (1993) 5 Cal.4th 750, 767,
fn. 8; People v. Gallardo (2000) 77 Cal.App.4th 971, 986.)
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intent to kill. He explained that he was arrested and charged
with the murders in 1997, but the case was dismissed. He was
thereafter arrested on unrelated “home [i]nvasion” charges.
While incarcerated and awaiting trial, Magana—who had been
charged with the murders—contacted him and asked for his help
in getting the charges against him dismissed. Believing that he
was already facing a life sentence for the home invasion offense,
and unaware that the murder charges could be refiled against
him, Muro agreed. Thereafter, he falsely testified that he was
the killer, and the jury convicted him of the murders.
The court appointed counsel for Muro on the section
1170.95 petition on September 20, 2019. On February 28, 2020,
the People filed an opposition to the petition, asserting that Muro
was not eligible for section 1170.95 relief because the jury was
not instructed, and he was not convicted, under either a felony-
murder or natural and probable consequences theory. In support
of this contention, the People attached to their opposition the jury
instructions given in the 1998 case. It does not appear that
defense counsel filed a response.
On July 21, 2020, the trial court summarily denied the
petition. Neither Muro nor the attorneys were present. The
court concluded Muro was not entitled to relief as a matter of law
because, assuming Muro was not the shooter, he nonetheless
acted as a direct aider and abettor with the intent to kill; was a
major participant in the crimes who acted with reckless
indifference to human life; and he was not prosecuted under the
felony-murder rule or the natural and probable consequences
doctrine.
Muro filed a timely notice of appeal.
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DISCUSSION
After review of the record, Muro’s court-appointed counsel
filed an opening brief that raised no issues, and requested that
this court follow the procedures set forth in People v. Serrano
(2012) 211 Cal.App.4th 496. Appellant was advised that he had
30 days to submit by brief or letter any contentions or argument
he wished this court to consider. We have received no response.
The trial court properly denied Muro’s petition. The jury
instructions conclusively show he was either the actual killer,
who acted with premeditation and deliberation, or was convicted
of first degree murder based on a theory—direct aiding and
abetting—that survives Senate Bill 1437’s amendments to
sections 188 and 189. “[P]otential relief under section 1170.95
extends only to those convicted of murder by operation of the
natural and probable consequence doctrine or of felony
murder. [Citation.]” (People v. Soto (2020) 51 Cal.App.5th 1043,
1056, review granted Sept. 23, 2020, S263939.) Muro’s jury was
not instructed on either the natural and probable consequences
doctrine or the felony-murder rule; therefore, he could not have
been convicted based on either of those theories. (See id., at
p. 1055; People v. Edwards (2020) 48 Cal.App.5th 666, 674,
review granted July 8, 2020, S262481; People v. Lewis (2020) 43
Cal.App.5th 1128, 1138, review granted Mar. 18, 2020, S260598.)
Senate Bill 1437 did not alter the law regarding the criminal
liability of direct aiders and abettors of murder because such
persons “necessarily ‘know and share the murderous intent of the
actual perpetrator.’ [Citations.] One who directly aids and abets
another who commits murder is thus liable for murder under the
new law just as he or she was liable under the old law.” (People
v. Lewis, at p. 1135; People v. Soto, at p. 1057.)
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We have examined the record and are satisfied that Muro’s
attorney has fully complied with the responsibilities of counsel
and no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th
106, 125–126; People v. Wende (1979) 25 Cal.3d 436, 441–442.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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