People v. Reyes CA5

Filed 3/8/22 P. v. Reyes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F081453
Plaintiff and Respondent,
(Madera Super. Ct.
v. No. MCR053957B)
OSCAR GARCIA REYES,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Madera County. Dale J. Blea,
Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Oscar Garcia Reyes pleaded guilty to second degree
murder in 2016 and was sentenced to 15 years to life. In 2019, appellant filed a petition
for resentencing pursuant to Penal Code 1 section 1170.95 and alleged his murder
conviction was based on the felony-murder rule and/or the natural and probable
consequences doctrine, and he was entitled to relief because he was not the actual killer.
The court denied the petition.
On appeal, his appellate counsel has filed a brief, which summarizes the facts with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
PROCEDURAL BACKGROUND
On May 26, 2016, a complaint was filed in the Superior Court of Madera County,
case No. MCR053957, charging appellant and codefendant Kevin Rendon with count 1,
the murder of Fabian Hernandez, on or about June 18, 2015 (§ 187), with the special
circumstance that they intentionally killed the victim while they were active participants
in a criminal street gang, and the murder was carried out to further the gang’s activities
(§ 190.2, subd. (a)(22)); with firearm enhancements alleged as to both defendants
(§ 12022.53, subds. (b)–(e)), and a gang enhancement against defendant (§ 186.22,
subd. (b)(5)). In count 2, they were charged with active participation in a criminal street
gang (§ 186.22, subd. (a)).
Appellant pleaded not guilty and denied the special circumstance and allegations.
Appellant’s Plea Hearing
On September 15, 2016, Judge Blea held a hearing for appellant’s pending cases.
In case No. MCR051906A, appellant pleaded guilty to count 1, attempted
premeditated murder of Gerardo Diaz-Rodriguez on June 26, 2015 (§§ 187, 664) and
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
admitted the gang enhancement (§ 186, subd. (b)(5)) and the firearm enhancement
(§ 12022.53, subd. (b)); and count 2, active participation in a criminal street gang,
pursuant to a negotiated disposition that the sentence would be concurrent to the term
imposed for case No. MCR053957. The parties stipulated to the evidence introduced at
the preliminary hearing as the factual basis for the plea in case No. MCR051906A.
In case No. MCR053957, the court granted the prosecution’s motion to amend the
complaint as to appellant, to allege count 1, second degree murder, and dismiss the
special circumstance. Appellant pleaded guilty to count 1, second degree murder, and
count 2, active participation in a criminal street gang, pursuant to a negotiated disposition
for 15 years to life with a stayed term for count 2; and the sentence imposed for case
No. MCR053975 would be served concurrently to the term appellant would receive in the
unrelated case No. MCR051906A.
The prosecutor and defense counsel stipulated to the following factual basis for
appellant’s plea in case No. MCR053975, as stated by the prosecutor at the plea hearing.
“The People would offer for stipulation that on or about June 18th, 2015, in
the county of Madera, Mr. Oscar Garcia Reyes was an active Norteño gang
member. He got in his SUV and went to a fellow Norteño gang member’s
house, Kevin Rendon. He picked Mr. Kevin Rendon up. He then drove
Mr. Kevin Rendon to Fabian Hernandez’s house. When he drove with
Mr. Rendon to Fabian Hernandez’s house, they drove there with the intent
to shoot up the house in an attempt to kill somebody. Mr. Reyes did pull
that vehicle up to the front of Mr. Hernandez’s house. At that point, Mr.
Rendon fired multiple shots outside of the vehicle at the house. One of
those bullets entered the house and struck and killed Fabian Hernandez.”
(Italics added.)
Sentencing Hearing
On November 17, 2016, the court held the sentencing hearing.
In case No. MCR051906A, the court sentenced appellant to 15 years to life for
count 1, attempted murder, plus a consecutive term of 10 years for the section 12022.53,
subdivision (b) enhancement, and stayed the sentences for the remaining charges.
3.
In case No. MCR053975, the court sentenced appellant to 15 years to life for
count 1, second degree murder, to be served concurrently with the term imposed in case
No. MCR051906A; and stayed the term for count 2.
The court granted the prosecution’s motion to dismiss the remaining counts in
both cases because of the negotiated disposition.
On November 28, 2016, the court modified the sentence in case No. MCR053975
to impose a concurrent term for count 2 instead of staying it.
SENATE BILL NOs. 1437 & 775
The instant appeal is from the denial of appellant’s petition for resentencing that
he filed pursuant to Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), that
was effective on January 1, 2019, and amended “ ‘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.’ [Citation.]” (People v. Lewis (2021) 11 Cal.5th 952, 959,
italics added.)
“Substantively, Senate Bill 1437 accomplishes this by amending section 188,
which defines malice, and section 189, which defines the degrees of murder, and as now
amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th
719, 723; People v. Gentile (2020) 10 Cal.5th 830, 842.)
“In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief. [Citation.]” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
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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 of changes to section 188 or 189 made effective January 1, 2019.’
[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the
appointment of counsel.’ [Citation.] If a petition fails to comply with subdivision (b)(1),
‘the court may deny the petition without prejudice to the filing of another petition.’
[Citation.]” (Lewis, supra, 11 Cal.5th at pp. 959–960.)
“Where the petition complies with [section 1170.95,] subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess whether the petitioner
has made ‘a prima facie showing’ for relief. [Citation.] [¶] 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.’ [Citation.]
‘The prosecutor and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage,
‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing.’ [Citation.]” (Lewis, supra, 11 Cal.5th at
p. 960.)
Lewis
In Lewis, the court interpreted the provisions of section 1170.95 and held that
petitioners “are entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citation] and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
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determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 957.) The court’s failure to appoint
counsel only constitutes state error subject to review under People v. Watson (1956) 46
Cal.2d 818. (Lewis, supra, 11 Cal.5th at p. 973.)
Lewis also held that “at the prima facie stage, a petitioner’s allegations should be
accepted as true, and the court should not make credibility determinations or engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’
[Citation.]” (Lewis, supra, 11 Cal.5th at p. 974.) After appointing counsel, the trial court
could rely on the record of conviction to determine whether the prima facie showing is
made “to distinguish petitions with potential merit from those that are clearly meritless.”
(Id. at p. 971.) The record of conviction includes a prior appellate opinion, although it
will be case-specific. (Id. at p. 972.) The prima facie finding under section 1170.95,
subdivision (c) is limited, and the court must accept the petitioner’s factual allegations as
true and cannot reject the allegations on credibility grounds without conducting an
evidentiary hearing. (Lewis, at p. 971.) “ ‘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.” ’
[Citation.]” (Ibid.) “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.’ [Citation.] [T]he ‘prima facie bar was
intentionally and correctly set very low.’ ” (Id. at p. 972.)
Senate Bill No. 775
In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95,
effective on January 1, 2022. (2020–2021 Reg. Sess.; Stats. 2021, ch. 551, § 1 (Senate
Bill 775).) As a result of the amendments, section 1170.95 clarified that “a person
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
6.
person’s participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter,” may file a petition to have that conviction
vacated under certain circumstances. (§ 1170.95, subd. (a).)
The amendments also codified the holding in Lewis that a petitioner has the right
to appointment of counsel, if requested, prior to the court making the prima facie finding.
(§ 1170.95, subd. (b)(3).) After appointment of counsel, the parties shall have the
opportunity to submit briefing, and “the court shall hold a hearing to determine whether
the petitioner has made a prima facie case for relief.” (§ 1170.95, subd. (c).)
If the petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court declines to make an order
to show cause, it shall provide a statement fully setting forth its reasons for doing so.
(§ 1170.95, subd. (c).) If the court issues the order to show cause and conducts a hearing,
the prosecution has the burden to prove beyond a reasonable doubt that petitioner is
guilty of murder or attempted murder under the amended versions of sections 188 and
189. (§ 1170.95, subd. (d)(3).)
“The admission of evidence in the hearing shall be governed by the Evidence
Code, except that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The prosecutor and the
petitioner may also offer new or additional evidence to meet their respective burdens. A
finding that there is substantial evidence to support a conviction for murder … is
insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for
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resentencing.” (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2, eff. Jan.
1, 2022.)
APPELLANT’S SECTION 1170.95 PETITION
On November 22, 2019, appellant filed, in pro. per., a section 1170.95 petition for
resentencing in his second degree murder conviction in case No. MCR053975.
The petition was supported by appellant’s declaration, signed under penalty of
perjury, where he checked boxes on a preprinted form that stated he was entitled to
resentencing under section 1170.95 because a complaint or information 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; he pleaded guilty or no contest to
first or second degree murder in lieu of going to trial because he believed he could have
been convicted of first or second degree murder at trial pursuant to the felony murder-rule
or the natural and probable consequences doctrine; he could not now be convicted of first
or second degree murder because of the changes made to section 189; he was not the
actual killer; he did not, with the intent to kill, aid, abet, or assist the actual killer; he was
not a major participant in the felony or did not act with reckless indifference to human
life during the course of the felony; and he could not now be convicted of second degree
murder under the natural and probable consequences doctrine or felony murder because
of changes to section 188.
Appellant requested appointment of counsel.
On November 25, 2019, the trial court issued an order to show cause and found
appellant stated a prima facie case for relief. On January 24, 2020, the court appointed
counsel.
On June 2, 2020, the prosecution filed opposition and argued the petition should
be denied based on the stipulated factual basis for appellant’s plea, that he aided and
abetted the actual killer with the intent to kill; the prosecution filed the transcript of the
plea hearing as a supporting exhibit.
8.
The Court’s Denial of the Petition
On July 17, 2020, Judge Blea held a hearing on appellant’s section 1170.95
petition. The prosecutor argued that the record showed appellant was not charged under
either felony murder or the natural and probable consequences theories, the stipulation at
the time of his plea showed that appellant “aided and abetted,” and he was guilty based
on his “direct liability under aiding and abetting.” Defense counsel did not offer any
evidence and submitted the matter based on the stipulated factual basis at the plea
hearing.
Judge Blea, who took appellant’s plea, denied appellant’s section 1170.95 petition:
“The issue here is whether the prosecution can prove beyond a reasonable
doubt that Mr. Reyes is guilty of second-degree murder under a theory the
petitioner, Mr. Reyes, was not the actual killer but a principal who aided
and abetted in the commission of the murder.
“The court reviewed the change of Plea transcript, and during that
change of plea hearing, the prosecutor offered a factual basis that included a
representation that Mr. Reyes drove his SUV to Mr. Rendon’s residence.
He picked Mr. Rendon up, and then he drove Mr. Rendon to Fabian
Hernandez’s house. The factual basis included the following: Quote, when
he drove with Mr. Rendon to Fabian Hernandez’s house, they drove there
with the intent to shoot up the house and attempt to kill somebody. Mr.
Reyes did pull that vehicle up to the front of Mr. Hernandez’s house, at that
point, Mr. Rendon filed – fired multiple shots outside of the vehicle at the
house. one of those bullets entered the house and struck and killed Fabian
Hernandez….
“I then asked defense counsel: ‘Do you stipulate that this is the
factual basis for the plea?’
“Defense counsel responded, quote, so stipulated, your Honor, close
quote.
“It appears to the court beyond a reasonable doubt that Mr. Reyes
was not the actual killer but is still liable under Penal code section 189 in
that when he drove Mr. Rendon to Hernandez’s house, he did so with the
intent to kill and aided and abetted and assisted Mr. Rendon who was the
actual killer in the commission of the murder. Accordingly, he is still liable
9.
under Penal code section 189, and that would be Penal Code section –
specifically, Penal Code section 189, sub (e), sub (2).
“Further, I believe that sub (e), sub (3), is also a potential avenue
to – for a conviction, and that would be that Mr. Rendon was a major
participant in the underlying felony and acted with reckless indifference to
human life in taking the action that he took. But primarily, it’s sub (e),
sub (2), so the conviction will stand and the motion is denied.”2
The court also addressed defense counsel’s motion pursuant to People v. Franklin
(2016) 63 Cal.4th 261 (Franklin), to make a record of mitigating evidence for a future
parole hearing. Appellant addressed the court and complained that he never got his
“documents” or talked to his attorney about what he was going to say. Defense counsel
explained he had not given appellant a copy of the doctor’s report prepared pursuant to
Franklin and did so at the hearing. The court stated it had received appellant’s evidence
relevant to Franklin and forwarded the documents to the Department of Corrections and
Rehabilitation for a future parole hearing.
On July 20, 2020, appellant filed a notice of appeal from the court’s order that
denied his section 1170.95 petition.
DISCUSSION
As noted above, appellant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on December 18, 2020, we
invited appellant to submit additional briefing. To date, he has not done so.
2 As amended, section 189, subdivision (e)(2) states that a participant in the
perpetration or attempted perpetration of an enumerated felony in which death occurs is
liable for murder if “[t]he 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.” Subdivision (e)(3) states
that such a person is liable for murder if the person “was a major participant in the
underlying felony and acted with reckless indifference to human life, …”
10.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist. 3
DISPOSITION
The court’s order of July 17, 2020, denying appellant’s section 1170.95 petition, is
affirmed.
3 As required by Lewis and section 1170.95, the court appointed counsel to
represent defendant, found a prima facie case was stated, issued an order to show cause,
held a hearing on the petition, and invited argument from the parties. The court relied on
the record from the plea hearing, where appellant stipulated to the factual basis that he
aided and abetted the gunman with the intent to kill, and the defense failed to introduce
any contrary evidence. The court properly denied appellant’s petition. Senate Bill 1437
was enacted “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), italics added; Lewis, supra, 11 Cal.5th at p. 959.)
11.