People v. Bautista CA2/2

Filed 9/9/21 P. v. Bautista 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308925
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA040194)
v.
CHRISTOPHER BAUTISTA,
Defendant and Appellant.
APPEAL from an order of the Los Angeles Superior Court,
Kathryn A. Solorzano, Judge. Affirmed.
Robert D. Bacon, 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, Amanda V. Lopez and Michael J. Wise, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Christopher Bautista (defendant) argues that the trial
court erred in denying his petition for resentencing under Penal
Code section 1170.95.1 There was no error, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In the early morning hours of a Monday in April 2000,
defendant and his fellow gang members approached a rival gang
member getting home from work. Unfortunately for them, the
rival was an armed security guard wearing a bulletproof vest.
When defendant and his cohorts opened fire on their intended
victim, he fired back and killed one of the cohorts.
II. Procedural Background
A. Underlying conviction, sentence and appeal
The People charged defendant with (1) the murder of his
cohort (as a consequence of defendant’s provocative act of
attacking the rival gang member) (§ 187, subd. (a)), and (2) the
attempted premeditated murder of the rival gang member (§§
187, 664, subd. (a)). With respect to the murder charge, the
People alleged that defendant personally discharged a firearm
causing great bodily injury or death (§ 12022.53, subd. (d)) and
that the crime was “committed for the benefit of, at the direction
of, or in association with any criminal street gang” (§ 186.22,
subd. (b)(1)(C)). On the murder count, the jury was only
1 All further statutory references are to the Penal Code.
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instructed on the provocative act theory. As pertinent to this
appeal, the jury found defendant guilty of second degree murder
and found all allegations true. On the murder count, the trial
court imposed a sentence of 45 years to life, calculated as a base
sentence of 15 years to life plus 20 years for the firearm
enhancement plus 10 years for the gang enhancement. On
appeal, we affirmed the murder conviction but vacated the gang
enhancement, and ordered the trial court to impose a sentence of
35 years to life. (People v. Bautista (June 6, 2003, B156992)
[nonpub. opn.].)
B. Petition for resentencing
In February 2019, defendant filed a form petition to vacate
his second degree murder conviction under section 1170.95. The
trial court appointed counsel, and after full briefing held a
hearing on the petition. The trial court ruled that defendant had
“failed to state a prima face case” for relief under section 1170.95
“as a matter of law” because “the only theory of liability”
underlying his second degree murder conviction “was provocative
act murder,” which is outside the purview of section 1170.95.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
section 1170.95 petition. Because our consideration of this
argument involves questions of law and the application of that
law to undisputed facts, our review is de novo. (Tsasu LLC v. U.S
Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.)
A person is entitled to relief 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
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probable consequences doctrine,” (2) he “was convicted of . . .
second degree murder,” and (3) he “could not be convicted of . . .
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a).) In
January 2019, our Legislature amended section 188 to provide
that “in order to be convicted of murder, a principal in a crime
shall act with malice aforethought” and that “[m]alice shall not
be imputed to a person based solely on his . . . participation in a
crime.” (§ 188, subd. (a)(3).) Our Legislature’s purpose was to
ensure that “[a] person’s culpability for murder [is] premised
upon that person’s own actions and subjective mens rea.” (Stats.
2018, ch. 1015, § 1(g).)
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our
Supreme Court held that a person petitioning for relief under
section 1170.95 is entitled to an evidentiary hearing only if he
makes out a prima facie case for relief. (Id. at pp. 957, 961-962.)
In assessing whether a prima facie case has been made, the trial
court must take petitioner’s factual allegations as true and ask
““‘whether the petitioner would be entitled to relief if [those]
allegations were proved.’”” (Id. at p. 971.) “‘However, if the
record, including the court’s own documents [from the record of
conviction] “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.”’” (Ibid.)
Defendant has not made the requisite prima facie showing
of entitlement to relief under section 1170.95. That is because
the sole theory of liability presented to the jury by the
instructions—and hence the sole theory of liability underlying the
jury’s guilty verdict—for defendant’s second degree murder
conviction is the provocative act doctrine. Under that doctrine, a
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person is liable for murder if he “maliciously commits an act that
is likely to result in death, and the [person’s intended] victim
kills [a third party] in reasonable response to that act.” (People v.
Gonzalez (2012) 54 Cal.4th 643, 655, italics added.) Because “[a]
murder conviction under the provocative act doctrine thus
requires proof that the defendant personally harbored the mental
state of [implied] malice” (ibid.; People v. Gilbert (1965) 63 Cal.2d
690, 704 [“malice” required under the doctrine is “conscious
disregard for life”], judg. vacated on other grounds in Gilbert v.
California (1967) 388 U.S. 263; People v. Smith (2005) 37 Cal.4th
733, 747 [“conscious disregard for life” is “implied malice”]), the
jury’s guilty verdict (in conjunction with the jury instructions)
constitutes a finding that defendant personally acted with malice,
and thus could “still be convicted” of murder after January 2019.
This is undoubtedly why every court to consider the issue has
concluded that a trial court may deny a section 1170.95 petition
for a murder conviction based on the provocative act doctrine
without an evidentiary hearing. (People v. Mancilla (2021) 67
Cal.App.5th 854, 865-870; People v. Swanson (2020) 57
Cal.App.5th 604, 612-616, review granted Feb. 17, 2021,
S266262; People v. Johnson (2020) 57 Cal.App.5th 257, 266-268;
People v. Lee (2020) 49 Cal.App.5th 254, 262-264, review granted
July 15, 2020, S262459.)
Defendant responds with what boils down to four
arguments.
First, defendant argues that the theories of felony murder,
murder as the natural and probable consequence of some lesser
crime, and provocative act murder are “fraternal triplets,” such
that section 1170.95’s grant of relief to persons convicted of
murder under the first and second of these theories must
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necessarily extend to persons convicted of murder under the
third. We reject this argument. Although all three doctrines may
share the same proverbial father (because each allows for the
conviction of the person who was not the actual killer), they do
not share the same proverbial mother (because the first two
theories do not require proof that the defendant personally acted
with malice, while the third theory—as explained above—does
require proof that the defendant personally acted with malice).
Because section 1170.95 was designed to afford relief to persons
who did not personally act with malice, our Legislature’s decision
not to also afford relief to persons who did personally act with
malice does not divide up a family that is related along the
relevant axis.
Second, defendant argues that the case first recognizing the
provocative act theory—People v. Washington (1965) 62 Cal.2d
777 (Washington)—as well as the maxim against statutory
interpretations that lead to absurd consequences dictate the
extension of section 1170.95 to persons convicted of provocative
act murder. More specifically, defendant argues that he should
not be categorically denied relief under section 1170.95 just
because his intended victim killed someone because (1) he would
not have been categorically denied relief under section 1170.95 if
one of his cohorts had instead been the actual killer, and (2)
Washington counseled that “[a] rule of law cannot reasonably be
based on . . . a fortuitous circumstance” (Washington, at p. 780),
which parallels the maxim against absurd constructions of
statutes (e.g., People v. Munoz (2019) 39 Cal.App.5th 738, 756).
We reject this argument. What distinguishes defendant’s
possible entitlement to relief under section 1170.95 in the two
situations he contrasts is the legal theory upon which liability for
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murder would rest in those two situations—and, critically, the
elements of those theories: Where a defendant’s cohorts kill
someone and the defendant’s liability for that killing rests upon
the felony-murder doctrine, the defendant can be liable for that
murder under that doctrine even if he personally did not harbor
any malice; but where an intended victim kills someone, a
defendant’s liability for that killing necessarily rests on the
provocative act theory, which, as noted above, requires proof that
he personally acted with malice. Indeed, the “fortuity” lamented
in Washington was whether a defendant should be excused from
liability under the provocative act theory on the basis of whether
the person killed was an innocent victim or instead one of the
defendant’s cohorts. (Washington, at p. 780.)
Third, defendant argues that other cases support the
general maxim that courts can extend statutory relief to persons
who do not fall within the literal language of the statute. For
support, he cites People v. Boatwright (2019) 36 Cal.App.5th 848,
851, 855-856 [holding that statute granting relief to persons
convicted of a crime extended to persons convicted as accessories
to that crime, even though crime of being an accessory was not
listed in the statute] and People v. Bullard (2020) 9 Cal.5th 94,
99-100 [holding that statute granting relief to persons convicted
of vehicle theft extended to persons convicted of theft whether
their intent was to permanently or temporarily deprive the owner
of the vehicle]. We reject this argument. As explained above, the
fact that courts will construe statutes to comport with legislative
intent does not mean they should construe statutes in a manner
that goes beyond that intent. With section 1170.95, our
Legislature’s intent was to grant relief to persons convicted of
murder but who did not personally act with malice; extending
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such relief to persons convicted of murder under a theory that
does require proof of personal malice goes beyond this intent.
Lastly, defendant argues that the maxim favoring liberal
interpretations of statutes requires us to construe section 1170.95
to reach murders committed under a provocative act theory. We
reject this theory, as this maxim does not empower us to rewrite
statutes, which is what we would have to do to adopt defendant’s
interpretation. (Accord, Howard Jarvis Taxpayers Assn. v. City
of San Diego (1999) 72 Cal.App.4th 230, 236-238 [“Liberal
construction cannot overcome . . . plain language”].)
DISPOSITION
We affirm the order denying relief under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_____________________, J.
CHAVEZ
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