People v. Belmonte CA5

Filed 3/10/23 P. v. Belmonte CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F080443
Plaintiff and Respondent,
(Super. Ct. No. F09903119)
v.
JUAN GARCIA BELMONTE, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L.
Christoffersen and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
*Before Poochigian, Acting P. J., Detjen, J. and Peña, J.
INTRODUCTION
Defendant Juan Garcia Belmonte was convicted of first degree murder and
kidnapping in 2010. The jury also found true a felony-murder special-circumstance
allegation the murder was committed while engaged in a kidnapping pursuant to Penal
Code section 190.2, subdivision (a)(17)(B), and a vicarious arming enhancement
pursuant to section 12022, subdivision (a)(1). (Undesignated statutory references are to
the Penal Code.) Defendant petitioned for resentencing under Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437) in 2019. The court denied the petition
without appointing defendant counsel, concluding defendant had not established a prima
facie showing for relief because, with the intent to kill, he aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the commission
of the murder in the first degree. On appeal, defendant challenged the court’s denial of
his petition before appointing him counsel.
We previously affirmed the court’s order in an unpublished opinion, concluding
the record established defendant was ineligible for resentencing as a matter of law based
on the true finding on the special circumstance allegation. Defendant petitioned for
review. The California Supreme Court granted and held the petition and deferred action
pending its consideration and disposition in People v. Strong (2022) 13 Cal.5th 698(Strong). It then transferred the case back to us with directions for our court to vacate our
decision and reconsider the cause in light of Strong.
We now reverse the court’s order and remand the matter for the court to hold
further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
In 2010, a jury convicted defendant of first degree murder (§ 187; count 1) with a
special circumstance that the murder was committed during the commission of a
kidnapping (§ 190.2, subd. (a)(17)(B)).
2.
In 2019, defendant filed a petition for resentencing pursuant to section 1172.6.1
He averred a charging document had been filed against him allowing the prosecution to
proceed under a felony-murder theory or the natural and probable consequences doctrine;
at trial, he was convicted of first degree murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine; and he could not now be convicted of
murder in light of changes made to sections 188 and 189, effective January 1, 2019
(pursuant to Sen. Bill 1437). He also stated he was convicted of first degree murder but
could not now be convicted because he was not the actual killer; he did not, with the
intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual
killer in the commission of murder in the first degree; and he was not a major participant
in the felony or did not act with reckless indifference to human life during the course of
the crime. He also requested the appointment of counsel.
Before the People submitted a response brief, the court summarily denied the
petition without appointing defendant counsel or holding a hearing. Instead, it concluded
defendant was categorically ineligible for relief. In its order the court explained:
“Petitioner, Juan Garcia Belmonte has failed to make a prima facie showing
that he falls within the provisions of … section [1172.6]. The condition set
out at … §[1172.6](a)(3) does not apply. Petitioner 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. Petitioner
is not eligible for resentencing.”
We previously affirmed the court’s order, concluding the record established
defendant was ineligible for resentencing as a matter of law based on the true finding on
the special circumstance allegation. Defendant petitioned for review. The California
1Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at
that time, although prior changes had been implemented effective January 1, 2022. There is no
dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the
statute as section 1172.6.
3.
Supreme then transferred the case back to us with directions for our court to vacate our
decision and reconsider the cause in light of Strong.
DISCUSSION
We now reconsider the court’s denial of the petition for resentencing, reverse the
court’s order, and remand for further proceedings.
I. Senate Bill 1437 and Senate Bill 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] 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).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2–3.)
Accordingly, section 188 now provides that, “[e]xcept 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.” (§ 188, italics added.) The change reflects the Legislature’s
intent that “a person’s culpability for murder must be premised upon that person’s own
actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
4.
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e), which provides:
“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.”
The legislation also added section 1172.6, which provides a procedure by which
defendants whose cases are final can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.)
Initially, section 1172.6 (former § 1170.95) permitted those “convicted of felony murder
or murder under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts ….” (Stats. 2018, ch. 1015, § 4, subd. (a).)
In Senate Bill 775 (2021–2022 Reg. Sess.) (Senate Bill 775), effective January 1,
2022, the Legislature amended the language of section 1172.6, expanding the scope of
the petitioning process and clarifying some of the procedural requirements. (Stats. 2021,
ch. 551, § 2.) Section 1172.6 now provides that, upon receiving a petition, if the
petitioner has requested counsel, the court must appoint counsel to represent the
petitioner. (§ 1172.6, subd. (b)(3).) “After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine whether the petitioner has made a
prima facie case for relief.” (§ 1172.6, subd. (c).) If the petitioner has made such a
showing that the petitioner is entitled to relief, the court “shall issue an order to show
cause.” (Ibid.) “If the court declines to make an order to show cause, it shall provide a
statement fully setting forth its reasons for doing so.” (Ibid.) Within 60 days after the
5.
order to show cause has issued, the trial court must then hold a hearing “to determine
whether to vacate the murder, attempted murder, or manslaughter 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.” (§ 1172.6, subd. (d)(1).)
II. Analysis
Defendant contends the trial court erred by denying his petition, which he argues
was facially sufficient, before appointing him counsel in violation of statutorily required
procedures and his due process rights. He asserts the court’s order dismissing his petition
failed to state the evidentiary basis for its denial and it was unsupported by evidence in
the record. He further contends the court engaged in factfinding to conclude he was
ineligible for relief. On reply, defendant contends the superior court did not rely on the
felony-murder special circumstance as a basis for its summary dismissal. Rather, the
court’s order reflected it found he had the intent to kill. Irrespective, he argues the
special circumstance finding did not “justif[y] a summary dismissal of the petition
without the appointment of counsel and without affording [him] an opportunity to be
heard.” In support, he relies on People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), both decided after defendant’s conviction.
He argues these decisions by the California Supreme Court “altered the understanding” of
what it means to be a major participant who acted with reckless indifference. He asserts
“the verdict reached in the prior trial does not necessarily establish, indisputably and as a
matter of law, what the outcome would be in a trial held today.” The People initially
asserted the jury’s special circumstance finding rendered defendant categorically
ineligible for relief. However, they now agree, in light of Strong, reversal of the court’s
order and further proceedings are appropriate.
6.
In Strong, supra, 13 Cal.5th 698, the California Supreme Court held that a special
circumstance finding entered pursuant to section 190.2, subdivision (a)(17) prior to the
court’s decisions in Clark and Banks does not preclude a section 1172.6 petitioner from
making a prima facie showing of eligibility for relief.2 (Strong, at p. 703.)
In light of Strong, we advised the parties of our intention to reverse and remand
this matter and hold further proceedings pursuant to section 1172.6, subdivision (c). We
afforded the parties an opportunity to file objections to this proposed disposition.
Defendant did not submit any objections and, in a supplemental brief, the People agree
the special circumstance finding, which predated Banks and Clark, does not render
defendant categorically ineligible for resentencing under section 1172.6. Thus, they
concede the court’s order denying defendant’s petition for resentencing should be
reversed and the matter remanded for further proceedings consistent with Strong.
Because, here, the special circumstance finding was made before Banks and Clark,
it is not preclusive on prima facie review of the petition under section 1172.6. (Strong,
supra, 13 Cal.5th at p. 703.) And the petition was facially sufficient and alleged the
essential facts necessary for relief under section 1172.6.
Accordingly, we reverse the court’s order and remand with directions for the trial
court to appoint defendant counsel and for further proceedings consistent with section
1172.6, subdivision (c). We express no opinion on the ultimate resolution of the petition.
DISPOSITION
The court’s order denying defendant’s petition for resentencing is reversed and the
matter is remanded for further proceedings consistent with this opinion.
2Banks and Clark “substantially clarified the law” regarding “what it means to be a major
participant and … to act with reckless indifference to human life.” (Strong, supra, 13 Cal.5th at
pp. 706–707.)
7.