People v. Murillo CA4/3

Filed 10/25/21 P. v. Murillo CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059845
v. (Super. Ct. No. 16WF1816)
JAVIER JUAN MURILLO, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Gary S. Paer, Judge. Reversed and remanded with directions.
Martin F. Schwarz, Interim Public Defender, and Jamie Kim, Deputy
Public Defender, for Defendant and Appellant.
Todd Spitzer, District Attorney, and Holly M. Woesner, Deputy District
Attorney, for Plaintiff and Respondent.
Appellant Javier Juan Murillo was convicted by jury of forcibly resisting an
executive officer in the performance of his duties, as well as delaying a peace officer in
the performance of his duties and possessing drug paraphernalia. After he served his
prison sentence, he moved to vacate his resisting conviction based on newly discovered
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evidence, pursuant to Penal Code section 1473.6. That section utilizes the same
procedural rules that are used for adjudicating a petition for writ of habeas corpus. Thus,
the trial court was required to refrain from judicial factfinding at the initial stage of the
motion process, prior to the issuance of an order to show cause. However, based on its
own assessment of the underlying facts of the case and the credibility of the prosecution’s
key witness, the trial court summarily denied appellant’s motion for failure to establish a
prima facie case for relief. We agree with appellant that such factfinding at the initial
stage of the motion process was improper. Therefore, we reverse the trial court’s denial
order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed statement of the facts is set forth in our prior opinion affirming
appellant’s convictions on direct appeal. (See People v. Murillo (Mar. 16, 2018,
G054330 [nonpub. opn.].) For purposes of this proceeding, the following facts will
suffice:
On August 15, 2016, Sheriff’s Deputy Phillip Avalos and several of his
fellow deputies went to appellant’s house to execute a warrant for his arrest. But when
they announced their presence at the house, appellant jumped out his bedroom window
and fled on foot. Avalos chased him into a neighbor’s yard and ordered him to stop.
However, according to Avalos, appellant refused to yield, so he tackled him to the ground
and a struggle ensued.
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All further statutory references are to the Penal Code.
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Avalos ordered appellant to stop resisting and tried to grab his hands, but
appellant did not obey. Instead, he kept reaching for his waistband and trying to pull
away from Avalos as Avalos rained punches down on his head and back. It wasn’t until a
second deputy arrived on the scene – Sergeant Timothy Critz – that appellant was finally
subdued, handcuffed and taken into custody. A search of his person turned up two knives
and two hypodermic needles.
Before trial, appellant filed a Pitchess motion to discover any information
in Avalos’ personnel file reflecting dishonesty, moral turpitude or excessive use of force.
(See Pitchess v. Superior Court (1974) 11 Cal.3d 531.) Appellant contended any such
information would be relevant to his defense theory on the resisting charge, which was
based on his physical struggle with Avalos. The theory was, that contrary to what Avalos
told the jury, appellant had surrendered to Avalos during the chase. Therefore, when
Avalos tackled him and forcibly placed him under arrest, Avalos was not acting lawfully
– a necessary element for resisting an executive officer in the performance of his duties.
(See § 69, subd. (a); In re Manuel G. (1997) 16 Cal.4th 805, 815 [a person cannot be
convicted of an offense against a peace officer engaged in the performance of his duties
unless the officer was acting lawfully when the alleged offense occurred].) Upon
reviewing Avalos’ personnel file, the trial court did not find any discoverable material
related to this theory.
However, after appellant was convicted and served his two-year prison
sentence, the prosecution informed defense counsel of an Internal Criminal Investigation
report (ICI report) that was issued by the Orange County Sheriff’s Department in 2018,
about a year and a half after appellant’s trial ended. The ICI report focused on Avalos’
evidence booking practices between February 1, 2016 and February 1, 2018. It found
that of the 51 cases in which Avalos had collected evidence during that period, he made
false statements in connection with 5 of those cases.
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In three of those five cases, Avalos wrote in his police reports that he had
booked certain items (such as drugs, knives and photographic evidence) into the sheriff’s
evidence locker when in fact he had not actually done so. In the other two cases, he
booked items considerably later than the time he stated in his police reports. The ICI
report also found Avalos routinely disregarded the sheriff’s departmental policy to book
evidence in a timely manner. Avalos admitted to investigators he did not always follow
best practices when it came to booking evidence. When asked about the various items
that he said he booked but were still unaccounted for, he said they were “probably lost.”
Based on the ICI report, appellant moved through appointed counsel to
vacate his resisting conviction pursuant to section 1473.6, subdivision (a)(2), on the
ground the report constituted newly discovered evidence that Avalos had testified falsely
at his trial. At the motion hearing, the prosecutor said she opposed the motion. However,
she did not offer any substantive input on the merits because the trial judge summarily
denied the motion for failure to state a prima facie case for relief.
In so doing, the judge emphasized that he had presided over appellant’s
trial and that he considered Avalos to be a credible witness, given all the evidence that
was presented during the trial, including Sergeant Critz’s testimony that appellant was
resisting arrest when he arrived on the scene. Given Critz’s testimony in that regard, the
judge felt Avalos’ testimony on the resisting charge was amply corroborated. The judge
suggested that Critz’s testimony rendered Avalos’ testimony superfluous, even though
Critz did not arrive on the scene until about 10 seconds after Avalos tackled appellant,
which was after the point when appellant allegedly stopped fleeing and surrendered to
Avalos.
During his ruling, the judge also made it clear he did not see any nexus
between the evidence revealed in the ICI report and the veracity of Avalos’ testimony.
He felt it would be a “huge stretch” to conclude Avalos lied at trial just because he “was
late in booking evidence on unrelated cases.” He also questioned whether the evidence
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of Avalos’ booking practices would have been admissible had it been available at the
time of appellant’s trial. The judge said he was skeptical about that prospect absent
evidence Avalos’ booking practices were intentionally deceptive or rose to the level of
criminal misconduct.
DISCUSSION
Appellant contends the trial court erred in summarily denying his petition
for vacatur without issuing an order to show cause. We agree.
Section 1473.6 states, “(a) Any person no longer unlawfully imprisoned or
restrained may prosecute a motion to vacate a judgment for any of the following reasons:
“(1) Newly discovered evidence of fraud by a government official that
completely undermines the prosecution’s case, is conclusive, and points unerringly to his
or her innocence.
“(2) Newly discovered evidence that a government official testified falsely
at the trial that resulted in the conviction and that the testimony of the government
official was substantially probative on the issue of guilt or punishment.
“(3) Newly discovered evidence of misconduct by a government official
committed in the underlying case that resulted in fabrication of evidence that was
substantially material and probative on the issue of guilt or punishment. Evidence of
misconduct in other cases is not sufficient to warrant relief under this paragraph.
“(b) For purposes of this section, ‘newly discovered evidence’ is evidence
that could not have been discovered with reasonable diligence prior to judgment.
“(c) The procedure for bringing and adjudicating a motion under this
section, including the burden of producing evidence and the burden of proof, shall be the
same as for prosecuting a writ of habeas corpus.”
This statute was enacted in response to the so-called Rampart scandal in
which several Los Angeles police officers were found to have planted evidence, falsified
reports and committed perjury. (People v. Germany (2005) 133 Cal.App.4th 784, 791.)
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“Because the misconduct was discovered many years after it occurred, those who were no
longer in custody at the time of the discovery of the misconduct [were] not able to set
aside their convictions” under existing law. (Ibid.) Therefore, the Legislature enacted
section 1473.6 as a means “for those no longer in the system to challenge their judgment
when they learn that their conviction was obtained in part because of fraud or false
evidence by a government official.’ [Citation.]” (Ibid.)
Pursuant to subdivision (c) of the statute, a trial judge entertaining a motion
for vacatur utilizes the same procedures applicable to a petition for a writ of habeas
corpus. (See Cal. Rules of Court, rule 4.551.) Therefore, if the moving party makes a
prima facie case for relief, the judge must issue an order to show cause. (Id., subd.
(c)(1).) In determining whether a prima facie case has been made, the judge must take
the moving party’s factual allegations as true and make a preliminary assessment whether
the moving party would be entitled to relief if his or her factual allegations were proven.
(Ibid.)
The trial judge did not have the benefit of our Supreme Court’s latest
explication of the procedures to be applied in such cases and had to rule without that
guidance. As our Supreme Court recently explained in People v. Lewis (2021) 11 Cal.5th
952 (Lewis), this process is not adversarial in nature. Lewis ruled that because the
procedure for adjudicating a petition for resentencing under section 1170.95 is analogous
to the procedure for adjudicating a petition for writ of habeas corpus, the trial court may
consider the record of conviction in determining whether the petitioner has made a prima
facie case for resentencing relief. (Id. at p. 971.) However, Lewis cautioned the scope of
the trial court’s inquiry into the record of conviction “is limited.” (Ibid.) The trial court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.]” (Id. at p. 972.) And it “‘should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary hearing.’
[Citation.]” (Id. at p. 971) The trial court may deny relief at the prima facie stage if
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petitioner’s allegations are clearly refuted in the record. (Ibid.) But, overall, the bar for
establishing a prima facie case for relief is “‘very low.’” (Id. at p. 972.)
If the defendant’s allegations clear this minimal threshold, the issuance of
an order to show is required. (People v. Germany, supra, 133 Cal.App.4th at p. 790.)
Then, once formal briefing is complete, the trial court “‘must either grant or deny the
relief [requested] or order an evidentiary hearing. An evidentiary hearing is required if,
after considering the [motion to vacate], the return, any denial, any affidavits or
declarations under penalty of perjury, and matters of which judicial notice may be taken,
the court finds there is a reasonable likelihood that the [moving party] may be entitled to
relief and the [moving party’s] entitlement to relief depends on the resolution of an issue
of fact.’” (Id. at pp. 790-791, quoting Cal. Rules of Court, rule 4.551(f).)
Appellant’s motion to vacate presented two main issues. First, did the false
statements attributed to Avalos in the ICI report demonstrate dishonesty and bear on the
credibility of his testimony at trial? Stated differently, did the newly discovered evidence
show “a government official testified falsely at the trial” within the meaning of section
1473.6, subdivision (a)(2)? Second, per that subdivision, was Avalos’ testimony
“substantially probative on the issue of guilt” on the charge of resisting an executive
officer in the performance of his duties?
As for the first question, the trial court did not believe the ICI report was
sufficient to prove Avalos testified falsely in this case. That belief was based on a variety
of assumptions. The court assumed the ICI report simply reflected the fact that Avalos
had booked evidence late in other cases, and that there was nothing illegal about what he
had done. However, the report actually reveals that Avalos made false statements in his
police reports about when and whether he booked certain evidence. As appellant rightly
points out, it is unlawful for a peace officer to make knowingly false statements in a
police report about any material matter. (§ 118.1.) Whether Avalos knew the subject
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statements in his reports were false, and whether the statements were material, are factual
issues that were not suitable for resolution at the prima face stage of the proceedings.
In assessing the significance of Avalos’ false statements, the trial court was
also under the impression they were not made until a couple of years after appellant’s
trial. Even assuming they reflected dishonesty, the court said it was hard pressed to see
how such belated statements could have any bearing on the veracity of Avalos’ earlier
trial testimony. However, some of the false statements at issue were contained in police
reports that Avalos wrote in the fall of 2016, which is when he testified in this case. And
the remaining statements appeared in reports Avalos prepared within months of that time
period. Contrary to the trial court’s understanding, Avalos’ false statements were not
unduly remote in terms of their temporal relationship to the trial.
Turning to the secondary issue of whether Avalos’ testimony was
substantially probative of appellant’s guilt, the record shows Avalos was the named
victim and key witness on the resisting charge. It is true that Critz also witnessed some
of the events giving rise to that charge. As the trial court repeatedly emphasized in its
ruling, Critz testified he saw appellant resist arrest after Critz arrived on the scene to
assist Avalos. Thus, standing alone, Critz would have been able to independently
establish the resisting element of that charge.
However, Critz was not in a position to testify on the critical issue of
whether Avalos was acting lawfully when he tackled appellant and tried to take him into
custody. That issue turned on whether, as appellant contended, he surrendered to Avalos
prior to then, or whether, as Avalos contended, appellant did not surrender. Because
Critz did not arrive on the scene until after Avalos had already tackled appellant and they
were struggling on the ground, he was unable to shed any light on that pivotal issue.
Consequently, Avalos’ testimony on the lawfulness issue was not only probative, it was
essential in terms of establishing appellant’s guilt on that count. All of these
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considerations support the conclusion the trial court acted prematurely in denying
appellant’s motion for failure to state a prima facie case for relief.
In arguing otherwise, respondent draws our attention to subdivision (a)(3)
of section 1473.6, which states that newly discovered evidence of misconduct by a
government official in other cases is insufficient to prove the official fabricated evidence
in the case in which vacatur is sought. However, by its terms, that limitation only applies
when the defendant is seeking vacatur under section 1473.6, subdivision (a)(3), based on
the alleged fabrication of evidence. It does not apply when, as here, the defendant seeks
vacatur under section 1473.6, subdivision (a)(2), based on false testimony. In fact, unlike
subdivision (a)(3), subdivision (a)(2) of section 1473.6 contains no limitations on the type
of evidence that can be used to justify vacatur under that provision.
For all of these reasons, we conclude the trial court erred in summarily
denying appellant’s motion for vacatur for failure to state a prima facie case for vacatur.
Because the trial judge has already taken a position on Avalos’ credibility and the
veracity of his trial testimony, the matter shall be assigned to a different judge on remand
to the superior court. (Code Civ. Proc., § 170.1, subd. (c).)
DISPOSITION
The trial court’s order denying appellant’s motion for vacatur is reversed
and the matter is remanded for further proceedings. On remand, the Presiding Judge of
the Orange County Superior Court shall assign the case to a different judge, who shall
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issue an order to show cause to the People and resolve appellant’s motion in accordance
with the rules for adjudicating a petition for writ of habeas corpus, as set forth in this
opinion and the California Rules of Court.
BEDSWORTH, ACTING P. J.
WE CONCUR:
FYBEL, J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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