People v. Navarro CA2/8

Filed 11/16/21 P. v. Navarro CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B308269
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA082399)
v.
FRANCISCO SANDOVAL
NAVARRO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Richard M. Goul, Judge. Reversed and
remanded with directions.
Eric R. Larson, 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 Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Francisco Sandoval Navarro
appeals from the denial of his petition for resentencing pursuant
to Penal Code section 1170.95. We reverse and remand with
directions to the superior court to issue an order to show cause
and hold an evidentiary hearing on defendant’s petition pursuant
to section 1170.95, subdivision (d).
BACKGROUND
On the evening of July 23, 2003, Alvaro S. was hanging out
in the courtyard of a Long Beach apartment building with his
two sons and four other men. A group of males entered the
courtyard. One of the intruding males asked who was “the one
fucking with [his] sister” and in short order, a “melee ensued.”
More than one of the assailants yelled out “This is BST,”
referring to Barrio Small Town, a criminal street gang. Alvaro S.
was fatally stabbed in the abdomen during the attack, and two of
the other men who had been in the courtyard with him received
nonfatal knife wounds. (People v. Navarro (B236494; July 19,
2013) [nonpub. opn.].)
Defendant was charged, along with three codefendants,
with one count of murder (Pen. Code, § 187, subd. (a)) and
two counts of attempted murder (§§ 187, subd. (a), 664, subd. (a))
arising from the gang-related attack. Defendant’s codefendants
were three of his fellow BST gang members, one of whom was his
brother. (None of the codefendants is a party to this appeal.)
At trial, there was no direct evidence presented that
defendant wielded the knife that caused the injuries to the
victims, or that he knew any codefendant was armed. There was
evidence of a partial DNA match to defendant from a beer bottle
found in the alley across from the courtyard where the attack
occurred. An accomplice testified pursuant to an immunity
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agreement that everyone outside the courtyard went into the
courtyard to fight. On cross-examination, the accomplice denied
actually seeing defendant in the courtyard. It is undisputed the
jury was instructed with the natural and probable consequences
doctrine and that the theory was argued to the jury. (People v.
Navarro, supra, B236494.)
A jury found defendant guilty on all three counts with true
findings the offenses were committed for the benefit of, at the
direction of or in association with a criminal street gang.
Defendant was sentenced to 55 years to life in prison. (People v.
Navarro, supra, B236494.)
In 2013, we affirmed defendant’s conviction in an
unpublished decision, concluding there was sufficient
circumstantial evidence defendant was a participant in the
attack. (People v. Navarro, supra, B236494.)
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. As part of the legislative changes effected by Senate
Bill 1437, Penal Code section 1170.95 was enacted. The statute
provides a procedural mechanism for defendants convicted of
murder on a felony murder theory or under the natural and
probable consequences doctrine to seek resentencing. The statute
became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In May 2019, defendant filed in propria persona a form
petition for resentencing pursuant to Penal Code section 1170.95.
The court appointed counsel for defendant and ordered the
People to file a response to the petition. The People filed
opposition and defendant, through appointed counsel, filed a
reply.
Because of delays occasioned by the COVID-19 pandemic, a
hearing on defendant’s petition was not held until August 14,
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2020. Defendant was present, represented by counsel, and the
proceedings were reported. After entertaining argument, the
court took the matter under submission. The court issued a
written order denying defendant’s petition on September 1, 2020.
The court stated in its ruling that defendant had failed to make a
prima facie case for relief and there was “ample evidence” in the
record for the jury to find defendant possessed the intent to kill in
aiding and abetting his codefendants.
Defendant appealed.
During the pendency of this appeal, the Legislature passed,
and the Governor signed into law, Senate Bill 775 (2021–2022
Reg. Sess.). The new legislation amends Penal Code
section 1170.95 and becomes effective January 1, 2022.
(Stats. 2021, ch. 551, § 2.) We asked the parties to submit letter
briefs addressing the new legislation. Both parties filed
supplemental briefs.
Shortly after filing this appeal, defendant filed a petition
for writ of habeas corpus (In re Navarro (May 26, 2021;
B312680)), arguing his murder conviction must be vacated in
light of People v. Chiu (2014) 59 Cal.4th 155, which held “that an
aider and abettor may not be convicted of first degree
premeditated murder under the natural and probable
consequences doctrine. Rather, his or her liability for that crime
must be based on direct aiding and abetting principles.” (Chiu, at
pp. 158–159, italics omitted.) Respondent conceded the merits of
defendant’s petition which we resolve by separate order.
DISCUSSION
1. The Murder Conviction
Defendant contends he is eligible for resentencing relief on
his conviction on count 1 for first degree murder and that the
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court erred in failing to issue an order to show cause and hold an
evidentiary hearing pursuant to Penal Code section 1170.95,
subdivision (d)(3). Respondent concedes the trial court erred and
that defendant is entitled to an evidentiary hearing. We agree.
The record does not establish that defendant is ineligible
for relief as a matter of law. Rather, the record shows that
defendant presented a prima facie case for relief, and the court
therefore should have issued an order to show cause and
conducted an evidentiary hearing in accordance with Penal Code
section 1170.95, subdivision (d)(3). (People v. Lewis (2021)
11 Cal.5th 952, 960 [if a prima facie case is demonstrated, “the
trial court issues an order to show cause, and then must hold a
hearing”].)
In conducting the evidentiary hearing on remand, the trial
court shall sit as an independent factfinder and hold the
prosecution to the beyond a reasonable doubt burden of proof.
(Pen. Code, § 1170.95, subd. (d)(3).) The People and defendant
may rely on the record of conviction and offer new or additional
evidence to meet their respective burdens. (Ibid.)
2. The Attempted Murder Convictions
Defendant also seeks resentencing relief as to his
convictions for attempted murder. In light of the passage of
Senate Bill 775 during the pendency of this appeal, we agree
defendant is eligible for relief and entitled to an evidentiary
hearing on counts 2 and 3 in addition to the murder charge in
count 1.
Senate Bill 775 was signed into law on October 5, 2021, and
expands the petition process under Penal Code section 1170.95 to
include individuals convicted of “attempted murder under the
natural and probable consequences doctrine.” (Legis. Counsel’s
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Digest, Sen. Bill No. 775 (2021–2022 Reg. Sess.).) Senate Bill 775
was passed as nonurgency legislation during the regular session
and becomes effective on January 1, 2022. (Cal. Const., art. IV,
§ 8, subd. (c)(1); see also People v. Camba (1996) 50 Cal.App.4th
857, 862.)
A defendant generally is entitled to benefit from
amendments to criminal statutes that become effective while his
case is on appeal. (People v. Vieira (2005) 35 Cal.4th 264, 305.)
A judgment is not final on appeal “until the time for petitioning
for a writ of certiorari in the United States Supreme Court has
passed.” (People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.)
Even assuming this opinion is filed and the case remanded
to the superior court before January 1, 2022, defendant’s
judgment will not become final until after Senate Bill 775 goes
into effect. Defendant is therefore entitled to the benefit of the
new amendatory provisions to Penal Code section 1170.95.
In supplemental briefing, respondent concedes that if we
conclude defendant is entitled to the benefit of the amendments
effected by Senate Bill 775, then defendant is entitled to an
evidentiary hearing on the attempted murder charges.
We conclude the record supports defendant’s entitlement to
an evidentiary hearing on the attempted murder charges.
DISPOSITION
The order denying defendant’s resentencing petition is
reversed and the case remanded to the superior court with the
following directions:
The court shall issue an order to show cause and set an
evidentiary hearing in accordance with Penal Code
section 1170.95, subdivision (d) as to count 1 (murder), count 2
(attempted murder) and count 3 (attempted murder).
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By separate order filed this date in In re Navarro, case
No. B312680, we granted defendant’s petition for writ of habeas
corpus and ordered the superior court, on remand, to vacate his
conviction on count 1 for first degree murder. If the People elect
to retry defendant for murder, then the hearing pursuant to
Penal Code section 1170.95 shall proceed as to defendant’s
conviction on counts 2 and 3 for attempted murder. If the People
elect to forego retrial of defendant on the murder charge and
concede to entry of a judgment of conviction on count 1 of second
degree murder, then the hearing pursuant to section 1170.95
shall proceed as to all three counts.
After resentencing, the superior court is directed to prepare
and forward a new abstract of judgment to the Department of
Corrections and Rehabilitation.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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