People v. Montes

Filed 11/23/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B312152
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA069209)
v.
JORGE LUIS MONTES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Reversed and
remanded with instructions.
Kravis, Graham & Zucker and Randy S. Kravis for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Noah P. Hill, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
FACTUAL AND PROCEDURAL BACKGROUND
On April 17, 2008, a jury convicted appellant Jorge Luis
Montes of two counts of attempted murder in violation of Penal
Code1 sections 664 and 187, subdivision (a), and one count of
mayhem in violation of section 203. The jury found true
allegations that 1) the attempted murders were committed
willfully, deliberately, and with premeditation; 2) the offenses
were committed for the benefit of, at the direction of, and in
association with a criminal street gang; 3) during the commission
of the offenses, a principal was armed with a firearm; and 4) a
principal personally and intentionally discharged a firearm,
which proximately caused great bodily injury upon the victims.
On May 16, 2008, the trial court sentenced appellant to two
consecutive life terms with a possibility of parole for the two
attempted murder convictions plus a consecutive 25-year-to-life
term for the firearm allegations.
On December 18, 2009, this court affirmed the judgment of
conviction. (See People v. Montes (Dec. 18, 2009, B208021)
[nonpub. opn.].)2
In 2018, the Legislature passed and the Governor approved
Senate Bill No. 1437 (2017–2018 Reg. Sess.), which came into
effect January 1, 2019. (Stats. 2018, ch. 1015, § 4.) Section
1170.95 was enacted as part of the legislative changes effected by
Senate Bill No. 1437.
1 Undesignated statutory references are to the Penal Code.
2 On June 14, 2021, we granted appellant’s request to take
judicial notice of the record in case No. B208021.
2
On February 25, 2021, appellant with private counsel filed
a petition for resentencing pursuant to section 1170.95. In his
petition, appellant argued he qualifies for resentencing under
section 1170.95 “because he was not the actual killer, he was
convicted under a natural and probable consequences theory, he
did not have any intent to kill, he was not a major participant in
the underlying felony and he did not act with reckless
indifference to human life.”
On March 4, 2021, the trial court issued a written order
denying appellant’s petition, without ordering additional briefing
or issuing an order to show cause. The trial court found
appellant ineligible for relief because he was convicted of
attempted murder, not murder. The court found appellant
ineligible for relief for two other reasons as well, namely, that
appellant “possessed the intent to kill or the jury could not have
convicted him of attempted murder; and [appellant] was a major
participant who acted with reckless disregard for human life.”
Appellant filed a timely notice of appeal.
On October 5, 2021, while appellant’s appeal was pending,
the Governor signed into law Senate Bill No. 775 (2020–2021
Reg. Sess.). Effective January 1, 2022, Senate Bill No. 775
amends section 1170.95. In light of this recent legislation we
asked the parties to file supplemental briefs addressing Senate
Bill No. 775’s effect, if any, on appellant’s pending appeal. Both
parties have submitted supplemental briefs which we have
reviewed.
DISCUSSION
Appellant contends the trial court erred in summarily
denying his petition for resentencing without ordering further
briefing and without issuing an order to show cause. He argues
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the trial court erred in concluding that the crime of attempted
murder is categorically excluded from the purview of section
1170.95. Appellant also argues the trial court erred when it
found appellant possessed the intent to kill. Finally, appellant
argues the trial court improperly engaged in factfinding before
issuing an order to show cause under section 1170.95,
subdivisions (c) and (d)(1).
For reasons discussed below, we reverse and remand with
instructions.
A. Applicable Law
In 2018, the Legislature passed Senate Bill No. 1437 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).)
Senate Bill No. 1437 amended section 188 to require that a
principal “shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3).)
Senate Bill No. 1437 also added section 1170.95, which sets
forth the procedure by which a “person convicted of felony murder
or murder under a natural and probable consequences theory
may 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.” (§ 1170.95, subd. (a).)
Pursuant to section 1170.95, an offender must file a petition
(along with a declaration) in the sentencing court averring that:
“(1) A complaint, information, or indictment was filed against the
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petitioner that allowed the prosecution to proceed under a theory
of felony murder or 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. [¶] (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.” (§ 1170.95, subds. (a)(1)–(3); see also § 1170.95,
subd. (b)(1)(A).)
Once a complete petition is filed, the court determines
whether “the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. . . . If the
petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause.”
(§ 1170.95, subd. (c).)
After the court issues an order to show cause, a hearing is
held to determine whether to vacate the murder conviction, recall
the sentence, and resentence the petitioner on any remaining
counts. (§ 1170.95, subd. (d)(1).) At the hearing, “the burden of
proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing. If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges. The prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Id.,
subd. (d)(3).)
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On October 5, 2021, the Governor signed into law Senate
Bill No. 775, which expands the section 1170.95 petition process
to include individuals convicted of “attempted murder under the
natural and probable consequences doctrine.” (Legis. Counsel’s
Dig., Sen. Bill No. 775 (2020–2021 Reg. Sess.).) The effective
date of non-urgency legislation such as Senate Bill No. 775,
passed during the regular legislative session in 2021, is January
1, 2022. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600,
subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865 [Under
the California Constitution, a statute enacted at a regular session
of the Legislature generally becomes effective on January 1 of the
year following its enactment except where the statute is passed
as an urgency measure and becomes effective sooner].)
B. Analysis
The first question before us is whether the new
legislation—Senate Bill No. 775—applies to appellant’s pending
appeal. New legislation generally applies to all judgments which
are not final as of the effective date of the new statute. (People v.
Vieira (2005) 35 Cal.4th 264, 305–306; People v. Nasalga (1996)
12 Cal.4th 784, 789, fn. 5 [a criminal judgment is not final until
the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed].) Where it is unlikely that a
judgment will be final by the effective date of new legislation,
courts have remanded matters to the trial courts so that the new
statute can be applied after its effective date. (People v. Garcia
(2018) 28 Cal.App.5th 961, 973.)
Both parties acknowledge in their supplemental briefs that
the order here will not be final until after the effective date of
Senate Bill No. 775. To promote judicial economy and efficiency,
we opt to apply the revised provisions set forth in Senate Bill
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No. 775 to appellant’s case now. Doing so means that appellant
is eligible for resentencing relief under section 1170.95 by virtue
of his attempted murder conviction so long as appellant was
convicted under a natural and probable consequences theory.
Thus, we proceed to address the second question before us,
i.e., whether appellant was convicted of attempted murder under
a natural and probable consequences theory. The record shows
the jury was instructed with CALCRIM No. 403, which sets forth
the elements for the natural and probable consequences doctrine.
During closing argument, the prosecutor referred to the natural
and probable consequences doctrine, provided the jury with
examples of what natural and probable consequences could arise
in appellant’s circumstances, and argued that a reasonable
person in appellant’s shoes would know that an assault may lead
to an attempted murder. Because appellant’s jury was instructed
on the natural and probable consequences doctrine for attempted
murder, appellant may establish a prima facie showing of
eligibility. (See People v. Lewis (2021) 11 Cal.5th 952, 971–972
[where the record of conviction does not refute the claims of
eligibility in the section 1170.95 petition, the petitioner has made
a prima facie showing for relief].)
In light of the foregoing, we find the first ground provided
by the trial court in its March 4, 2021 order denying appellant’s
resentencing petition not valid now that section 1170.95 has been
amended by Senate Bill No. 775. We proceed to address the trial
court’s remaining two grounds for denial of the petition.
First, the trial court found appellant ineligible for
resentencing relief because appellant “possessed the intent to kill
or the jury could not have convicted him of attempted murder.”
The trial court inferred from the jury’s finding of guilt that the
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jury must have found appellant possessed the intent to kill,
qualifying him for criminal liability with the requisite malice
aforethought. The trial court’s reasoning here is flawed.
When appellant was found guilty of attempted murder
under a natural and probable consequences theory of liability, the
“intent to kill” was imputed onto appellant from the actual killer
or perpetrator. (People v. Sanchez (2020) 46 Cal.App.5th 637, 642
[The natural and probable consequences doctrine therefore
imputes specific intent to kill in attempted murder convictions;
the actions of the perpetrator are imputed to the accomplice].)
Vicarious liability is imposed “for any offense committed by the
direct perpetrator that is a natural and probable consequence of
the target offense. [Citation.] Because the nontarget offense is
unintended, the mens rea of the aider and abettor with respect to
that offense is irrelevant.” (People v. Canizalez (2011)
197 Cal.App.4th 832, 852.) Here, the jury found appellant guilty
of attempted murder because the perpetrator (not appellant)
intended to kill and the perpetrator’s attempted murder was a
natural and probable consequence of appellant’s intent to
participate in the target offense of assault. In other words, the
jury here did not consider appellant’s own intent to kill for
purposes of the attempted murder crimes, as appellant’s intent to
commit the non-target offense is irrelevant.
Additionally, as already mentioned, Senate Bill No. 1437
prohibited imputing malice to persons based solely on their
participation in a crime. (People v. Sanchez, supra,
46 Cal.App.5th at p. 642.) The enactment of Senate Bill
Nos. 1437 and 775 shows the Legislature’s recognition of the need
for statutory changes to more equitably sentence offenders in
relation to their involvement in the criminal activity. (See, e.g.,
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People v. Rodriguez (2020) 58 Cal.App.5th 227, 240, fn. 7.) That
legislative goal is best effectuated by resentencing individuals
convicted of attempted murder under the natural and probable
consequences doctrine if the evidence, whether from the record of
conviction alone or with new and additional evidence introduced
at the section 1170.95, subdivision (d)(3) hearing, fails to
establish beyond a reasonable doubt they, in fact, acted during
the crime with the now-required mental state. (Id. at
pp. 240-241.) “To deny resentencing simply because a jury could
have found that they may have acted with express malice would
frustrate the legislation’s purpose.” (Id. at p. 241.) That is
exactly what happened here when the trial court found appellant
ineligible for relief because he “possessed the intent to kill or the
jury could not have convicted him of attempted murder.”
The final ground on which the trial court found appellant
ineligible for relief was because appellant “was a major
participant who acted with reckless disregard for human life.”
We believe this constitutes inappropriate factfinding by the trial
court at the initial prima facie stage of this process. Factfinding
is reserved for and exercised only after an order to show cause is
issued and the parties are permitted to supplement the record
with new evidence, including, if requested, by way of an
evidentiary hearing. (People v. Duchine (2021) 60 Cal.App.5th
798, 815.) The trial court’s denial of appellant’s petition based on
its own determination that appellant was a major participant
who acted with reckless disregard for human life was improper at
the prima facie stage of appellant’s resentencing petition.
Based on the foregoing, we reverse the trial court’s order
denying appellant’s section 1170.95 petition, and remand with
directions to the trial court to permit the parties to brief whether
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appellant has established a prima facie basis for resentencing
relief and, if so, to hold further proceedings consistent with
section 1170.95, subdivision (c), after January 1, 2022, the
effective date of Senate Bill No. 775.
DISPOSITION
The order denying the section 1170.95 petition is reversed;
we remand the matter to trial court to hold further proceedings
in accordance with section 1170.95, subdivision (c), after January
1, 2022.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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