People v. Servin CA2/1

Filed 9/25/20 P. v. Servin CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B301690
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA190204)
v.
JOSE DANIEL SERVIN
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Douglas Sortino, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
In 2000, a jury convicted defendant Jose Daniel Servin of
murder, robbery, and carjacking and found true the special
circumstance allegations that the murder was committed during
the commission of a robbery and carjacking. The trial court
sentenced Servin to state prison for a term of life without the
possibility of parole plus one year.
In 2018, the Legislature passed Senate Bill No. 1437 (2017-
2018 Reg. Sess.), effective January 1, 2019, “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); see § 189, subd. (e).)
Senate Bill No. 1437 also enacted section 1170.95, which
permitted persons who could no longer be guilty of murder under
the new law to petition the trial court for resentencing.
(§ 1170.95, subd. (a).)
Servin appeals from the trial court’s summary denial of his
Penal Code section 1170.95 petition.1 The trial court determined
that Servin could not demonstrate he was eligible for section
1170.95 relief because a jury found true special circumstance
allegations that the murder was committed during the
commission of a robbery and carjacking, which necessarily would
have required the jury to find either that Servin was the actual
killer; with the intent to kill, aided and abetted in a murder of
the first degree; or was a major participant in the underlying
crimes who acted with reckless indifference to human life. (See
1 All unspecified statutory references are to the Penal Code.
2
§ 190.2, subds. (b)-(d).) On appeal, Servin argues the trial court
improperly relied upon the jury’s special circumstance findings
made prior to People v. Banks (2015) 61 Cal. 4th 788 (Banks) and
People v. Clark (2016) 63 Cal. 4th 522 (Clark), which clarified
under what circumstances a defendant could be found to be a
major participant who acted with reckless indifference to human
life. Consistent with this court’s recent opinion in People v.
Galvan (2020) 52 Cal. App. 5th 1134 (Galvan), we conclude that
because Servin could still be convicted of murder under the new
felony-murder rule, he is ineligible for section 1170.95 relief as a
matter of law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Servin Is Convicted of Felony Murder and the
Judgment Is Affirmed on Direct Appeal
We grant Servin’s request to take judicial notice of our
prior, unpublished opinion relating to his direct appeal, People v.
Servin (Sept. 27, 2001, B147960) (Servin). (Evid. Code, § 452,
subd. (d).) We quote the facts stated therein: “On the afternoon
of August 20, 1996, Sergio Alvarado (Alvarado) saw a green car
pull into the driveway of the house next door to his residence on
Miramonte Street. The car had stock wheels. The green car later
left, driving towards the intersection of Miramonte and Gage
Streets. When the green car stopped at the intersection, a white
Astro van pulled up along the driver’s side of the car which, at
that point, was hemmed in. A Hispanic man with a shaven head
got out of the van. He ordered the driver of the green car, later
identified as Denley Wilson (Wilson), out of the car. Wilson got
out of the car, waving his hands and yelling, ‘Please, don’t.
Don’t.’ Another Hispanic man with a shaven head got out of the
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van. Alvarado then heard a ‘bang,’ after which Wilson fell to the
ground. The second Hispanic man made some movement as if
kicking Wilson, then got into the green car and drove away. The
van followed the green car. The shooter had large letters
tattooed on the back of his head.
“Alvarado went to assist Wilson, while he had a friend call
911. Wilson died as Alvarado held his hand.
“At approximately 1:30 p.m. on August 20, 1996, Los
Angeles County Sheriff’s Deputies James Grubb and Ron
Miranda went to the intersection of Miramonte and Gage Streets.
They found a man lying dead in the street. He had a bullet hole
in his chest. Once paramedics removed the victim, a bloodstain
marked where he had fallen. The deputies found a bullet in the
street.
“Detective Augustin Ortiz was assigned to investigate the
homicide. After having photographs taken of the bloodstain on
the street and the expended bullet found nearby, Detective Ortiz
attempted to find the vehicles involved. Approximately one hour
later, he learned that Wilson’s car was several blocks from the
site at which he died. The radio was missing. The car’s stock
wheels had been removed and replaced with mismatched wheels.
The car was a rental, which had been rented to someone other
than Wilson. Detective Ortiz was unable to locate the person
who had rented the car or to ascertain how Wilson came to
possess it.
“Darnell Carter, a forensic identification specialist, lifted
fingerprints from the inside and the outside of the car that same
day. Criminalist Dale Higashi examined the bullet the deputies
had recovered. He determined it likely had been fired from a .44
caliber Smith and Wesson revolver.
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“Years later, Detective Ortiz received information that a
particular white Astro van might have been linked to the
homicide. When the homicide occurred in 1996, Jose Luis
Ortega, also known as ‘Chili,’ was the registered owner of the
van. Detective Ortiz learned that ‘Chili’ had a large block-letter
tattoo on the back of his head, which read, ‘LA.’ By the time
Detective Ortiz tracked down the van in 1999, it had changed
hands several times. The current owner gave permission for the
examination and photographing of the van.
“At approximately the same time, Detective Ortiz received
information that [Servin] might have been involved in the
homicide. Detective Ortiz obtained a booking print of [Servin]
and sent it to the laboratory for comparison with fingerprints
lifted from Wilson’s car. One fingerprint, found on an outside
window of the car, matched [Servin’s] booking print.
“[Servin] was arrested in July 1999. After [he] waived his
constitutional rights, Detectives Ortiz and Corina interviewed
him. [Servin] acknowledged that he was ‘involved in s murder
case,’ but protested that he ‘didn’t pull no trigger.’ On August 20,
1996, ‘Chili’ and ‘Tricky’ came over to [Servin’s] house. [Servin]
needed money. After seeing Wilson come out of a house where
drugs are sold, the three of them ‘decided to jack’ Wilson.
[Servin] drove ‘Chili’s’ white van. All of them were armed. ‘Chili’
had a .38, .44 or .45 caliber black revolver. ‘Tricky’ had a 9-
millimeter handgun and [Servin] had a .380. All of them had
shaven heads and tattoos. They were all wearing white tank
tops. The group intended to get money and drugs from Wilson.
They did not intend to take the car, ‘just, you know, like get out
in the trunk right there.’
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“When Wilson drove away from the house in a green car,
[Servin] followed him to a traffic signal, where he pulled up
alongside the car. ‘Tricky’ and ‘Chili’ were in the back seat.
‘Tricky’ got out of the van through the sliding door and forced
Wilson out of his car. The car rolled, crashing into the car in
front of it. ‘Chili’ then got out of the van. He told Wilson to get
away from the car. Wilson ‘started acting crazy.’ He said, ‘here,
take it,’ or ‘don’t take it.” He was arguing with ‘Chili,’ who shot
him. ‘Chili’ then got into the green car and drove away. After
[Servin] heard the shot, ‘Tricky’ got back into the van. [Servin]
followed the green car.
“The green car and the van stopped at a train track near
the intersection of Slauson Boulevard and Holmes Street. They
stopped to search the car, thinking, ‘we were gonna have a lot of
drugs in the trunk or something.’ [Servin] told ‘Chili,’ ‘You didn’t
have to shoot him “cause he was already out of the car.” The car’s
trunk was empty. [Servin] checked under the seats and
dashboard but found nothing.
“The trio left the car. They did not do anything to the tires
or the radio. They went to Mexico for five days. While in Mexico,
[Servin] sold his gun.
“[Servin] identified photographs of the van, ‘Chili’ and
‘Tricky,’ whose given name is Faustino Corona. The authorities
located ‘Chili’ in Wyoming. He was returned to California, where
he was charged separately. In Detective Ortiz’s experience,
‘jacking’ is street slang for carjacking.” (Servin, supra, B147960.)
A jury convicted Servin of first degree murder (§ 187,
subd. (a)), robbery (§ 211), and carjacking (§ 215, subd. (a)) and
found true the special circumstance allegations that the murder
was committed during the commission of a robbery and
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carjacking. The trial court sentenced Servin to state prison for a
term of life without the possibility of parole plus one year and
imposed restitution and parole revocation fines upon him.
On direct appeal, Servin argued that the parole revocation
fine must be stricken and that there was insufficient evidence
that he aided and abetted a carjacking, either as a substantive
offense or as a felony-murder special circumstance. This court
modified the judgment to strike the parole revocation fine, but
otherwise affirmed the judgment. (Servin, supra, B147960.)
As to the felony-murder special circumstance finding, this
court determined that at trial, the prosecution had to prove that
Servin, “an aider and abettor who was not the actual killer, but
was a major participant in the crime, acted with reckless
indifference to human life. . . . [Servin] wisely does not dispute
the sufficiency of the evidence to prove this element of the special
circumstance finding. [¶] [Servin] agreed to drive while his
companions searched for a robbery victim. He was armed and
knew his companions were armed. When they settled upon
Wilson as a victim, [Servin] maneuvered the van next to Wilson’s
stopped and hemmed-in car. This allowed ‘Tricky’ to force Wilson
from his car and ‘Chili’ to shoot Wilson so he could take the car.
[Servin] clearly realized that such a shooting could occur, for he
complained to ‘Chili’ after the fact that it was not necessary to
kill Wilson, as Wilson already was out of the car. The foregoing
constitutes substantial evidence that [Servin] had a ‘subjective
awareness of the grave risk to human life created by [his]
participation in the [carjacking and robbery].’ (People v. Estrada[
(1995)] 11 Cal.4th [568,] 578.)” (Servin, supra, B147960.)
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B. Servin Petitions the Trial Court for Resentencing
Relief Pursuant to Section 1170.95
Servin filed a section 1170.95 petition for resentencing
relief on January 31, 2019, using a check-the-box form, and filed
a duplicate petition on February 8, 2019. The prosecution filed
an opposition. At a hearing on July 22, 2019, the trial court
stated it intended to deny the petition based on the jury’s special
circumstance findings. Servin’s attorney requested, and was
granted, an opportunity to file a reply brief.
In his reply brief, Servin argued, among other things, that
under Banks and Clark, the jury could not now find true the
special circumstance allegations. Additionally, he explained that
at trial, he had proposed jury instructions relating to the special
circumstance that the trial court rejected; the jury asked “several
clarifying questions” concerning the special circumstance; and
that one juror felt the special circumstance jury instructions were
not clear.
During the September 30, 2019 hearing on Servin’s section
1170.95 petitions, the trial court stated that it had concerns
relating to the constitutionality of section 1170.95, but denied
Servin’s petitions on the basis that he failed to make a prima
facie showing that he was entitled to relief. The trial court stated
it had reviewed the briefs, the jury instructions, verdict forms,
and our opinion relating to the direct appeal. After arguments of
counsel, the trial court found that the record contradicted
Servin’s allegations that he was not a major participant who
acted with reckless indifference to human life. Accordingly, the
trial court concluded an order to show cause was not necessary
and denied Servin’s petitions.
Servin timely appealed the September 30, 2019 order.
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DISCUSSION
Under section 1170.95, subdivision (a), a person convicted
of felony murder may petition the trial court for resentencing
“when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the 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.” (Italics
added.)
If a petitioner demonstrates a prima facie case for relief,
the trial court must issue an order to show cause why
resentencing relief should not be granted. (§ 1170.95, subd. (c).)
“At the hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing. . . .” (§ 1170.95, subd. (d)(3).)
Servin argues he was denied his statutory right to an
evidentiary hearing at which the prosecution had the burden to
prove the special circumstance beyond a reasonable doubt.
Citing People v. Torres (2020) 46 Cal. App. 5th 1168, review
granted June 24, 2020, S262011, and People v. Smith (2020) 49
Cal. App. 5th 85, review granted July 22, 2020, S262835, Servin
argues that pre-Banks/Clark special circumstance findings are
not sufficient to preclude resentencing relief under section
1170.95.
9
However, we disagree with Torres’s construction of section
1170.95 in this regard. (See Galvan, supra, 52 Cal. App. 5th
1134.) As we recently held in Galvan, “the proper remedy for
challenging a special circumstance finding is by a petition for
habeas corpus, not a petition for resentencing under section
1170.95.” (Id. at p. 1137; People v. Gomez (2020) 52 Cal. App. 5th
1, 17.)2
Servin cannot make the required showing under section
1170.95, subdivision (a)(3) that he now could not be convicted of
first or second degree murder because of the changes to section
188 or 189. A defendant may still be convicted of felony murder
under amended section 189, subdivision (e) if “(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.” (§ 189, subd. (e), italics added.)
Thus, Servin’s petition does not depend on Senate Bill
No. 1437’s changes to the felony-murder rule. Rather, as in
Galvan, his petition depends on “the clarification of the
requirements for the special circumstance finding in Banks and
Clark.” (Galvan, supra, 52 Cal.App.5th at p. 1142.) Because the
proper vehicle for such a challenge is a petition for writ of habeas
2 Servin has brought to our attention Division Five’s recent
opinion, People v. York (Sept. 3, 2020, B298635) ___ Cal.App.5th
___ [2020 WL 5249362]. We decline to depart from our holding in
Galvan.
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corpus, the trial court did not err in summarily denying Servin’s
petition.3 (See id. at pp. 1137, 1142.)
In his reply brief, Servin argues the Legislature intended
Banks challenges to be incorporated into the section 1170.95
proceedings and urges us to depart from our holding in Galvan.
We are not persuaded. As we describe in Galvan, excluding
Banks challenges from section 1170.95 proceedings is not
inconsistent with the plain language and purpose of the statute.
(See Galvan, supra, 52 Cal.App.5th at p. 1143.) Moreover,
permitting a defendant to test a Banks special circumstance
finding as part of a section 1170.95 petition would give a section
1170.95 petitioner “an enormous advantage over other similarly
situated defendants based solely on the date of his conviction”
because the People would have to prove the special circumstance
beyond a reasonable doubt. (Id. at p. 1142.) However,
“[d]efendants convicted after the Supreme Court issued its
decisions in Banks and Clark would be required to challenge the
sufficiency of the evidence of the special circumstance finding on
direct appeal, where the People would need only to show that
substantial evidence supported that finding.” (Id. at pp. 1142-
1143.) “[N]othing in the language of Senate Bill No. 1437
suggests that the Legislature intended unequal treatment of such
similarly situated defendants.” (Id. at p. 1143.)
3 Insupport of his argument that the evidence at his trial
was insufficient to support a special circumstance finding after
Banks, Servin analogizes the facts of his case to those stated in In
re Ramirez (2019) 32 Cal. App. 5th 384. In his reply brief, Servin
acknowledges In re Ramirez was an appeal from a petition for
writ of habeas corpus. (Id. at pp. 407-408.)
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Servin next argues that if we do not depart from our
holding in Galvan, that we should remand the matter to the trial
court with instructions that the trial court treat Servin’s section
1170.95 petition as a petition for writ of habeas corpus. A
petition for writ of habeas corpus and a section 1170.95 petition
require a petitioner to follow different procedures, make different
substantive allegations, and imposes different standards on when
counsel should be appointed for a petitioner. (See, e.g.,
§§ 1170.95, 1474; Cal. Rules of Court, rule 4.551.) Accordingly,
we will not remand with instructions that the trial court deem
the section 1170.95 petition one for writ of habeas corpus.
DISPOSITION
The September 30, 2019 order denying Servin’s petition is
affirmed.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, 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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