People v. Lavera CA2/4

Filed 3/25/21 P. v. Lavera CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305936
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A950222
v.
TODD LAVERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Reversed and remanded
with instructions.
Eric R. Larson, 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, Acting
Senior Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
effective January 1, 2019, amended the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder. Under Penal Code section 1170.95,1 a person
who was convicted under theories of felony murder or murder
under the natural and probable consequences doctrine, and who
could not be convicted of murder following the enactment of SB
1437, may petition the sentencing court to vacate the conviction
and resentence on any remaining counts.
In 1989, a jury convicted defendant and appellant Todd
Lavera of two counts of first degree murder under a felony-
murder theory of liability. In 2019, he filed a petition for recall
and resentencing under section 1170.95. The trial court denied
the petition, concluding that although Lavera was convicted
under a felony-murder theory, a review of the facts contained in
the record of conviction showed, as a matter of law, he was not
entitled to relief because he was a major participant in the
robberies who acted with reckless indifference to human life. The
court made this factual determination without first issuing an
order to show cause or holding an evidentiary hearing.
Although the procedure followed by the trial court was
based on what may then have been a plausible construction of the
statute, subsequent cases have interpreted the statute’s
procedural requirements differently. Thus, on appeal, Lavera
argues the trial court erred by concluding he was a major
participant who acted with reckless indifference to human life
1 All undesignated statutory references are to the Penal
Code.
2
without first issuing an order to show cause and holding an
evidentiary hearing. The Attorney General agrees. We, too, agree,
based on recent caselaw. Therefore, we reverse the trial court’s
denial of Lavera’s petition. On remand, the trial court is directed
to issue an order to show cause and hold an evidentiary hearing
on whether Lavera is entitled to relief under section 1170.95. At
this hearing, the parties may introduce new or additional
evidence on whether Lavera was a major participant in the
robberies who acted with reckless indifference to human life.
BACKGROUND2
In 1989, a jury convicted Lavera of the first-degree murders
of David Thompson (count one) and Leopoldo Salgado (count four)
based on a felony-murder theory of liability. (§ 187, subd. (a).)
The jury also convicted Lavera of two counts of second degree
robbery (§ 211; counts two and three), and two counts of
attempted robbery (§§ 664/211; counts five and seven).3 The jury
found true the robbery murder special circumstance allegation
attached to count one, and found not true the robbery murder
special circumstance allegation attached to count four. The jury
also found a principal was armed with a firearm in the
commission of both those offenses (§ 12022, subd. (a)), in addition
to finding true other allegations attached to the non-murder
counts.
2 We take judicial notice of our opinion in case number
B045904, filed April 13, 1992, resolving Lavera’s direct appeal.
(See Evid. Code, § 452, subd. (a).) The following procedural
information is in part taken from that opinion.
3 The trial court struck count six.
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Because the crimes in this case occurred in April of 1987,
the jury’s robbery special circumstance finding on count one
required a finding that Lavera harbored an intent to kill. (See
People v. Bolden (2002) 29 Cal.4th 515, 560 [for crimes committed
between the California Supreme Court’s decision in Carlos v.
Superior Court (1983) 35 Cal.3d 131 and its October 13, 1987
decision in People v. Anderson (1987) 43 Cal.3d 1104, felony-
murder special circumstance allegations required a finding of
intent to kill regardless of whether the defendant was the actual
killer or an accomplice].) However, that finding was later stricken
when the prosecution conceded a failure of proof as to Lavera’s
specific intent to kill and a motion to strike the robbery special
circumstance was granted by the trial court.
The trial court sentenced Lavera to a term of eight years
and four months plus 50 years to life, which included consecutive
terms of 25 years to life for each murder conviction. On direct
appeal, this court affirmed the judgment while remanding the
case for a modification to Lavera’s sentence that is not relevant to
this appeal.
In 2019, Lavera filed a petition for resentencing under
section 1170.95. The trial court ordered the prosecution to file a
response, appointed counsel for Lavera, and set a briefing
schedule permitting Lavera’s attorney to file a reply within 30
days of the prosecution filing a response.
The prosecution filed a response to the petition arguing
Lavera was ineligible for relief for several reasons, including that
he was a major participant in the robberies who acted with
reckless indifference to human life.
The trial court denied Lavera’s petition. In its
memorandum of decision, the court concluded Lavera was, as a
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matter of law, not entitled to relief because, based on its review of
the record of conviction, the facts showed Lavera was a major
participant who acted with reckless indifference to human life.
On March 6, 2020, after the court issued its memorandum
of decision, defense counsel filed a reply to the prosecution’s
response arguing Lavera was entitled to relief. On March 18,
2020, the trial court noted it had reviewed Lavera’s reply, but did
not change its ruling denying relief.
Lavera timely appealed.
DISCUSSION
The Trial Court Is Directed to Issue An Order to Show
Cause and Hold An Evidentiary Hearing to Determine
Whether Lavera Is Entitled to Section 1170.95 Relief
A. Governing Principles
1. SB 1437’s Limitation of Accomplice Liability for
Murder
The Legislature enacted SB 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).) SB 1437 amended
section 189 to provide that a participant in qualifying felonies
during which death occurs generally will not be liable for murder
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unless the person was (1) “the actual killer,” (2) a direct aider and
abettor in first degree murder, or (3) “a major participant in the
underlying felony [who] acted with reckless indifference to
human life[.]” (§ 189, subd. (e).)4
SB 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People
v. Verdugo (2020) 44 Cal.App.5th 320, 326, rev. granted,
S260493, Mar. 18, 2020 (Verdugo).) Under new section 188,
subdivision (a)(3), “‘[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.’ [Citations.]”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), rev.
granted, S260598, Mar. 18, 2020.)5 “As a result, the natural and
probable consequences doctrine can no longer be used to support
a murder conviction. [Citations.]” (Ibid.)
4 This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)
5 The review order in People v. Lewis states: “The issues to be
briefed and argued are limited to the following: (1) May superior
courts consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c).” (Lewis, S260598, Supreme Court Mins. Mar. 18,
2020.) The review order in Verdugo states: “Further action in this
matter is deferred pending consideration and disposition of a
related issue in People v. Lewis, S260598 (see Cal. Rules of Court,
rule 8.512(d)(2)), or pending further order of the court.” (Verdugo,
S260493, Supreme Court Mins., Mar. 18, 2020.)
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2. Petitions to Vacate Prior Convictions
SB 1437 also added section 1170.95 to the Penal Code. This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory, but
who could not be convicted of murder following SB 1437’s changes
to sections 188 and 189, to petition the sentencing court to vacate
the conviction and resentence on any remaining counts.
(§ 1170.95, subd. (a).) A petition for relief under section 1170.95
must include: “(A) A declaration by the petitioner that he or she
is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of the information is missing “and cannot be
readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section
1170.95, subdivision (c), prescribes “a two-step process” for the
court to determine if it should issue an order to show cause.
(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must
“review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, and has requested that counsel
be appointed, he or she is then entitled to appointed counsel.
(Ibid.; Lewis, supra, 43 Cal.App.5th at p. 1140 [“trial court’s duty
to appoint counsel does not arise unless and until the court
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makes the threshold determination that petitioner ‘falls within
the provisions’ of the statute.”].) The court then reviews the
petition a second time. If, in light of the parties’ briefing, it
concludes the petitioner has made a prima facie showing that he
or she is entitled to relief, it must issue an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.)6
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327,
citing § 1170.95, subd. (d)(1).) At the hearing, the parties may
rely on the record of conviction or present “new or additional
evidence” to support their positions, and “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).)
B. Analysis
Because the issue presented in this appeal is a pure
question of law concerning the procedures section 1170.95
affords, we apply a de novo standard of review. (See In re T.B.
(2009) 172 Cal.App.4th 125, 129.) We agree with the parties that
the trial court erred by concluding Lavera was a major
participant who acted with reckless indifference to human life
6 We reject Lavera’s contention that Verdugo and Lewis were
incorrect in concluding that section 1170.95, subdivision (c) sets
forth a two-step procedure for determining whether to issue an
order to show cause.
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without first issuing an order to show cause and holding an
evidentiary hearing.
After the trial court issued its ruling in this case, the Sixth
District Court of Appeal further clarified the procedures
mandated by section 1170.95. It explained that, “if the record
‘contain[s] facts refuting the allegations made in the
petition . . . the court is justified in making a credibility
determination adverse to the petitioner.’ [Citation.] However, this
authority to make determinations without conducting an
evidentiary hearing pursuant to section 1170.95, subd. (d) is
limited to readily ascertainable facts from the record (such as the
crime of conviction), rather than factfinding involving the
weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference
to human life in the commission of the crime).” (People v. Drayton
(2020) 47 Cal.App.5th 965, 980.) “At this stage of the petition
review process, governed by section 1170.95(c), the trial court
should not have engaged in this factfinding without first issuing
an order to show cause and allowing the parties to present
evidence at a hearing, as described in section 1170.95,
subdivision (d).” (Id. at p. 982, fn. omitted.)
Because the trial court in this case concluded without
issuing an order to show cause and holding a hearing that Lavera
was ineligible for relief because he was an active participant in
the crime who showed reckless disregard for human life, we
reverse the trial court’s order denying the petition and remand
with directions to issue an order to show cause under section
1170.95, subdivision (c) and hold a hearing under section
1170.95, subdivision (d). We express no opinion regarding
Lavera’s entitlement to relief following the hearing.
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DISPOSITION
The order denying Lavera’s section 1170.95 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause and hold an evidentiary hearing to determine
whether Lavera is entitled to section 1170.95 relief.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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