People v. Belmonte CA5

Filed 3/28/23 P. v. Belmonte CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084537
Plaintiff and Respondent,
(Super. Ct. No. F09903119)
v.
EDUARDO GARCIA BELMONTE, JR., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Gregory T. Fain,
Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Peña, J. and Meehan, J.
INTRODUCTION
Defendant Eduardo Garcia Belmonte, Jr., was convicted of first degree murder and
kidnapping in 2010. The jury also found true a felony-murder special-circumstance
allegation the murder was committed while engaged in a kidnapping pursuant to Penal
Code section 190.2, subdivision (a)(17)(B), and a vicarious arming enhancement
pursuant to section 12022, subdivision (a)(1). (Undesignated statutory references are to
the Penal Code.) Defendant filed a petition for resentencing under Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437) in 2021.1 After appointing defendant counsel
and holding a hearing, the court denied defendant’s petition, concluding the special
circumstance finding rendered him categorically ineligible for relief.
The parties now agree that, under the California Supreme Court’s decision in
People v. Strong (2022) 13 Cal.5th 698 (Strong), the court’s order denying the petition
should be reversed and the matter remanded for further proceedings. We, too, agree.
Accordingly, we reverse the court’s order and remand the matter for further
proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
In 2010, a jury convicted defendant of first degree murder (§ 187; count 1) with a
special circumstance that the murder was committed during the commission of a
kidnapping (§ 190.2, subd. (a)(17)(B)).
In 2021, defendant filed a petition for resentencing pursuant to section 1172.6
(former § 1170.95).2 He averred a charging document had been filed against him that
1 Defendant also petitioned for resentencing under Senate Bill 1437 in 2019. The court
denied the petition, concluding defendant had not established a prima facie showing for relief
because, with the intent to kill, he aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of the murder in the first degree.
Defendant did not timely appeal from that order.
2 Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at
that time, although prior changes had been implemented effective January 1, 2022. There is no
2.
allowed the prosecution to proceed under a felony-murder theory or the natural and
probable consequences doctrine; at trial, he was convicted of first degree murder pursuant
to the felony-murder rule or the natural and probable consequences doctrine; and he
could not now be convicted of murder in light of changes made to sections 188 and 189,
effective January 1, 2019 (pursuant to Sen. Bill 1437). He also stated he was convicted
of first degree murder but could not now be convicted because he was not the actual
killer; he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit,
request, or assist the actual killer in the commission of murder in the first degree; and he
was not a major participant in the felony or did not act with reckless indifference to
human life during the course of the crime. He also requested the appointment of counsel.
The court appointed defendant counsel and set the matter for a “prima facie
hearing.” At the hearing, the prosecutor argued the special circumstance finding barred
defendant from relief, so defendant’s petition should be denied without the court issuing
an order to show cause (OSC). The prosecutor stated “the only basis that … would allow
this court to deny this petition without a prima facie showing or an OSC would be that
special circumstance finding.” The prosecutor conceded that, without the special
circumstance finding, “[defendant] would state a prima facie case.”
The trial court noted, at the time, there was a conflict in the case law as to whether
a special circumstance finding precluded relief, but the court concluded, “based upon the
jury’s verdict on the special circumstance that this relief is not applicable to” defendant.3
The court denied the petition with prejudice.
DISCUSSION
The parties agree reversal is required under Strong, supra, 13 Cal.5th 698.
dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the
statute as section 1172.6.
3 The court further noted it had gone through the jury instructions and noted , “while there
was aiding and abetting, it was only as to the target crime.”
3.
I. Applicable Law
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[ed] 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).) It amended
section 188, which defines malice, and section 189, which defines the degrees of murder
to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2–3.)
Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, italics added.) The change reflects the Legislature’s
intent that “[a] person’s culpability for murder must be premised upon that person’s own
actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e), which provides:
“A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (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
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acted with reckless indifference to human life, as described in subdivision
(d) of Section 190.2.”
Senate Bill 1437 also added former section 1170.95, now renumbered as section
1172.6, which provides a procedure for persons convicted of felony murder to seek
vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, People v.
Gentile (2020) 10 Cal.5th 830, 853.) Under section 1172.6, an offender seeking
resentencing must first file a petition in the sentencing court, and the sentencing court
must determine whether the petitioner has made a prima facie showing that he or she is
entitled to relief. (§ 1172.6, subds. (a)–(c).) If the sentencing court determines the
petitioner has made such a showing, the court must issue an order to show cause and hold
a hearing to determine whether to vacate the murder conviction. (§ 1172.6, subds. (c),
(d)(1).) At this evidentiary hearing, “the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty of murder … under
California law as amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1172.6 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (People v. Lewis (2021) 11 Cal.5th 952, 972–974; see People v.
Watson (1956) 46 Cal.2d 818, 836.)
II. Analysis
Defendant argues he made a prima facie claim for resentencing and the court erred
in relying on the special circumstance to deny his petition at the prima facie stage; the
People agree.
In Strong, the California Supreme Court resolved a dispute among the California
appellate courts and held that a special circumstance finding entered pursuant to section
190.2, subdivision (a)(17) prior to the court’s decisions in People v. Banks (2015) 61
5.
Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 does not preclude a section
1172.6 petitioner from making a prima facie showing of eligibility for relief. (Strong,
supra, 13 Cal.5th at p. 703.) The Strong court reasoned that Banks and Clark
“substantially clarified the law” regarding “what it means to be a major participant and …
to act with reckless indifference to human life.” (Strong, at pp. 706–707.)
Strong is dispositive of this case. Here, the special circumstance finding was
made before Banks and Clark and therefore it is not preclusive on prima facie review of
the petition under section 1172.6. (Strong, supra, 13 Cal.5th at p. 703.) The petition was
facially sufficient and alleged the essential facts necessary for relief under section 1172.6.
Because the People have presented no other basis to deny the petition at the prima facie
stage, the order denying the petition must be reversed and the matter remanded with
directions to issue an order to show cause and, to the extent necessary, to conduct an
evidentiary hearing under subdivision (d) of section 1172.6. We express no opinion on
the ultimate resolution of the petition.
DISPOSITION
The June 24, 2022, order denying the petition is reversed and the matter remanded
with directions to issue an order to show cause and, to the extent necessary, to hold an
evidentiary hearing pursuant to section 1172.6, subdivision (d).
6.