People v. Lombardo CA3

Filed 3/21/22 P. v. Lombardo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C093907
Plaintiff and Respondent, (Super. Ct. No. NCR41795)
v.
VINCENT MICHAEL LOMBARDO,
Defendant and Appellant.
Defendant Vincent Michael Lombardo appeals from the denial of his petition for
relief pursuant to Penal Code section 1170.95. 1 He contends in part that the trial court
applied the incorrect standard of review to his petition asserting eligibility for relief. The
Attorney General agrees, and we agree with the parties. We reverse the trial court’s order
1 Further undesignated statutory references are to the Penal Code.
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and remand for further proceedings. In light of our disposition, we need not and do not
address defendant’s remaining arguments.
FACTS AND PROCEEDINGS
In 1996, teenagers Scott Graves and Keith Haney saw Robert Mehringer, who
appeared to be intoxicated. The three stopped in front of a store, and Mehringer went
inside to buy beer for them to drink under a bridge. On their way to the bridge,
Mehringer called out to defendant and another man, Jason Weber, and asked them if they
wanted to drink beer. While drinking the beer under the bridge, defendant told Graves
they should rob Mehringer. Weber told defendant and Graves that Haney was going to
hit Mehringer in the head with a bottle.
Mehringer told Weber to “sit down, chill out, and drink [his] beer.” The men
prepared to fight, and Weber pushed Mehringer, causing him to fall. Defendant, Haney,
and Weber attacked Mehringer, kicking his face and ribs and punching his ribs.
Mehringer crawled into the creek, but defendant, Weber, and Haney convinced
him to come back and resume drinking. When Mehringer returned, they started beating
him again. Mehringer again tried to escape into the creek, but defendant, Weber, and
Haney followed him into the creek and continued to beat him. Mehringer crawled out of
the water, and Haney, Weber, and defendant resumed beating him until defendant
recognized that he had lost consciousness.
Defendant, Weber, and Graves checked Mehringer’s pockets. They began to walk
away, but Haney returned to Mehringer, and Graves heard the sound of a beer bottle
crack near where Mehringer was lying. As the group walked away, Weber said that he
had broken his knife while stabbing Mehringer 27 times. The group went back to
defendant’s house, where they drank beer and discussed what had happened.
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Defendant was charged with one count of murder (§ 187, subd. (a)) and one count
of robbery (§ 211), with the special circumstance that he committed the murder during
the course of a robbery (§ 190.2, subd. (a)(17)). A jury found defendant guilty of second
degree murder, but not guilty of robbery or theft. The trial court sentenced defendant to
15 years to life in prison.
On April 2, 2021, defendant filed an (amended) section 1170.95 petition for
resentencing. On April 8, following an evidentiary hearing, the trial court denied the
petition.
Defendant filed a timely notice of appeal. The case was fully briefed in December
2021, and assigned to this panel on January 3, 2022.
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017-1018 Reg. Sess.)
“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).) The legislation amended sections 188 and 189, and it added
section 1170.95.
Section 188, which defines malice, now provides in part: “Except 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, subd. (a)(3).) Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [defining first degree murder] 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,
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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.”
When a petitioner files a “complying petition,” the trial court must appoint counsel
if requested, the issue is briefed, and the court determines whether the petitioner has
made a prima facie showing that they fall within the provisions of the section.
(§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 966.) “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 issuing an order to show cause, the trial court must hold an evidentiary
hearing “to determine whether to vacate the murder conviction and to recall the sentence
and resentence the petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) At
this final stage of the proceeding, the prosecution bears the burden to prove, “beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.” (Id., subd. (d)(3).)
On October 5, 2021, after the evidentiary hearing was held in this case, the
Governor approved Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill No. 775),
which amended section 1170.95, subdivision (d)(3) to clarify that “[a] finding that there
is substantial evidence to support a conviction for murder . . . is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Stats.
2021, ch. 551, § 2.) Thus, it is now clear that at the evidentiary hearing required by
section 1170.95, subdivision (d)(3), the trial court must act as an independent factfinder
and determine beyond a reasonable doubt whether defendant is guilty of murder under a
theory that remains valid despite the amendments to sections 188 and 189.
The primary issue in this appeal is the prosecution’s burden of proof at the section
1170.95, subdivision (d)(3) hearing. This is a legal question we review de novo.
(People v. Gentile (2020) 10 Cal.5th 830, 847.)
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Here, the trial court denied defendant’s section 1170.95 petition following
issuance of an order to show cause and an evidentiary hearing. At the evidentiary
hearing, both parties relied entirely on the record from defendant’s 1996 trial, and the
court confirmed that it had reviewed the trial record.
In denying the petition, the trial court recognized that the burden was on the
prosecution to prove beyond a reasonable doubt that defendant is ineligible for
resentencing. The court then stated that its task was to “determine whether, based on the
entire record, a reasonable jury could find the defendant guilty beyond a reasonable doubt
of second degree murder.” The court found that defendant “could be convicted of second
degree murder under two separate theories were his trial held today”: (1) that he formed
the intent to kill at some point during the three beatings in which he participated, or that
he aided, abetted, counseled, commanded, induced, solicited, requested, and assisted the
actual killer in the commission of first degree murder, or (2) that defendant was a major
participant in the underlying felony and acted with reckless indifference to human life.
The court found that any number of defendant’s actions showed that he formed the intent
to kill and that he was a major participant who acted with reckless disregard for human
life. The court noted that the jury could have reasonably found that the victim died from
the beatings he had received, drowning in knee-deep water, or from being hit in the head
by a glass bottle. The court next observed that a reasonable jury could conclude that
defendant’s actions showed a consciousness of guilt and concluded: “[A] reasonable jury
could conclude beyond a reasonable doubt that the defendant committed a second degree
murder as defined in newly enacted . . . [s]ection 189.”
The parties agree that the trial court improperly applied the substantial evidence
standard at the evidentiary hearing, rather than holding the prosecution to its burden to
prove his ineligibility beyond a reasonable doubt as required by Senate Bill No. 775. We
also agree. As we have discussed, Senate Bill No. 775’s amendments to section 1170.95,
subdivision (d)(3) expressly state that the prosecution must “prove, beyond a reasonable
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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,” and the bill clarifies that
a finding of substantial evidence to support a conviction for murder “is insufficient to
prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”
(Stats. 2021, ch. 551, § 2.) Accordingly, we will reverse and remand the matter to the
trial court for further proceedings for purposes of applying the correct standard of review.
Defendant raises three other arguments: (1) the trial court erred when it found he
was ineligible for relief by finding that he could be convicted today based on a felony
murder or intent-to-kill theory; (2) the court could not deny relief based on aiding and
abetting implied malice murder because accomplice liability for second degree murder is
no longer a valid theory of liability; and (3) no substantial evidence showed he directly
aided and abetted second degree murder with implied malice. However, because the
court has not yet made the requisite factual findings for us to conduct a substantial
evidence review, we decline to address defendant’s additional arguments. (See People v.
Ramirez (2021) 71 Cal.App.5th 970, 985 [reviewing the trial court’s factual findings for
substantial evidence].)
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DISPOSITION
The order denying defendant’s petition for resentencing under section 1170.95 is
reversed. The matter is remanded for a new section 1170.95 subdivision (d)(3) hearing as
directed by this opinion and any other applicable changes and clarifications in the
relevant law.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Mauro, J.
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