People v. Benavidez CA4/2

Filed 10/16/20 P. v. Benavidez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073092

v. (Super.Ct.No. INF065236)

FERNANDO ANTONIO BENAVIDEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Acosta

and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant Fernando Antonio Benavidez appeals from a trial court’s

order summarily denying defendant’s petition for relief under Penal Code1 section

1170.95. For the reasons set forth post, we affirm the trial court’s order denying

defendant’s petition.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On January 3, 2012, a first amended information charged defendant with murder

under section 187, subdivision (a) (count 1). The information also charged a codefendant

with dissuading a witness under section 136.1, subdivision (c)(1) (count 2). As to count

1, the information alleged that the murder was committed while defendant and his

codefendants were engaged in the commission of a robbery under section 190.2,

subdivision (a)(17)(A).

After a jury trial, on April 3, 2012, the jury found defendant guilty as charged.

The jury also found true the special circumstance allegation that the murder was

committed during the course of a robbery.

On June 22, 2012, the trial court sentenced defendant to life without the possibility

of parole.

Defendant appealed and we modified several fines but otherwise affirmed the

judgment. (People v. Dunson (Feb. 26, 2015, case No. E056565 [nonpub. opn.].)

1 All further statutory references are to the Penal Code unless otherwise specified.

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 On April 5, 2019, defendant filed a petition for resentencing under section

1170.95. On April 26, 2019, the People filed their response. Thereafter, defendant’s

appointed counsel filed a reply brief. Counsel represented defendant at the hearing on

May 31, 2019. At the hearing, the trial court summarily denied the petition on the ground

that the petition failed to set forth a prima facie case for relief.

On June 11, 2019, defendant filed a timely notice of appeal.

B. FACTUAL HISTORY2

In November 2007, Robert Dunson and his sister, Jackie Dunson, lived in the

ground floor studio apartment of a two-story duplex in Indio. Rogelio Zuniga and his

girlfriend, M.J., lived in the vacant, second floor apartment above the Dunsons’

apartment.

Defendant was Jackie’s “on-again off-again” boyfriend and visited at the

apartment occasionally, but did not stay there. Jackie was a prostitute, and defendant

would bring her clients, or “dates.”

In November 2007, Robert, Jackie, M.J. and Zuniga hung out together and smoked

methamphetamine every day in the Dunsons’ apartment. Defendant would join them a

couple of times a week.

On November 25, 2007, M.J., Jackie, Robert, Zuniga and defendant were at the

Dunsons’ apartment. Defendant offered to find a date for Jackie and bring the date back

to the apartment to have sex with Jackie. Robert proposed instead that they would bring

2
The factual background is taken from our opinion in the prior appeal, case No.
E056565, which we took judicial notice of by order dated August 22, 2019.

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a man “back to the apartment, beat his ass, rob him, and take all of his shit.” Defendant

agreed, as did Jackie. Zuniga said nothing. Defendant left the apartment and M.J. and

Zuniga went to the upstairs apartment.

A surveillance videotape from the Spotlight 29 casino showed defendant entering

the casino just after midnight during the morning of November 26, 2007. The victim,

William Dobbs, entered the casino about 1:15 a.m. He walked around then walked

outside; as he waited for the valet to bring his Cadillac Escalade, defendant stood near the

doorway outside the casino, watching Dobbs. Dobbs left in the Escalade at 1:46 a.m.

Dobbs returned to the casino about 3:30 a.m. At 3:45 a.m., Dobbs met with

defendant inside the casino. They talked briefly and then left together in the Escalade.

At some point that night or early morning, M.J. woke to the voice of a man in the

Dunsons’ apartment screaming: “Oh, God. Please help me.” M.J. described the

screaming as “gut wrenching,” “like someone is in pain, like they were hurt [and]

screaming for someone to help them.” She also heard “very loud” sounds of banging on

a wall downstairs, “like something pretty heavy slamming up against the wall.” Zuniga

told M.J. to go back to sleep, which she did.

T.S. was a prostitute who had known Jackie and Robert for approximately 20

years. In November 2007, she was living in a car but she had Jackie’s permission to take

showers at the Dunsons’ apartment. In the predawn hours of November 26, 2007, T.S.

walked to the Dunsons’ apartment to take a shower. As she approached she saw

defendant walking away from the apartment. T.S. testified at the preliminary hearing that

it was defendant she saw; however, at trial T.S. testified she had “assumed” it was

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defendant, but that after “getting [her] mind right” and off drugs, she remembered seeing

defendant immediately before going to the Dunsons’ apartment at a gas station almost

two miles away.

As T.S. approached the apartment, she heard Jackie arguing, yelling, and crying.

T.S. heard Jackie say, “he was acting stupid,” and “[h]e doesn’t want to give [the money]

to her.” A side door to the apartment was ajar. As T.S. passed by that door, she heard

Robert yelling loudly and angrily, “ ‘[g]et down, mother fucker’ ” and “[t]hese better be

the right PIN numbers.” T.S. watched Robert push a man to his knees. The man

appeared to have blood under his chin. Robert then put a plastic bag over the man’s head

and used duct tape to secure the bag to the man’s neck and face. As T.S. began to leave,

she heard Robert say: “Come on, mother fucker. We’re going for a ride.” T.S. then left.

At 4:50 a.m. Jackie attempted to withdraw $500 from an ATM machine using

Dobbs’s bank card. The attempt was denied because it exceeded the daily withdrawal

limit for the account. She then successfully withdrew $200 from the ATM. An attempt

to obtain an additional $200 was denied. During the evening of November 26, 2007,

three unsuccessful attempts to withdraw money with Dobbs’s bank card were made.

M.J. went downstairs to the Dunsons’ apartment the morning of November 27,

where she saw Robert kneeling in a corner of the living room scrubbing the walls with

bleach and pulling up carpet. He gave M.J. a bank card and a piece of paper with a PIN

number written on it and told her to pull out as much money as she could and bring it

back to him, and she would get “a little bit of money in return for going.” M.J. looked at

Zuniga; Zuniga said, “let’s go.”

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 Between 10:26 a.m. and 11:39 a.m. on November 27, M.J. and Zuniga used

Dobbs’s bank card to retrieve approximately $1,000 from different ATMs. M.J. put

$300, one of the transaction receipts, the bank card, and the PIN number in a pocket; she

ripped up the other transaction receipts and put the rest of the cash in her bra. When she

and Zuniga returned to the Dunsons’ apartment, she gave the receipt, $300, the bank card,

and the PIN number to Robert. M.J. kept the remaining cash.

Dobbs’s body was found on November 27 two miles from the Spotlight 29 casino;

he had a black bag attached to his neck with red tape. A Spotlight 29 valet parking pass

was in his pocket. He had been stabbed with a sharp instrument 14 times, mostly on his

face and neck. His internal and external jugular veins and carotid artery were severed

and his trachea was also severed, which would have made it impossible for him to

breathe. He had bruises and abrasions on his face and scalp, and signs of blunt force

trauma to his chest. He had four broken ribs, which caused ruptures to his liver and lung.

The forensic pathologist who performed the autopsy on Dobbs described the injuries as

“brutal,” and said it “looked like perhaps some injuries were inflicted for the purpose of

torture” and for “causing pain.”

DISCUSSION

On appeal, defendant challenges the trial court’s summary denial of his section

1170.95 petition to vacate his murder conviction. Defendant argues that the evidence is

insufficient to support a finding that he was a major participant who acted with reckless

indifference to human life under People v. Banks (2015) 61 Cal.4th 788 (Banks) and

People v. Clark (2016) 63 Cal.4th 522 (Clark).

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 A. LEGAL BACKGROUND

“In 2018 the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) . . .,

which abolished the natural and probable consequences doctrine. . . . Under section 189,

subdivision (e), as amended by Senate Bill No. 1437, a defendant is guilty of felony

murder only if he: actually killed the victim; directly aided and abetted or solicited the

killing, or otherwise acted with the intent to kill; or ‘was a major participant in the

underlying felony and acted with reckless indifference to human life.’ ” [Citations.] The

legislation also enacted section 1170.95, which established a procedure for vacating

murder convictions for defendants who would no longer be guilty of murder because of

the new law and resentencing those who were so convicted.” (People v. Murillo (2020)

54 Cal.App.5th 160, 166 (Murillo).)

“Section 1170.95 allows a defendant serving a sentence for felony murder who

would not be guilty of murder because of the new law to petition for resentencing. The

statute requires a defendant to submit a petition affirming that he meets three criteria of

eligibility: (1) He was charged with murder in a manner ‘that allowed the prosecution to

proceed under a theory of felony murder or murder under the natural and probable

consequences doctrine’ [citation]; (2) He ‘was convicted of’ or pleaded guilty to ‘first

degree murder or second degree murder’ [citation]; and (3) He ‘could not be convicted of

first or second degree murder because of changes to Section[s] 188 or 189 made

effective’ as a part of Senate Bill No. 1437 [citation]. As described above, those changes

eliminated the natural and probable consequences doctrine as a basis for murder liability,

and added a requirement for felony murder that a defendant must have been at least a

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major participant in the underlying felony and have acted with reckless indifference to

human life.” (Murillo, supra, 54 Cal.App.5th at p. 166.)

Section 1170.95, subdivision (b), states that the petition must include: a

declaration from the petitioner that he or she is eligible for relief under the statute, the

superior court’s case number and year of conviction, and a statement as to whether the

petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1).) If any of the

required information is missing and cannot “readily [be] ascertained by the court, the

court may deny the petition without prejudice to the filing of another petition.”

(§ 1170.95, subd. (b)(2).)

Section 1170.95, subdivision (c), sets forth the trial court’s responsibilities once a

complete petition has been filed: “The court shall review the petition and determine if

the petitioner has made a prima facie showing that the petitioner falls within the

provisions of this section. If the petitioner has requested counsel, the court shall appoint

counsel to represent the petitioner. The prosecutor shall file and serve a response within

60 days of service of the petition and the petitioner may file and serve a reply within 30

days after the prosecutor response is served. . . . 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).)

If the court issues an order to show cause, it must hold a hearing to determine

whether to vacate the murder conviction. (§ 1170.95, subd. (d).) At that hearing, the

prosecution has the burden of proving beyond a reasonable doubt that the petitioner is

ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The prosecutor and petitioner

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“may rely on the record of conviction or offer new or additional evidence to meet their

respective burdens.” (Ibid.)

In short, a section 1170.95 petitioner must first make a prima facie case for relief,

and if they are able to do so, the trial court must issue an order to show cause and hold a

hearing to determine whether to vacate the murder conviction and recall the sentence.

(See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18,

2020, S260493.) “ ‘A prima facie showing is one that is sufficient to support the position

of the party in question.’ ” (People v. Lewis, supra, 43 Cal.App.5th at p. 1137, quoting

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 841.)

In this case, the trial court denied defendant’s petition at the first stage of prima

facie review under section 1170.95, subdivision (c). “A denial at that stage is appropriate

only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as

a matter of law.’ [Citations.] This is a purely legal conclusion, which we review de

novo.” (Murillo, supra, 54 Cal.App.5th at p. 167.)

B. THE TRIAL COURT PROPERLY DENIED DEFENDANT’S PETITION

“To be eligible for resentencing under section 1170.95, [a defendant] must show

that he ‘could not be convicted of first or second degree murder because of changes to

Section[s] 188 or 189 made effective’ as a part of Senate Bill No. 1437. [Citation.]

Under the newly amended version of section 189, a defendant can be convicted of felony

murder only if he was the actual killer; acted with the intent to kill in aiding, abetting,

counseling, commanding, inducing, soliciting, requesting, or assisting in first degree

murder; or ‘was a major participant in the underlying felony and acted with reckless

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indifference to human life, as described in subdivision (d) of Section 190.2.’ [Citation.]

These are identical to the circumstances in which a felony-murder special circumstance

applies. [Citation.] Thus, the jury’s special circumstance finding shows as a matter of

law that [defendant] could still be convicted of felony murder under the new definition,

and prevents [defendant] from making a prima facie case that he is eligible for

resentencing.” (Murillo, supra, 54 Cal.App.5th at p. 167.)

Recently, two cases have found that “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.” (People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142

(Galvan); Murillo, supra, 54 Cal.App.5th at pp. 167-168.) The Murillo court stated: “As

we explained in Galvan, a defendant subject to a pre-Banks and Clark special

circumstance is ineligible for resentencing under section 1170.95 because of the basis of

his claim. Although [the defendant] asserts that he could not now be convicted of

murder, ‘the alleged inability to obtain such a conviction is not ‘because of changes’

made by Senate Bill No. 1437, but because of the clarification of the requirements for the

special circumstances finding in Banks and Clark. Nothing about those requirements

changed as a result of Senate Bill No. 1437. Just as was the case before that law went

into effect, the special circumstance applies to defendants who were major participants in

an underlying felony and acted with reckless indifference to human life. If [the

defendant] is entitled to relief based on Banks and Clark, the avenue for such relief is not

section 1170.95, but a petition for writ of habeas corpus.’ ” (Murillo, at p. 168.)

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 The Murillo court went on to state that “[b]y requiring a defendant to seek relief

via habeas corpus, we avoid creating a disparity in which similarly situated defendants’

cases are evaluated under different standards based solely on the date of their convictions.

‘Defendants 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. If the judgment is affirmed, generally it

would be the law of the case in any proceedings thereafter as to those findings.

[Citations.] But where, as here, a defendant was convicted before Banks and Clark, if the

defendant could bring a collateral challenge under section 1170.95, the prosecution

would be required to prove the special circumstance beyond a reasonable doubt.

[Citation.] Yet nothing in the language of Senate Bill 1437 suggests that the Legislature

intended unequal treatment of such similarly situated defendants.’ ” (Murillo, supra, 54

Cal.App.5th at pp. 168-169.)

We agree with both Galvan and Murillo and hold that the proper procedure for

challenging a felony-murder special circumstance is a habeas petition. In the habeas

petition, the court can determine whether the evidence is sufficient to find that defendant

was a major participant who acted with reckless indifference to human life.

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 DISPOSITION

We affirm the trial court’s order denying defendant’s petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
Acting P. J.

We concur:

CODRINGTON
J.

FIELDS
J.

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