Filed 1/28/21 P. v. Valdez CA2/3
See dissenting opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B298368
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA065899)
v.
ROMAN VALDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, John A. Torribio, Judge. Reversed with
direction.
Valerie G. Wass, 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, Idan Ivri and Nancy Lii Ladner, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Roman Valdez petitioned for resentencing under Penal
Code1 section 1170.95. The trial court summarily denied the
petition without appointing counsel for him. He appeals and
contends that he was entitled to have counsel appointed. We
agree.
BACKGROUND
The background is from the probation report and
preliminary hearing transcript. The victim Ernesto Campos and
Roberto Campos were drug dealers.2 Valdez had a child with
Roberto’s daughter. At some point, Roberto’s family was the
victim of a home invasion robbery. Believing Ernesto to be
responsible, Roberto hired Valdez and Gualberto Lopez to steal
money from Ernesto.
Valdez, Lopez, and David Flores drove to Ernesto’s home.
A friend of Valdez’s who owed him a favor rented the vehicle they
used. On the way to Ernesto’s home, Valdez or Lopez handed out
guns so that each man was armed. The three men entered
Ernesto’s home and ordered him and his wife out of bed. Valdez,
who did most of the talking, asked where the drugs and money
were. When Ernesto said he did not have any money, Valdez told
Flores and Lopez to take Ernesto to the vehicle. Valdez stayed in
the kitchen with Ernesto’s wife. As they approached the vehicle,
Ernesto tried to escape, so Lopez shot him, wounding Flores in
the process. Valdez returned to the vehicle, and he, Lopez, and
1 All further statutory references are to the Penal Code.
2It is unclear whether Roberto Campos is related to
Ernesto Campos. Because they share a surname, we refer to
them by their first names for the sake of clarity. We intend no
disrespect.
2
Flores left, leaving a wounded Ernesto in the yard. Flores
survived, but Ernesto died of his wounds.
An amended information charged Valdez with murder
(§ 187, subd. (a); count 1), kidnapping (§ 207, subd. (a); count 2),
first degree residential robbery (§ 211; count 3), and first degree
residential burglary (§ 459; count 4). Pursuant to an open plea,
Valdez pleaded guilty to murder and admitted a special
circumstance allegation under section 190.2, subdivision (a)(17)
and a firearm allegation under section 12022.5, subdivision (a).3
In 2003, the trial court sentenced Valdez to life without the
possibility of parole.
In October 2015, the trial court resentenced Valdez to
25 years to life based on Miller v. Alabama (2012) 567 U.S. 460,
which held that mandatory life without the possibility of parole
sentences are unconstitutional for juvenile offenders.4 Now,
courts considering such a sentence should weigh various factors,
including the juvenile’s level of participation in the crime. Here,
the resentencing court cited Valdez’s youth and his cooperation in
testifying at the actual shooter’s trial as reasons for its decision.
However, the resentencing court also found that Valdez was a
major participant in the crimes.
Thereafter, our Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.), which took effect January 1, 2019. That
law amended the felony-murder rule and eliminated the natural
3A jury found Flores and Lopez guilty of, among others,
first degree special circumstance murder (§§ 187, subd. (a), 190.2.
subd. (a)(17)) and found that they personally used a firearm (§
12022.5).
4 There is no reporter’s transcript of the resentencing
hearing.
3
and probable consequences doctrine as it relates to murder, all to
the end of ensuring that a person’s sentence is commensurate
with their criminal culpability. Based on that new law, a person
convicted of murder under a felony murder or natural and
probable consequences theory may petition the sentencing court
for vacation of the conviction and resentencing, if certain
conditions are met. (§ 1170.95.)
In 2019, Valdez petitioned for resentencing under Senate
Bill No. 1437. In his form petition, Valdez checked all the boxes
indicating he was entitled to relief and also asked the trial court
to appoint counsel for him.
Relying on the preliminary hearing transcript, probation
report, and the decision affirming Flores’s and Lopez’s judgments
of conviction (People v. Flores (June 17, 2004, B164512) [nonpub.
opn.]), the trial court found that Valdez was a major participant
who acted with reckless indifference to human life and therefore
summarily denied the petition without appointing counsel for
Valdez.
DISCUSSION
Valdez contends the trial court violated his federal
constitutional rights by summarily denying his petition without
appointing counsel for him.5 The People respond that the special
5 The Supreme Court is reviewing whether superior courts
may consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under section 1170.95 and when the right to appointed counsel
arises under subdivision (c) of that section. (People v. Lewis
(2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020,
S260598.)
4
circumstance precludes relief as a matter of law. As we now
explain, the special circumstance does not preclude relief as a
matter of law.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
theory of accomplice liability no longer applies to murder. A
participant in enumerated crimes is liable under the felony-
murder doctrine only if the participant was the actual killer; or
with the intent to kill, aided and abetted an accomplice in
commission of first degree murder; or was a major participant in
the underlying felony and acted with reckless indifference to
human life. (§ 189, subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also created a petitioning process by
which defendants convicted of murder under a now invalid theory
can be resentenced. Newly added section 1170.95, subdivision (a)
provides that individuals who meet three conditions are eligible
for relief: (1) the person must have been charged with murder
under a theory of felony murder or murder under the natural and
probable consequences doctrine, (2) convicted of first or second
degree murder, and (3) could not be convicted of first or second
degree murder because of changes to section 188 or 189 made
effective January 1, 2019. (See generally People v. Drayton
(2020) 47 Cal.App.5th 965, 973.)
Our state Supreme Court has granted review of People v.
Lewis, supra, 43 Cal.App.5th 1128, to determine what must
occur—and in what order—after a trial court receives a
5
complying petition but before it issues an order to show cause
under section 1170.95, subdivision (c). So far, most appellate
courts have held that subdivision (c) requires trial courts to
undertake two prima facie reviews before issuing an order to
show cause—first, under the first sentence of the provision, “that
the petitioner falls within the provisions of this section,” and
second, under the last sentence of the provision, that the
petitioner “is entitled to relief”—and that it need not appoint
counsel and the prosecution need not file a response until after
the first prima facie review is complete. (§ 1170.95, subd. (c); see,
e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 323, 329,
review granted Mar. 18, 2020, S260493; People v. Drayton, supra,
47 Cal.App.5th at pp. 975–976.)
Another view is that the first sentence of section 1170.95,
subdivision (c), states the rule—the “ ‘ “court shall review the
petition and determine if the petitioner has made a prima facie
showing that [he or she] falls within the provisions of this
section” ’ ”—and “ ‘[t]he rest of the subdivision establishes the
process for complying with that rule: Appoint counsel, if
requested. Wait for the prosecutor’s required response and the
petitioner’s optional reply. If the petitioner makes a prima facie
showing, issue an order to show cause.’ ” (People v. Cooper (2020)
54 Cal.App.5th 106, 115, review granted Nov. 10, 2020, S264684,
quoting People v. Tarkington (2020) 49 Cal.App.5th 892, 911–927,
review granted Aug. 12, 2020, S263219 (dis. opn. of Lavin, J.).)
Regardless of which view is correct, the trial court erred in
summarily denying Valdez’s petition. Here, the People contend
that Valdez’s plea admitting the special circumstance allegation
establishes his ineligibility as a matter of law. However, Valdez
entered into that plea before our California Supreme Court’s
6
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark). Those cases
clarified and narrowed the definitions of major participant and of
reckless indifference to human life.
Appellate courts are divided as to whether defendants like
Valdez who were convicted of murder with a special circumstance
finding pre-Banks and Clark are eligible for relief under Senate
Bill No. 1437. Some conclude that they are not eligible for relief.
They characterize petitions such as Valdez’s as challenges to the
special circumstance finding. (See, e.g., People v. Galvan (2020)
52 Cal.App.5th 1134, 1142–1143, review granted Oct. 14, 2020,
S264284; People v. Gomez (2020) 52 Cal.App.5th 1, 16–17, review
granted Oct. 14, 2020, S264033; People v. Murillo (2020) 54
Cal.App.5th 160, 167–168, review granted Nov. 18, 2020,
S264978; People v. Jones (2020) 56 Cal.App.5th 474.) As such,
they have held that a petition under section 1170.95 is not the
appropriate vehicle to make that challenge; it should be made via
a writ of habeas corpus. (See, e.g., Galvan, at p. 1142; Gomez, at
p. 17.) Galvan, at page 1142, also reasoned that a defendant
convicted of murder with special circumstance findings pre-Banks
and Clark could not now be convicted of murder because of
clarifications to the law per those cases rather than because of
changes to sections 188 and 189 made effective as part of Senate
Bill No. 1437.
Another appellate court has disagreed and pointed out that
characterizing a section 1170.95 petition as a challenge to a
special circumstance finding misapprehends the nature of the
petition. (See, e.g., People v. Smith (2020) 49 Cal.App.5th 85,
review granted July 22, 2020, S262835; People v. Torres (2020) 46
Cal.App.5th 1168, review granted June 24, 2020, S262011; People
7
v. York (2020) 54 Cal.App.5th 250, 260, review granted Nov. 18,
2020, S264954.) A section 1170.95 petition is a challenge to a
murder conviction “that can obviously result in a vacatur of a
special circumstance finding as a collateral consequence.” (York,
at pp. 263–264 (conc. opn. of Baker, J.); Smith, at p. 94.) York, at
page 261, further observes, “What permits a defendant convicted
of felony murder to challenge his or her murder conviction based
on the contention that he or she was not a major participant in
the underlying felony who acted with reckless indifference to
human life, are the changes to Senate Bill 1437 made to sections
188 and 189, and in particular, the addition of section 189,
subdivision (e)(3), not the rulings in Banks and Clark.”
We agree that a petition under section 1170.95 is a
challenge to a murder conviction which may require
consideration of a special circumstance finding made pre-Banks
and Clark. In this limited scenario involving a pre-Banks and
Clark special circumstance finding, a defendant is not ineligible
for section 1170.95 relief as a matter of law at the preliminary
prima facie step.
The People, however, respond that a trial court did make a
post-Banks finding that Valdez was a major participant in the
crime which thereby precludes his eligibility for section 1170.95
relief. The 2015 finding was made in connection with an order to
show cause after a remittitur to reconsider Valdez’s sentence
based on Miller v. Alabama, supra, 567 U.S. 460. Although the
finding was made just months after Banks was issued, it is not
clear on this limited record that the trial court considered Banks
in determining that Valdez was a major participant or that the
trial court’s use of the phrase “major participant” was in the
context of the special circumstance statute, section 190.2,
8
subdivision (a)(17). In any event, the trial court made no
concurrent finding that Valdez acted with reckless indifference to
human life. As Clark had not yet been issued, the trial court
could not have evaluated that issue under the factors that case
identified.
Nor do we agree that the trial court, on this record, could
find as a matter of law that Valdez was a major participant who
acted with reckless indifference to human life without appointing
counsel for him and soliciting briefing in accordance with section
1170.95, subdivision (c). Even if we agreed with the People that
the Banks/Clark analysis is a purely legal one, the analysis must
still be based on facts. Valdez entered into an open plea, and the
record does not show what the sentencing court found to be the
factual basis for the plea.6 Moreover, the trial court that heard
the section 1170.95 petition relied on the preliminary hearing
transcript, probation report, and the opinion affirming Valdez’s
accomplices’ judgments of conviction. Although there is
authority that a trial court may rely on a preliminary hearing
transcript (see, e.g., People v. Falcon (2020) 57 Cal.App.5th 272),
the opinion about Valdez’s accomplices is not part of Valdez’s
record of conviction. The trial court improperly relied on it, as
the People concede.
Because the trial court relied on a matter outside the
record of conviction and because the record does not show what
was the factual basis for the plea, we decline to find that the
preliminary hearing transcript and probation report demonstrate
that Valdez is ineligible for relief as a matter of law. Instead, the
6 Thereporter’s transcript of the plea hearing is
unavailable.
9
trial court must appoint counsel to represent him and to
otherwise proceed in accordance with section 1170.95, subdivision
(c). (See, e.g., People v. Smith, supra, 49 Cal.App.5th at pp. 95–
96; but see People v. Law (2020) 48 Cal.App.5th 811, review
granted July 8, 2020, S262490 [error susceptible to harmless
error analysis].)
DISPOSITION
The order is reversed with the direction to appoint counsel
for Roman Valdez and to conduct further proceedings in
accordance with Penal Code section 1170.95.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
LAVIN, J.
10
EDMON, P. J., Dissenting.
I respectfully dissent. I would affirm the trial court’s
denial of appellant Roman Valdez’s Penal Code section 1170.951
petition, because his admission of the section 190.2, subdivision
(a)(17) special circumstance allegation rendered him ineligible for
relief as a matter of law.
As the majority explains, Valdez was charged by
information with the murder, kidnapping, robbery, and burglary
of Ernesto Campos. The information further alleged that Valdez
committed the murder while engaged in the commission of the
robbery, burglary, and kidnapping, within the meaning of section
190.2, subdivision (a)(17). On August 16, 2002, Valdez pled
guilty to murder and admitted a section 190.2, subdivision (a)(17)
felony-murder special circumstance, as well as a section 12022.5
personal use of a firearm enhancement.
A defendant convicted of murder with a section 190.2,
subdivision (a)(17) special circumstance is not eligible for
resentencing under section 1170.95 as a matter of law. People v.
Allison (2020) 55 Cal.App.5th 449, is instructive. There, a jury
convicted Allison of murder in 1997, but deadlocked on the
felony-murder special circumstance allegations. As part of a plea
bargain, and to avoid the possibility of a sentence of life without
parole, Allison admitted the section 190.2, subdivision (a)(17)
special circumstance allegations. After passage of Senate Bill
No. 1437 (2017–2018 Reg. Sess.), he petitioned for resentencing.
The trial court denied the petition because, based on the special
circumstances Allison had admitted, he could still be convicted of
1 All
further undesignated statutory references are to the
Penal Code.
murder and was therefore ineligible for relief under section
1170.95. (People v. Allison, at p. 453.)
People v. Allison concluded the trial court was correct,
explaining: “To be eligible for resentencing under section 1170.95,
Allison must make a prima facie showing that he ‘could not be
convicted of first or second degree murder because of changes to
Section 188 or 189 made’ in 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 indifference to human life, as
described in subdivision (d) of Section 190.2.’ [Citation.] These
are identical to the requirements of a felony-murder special
circumstance now and in 1997 when Allison made his admission.
(See § 190.2, subds. (b)–(d); Prop. 196, as approved by voters,
Gen. Elec. (Mar. 26, 1996) [amending § 190.2].) Thus, the special
circumstance admission shows as a matter of law that
Allison could still be convicted of felony murder even under the
newly amended version of section 189, and prevents Allison from
making a prima facie case that he is eligible for resentencing.”
(People v. Allison, supra, 55 Cal.App.5th at p. 457; see also People
v. Galvan (2020) 52 Cal.App.5th 1134, 1140–1141, review granted
Oct. 14, 2020, S264284; People v. Jones (2020) 56 Cal.App.5th
474, 482; People v. Gomez (2020) 52 Cal.App.5th 1, 11, 15, review
granted Oct. 14, 2020, S264033; People v. Murillo (2020) 54
Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;
People v. Nunez (2020) 57 Cal.App.5th 78, 91, review granted
Jan. 13, 2021, S265918.)
2
Following the lead of our colleagues in Division Five, the
majority concludes Valdez’s admission of the special circumstance
is not dispositive because it predated our Supreme Court’s
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark). (See People v.
Torres (2020) 46 Cal.App.5th 1168, 1179 (Torres), review granted
June 24, 2020, S262011; People v. Smith (2020) 49 Cal.App.5th
85, 93 (Smith), review granted July 22, 2020, S262835; People v.
York (2020) 54 Cal.App.5th 250, 258 (York), review granted Nov.
18, 2020, S264954.) These cases reason that Banks and Clark
“construed section 190.2, subdivision (d), in a significantly
different, and narrower manner than courts had previously
construed the statute,” and therefore a court considering a
section 1170.95 petition “cannot simply defer” to a pre-Banks and
Clark finding. (Torres, at p. 1179.)
Another line of authority, referenced above, disagrees with
that view, and holds that a pre-Banks and Clark special
circumstance finding bars section 1170.95 relief as a matter of
law. These cases reason as follows. The Division Five approach
“exaggerates the effect of Banks and Clark. Those opinions did
not change the law, but ‘merely clarified the “major participant”
and “reckless indifference to human life” principles that existed
when defendant’s conviction became final.’ [Citation.] The
phrases ‘major participant’ and ‘reckless indifference to human
life’ do not have specialized definitions, but are interpreted as
they are used in common parlance.” (People v. Allison, supra,
55 Cal.App.5th at p. 458.) As a further indication that Banks and
Clark did not change the law significantly enough to invalidate
special circumstance admissions predating those decisions,
Allison observed that as a result of those decisions, the pattern
3
jury instruction was unchanged and optional language based
upon them is not mandatory. (Ibid.) Accordingly, “there is no
reason to believe that Allison’s admission of the special
circumstance after his original trial was any different in meaning
or effect than it would have been if he had made it today.” (Id. at
p. 459; see People v. Jones, supra, 56 Cal.App.5th at pp. 483–484;
People v. Nunez, supra, 57 Cal.App.5th at p. 94, rev.gr.)
Furthermore, the Torres/Smith/York approach is
inconsistent with the plain language of section 1170.95, because a
defendant claiming ineligibility based on Banks and Clark does
not meet the statutory requirement that he or she cannot be
convicted because of changes to sections 188 or 189 made by
Senate Bill No. 1437. (People v. Allison, supra, 55 Cal.App.5th at
p. 460; see People v. Jones, supra, 56 Cal.App.5th at p. 484;
People v. Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; People
v. Murillo, supra, 54 Cal.App.5th at p. 168, rev.gr.; People v.
Nunez, supra, 57 Cal.App.5th at pp. 94–95, rev.gr.) And, section
1170.95 was not meant to be an avenue for challenging a special
circumstance admission. (People v. Allison, at pp. 453, 461.)
While I acknowledge that both lines of authority are not
without force, in my view the cases holding that a special
circumstance admission or finding precludes relief as a matter of
law are better reasoned.
Given that his admission to the special circumstance makes
Valdez ineligible as a matter of law, the trial court did not err by
denying the petition without appointing counsel. This and other
courts have held that a trial court may summarily deny a section
1170.95 petition without appointing counsel if the record shows
the defendant is ineligible as a matter of law. (See, e.g., People v.
Tarkington (2020) 49 Cal.App.5th 892, 901–902, review granted
4
Aug. 12, 2020, S263219; People v. Verdugo (2020) 44 Cal.App.5th
320, 332, review granted Mar. 18, 2020, S260493; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1139–1140, review granted Mar. 18,
2020, S260598.) As the majority notes, our California Supreme
Court is currently considering when the right to counsel arises
under section 1170.95, subdivision (c). (People v. Lewis,
S260598.) Pending further guidance from our high court,
however, Valdez’s arguments do not persuade me that deviation
from People v. Tarkington is warranted.
EDMON, P. J.
5