Filed 4/20/21 P. v. Santisteven CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301404
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA059086)
v.
PETER SANTISTEVEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen A. Marcus, Judge. Reversed and
remanded.
Vanessa Place, 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, Senior
Assistant Attorney General, Charles S. Lee and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Peter Santisteven pleaded guilty in 2007 to first degree
felony murder. In January 2019 Santisteven petitioned for
resentencing pursuant to Penal Code section 1170.95.1 The
superior court denied the petition after appointing counsel for
Santisteven and holding an evidentiary hearing, finding
Santisteven ineligible for resentencing because he was a major
participant in the underlying robbery and acted with reckless
indifference to human life. Because the court used an incorrect
standard of proof in finding Santisteven ineligible for
resentencing (substantial evidence rather than proof beyond a
reasonable doubt), we reverse and remand for a new evidentiary
hearing applying the correct standard.
FACTUAL AND PROCEDURAL BACKGROUND
1. Santisteven’s Guilty Plea
Santisteven and Carlos Martinez (Martinez), aided by
Christian Martinez, robbed Alberto Castillo and Nacho Barboza
in an Arcadia motel room in October 2004. Castillo was shot and
killed during the robbery.
Santisteven, Martinez and Christian Martinez were
charged in an amended information in 2007 with robbery and
first degree murder. Among several firearm enhancement
allegations, it was specially alleged Martinez had personally
discharged a firearm proximately causing Castillo’s death. The
court severed Santisteven’s case and ordered his trial to follow
those of Christian Martinez and Martinez.
At a joint trial before separate juries, Christian Martinez
was convicted of first degree murder and two counts of first
degree robbery. Martinez was convicted of first degree murder,
1 Statutory references are to this code.
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two counts of first degree robbery and possession of a usable
quantity of methamphetamine. His jury found true a special
circumstance allegation the murder had been committed in the
course of a robbery and burglary, and the court in a bifurcated
proceeding found true the allegation he had suffered a prior
serious or violent felony conviction within the meaning of the
three strikes law. Both Martinez and Christian Martinez were
sentenced to life without parole. We affirmed the convictions on
appeal, modifying slightly the sentence imposed on Martinez for
several of the firearm enhancements. (People v. Martinez
(Mar. 2, 2010, B204770) [nonpub. opn.].)
Following the Martinezes’ trial, Santisteven pleaded guilty
to first degree felony murder (murder during the commission of a
robbery). He was sentenced to an indeterminate state prison
term of 25 years to life.
2. Santisteven’s Petition for Resentencing
Santisteven, representing himself, filed a petition for
resentencing pursuant to section 1170.95 on January 9, 2019. He
checked boxes on the form petition he used declaring, under
penalty of perjury, an information had been filed against him
that allowed the prosecution to proceed under a theory of felony
murder; he pleaded guilty to first degree murder in lieu of going
to trial because he believed he could have been convicted of that
offense at trial under the felony murder rule; and he could not
now be convicted of first or second degree murder in light of the
changes made to sections 188 and 189 effective January 1, 2019
because he was not the actual killer, had not assisted the actual
killer in committing murder with the intent to kill, and was not a
major participant in the underlying felony acting with reckless
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indifference to human life during the course of the felony.
Santisteven requested appointment of counsel.
The court appointed counsel for Santisteven and ordered
the prosecutor to file a response to the petition. In her response
the prosecutor argued Santisteven was ineligible for resentencing
because he had been a major participant in the robbery and acted
with reckless indifference to human life within the meaning of
sections 189, subdivision (e)(3), and 190.2, subdivision (d). In his
reply and supplemental reply Santisteven contended, even if he
were a major participant in the robbery, he had not acted with
reckless indifference to human life and was, therefore, eligible for
resentencing. Santisteven requested an evidentiary hearing at
which he proposed to introduce new evidence.
3. The Evidentiary Hearing and the Court’s Ruling
The superior court held an evidentiary hearing on
September 3, 2019 to determine whether Santisteven was
ineligible for resentencing.2 Santisteven presented testimony
from Christian Martinez and Kristina Jaime, Martinez’s
girlfriend in October 2004, who had pleaded no contest to being
an accessory to the robbery prior to trial. The prosecutor
introduced into evidence the transcripts from Santisteven’s
preliminary hearing (held jointly with Martinez, Christian
Martinez and Jaime), which included testimony from Barboza
2 The court did not issue an order to show cause pursuant to
section 1170.95, subdivision (c), or specify it was holding a
hearing under section 1170.95, subdivision (d). Nonetheless, the
parties agree, given the nature of the hearing at which
Santisteven and the prosecutor introduced evidence and the court
acted as finder of fact, it was understood by all concerned that
this was the court’s intent.
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and Detective Brett Bourgeous, the lead investigator of the
murder/robbery. That evidence showed, in brief, that
Santisteven initiated the plan to rob Castillo and Barboza in
their motel room. Santisteven and Martinez entered Castillo’s
unlocked motel room without invitation, where Castillo was
watching television with Barboza. While Santisteven placed
Barboza in a headlock and demanded money from him, Martinez
pointed his gun at Barboza. Castillo told the assailants not to do
anything to Barboza. Martinez turned his gun on Castillo and
demanded money. Santisteven continued to hold Barboza as
Martinez hit Castillo in the head with the gun and then shot him
in the chest. Santisteven and Martinez fled.
Following the evidentiary presentation, the court engaged
with counsel for Santisteven and the prosecutor in an extensive
discussion of the evidence and the standard for finding a
defendant charged with felony murder had been a major
participant in the underlying felony and acted with reckless
indifference to human life in light of the Supreme Court’s
decisions in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522. In its ruling denying Santisteven’s
petition, the court addressed the various Banks/Clark factors,
explained how it viewed the evidence related to each factor and
concluded, “I think there is substantial evidence that supports
the fact that this defendant is a major participant and that he
acted with reckless indifference to life.” Elaborating, the court
stated, “My decision is based on all the factors I discussed. The
defendant was planner and major architect of pulling off his
robbery. He knew there was risk of danger and death because a
confederate was armed.”
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The court issued no written ruling. Its minute order simply
stated, “Defendant’s petition under Penal Code section 1170.95 is
denied.”
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder (People v. Gentile (2020)
10 Cal.5th 830, 842-843 (Gentile)) and significantly limited the
felony-murder exception to the malice requirement for murder.
(See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236
(Rodriguez), review granted Mar. 10, 2021, S266652; People v.
Bascomb (2020) 55 Cal.App.5th 1077, 1081.)
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
p. 859.) If the petition contains the information required by
section 1170.95, subdivision (b), and the court, following the
procedures detailed in section 1170.95, subdivision (c),
determines the petitioner has made 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); see People v. Verdugo (2020)
44 Cal.App.5th 320, 328 (Verdugo), review granted Mar. 18, 2020,
S260493.)
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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. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.) At the 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 may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. The Superior Court Applied an Incorrect Standard of
Proof
Our colleagues in the Sixth Appellate District in People v.
Lopez (2020) 56 Cal.App.5th 936, review granted February 10,
2021, S265974, and this court in Rodriguez, supra,
58 Cal.App.5th 227, review granted,3 held section 1170.95
3 In granting review in both People v. Lopez, S265974, and
People v. Rodriguez, S266652, the Supreme Court ordered further
action deferred pending consideration and disposition of a related
issue in People v. Duke, S265309. In People v. Duke, the Supreme
Court limited the issue to be briefed and argued to the following:
“Can the People meet their burden of establishing a petitioner’s
ineligibility for resentencing under . . . section 1170.95,
subdivision (d)(3) by presenting substantial evidence of the
petitioner’s liability for murder under . . . sections 188 and 189 as
amended by Senate Bill No. 1437 (Stats. 2018, ch. 1015), or must
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requires the prosecutor to prove beyond a reasonable doubt each
element of first or second degree murder under current law to
establish a petitioner’s ineligibility for relief under that statute.
Once the petitioner has made a prima facie showing of eligibility
for relief, we stated, “[I]t is the court’s responsibility to act as
independent fact finder and determine whether the evidence
establishes a petitioner would be guilty of murder under
amended sections 188 and 189 and is thus ineligible for
resentencing under section 1170.95, subdivision (d)(3).”
(Rodriguez, at pp. 243-244.)
Disagreeing with the contrary view expressed in People v.
Duke (2020) 55 Cal.App.5th 113, review granted January 13,
2021, S265309, which held the prosecutor must only prove a
reasonable jury could find the defendant guilty of murder with
the requisite mental state—the substantial evidence standard of
proof applied by the superior court in the case at bar—we
explained that relaxed standard was inconsistent with the
Legislature’s intent in enacting Senate Bill 1437 to provide
retroactive relief for individuals who had been convicted of
murder under now-invalid theories of liability. (Rodriguez,
supra, 58 Cal.App.5th at pp. 240-241, review granted.) In
addition, emphasizing that section 1170.95, subdivision (d)(3),
authorizes the introduction of new or additional evidence at the
hearing to determine whether the petitioner is ineligible for
resentencing, as occurred here, we asked, “How is the superior
court to evaluate that additional evidence if not as an
independent fact finder?” (Rodriguez, at p. 242.) Answering our
the People prove every element of liability for murder under the
amended statutes beyond a reasonable doubt?”
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own question, we stated, “It would be pointless for the court’s role
in this situation simply to be deciding whether a jury could credit
a new witness’s testimony and thus could conclude the petitioner
had acted with express malice.” (Ibid.)
The Attorney General acknowledges, as the record shows,
the superior court applied a substantial evidence standard to find
Santisteven could be convicted today of felony murder under
section 189, subdivision (e)(3), as a major participant in the
underlying robbery who had acted with reckless indifference to
human life. He argues that is the correct standard, but presents
no persuasive reason for us to reconsider our analysis of the
statutory language and legislative history in Rodriguez, supra,
58 Cal.App.5th 227, review granted. Unless we receive different
instructions from the Supreme Court, we adhere to the holding in
Rodriguez.
DISPOSITION
The order denying Santisteven’s petition for resentencing is
reversed, and the matter remanded for a new evidentiary hearing
applying the correct standard of proof as set forth in this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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