Filed 5/18/21 P. v. Varela 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, E075562
v. (Super.Ct.No. CR58553)
SALVADOR TIRADO VARELA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
James M. Kehoe, 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, Senior Assistant Attorney General, and Lynne G. McGinnis
and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
In 1996, petitioner Salvador Tirado Varela was convicted of (among other things)
first degree murder, with a kidnapping-murder special circumstance. In 2020, he filed a
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petition to be resentenced under the then-recently amended version of the felony-murder
statute. (See § 1170.95.)1 The trial court denied the petition; it ruled that the special
circumstance finding conclusively established that he was not eligible for relief.
Petitioner contends that this was error. It will take the bulk of this opinion for us
to explain exactly what the issue is and how it arose in this case. Its resolution, however,
is simple. Under a recently published opinion of this court, the trial court’s ruling was
correct. Hence, we will affirm.
I
FACTUAL, PROCEDURAL, AND LEGAL DEVELOPMENTS
A. The Tison Standard.
Under Tison v. Arizona (1987) 481 U.S. 137 (Tison), a person found guilty of
murder on a felony-murder theory cannot constitutionally be sentenced to death unless he
or she either (1) was the actual killer, (2) intended to kill, or (3) was a major participant in
the underlying felony and acted with reckless indifference to human life. (Id. at pp. 150,
158.)
In 1990, Proposition 115 amended section 190.2 so as to expressly incorporate this
requirement of Tison and to make it applicable to life without the possibility of parole.
(See now § 190.2, subds. (b), (c), (d).)
1 This and all further statutory citations are to the Penal Code.
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B. The Facts as Shown at Petitioner’s Trial.
We summarize the facts as stated in our previous opinion in petitioner’s direct
appeal.
Petitioner and three of his acquaintances (Hawkins, Gallegos, and Montes) all
happened to be in a market at the same time as 16-year-old Mark Walker. When Walker
took out his wallet, an onlooker saw “a substantial amount of money.” Earlier that day,
Walker’s mother had given him two $100 bills to buy clothing.
That night, there was a birthday party for petitioner at his apartment in Corona.
Hawkins, Gallegos, and Montes arrived in Walker’s gray Buick Regal. During the party,
Montes showed people a gun. Montes also got change for a $100 bill from another guest
and used it to buy pizza.
Petitioner agreed to help Montes drop off the Buick Regal, which Montes said
belonged to a friend. Hawkins and Montes left the party in Walker’s car; petitioner and
Gallegos followed them in petitioner’s van. Petitioner later admitted to the police that, at
this point, he knew someone was in the trunk of the car. Some 15 to 30 minutes later, all
four returned to the party in petitioner’s van.
Meanwhile, two Corona residents heard shots fired. They looked and saw three
Hispanics near the open trunk of a parked car; a van was parked nearby. Responding
police officers found Walker’s dead body lying in the trunk. He had been shot five times.
They identified the car as Walker’s.
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Tire tracks nearby matched the type of tires on Varela’s van. Impressions made
by Vans shoes were also found nearby; both petitioner and Hawkins owned Vans.
Montes’s fingerprints were found on the car. Montes told several people that he
was the shooter.
A nine-millimeter Glock pistol found nearby, which “may have been” the murder
weapon, had previously been stolen by Gallegos. Later, Gallegos told a friend that
“they” carjacked and killed someone, then threw away the Glock.
C. Petitioner’s Conviction and Appeal.
At petitioner’s trial, in 1996, the jury was instructed on the felony-murder rule.
(CALJIC No. 8.27) It was also instructed, in accordance with Tison, that it could not find
the special circumstance to be true unless petitioner either (1) was the actual killer, (2)
intended to kill, or (3) was a major participant in the underlying felony and acted with
reckless indifference to human life. (CALJIC No. 8.80.1.)
The jury found petitioner guilty of first degree murder (§§ 187, 189, subd (a)),
with a kidnapping-murder special circumstance (§ 190.2, subd. (a)(17)(B)); kidnapping
during the commission of a carjacking (§ 209.5), with an armed principal enhancement
(§ 12022, subd (a)(1)); carjacking (§ 215); and unlawful possession of a firearm (former
§ 12021.1, subd. (a); see now § 29900, subd. (a)(1)). He was sentenced to a total of life
without parole plus 12 years.
In 1999, this court affirmed the judgment. (People v. Varela (Nov. 15, 1999),
E020144 [nonpub. opn.].) We held, among other things, that there was sufficient
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evidence that petitioner was a major participant in the underlying kidnapping and that he
acted with reckless indifference to human life to support the special circumstance.
D. Banks and Clark.
In 2015 and 2016, the California Supreme Court issued two opinions relating to
the meaning of “major participant” and “reckless indifference to human life.”
First, in People v. Banks (2015) 61 Cal.4th 788 (Banks), the evidence showed that
defendant Matthews acted as the getaway driver in a planned armed robbery, which
turned into a murder when another participant shot a security guard. (Id. at p. 795.) Our
Supreme Court held that, under Tison, this was insufficient evidence that he was a major
participant (Banks, supra, at pp. 804-807) as well as insufficient evidence that he acted
with reckless indifference to life. (Id. at pp. 807-811.) It disapproved cases holding that
mere knowledge that one’s accomplice in a robbery is armed is sufficient to establish
reckless indifference to human life. (Id. at p. 809, fn. 8.)
In 2016, in People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme Court
found insufficient evidence that the defendant acted with reckless indifference to life.
(Id. at pp. 614-623.) It specifically listed five factors that are potentially relevant to this
inquiry. First, “[a] defendant’s use of a firearm, even if the defendant does not kill the
victim or the evidence does not establish which armed robber killed the victim, can be
significant to the analysis of reckless indifference to human life.” (Id. at p. 618.)
Second, a defendant’s physical presence at the scene, while not absolutely required, is
relevant, as is the failure to render aid to a victim. (Id. at pp. 619-620.) Third, the
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duration of the felony is relevant. (Id. at pp. 620-621.) Fourth, it is relevant whether the
defendant knows that an accomplice has a propensity to violence, especially lethal
violence. (Id. at p. 621.) Fifth, it is relevant, although not controlling, that the defendant
took steps to minimize the risk to human life. (Id. at pp. 621-622.)
E. Senate Bill No. 1437.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) SB 1437,
among other things, amended section 189 so as to provide that the felony-murder rule
(§ 189, subd. (a)) applies to a person only if:
“(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 acted with
reckless indifference to human life . . . .
“[(4) T]he victim is a peace officer who was killed while in the course of the
peace officer’s duties, where the defendant knew or reasonably should have known that
the victim was a peace officer engaged in the performance of the peace officer’s duties.”
(§ 189, subds. (e), (f).)
SB 1437 also enacted section 1170.95, which allows a person who has been
convicted of first or second degree murder under a felony-murder theory, but who could
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no longer be so convicted under SB 1437, to petition to have the conviction vacated. If
the underlying felony was not charged, the conviction is reduced to the underlying
felony, and the petitioner is resentenced. (§ 1170.95, subd. (e).) The petitioner also must
be resentenced on any remaining counts. (§ 1170.95, subd. (a).)
F. Petition for Resentencing.
In 2020 petitioner filed a petition, in propria persona, for resentencing under
section 1170.95. Counsel was appointed for him.
At a status conference, on the People’s motion, the trial court summarily denied
the petition. It agreed with the People’s arguments, including that “the existence of a
special circumstance disqualifies petitioner.”
II
THE EFFECT OF THE SPECIAL CIRCUMSTANCE FINDINGS
Petitioner contends that the trial court erred by ruling that the jury’s true finding
on the special circumstance conclusively established that he was not eligible for
resentencing. He argues that Banks and Clark significantly narrowed the definition of
both “major participant” and “reckless indifference to human life,” so that the jury’s pre-
Banks and Clark true findings do not establish that he comes within that definition.
Recently, however, in People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review
granted January 27, 2021, S265854, this court rejected an identical contention. (Id. at
pp. 482-485.) We held that “Banks and Clark did not change the law,” and therefore “[a]
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special circumstance finding renders [a petitioner] ineligible for relief under section
1170.95 as a matter of law.” (Id. at pp. 480-481.)
We readily acknowledge that there is a split of authority on this point. (Jones,
supra, 56 Cal.App.5th at pp. 482-483.) Unless and until the Supreme Court tells us
otherwise, however, we adhere to our opinion in Jones. Even though review in Jones has
been granted, it remains persuasive (Cal. Rules of Court, rule 8.1115(e)) in this court.2
As we suggested in Jones (Jones, supra, 56 Cal.App.5th at pp. 478-479, and cases
cited), a person in petitioner’s position is not wholly without a remedy. He or she can
challenge prior special circumstance findings in a habeas proceeding. (See, e.g., In re
Scoggins (2020) 9 Cal.5th 667, 676-683.) We express no opinion as to whether, in
petitioner’s case, there might be some procedural bar to such a proceeding at this point.
2 Earlier, in People v. Law (2020) 48 Cal.App.5th 811, review granted July 8,
2020, S262490, we held: “[T]he trial court erred by concluding the special circumstance
finding, on its own, rendered Law ineligible for relief [under section 1170.95] . . . .” (Id.
at p. 825.) We follow Jones, rather than Law, because Jones is more recent. (In re Lane
(1962) 58 Cal.2d 99, 105 [“It is an established rule of law that a later decision overrules
prior decisions which conflict with it, whether such prior decisions are mentioned and
commented upon or not.”].)
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III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J
We concur:
MILLER
J.
SLOUGH
J.
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