Filed 8/25/21 P. v. Marez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B308542
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA463818)
v.
CARLOS ALBERT MAREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Robert C. Vanderet, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Idan Ivri and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff
and Respondent.
This appeal is from the trial court’s summary denial of defendant
and appellant Carlos Albert Marez’s handwritten motion for
resentencing under Penal Code section 1170.95.1
Instructed on the principles of direct aiding and abetting (and not
the natural and probable consequences doctrine), a jury convicted
appellant as an aider and abettor in November 2018 of attempted
premeditated murder (§§ 664/187, subd. (a); count 1) and shooting at an
occupied vehicle (§ 246; count 2). The jury also found true that both
crimes were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)). Appellant was sentenced to 15 years to life
on count 1, plus a stayed five-year term on count 2.
We affirmed appellant’s conviction in his direct appeal in People v.
Marez (June 23, 2021, B303215 [nonpub. opn.] (Marez I).)2
In the meantime, prior to sentencing, in May 2019 appellant filed a
handwritten motion to vacate his conviction under section 1170.95.3 In
the motion, appellant stated that he “was convicted of aiding and
abetting, willful[] deliberate[] and premeditat[ed] attempted murder
1 Undesignated statutory references are to the Penal Code.
2 On our own motion, we take judicial notice of the record and opinion in
Marez I.
3 Section 1170.95, as enacted by Senate Bill No. 1437 (S.B. 1437),
provides that persons who were convicted under theories of felony murder or
murder under the natural and probable consequences doctrine, and who
could no longer be convicted of murder following the enactment of S.B. 1437,
may petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).)
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and shooting an occupied vehicle under this bill ‘1437.’ I am elig[i]ble to
have my conviction vacated because [of] the now amended natural and
probable consequences doctrine, which was used to convict[] me.
[Target] offense and non-target offense [Penal Code sections] 664/187
and 246.” Appellant stated that he was not requesting appointment of
counsel.
After he was sentenced, in August 2020 appellant filed a
handwritten letter to the superior court clerk requesting a copy of the
court’s ruling on his motion. The following month, a trial judge
different from the judge who had sentenced appellant summarily denied
his motion. Noting defendant’s convictions for attempted premeditated
murder, the court reasoned that appellant could not demonstrate that
he “‘could not be convicted of first or second degree murder because of
changes made to Section 188 or 189 made effective January 1, 2019.’”
In this appeal, appellant contends that his attempted murder
conviction is subject to the ameliorative provisions of S.B. 1437 and the
petitioning procedures of section 1170.95, because he could have been
convicted under the natural and probable consequences doctrine. He
also contends it was error under section 1170.95 to have a judge other
than the original sentencing judge rule on his motion absent a showing
in the record that the original sentencing judge was unavailable.
We conclude that regardless whether section 1170.95 applies to
attempted murder convictions under the natural and probable
consequences doctrine, appellant’s motion did not set forth a prima facie
case for relief, because he was not convicted on that theory. As such,
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the fact that a trial judge different from the sentencing judge ruled on
the motion was not prejudicial. We affirm the order.
BACKGROUND4
On August 17, 2017, Christian Hernandez and about 10 other
individuals attended a family barbeque at his mother’s home on East
3rd Street in Los Angeles. Around 11:45 p.m., Hernandez assisted
others in cleaning up the front yard. Several children were present.
A small, dark car (later determined to be appellant’s blue Ford
Escort) with two people inside drove up and stopped in the street in
front of the home. A man wearing a dark hooded sweatshirt covering
his head got out of the passenger side and approached the house. The
man pointed a gun at the people in the yard, and asked Hernandez,
“Where you from?” Hernandez told the man to put the gun away
because children were present. Hernandez also said they were “from
nowhere,” and that the people present were “paisas” (meaning “just
Mexicans” without gang connections).
The man ran back to appellant’s car and got in on the passenger
side. After herding his family indoors, Hernandez ran to his car,
thinking he could use it to block appellant’s car from coming near his
family. Meanwhile, appellant’s car had driven away on 3rd Street, then
made a U-turn and returned to within 60 feet of Hernandez’s car, at
4 We recite the factual background from our opinion in Marez I.
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which point Hernandez’s car and windshield were struck by at least one
bullet.
Hernandez rammed his car into the front of appellant’s car,
pushing it toward the sidewalk and forcing it into a parked car. At
least three shots had been fired at Hernandez before he rammed
appellant’s car. Numerous shots followed, for a total of up to 15
gunshots. Hernandez’s girlfriend testified that when appellant’s car
had returned, she saw the person who had earlier approached the
house; the person stood outside appellant’s car and was shooting a rifle
at Hernandez’s car.
After ramming appellant’s car, Hernandez drove away out of
concern for his family. Meanwhile, two men from inside appellant’s car
ran off.
When officers from the Los Angeles Police Department arrived,
they found 10-to-12 bullet casings in the street, and damage to the front
end of appellant’s abandoned Ford Escort. The car had no bullet holes
in it, nor were any bullet casings found inside the car. The car’s airbags
had deployed, and appellant’s blood was found on the driver’s side
airbag. Inside the car officers recovered a traffic ticket issued to
appellant, a notebook and speaker (each containing gang writing), and
two cell phones.
As relevant here, the court instructed the jury on attempted
murder (CALCRIM No. 600), attempted premeditated murder
(CALCRIM No. 601), union of act and intent (CALCRIM No. 252),
general principles on aiding and abetting (CALCRIM No. 400), and
aiding and abetting intended crimes (CALCRIM No. 401). The jury
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instructions referred only to direct aiding and abetting. The jury did
not receive instructions on attempted murder or attempted
premeditated murder under the natural and probable consequences
doctrine. (See CALCRIM Nos. 402-403.)
DISCUSSION
1. Governing Law: S.B. 1437 and Section 1170.95
The legislature enacted S.B. 1437 “to amend 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), italics
added; accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952,
959 (Lewis).)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony murder or murder under the natural and
probable consequences doctrine, but who could not be convicted of
murder following S.B. 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1170.95, subd. (a); see Lewis, supra, 11
Cal.5th at p. 959 [“section 1170.95 . . . provides a procedure for
convicted murderers who could not be convicted under the law as
amended to retroactively seek relief”].) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he or
she is eligible for relief under section 1170.95 based on all the
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requirements of subdivision (a), the superior court case number and
year of the petitioner’s conviction, and a request for appointment of
counsel, should the petitioner seek appointment. (§ 1170.95, subd.
(b)(2).)
Subdivision (c) of section 1170.95 provides: “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. These deadlines shall be extended for good cause. 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.”
The Supreme Court recently clarified that subdivision (c) of
section 1170.95 describes “only a single prima facie” stage of review.
(Lewis, supra, 11 Cal.5th at p. 962.) Under subdivision (c), “a complying
petition is filed; the court appoints counsel, if requested; the issue is
briefed; and then the court makes one . . . prima facie determination.”
(Id. at p. 966, italics added.)
To determine whether a petitioner has made a prima facie case for
section 1170.95 relief, the court “‘“takes petitioner’s factual allegations
as true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.”’
([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 978.) . . . ‘However,
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if the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.”’ (Drayton, at p. 979, quoting [In re] Serrano [(1995) 10
Cal.4th 447,] 456.)” (Lewis, supra, 11 Cal.5th at p. 971.) “[T]he parties
can, and should, use the record of conviction to aid the trial court in
reliably assessing whether a petitioner has made a prima facie case for
relief under subdivision (c).” (Id. at p. 972.)
2. Analysis
Appellant contends the ameliorative provisions of S.B. 1437 and
the petitioning procedures set forth in section 1170.95 apply to
attempted murder convictions under the natural and probable
consequences doctrine, a theory on which he suggests his conviction
could be based. He is mistaken.
There is currently a debate in the case law whether or how section
1170.95 applies to attempted murder convictions based on the natural
and probable consequences doctrine, and the question is pending before
the California Supreme Court.5 Regardless of the ultimate outcome of
5 All of the cases on which appellant relies have addressed the
application of S.B. 1437 and section 1170.95 to attempted murder convictions
under the natural and probable consequences doctrine. Those cases have
either categorically excluded from section 1170.95 relief attempted murder
convictions under the natural and probable consequences doctrine (People v.
Lopez (2019) 38 Cal.App.5th 1087, 1103–1110, rev. granted Nov. 13, 2019,
S258175 (Lopez); People v. Harris (2021) 60 Cal.App.5th 557, 566, rev.
granted Apr. 21, 2021, S267529; People v. Love (2020) 55 Cal.App.5th 273,
279, rev. granted Dec. 16, 2020, S265445; People v. Alaybue (2020) 51
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that debate, appellant is not entitled to relief: even if section 1170.95 is
deemed to apply to attempted murder convictions under the natural
and probable consequences doctrine, appellant’s conviction was not
based on that theory. The jury did not receive instructions on it (see
CALCRIM Nos. 402-403),6 and was not instructed on any target crime
upon which the natural and probable consequences doctrine could be
predicated. Obviously, the jury could not have convicted appellant on a
theory it never received.
On the contrary, the instructions the jury received conclusively
demonstrate that appellant was tried and convicted of direct aiding and
abetting attempted premeditated murder. (See CALCRIM Nos. 401,
600-601.) Under those instructions, to convict appellant the jury had to
find that he knew of the shooter’s unlawful purpose and aided,
Cal.App.5th 207, 222; People v. Dennis (2020) 47 Cal.App.5th 838, 846, rev.
granted July 29, 2020, S262184; People v. Munoz (2019) 39 Cal.App.5th 738,
753–760, rev. granted Nov. 26, 2019, S258234), or have held that section
1170.95 provides no relief for such convictions that are already deemed final
(People v. Sanchez (2020) 46 Cal.App.5th 637, 642–644, rev. granted June 10,
2020, S261768; People v. Medrano (2019) 42 Cal.App.5th 1001, 1019, rev.
granted Mar. 11, 2020, S259948; People v. Larios (2019) 42 Cal.App.5th 956,
969–970, rev. granted Feb. 26, 2020, S259983). The Supreme Court’s grant of
review in Lopez is limited to whether S.B. 1437 applies to “attempted murder
liability under the natural and probable consequences doctrine.” (Lopez,
supra, S258175.)
6 Under the natural and probable consequences doctrine, a defendant
“‘“who knowingly aids and abets criminal conduct is guilty of not only the
intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable
consequence of the intended crime.”’” (People v. Chiu (2014) 59 Cal.4th 155,
161.)
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facilitated, promoted, or instigated the shooter’s commission of murder.
In other words, the jury had to find that appellant “‘“share[d] the
specific intent of the perpetrator”’” to kill the victim. (People v. McCoy
(2001) 25 Cal.4th 1111, 1118; accord, People v. Prettyman (1996) 14
Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 560.) Our
prior opinion in Marez I confirms this finding. (See Marez I, at p. 5
[“there was sufficient evidence to show that appellant was aware of the
shooter’s intent and had the specific intent to further his co-gang
member’s criminal conduct”].) Because the ameliorative provisions of
S.B. 1437 and the petitioning procedures of section 1170.95 do not apply
to appellant’s conviction, the trial court did not err by summarily
denying his motion. (See Stats. 2018, ch. 1015, § 1, subd. (f).)
In light on the foregoing, we reject appellant’s second contention
that reversal is required because Judge Vanderet (a judge other than
the original sentencing judge, Judge Swain) ruled on his motion.
Subdivision (b)(1) of section 1170.95 provides in part that a petition for
resentencing “shall be filed with the court that sentenced the
petitioner . . . . If the judge that originally sentenced the petitioner is
not available to resentence the petitioner, the presiding judge shall
designate another judge to rule on the petition.” Our colleagues in
Division Five have held this provision requires “the individual public
official” who sentenced the petitioner to rule on the petition unless the
record shows the presiding judge of the superior court determined that
the “individual” was not available to rule on the petition. (People v.
Santos (2020) 53 Cal.App.5th 467, 474.)
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As discussed above, the record conclusively establishes that
appellant was ineligible for relief under section 1170.95 as a matter of
law. Any alleged error in assigning his motion to a judge other than the
sentencing judge without a showing that the sentencing judge was
unavailable was not prejudicial. (See People v. Daniel (2020) 57
Cal.App.5th 666, 679, rev. granted Feb. 24, 2021, S266336; see also
Lewis, supra, 11 Cal.5th at pp. 973-974 [applying People v. Watson
(1956) 46 Cal.2d 818 to erroneous denial of section 1170.95 petition
prior to the issuance of an order to show cause].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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